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The subject of intellectual disability and the death penalty was before the U.S. Supreme Court today. It's something the court has considered before. At issue in today's case? The standard used by courts in Texas, which executes more people than any other state. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: In 2002, the Supreme Court barred execution of the intellectually disabled, but it left the states some latitude in determining who is and is not, quote, "mentally retarded," as the court put it at the time. Then two years ago, the court put its thumb more firmly on the scale, telling states they were not free to use a rigid IQ test score alone to determine disability, but must look to the medical community's current diagnostic framework, a framework that specifies additional factors.
Before the court today was the case of convicted murderer Bobby Moore, whose IQ tests averaged 70, who, as a 13-year-old, could not tell the days of the week, the months of the year or the difference between addition and subtraction. A trial judge concluded he was intellectually disabled and exempt from the death penalty. But the Texas Court of Criminal Appeals said that based on what a consensus of Texas citizens would think, Moore was mildly disabled and thus not exempt from execution.
At today's Supreme Court argument, a majority of the justices expressed some qualms about that standard. Justice Kagan said the Texas court was evaluating mental disability based on a, quote, "stereotypical layperson's view" instead of the clinician's view. Texas Solicitor General Scott Keller rejected that characterization, saying the Texas standard uses the totality of the circumstances. Kagan replied that the genesis of these factors used by the Texas court was that clinical standards are just too subjective and they don't reflect what Texas citizens think.
Justice Kennedy observed that the effect would seem to limit the number of people classified as intellectually disabled for purposes of the death penalty. Keller conceded that the factors used by the Texas court do not capture all those who are mentally disabled. That's why he said the factors are discretionary. Justice Ginsburg - isn't that a huge problem? Then you're opening the door to inconsistent results depending on who is sitting on the trial court bench, something we try to prevent from happening in capital cases.
Justice Breyer asked, why did the Texas court write these standards? Because, he said, they are trying to figure out what to do in borderline cases, trying to figure out the level at which Texas citizens would agree that a person should be exempted from the death penalty. But Breyer said the question is not what the citizens of Texas think about who should be executed. It is a technical matter as to what standard should be used to determine disability with the consequence that some will be exempt from execution and others will not.
Moore's lawyer, Clifford Sloan, argued today that the Texas court, through a series of rulings, has set up a system under which only the most severely intellectually disabled are exempt from the death penalty. But, he said, this court ruled in 2002 that there is a bright-line exemption for the mentally disabled, not just the most severely disabled. Justice Kennedy, whose vote will likely be decisive in the case, noted, however, that the court in 2002 also left the states some discretion in defining intellectual disability. So, he asked, how closely must the states stick to current medical practices?
Sloan replied that one telling factor is how the state defines intellectual disability for other purposes. And in his words, Texas uses outdated medical standards only in the death penalty context. A decision in the case is expected by summer. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
