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Drawing the I.Q. line for the death Penalty

An in depth look into the relationship between intellectual disabilities and the death penalty sentence.

The Eighth Amendment’s prohibition on cruel and unusual punishment exempts persons with intellectual disabilities from the death penalty.  That idea is fairly young and our highest court continues to flush out the constitutionality of executions of the intellectually disabled.  Last month, in a 5-3 decision authored by J. Ginsburg, the United States Supreme Court held that a Texas court’s application was unconstitutional. The Texas court applied superseded medical diagnostic definitions of intellectual disability, as well as factors based on lay perceptions of the intellectually disabled, to determine who is exempted from the death penalty on the basis of intellectual disability.

The constitutional prohibition on the execution of defendants with intellectual disabilities is a recent development.  In 2002, in Atkins v. Virginia, that the Supreme Court held that executing an individual with an intellectual disability was a violation of the Fourteenth and Eighth Amendment’s prohibition on  cruel and unusual punishments.  The defendant in the case, Daryl Atkins was convicted of kidnapping, robbing, and fatally shooting a man, and he was sentenced to death in an original and subsequent trial.  After exhausting his state appeals, Atkins appealed his death sentence to the United States Supreme Court and cert was granted.  Writing for the majority, J. Stevens addressed the growing national consensus, evidenced by legislative actions and discourse, unfavorable of executing those with intellectual disabilities.  Further, the opinion discussed the lack of value of sentencing those with intellectual disabilities to death under various theories of punishment.  The Court did not set forth a standard for determining what qualifies as an intellectual disability, but rather, left it to the states to determine how to enforce the new constitutional limitation on sentencing.  Atkins’ death sentence was reversed and the case was remanded.

A little over a decade later, in 2014, the Supreme Court announced its decision in Hall v. Florida, which narrowed the discretion of states in determining what constitutes an intellectual disability for purposes of capital cases.  Freddie Hall, an individual who’s intellectual capacity was compared to that of a toddler, was convicted of and sentenced to death for the kidnapping, rape, and murder of a young pregnant woman and the murder of a sheriff’s deputy.  Though his death sentence for the murder of the sheriff’s deputy was reversed on evidentiary grounds, Hall sought post-conviction relief to overturn his death sentence for the murder of the woman.  Hall exhausted his state appeals and cert was granted by the United States Supreme Court.  At issue was a Florida law which foregoes any further exploration of the intellectual disability status of a person sentenced to death if their IQ is found to be at or above 70.  Each of Hall’s scores that were admitted into evidence were within the 71-80 range, barring further exploration into the possibility of him being intellectually disabled.  Writing for the majority, J. Kennedy discussed the motivations for exempting the intellectually disabled from the death penalty and the issues with the Florida law.  The Court held that the Florida statute was likely not in violation of the Eighth and Fourteenth Amendments; however, the Florida Supreme Court’s application of the law was. The Florida Court’s application of the 70 I.Q. score cut-off failed to take into account statistical variation with in the test.  Thus, the law created the risk that those with a true IQ lower than 70 would be barred from presenting further evidence of intellectual disability simply because their reported score was at or above 70.  Further, the IQ of an individual only measures one of three components of the definitional test for intellectual disability and the medical community recognizes that the failure to satisfy one component of the test, the intellectual function deficiency, may be compensated for by such a gross satisfaction of, adaptive deficiency.

According to the court, the answer is the level of intellectual disability exhibited by the character Lennie in Steinbeck’s Of Mice and Men

A final case necessary to consider before understanding Moore is Ex parte Briseno, a Texas death penalty case.  At the time, the Texas legislature had not passed legislation on the matter and the Texas court took the opportunity to define intellectual disability for death penalty purposes.  Briseno was convicted of and sentenced to death for stabbing a prison guard and murdering a law enforcement officer.  He claimed on habeas appeal that he was constitutionally exempt from the death penalty sentence under Atkins.  In analyzing Briseno’s claim, the court sought to define the level of intellectual disability at which a consensus of Texas citizens would exempt a person from the death penalty.  According to the court, the answer is the level of intellectual disability exhibited by the character Lennie in Steinbeck’s Of Mice and Men.

