Monday, November 7, 2016

John Blume Op-Ed in National Law Journal: Why SCOTUS must enforce Atkins protection: Texas Briseno factors

National Law Journal (Op-Ed)
Why the Supreme Court Must Enforce 'Atkins ' Protection in Capital Cases
OPINION: Later this month, Texas' legal standard on the intellectually disabled will be examined.
 John Blume,
November 7, 2016  

In Atkins v. Virginia the U.S. Supreme Court, in 2002, ruled that the Eighth Amendment's cruel and unusual punishment clause prohibits the execution of persons with intellectual disability. Given that intellectual disability is a long-­standing, well-established clinical diagnosis, the court naturally relied upon the scientifically valid, clinical consensus definitions of intellectual disability in creating the categorical bar.

Since Atkins, several states, ­primarily Florida and Texas, have exhibited displeasure with — and resistance to — the Supreme Court's decision by embracing nonclinical and unscientific practices that are intended to limit the effect of the constitutional mandate.

In Hall v. Florida, the Supreme Court, in 2014, addressed and rejected Florida's "bright line" 70 IQ score cutoff test for assessing intellectual disability, finding it fundamentally at odds with the generally accepted understanding that intellectual disability is "more than a number." This brought Florida back in line with the current science of intellectual disability.

This term, when Moore v. Texas is argued on Nov. 29, the court will consider Texas' attempt to make death row inmates' assertions of intellectual disability extremely difficult to establish.

Shortly after Atkins, the Texas Court of Criminal Appeals, in Jose Briseno's case (ex parte Briseno), expressed its dissatisfaction with the Atkins decision, declaring that its task was to determine "that level and degree of [intellectual disability] at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty."

However, that was simply wrong. The Supreme Court had already decided in Atkins that any person with intellectual disability is exempt from the ultimate punishment. The court did not give Texas license to decide that some persons who have intellectual disability can nevertheless be executed because they do not have the "degree" of intellectual disability meeting a Texas-centric consensus. But that is what the state court did.

After explaining that the fictional character Lennie from Steinbeck's "Of Mice and Men" would meet Texas's definition, it created out of whole cloth seven "evidentiary factors" for Texas courts to consider in assessing claims of intellectual disability. The so-called Briseno factors are steeped in misconceptions and lay stereotypes of intellectual disability, and include clinically meaningless considerations, repudiated by the medical community, such as whether an individual's family and friends considered him intellectually disabled during his childhood and whether a person is capable of lying and hiding facts.

The Briseno factors are idiosyncratic to Texas. No other state has embraced them for use in capital cases where intellectual disability is at issue. In fact, even within Texas, the Briseno factors are not used in any other medical or legal context, like disability benefits or special-education determinations. The Texas capital-punishment system is, in short, an outlier. And its use of the aptly named "Lennie standard" explains why death row inmates with very strong claims of intellectual disability (such as Bobby Moore) routinely have those claims rejected. Texas has one of the lowest defendant success rates in the Atkins context in the nation.

The Supreme Court in Hall made clear that states' intellectual-disability determinations must be "informed by the medical community's diagnostic framework." Texas' use of the fictional character Lennie in establishing the intellectual disability baseline, combined with the creation and application of the Briseno factors, violates this requirement.

The clinical consensus definition of intellectual disability has three prongs: (1) significantly subaverage intellectual functioning; (2) significant deficits in adaptive functioning; and (3) onset in the developmental period. In Hall, the Supreme Court corrected Florida's deviation from the diagnostic framework on prong 1 by rejecting the state's bright-line rule that a person must have an IQ of 70 or below, regardless of the standard error of measurement inherent in any test of intelligence.

The Moore case presents the Supreme Court with Texas' nonscientific gloss on prong 2. Since Briseno, Texas courts have assessed adaptive deficits based on misconceptions about intellectual disability. Texas courts have used a person's ability to perform basic life functions like holding an unskilled job, surviving on the streets or obtaining a driver's license to negate compelling evidence of intellectual disability. But the medical community recognizes that many people with intellectual disability can perform these functions, and giving dispositive weight to perceived "strengths" while ignoring deficits is at odds with the basic diagnostic criteria.

The Supreme Court in Moore now has the opportunity to at least partially fix the underenforcement of Atkins in Texas. A trial judge, after hearing the testimony of several expert witnesses, concluded that Bobby Moore was a person with intellectual disability and that his death sentence should be commuted to life imprisonment without the possibility of parole.

Using the strict nexus requirement and the Briseno factors, the Texas Court of Criminal Appeals overturned the lower court's judgment. In doing so, the state court rejected the consensus clinical definition of intellectual disability and failed to use the scientifically mandated diagnostic framework.

Intellectual disability should not mean something different in Texas capital cases than it does in other death penalty jurisdictions. The Atkins court spoke of the risk of the wrongful execution of persons with intellectual disability. That risk is currently a reality in Texas and it is time for the Supreme Court to change that.
John Blume is the Samuel F. Leibowitz Professor of Trial Techniques at Cornell Law School.