Justices hint at wider death-penalty exemption for disabled

November 29, 2016

A narrow U.S. Supreme Court majority signaled it may force Texas to broaden its death-penalty exemption for people who are intellectually disabled.

Hearing arguments in Washington, Justice Anthony Kennedy joined the court’s liberal wing in suggesting that the state is improperly letting people be executed even though they are disabled under what he called an "almost uniform medical consensus."

The Supreme Court barred the execution of intellectually disabled people in 2002 as violating the constitutional ban on cruel and unusual punishments. To a large degree, however, the court left it to the states to determine who qualifies for that exemption.

Texas is one of the nation’s top death-penalty states, with 243 people on death row, according to the Texas Department of Criminal Justice.

The high court is weighing the case of Bobby James Moore, 57, who was convicted of fatally shooting James McCarble during a 1980 grocery store robbery in Houston. In upholding Moore’s death sentence, Texas’s top criminal appeals court said the state could continue to use a 1992 definition of intellectual disability as part of a multi-factor test for determining eligibility for capital punishment.

The state court also said it stood by a 2004 ruling that used Lennie Small, a mentally challenged character in John Steinbeck’s novel "Of Mice and Men," as an example of someone who might be exempt from the death penalty.

Moore’s lawyer, Cliff Sloan, argued that when judges consider intellectual disability, they should consult the most recent clinical definitions established by medical groups including the American Psychiatric Association. He said Texas had adopted a "unique approach" that prohibits use of those standards.

Texas Solicitor General Scott Keller said only four death-penalty states have "categorically wholesale adopted" the clinical definitions of intellectual disability. The state contends about 24 other states define intellectual disability much as it does.

Justice Elena Kagan said Texas’s test for intellectual disability had problems beyond its use of outdated medical standards. She faulted the test for relying on "what the neighbor said and what the teacher with absolutely no experience with respect to intellectual disabilities said" about a defendant’s capabilities.

Chief Justice John Roberts, however, questioned whether those issues were properly before the justices. He said the court had agreed to decide only whether Texas could require the use of outdated medical standards.


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