The court utilized the American Association on Mental Retardation’s current diagnostic definition of mental retardation with three components. First, the individual experiences significant sub average intellectual function.  Second, the intellectual deficiencies are accompanied by related deficiencies in adaptive functioning.  Finally, the individual experiences the onset of intellectual and related adaptive deficiencies prior to turning 18-years-old.  The court also outlined several factors to supplement the “exceedingly subjective” adaptive function component of the definition to be used in criminal trials. These include whether those who knew the defendant in developmental stages think he was mentally retarded, whether the defendant’s actions were impulsive or part of a plan, whether the person can lie effectively in his or another’s interest, whether the defendant can respond coherently and rationally to questions, and more.  Briseno failed to demonstrate significant deficiencies in adaptive functioning and his application for habeas was denied.

In the case of Moore v. Texas, Bobby James Moore, since a young age, had experienced some level of diminished mental capacity.  At the age of 13, Moore was unable to understand the days of the week, months of the year, the idea that addition was the opposite of subtraction, and units of measurement.  He also had difficulty telling time.  Throughout school, Moore was separated from his peers and struggled to keep up with lessons.  He was perceived as ‘stupid” by his peers, teachers, and father due to his slow reading and speech.  Moore eventually dropped out of high school after failing every subject in ninth grade.  At some point, Moore was cast out of his familial home and lived on the streets where he continuously ate from garbage cans even after two cases of food poisoning.  In 1980, when he was 20-years-old, Moore participated in a robbery of a grocery store with two others.  During the robbery, Moore shot and killed a clerk for which he was convicted of murder and sentenced to death.

The court found that Moore demonstrated sufficient adaptive skills throughout his schooling, trial, while in prison, while living on the streets, and in playing pool.

Following his first conviction of capital murder, Moore appealed to a federal habeas court and his death sentence was vacated due to ineffective assistance of counsel.  That decision was appealed to and affirmed by the Fifth Circuit.  Moore was tried again for the same murder and was sentenced to death again in 2001.  This second conviction and sentencing were upheld on appeal to the Texas Court of Criminal Appeals.  With no success on his criminal appeal, Moore sought state habeas relief and a hearing was held in 2014.  At this hearing, the state habeas court heard evidence from Moore’s family, prior counsel, and a number of mental health experts evidencing his social and mental difficulties.  The court recommended that Moore’s death sentenced be reduced to life imprisonment or a new trial be held due to his intellectual disability.  The court, in coming to this conclusion, relied on current medical diagnostic standards, including those found in the eleventh edition of the American Association on Intellectual and Developmental Disabilities Clinical Manual and the fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM).

Specifically, the court looked to the most recent version of the uncontroversial diagnostic definition of intellectual disability which has three components. The diagnostic definition looks at the individual’s intelligence quotient (IQ) and evidences diminished intellectual functioning if the score falls around two standard deviations below the median IQ, or roughly a score of 70.  The court found that six of Moore’s IQ scores, averaging 70.66, indicated mild intellectual deficiencies.  The test then looks at whether the individual has adaptive deficiencies or an inability to learn new skills or modify behavior with changing circumstances.  The court found, based on the testimony of several mental health experts, that Moore experienced significant adaptive deficiencies.  Moore’s adaptive skills fell roughly two standard deviations below the median in all three adaptive skill sets: social, practical, and conceptual.  Lastly, the test considers if the individual experienced the onset of the intellectual and adaptive deficiencies while still a minor.  This was found to be the case with Moore.

However, the Texas Court of Criminal Appeals rejected the habeas court’s recommendations on the grounds that the habeas court did not apply the proper test for determining if someone experiences intellectual disabilities.  Instead, the appellate court re-affirmed the mental retardation test laid out in Briseno—a superseded version of the medically current definition used by the habeas court.  The appellate court found, applying the Briseno test, that the evidence did not support a finding that Moore experienced significant sub average intellectual functioning.  In reaching this conclusion, the court limited it’s analysis of Moore’s intellectual functioning abilities to the two highest IQ scores presented to the habeas court.  Further, the appellate court did not take into consideration the lower end   of the standard of error range for these two scores.  The court reasoned that the poor performance on the other tests may be due to Moore’s poor performance throughout school and the depressive behaviors exhibited by Moore while on death row.  Additionally, according to the appellate court, Moore failed to prove he experienced significant adaptive deficiencies which are related to any intellectual deficiencies.  Though Moore demonstrated sub-par adaptive skills in an evaluation by a state expert, the state’s expert discounted those tests because the activities used in the test, such as writing a check and using a microwave, were activities with which Moore had little experience. Further the court found that Moore demonstrated sufficient adaptive skills throughout his schooling, trial, while in prison, while living on the streets, and in playing pool.

