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.
