Death Row Inmate Likely Winner on Mental Disability

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By Nicholas Datlowe

Nov. 29 — It’s unconstitutional to execute the mentally disabled. The U.S. Supreme Court at oral argument Nov. 29 wrestled with how states may determine who qualifies as mentally disabled ( Moore v. Texas, U.S., No. 15-797 , argued 11/29/16 ).

The court’s liberals hammered Texas Solicitor General Scott A. Keller, arguing for the state, over Texas’s application of intellectual disability standards that appeared to incorporate stereotypes.

Justice Anthony M. Kennedy, on whom the court’s decision will likely turn, questioned both Keller and Clifford M. Sloan of Skadden, Arps, Slate, Meagher & Flom LLP, Washington, who represented defendant Bobby Moore.

Though Kennedy played his cards close to his chest, he expressed skepticism about Texas’s standard, strongly suggesting Moore will ultimately succeed.

The court’s conservatives appeared to be fighting a rear-guard action to minimize the sweep of the eventual opinion. They suggested that the question presented didn’t match the issues raised in the briefing and appeared to offer only tepid support for Texas’s position.

Disability Disagreement

Moore was convicted in 1980 of killing a grocery clerk during the course of an attempted robbery. He was sentenced to death.

In 2014 he sought habeas corpus relief on the basis that he was mentally disabled.

Under Atkins v. Virginia, 536 U.S. 304 (2002), states may not execute the mentally disabled. Under Hall v. Florida, 82 U.S.L.W. 4373, 2014 BL 145335 (U.S. May 27, 2014), states may not use a rigid, IQ-based standard to determine who is mentally disabled.

A lower court initially granted relief. That court determined that Moore qualified as mentally disabled based on state-of-the-art clinical definitions and modern diagnostic techniques developed by the American Association on Intellectual and Developmental Disabilities and the American Psychiatric Association.

But the Texas Court of Criminal Appeals reversed, holding that Moore didn’t qualify under the older standards that the court adopted in Ex Parte Briseno, 135 S.W.3d 1 (Tex. Ct. App. 2004).

Liberals Lay In

Questioning from Justices Elena Kagan and Sonia Sotomayor left no doubt where their thinking lay.

“It seems to me what the Texas court did is to say, look, we’re going to accept” the modern test to determine intellectual disability, but “we’re not going to accept the clinicians’ view” about the quality and degree of impairment, “so that people with mild impairment can be executed, even though the clinicians would find those people to be intellectually disabled,” Kagan said.

Keller argued that Texas used a test consistent with the modern test the defendant proffered, but Kagan wasn’t convinced.

Texas’s articulation of the test “doesn’t tell you anything about what qualities to look to and the extent of impairment,” and “that’s where the Texas court has insisted upon its freedom to go out on its own,” she said.

“I thought that was the point of Hall: No, that’s wrong. You don’t get to apply it however you want,” she said.

Limiting Test

Sotomayor picked up this line of attack.

“Is it fair to say that in Texas, a mildly disabled person is unlikely to be considered disabled by the CCA under the Briseno factors?”

Keller disagreed, but Sotomayor pointed out that there were no cases where a mildly disabled person had been found disabled under that test.

“The theme of” Moore’s brief is “that the Briseno factors are intended to really limit the classification of those persons with intellectual disability as defined by an almost uniform medical consensus,” Kennedy added. “Can they be an exhaustive list?”

Kagan pointed out that the CCA incorporated the Briseno factors because they better reflected what Texas citizens—as opposed to clinicians—believed should be the test for mental disability.

“That was the genesis of the standards, which suggests that Justice Kennedy is right about how they operate and also how they were intended to operate,” she said.

Changing the Subject

The court’s liberals appeared to give Moore reason for optimism, but the court’s conservatives did not appear to give much hope to Texas.

Chief Justice John G. Roberts Jr. began the questioning of Sloan by noting that the briefing in the case raised a number of objections to Texas’s mental disability standards, but that the initial petition raised only one: whether Texas could prohibit the use of the current standards to determine mental disability.

“I’m just wondering if you got yourself in the door with a dramatic question presented and are now going back” to argue an issue that would exist no matter which standards were used.

Sloan responded that the longer list of objections was “woven in” to the question presented, because the decision of the CCA had incorporated them into their opinion disallowing use of the current standards. He also noted that the issues had been presented and responded to in the briefing on the petition for review. (85 U.S.L.W. 671, 11/24/16)

Roberts appeared to be suggesting that the case should be dismissed as improvidently granted. The court Nov. 17 dismissed two related antitrust cases— Visa, Inc. v. Osborn, No. 15-961, and Visa, Inc. v. Stoumbos, No. 15-962—for relying on an argument not presented in the petitions for review.

After this initial set of questions, Roberts contented himself to direct traffic, albeit perhaps with some exasperation.

At one point he told Sloan to answer a question from Sotomayor before one from Justice Samuel A. Alito Jr.; at another he gave Kagan the floor when she, Sotomayor and Justice Stephen G. Breyer all indicated that they wanted to ask Keller questions.


Only Alito appeared to defend Texas’s standards on the merits.

Sloan noted that the CCA had taken Moore’s intellectual strengths into account in making the disability determination.

“Is there a consensus in the medical community that that’s improper?” Alito asked.

When Sloan answered in the affirmative, Alito referred to a paper submitted by an amicus suggesting that such analysis was actually proper. “Are these quacks?” he asked.

Sloan pointed out that the AAIDD and APA standards were “very explicit” in focusing on cognitive impairment, not strengths.

But if a majority of professional organizations concluded one thing, but respected experts disagreed, “you’re saying the state is obligated as a matter of constitutional law to follow the organizations?” Alito asked.

Kagan suggested that Sloan and Alito were actually talking past each other. The consensus test relies on determining whether there were deficits in certain areas, and that deficits in some areas and mental disability could exist regardless of stronger cognitive abilities in others, she said.

Breyer on Offense

Meanwhile, Breyer was clearly looking beyond this case to a more fundamental question he has raised before: whether the death penalty is constitutional at all.

In close cases, courts will have difficulty determining who does and doesn’t qualify as mentally disabled. “What is the court supposed to do? Are we supposed to have all those hearings here?” he asked Sloan.

“I mean, you’ve made very good arguments for your client,” he continued. But “point me to something that will tell me how a district judge should go about making this determination in borderline cases.”

“My suspicion is that there is no such thing,” he added.

Later, Breyer pressed Keller on whether the purpose of Atkins was to allow each state to determine which borderline individuals it would be allowed to execute. “I thought it had a different purpose,” to “appeal to technical definitions of who is and is not mentally retarded or intellectually disabled.”

“That’s a real issue. But I think that this case does present that issue,” Breyer added.

The questioning echoed the concerns he first expressed in his dissent, joined by Justice Ruth Bader Ginsburg, to Glossip v. Gross, 83 U.S.L.W. 4656, 2015 BL 206563 (U.S. June 29, 2015). There, he argued that “serious unreliability” and “arbitrariness in application” strongly suggested that the death penalty was now “a legally prohibited ‘cruel and unusual punishmen[t]'" under the Eighth Amendment.

Moore’s case created quite a stir when the court granted certiorari in June. The court initially granted certiorari on both questions presented in the petition, including one challenging the constitutionality of holding Moore on death row for 36 years. The court later limited its grant to the issue presented here.

To contact the reporter on this story: Nicholas Datlowe in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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