With Moore, the habeas court used the standard “three-prong” test to determine intellectual disability, which is part of the clinical consensus on the matter, the Supreme Court found.
This test looked for “intellectual functioning deficits,” or an IQ score of around 70 adjusted for error, “adaptive functioning deficits,” and whether these deficits began to show when the person was still a minor.
A Texas criminal appeals court, however, disregarded five of Moore’s seven IQ scores that factored into the habeas court’s ruling, keeping only scores of 74 and 78 that Moore received in 1989 and 1973, respectively, and “discounted the lower end of the standard-error range associated with those scores,” as the Supreme Court’s opinion noted.
The appeals court ruled that according to an earlier medical standard of intellectual disability – which was in place before Moore was convicted in his 2001 re-trial – as well as according to the state’s “Briseno factors” test, Moore was eligible for the death penalty.
The Briseno factors test is a standard used by Texas in addition to the three-pronged standard for disability. The test includes questions like whether someone is able to lie, and if their neighbors thought they were disabled as a child. Critics have insisted that the factors are non-clinical.
Critics also note that the Briseno factors are not used to determine one’s eligibility for other state programs like social services. They have been used to deem others in Texas fit for the death penalty, including, in 2012, a man who scored a 61 on an IQ test.
Moore’s case was eventually appealed to the U.S. Supreme Court. In a 5-3 decision on Tuesday, the Court overturned the criminal appeals court’s decision, saying the Briseno factors were outside of the clinical consensus means of evaluating one’s mental capacity and adding that the appeals court strayed from Supreme Court precedent in its decision.
Robert Dunham, executive director of the Death Penalty Information Center, said that although the Supreme Court ruled in Atkins v. Virginia that executing an intellectually disabled person violated the Eighth Amendment’s ban on cruel and unusual punishment, states could still determine one’s eligibility for the death penalty so long as their standards were within the clinical consensus.
Some states, however, thought this decision gave them broader discretion than was warranted to determine disability, he said. States like Texas and Florida used non-clinical standards, which led to later cases like Moore and Hall v. Florida where the Court found those standards unconstitutional.
“I think what the Court intended in Atkins, that discretion was not set up so that states could nullify Atkins by creating inappropriate hurdles for proving intellectual disability,” Dunham noted.
The majority opinion in Moore, authored by Justice Ruth Bader Ginsburg who was joined by Justices Stephen Breyer, Anthony Kennedy, Sonia Sotomayor, and Elena Kagan, “said the state’s discretion is not unfettered,” Dunham said.
“All the members of the Court agreed that the intellectual disability determination needs to be informed by the diagnostic framework.”
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Texas’ Briseno standard for evaluating intellectual disability is “an invention of the CCA [Criminal Court of Appeals] untied to any acknowledged source,” the Court stated, saying the standards were an “outlier” as other states had not adopted them and Texas did not even use them for cases other than the death penalty.
“Not aligned with the medical community’s information, and drawing no strength from our precedent, the Briseno factors ‘creat[e] an unacceptable risk that persons with intellectual disability will be executed’,” the opinion stated.
“Mild levels of intellectual disability, although they may fall outside Texas citizens’ consensus, nevertheless remain intellectual disabilities,” they insisted.
The dissent, written by Chief Justice John Roberts and joined by Justices Clarence Thomas and Samuel Alito, admitted that the Briseno factors “are an unacceptable method of enforcing the guarantee of Atkins.”
However, Roberts added that he did not think the appeals court “erred as to Moore’s intellectual functioning.”
Furthermore, the Court majority set about determining what was the “medical consensus about intellectual disability” when that judgment should be left to “clinicians,” Roberts insisted.