In the view of the appellate court, the habeas court placed too much emphasis on the adaptive weaknesses of Moore and not enough on his adaptive strengths.  Finally, the appellate court determined that the habeas court erred in determining whether Moore’s adaptive deficiencies were caused by intellectual deficiencies and not any other factors such as child abuse, multiple school transfers, or a history of poor academic performance.  The appellate court applied the seven Briseno factors to determine whether Moore’s adaptive deficiencies were caused by intellectual deficiencies, but found that the factors weighed against such a finding.  This consideration of causation is the key difference between the intellectual disability test utilized by the habeas court and the Briseno test re-affirmed by the appellate court.  The appellate court’s dissent criticized the majority for relying on superseded medical standards for determining if an individual has an intellectual disability and argue that Atkins and Hall require that states utilize current medical standards to determine intellectual disability status for purposes of death sentences.  Moore appealed this decision to the Supreme Court and cert was granted.

The rulings in Moore, as in Hall, further outline the limitations on a state’s discretion in enforcing the Eighth Amendment’s prohibition on the execution of those with intellectual disabilities. 

At issue, here, in Moore is whether the Texas Court of Criminal Appeals’ reliance on the diagnostic definition of mental retardation which was superseded by the currently accepted diagnostic definition for intellectual disability, and reliance on the several Briseno factors in upholding Moore’s death sentence was a violation of the Eighth Amendment and Supreme Court precedent.  In short, the Briseno factors and the outdated diagnostic definition affirmed by the Texas appellate court violated the Eighth Amendment and Supreme Court precedent.  Though Atkins gives states the discretion to enforce the Eighth Amendment’s prohibition on executing intellectually disabled persons, J. Ginsburg, writing for the majority, stated clearly that such discretion was not unfettered.  If it were, states would have the absolute discretion to determine what level of intellectual disability invokes the Eighth Amendment’s protections, and that could render the rule in Atkins ineffective.  Speaking to the outdated diagnostic definition of mental retardation used by the Texas appellate court, the Court reaffirmed that Atkins did not allow for a disregard of currently accepted diagnostics and statistics in the medical community.

The Texas appellate court did this when focusing on Moore’s adaptive strengths because the medical community accepts that adaptive strengths cannot discount the possibility of one having adaptive deficiencies. Further, in contradiction to current medical standards, the Texas appellate court relied on Moore’s improvement while in prison, a heavily controlled environment, in finding a lack of adaptive deficiencies.  Additionally, the Texas court would require that Moore demonstrate that there are no other causes aside from intellectual deficiencies for his adaptive deficiencies.  While this once would have been acceptable under the superseded definition of intellectual disability, current medical standards recognize that other mental or personality disorders can be the cause of adaptive deficiencies, but that doesn’t mean that intellectual deficiencies do not also contribute.  Finally, the Court noted that this related or causation requirement of the outdated definition reaffirmed by the Texas appellate court was only used in the context of death penalty cases and in no other context. In the contexts of social services, education, and even other criminal matters, Texas uses the most current three component definition of intellectual disability with no related or causation requirement.

With respect to the Briseno factors, the Court found that they were not based in any legal or medical authority.  Rather, these factors were based in a lay person’s stereotypical perceptions of an individual with an intellectual disability.  These factors create a risk that persons with intellectual disabilities will be executed because they do not fulfill the lay person’s stereotypical characteristics of a person with an intellectual disability.  Under these factors, there is a danger that persons with mild intellectual disabilities will be treated differently in Texas from how they would be in a clinical setting; and those with mild intellectual disabilities may not be considered to have any intellectual disability.  The court points out, even if persons with mild intellectual disabilities fall outside the consensus of Texas citizens on what level of intellectual disability exempts one from the death penalty, they are still Constitutionally protected as the category of persons with intellectual disabilities.  For these reasons, the Supreme Court vacated the judgement of the Texas appellate court and remanded for consideration in accordance with the opinion of the Court.  The rulings in Moore, as in Hall, further outline the limitations on a state’s discretion in enforcing the Eighth Amendment’s prohibition on the execution of those with intellectual disabilities.

Cody Davis
About Cody Davis (6 Articles)
Cody Davis is a third year law student and serves as a Senior Staff Writer for the Campbell Law Observer. He is originally from Archdale, NC. He received his bachelor's degree from N.C. State, majoring in Political Science and minoring in Criminology and Philosophy. In addition to pursuing a Juris Doctorate at Campbell University School of Law, Cody is simultaneously working towards his Masters in Public Administration at NC State. He serves as a project coordinator for the Campbell Law Pro Bono Council and has worked as a research assistant for Professor Bobbi Jo Boyd.