OPINION: Our Constitutional Duty; The Death Penalty, Intellectual Disability, and Moore v. Texas

By Isaac Cui (PO ’20), Managing Editor

The Supreme Court yesterday acted on Bobby Moore’s death penalty case and ordered that Moore cannot be executed because of his intellectual disability.[1] It was a small step on an arcane issue, one that does not fundamentally change the Court’s capital punishment jurisprudence. But it was nevertheless a moral victory for our Constitution.

In 2002, the Supreme Court ruled that executing people with intellectual disabilities contravenes the protections of the Eighth Amendment,[2] which outlaws punishments that are “cruel and unusual.”[3] That decision, Atkins v. Virginia, reasoned from previous case law that held that the death penalty can only be imposed for the purposes of retribution and deterrence; on both counts, executing intellectually disabled individuals is less meaningful, according to the Atkins Court.[4] Moreover, “objective factors” suggested that there was a growing moral consensus against the execution of intellectually disabled individuals,[5] and those with intellectual disability are more likely to be sentenced to death due to false confessions or demeanor that “may create an unwarranted impression of lack of remorse for their crimes.”[6] The Supreme Court therefore held that the Constitution categorically bans the execution of intellectually disabled individuals.

Atkins embodied a profound moral sentiment. Capital defendants are usually unsympathetic; their crimes are often terrible. But, as the Court would put it in a later opinion, “[b]y protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.”[7] The Eighth Amendment is grounded in “nothing less than the dignity of man,”[8] and its protections reflect the highest values of our society—a society that requires punishment to be proportional to the offense,[9] that insists on legitimate penological justification for criminal sanctions,[10] and that urges respect for the basic humanity of all people.[11] For part of the purpose of the Eighth Amendment, Justice Thurgood Marshall once observed for the Court, is to “protect the dignity of society itself from the barbarity of exacting mindless vengeance . . . .”[12] The American criminal justice system is far from actualizing those higher values. Its failures—its injustices—are innumerable. But the Eighth Amendment’s protection of human dignity is supposed to elevate the better angels of our nature, to “reflect[] . . . the Nation we aspire to be.”[13] Embedded in the Atkins line of cases, therefore, is a moral claim about the constitutional values that should animate our system of government and way of life.

That moral goal is incomplete, for Atkins reserved to the states “the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences.”[14] Ever since Atkins, courts have been grappling with the question of who, exactly, is categorically exempt from the death penalty. This was the key question for Bobby Moore.

In 1980, Bobby Moore shot and killed a store clerk during a robbery; he was sentenced to death later that year.[15] His case bounced around the Texas and federal courts, and in 2014, a state trial court examined whether he was intellectually disabled. The lower court recommended granting Moore relief based on a litany of evidence. As the Supreme Court later summarized, the evidence suggested that “Moore had significant mental and social difficulties beginning at an early age”; he “lacked basic understandings of the days of the week, the months of the year, and the seasons” at age thirteen, and he “could scarcely tell time or comprehend the standards of measurement or the basic principle that subtraction is the reverse of addition.”[16] After failing every subject in ninth grade, he dropped out of high school and was thrown out of his home, living on the streets and “eating from trash cans, even after two bouts of food poisoning.”[17]

The high Texas court reviewing that recommendation refused relief. Instead of relying on medical standards for evaluating intellectual disability, the Texas court looked to a set of judge-made evidentiary factors, called the Briseño factors, which consisted of questions such as: “Can the person hide facts or life effectively in his own or others’ interests?” or “Does his conduct show leadership or does it show that he is led around by others?”[18] When the case was appealed to the U.S. Supreme Court in 2017, the justices unanimously held that usage of the Briseño factors is unconstitutional.[19] But the justices split five to three on the relief: The majority vacated and remanded the case to the Texas courts, asking them to reconsider Moore’s Atkins claim.[20]

In mid-2018, the Texas high court issued its decision and again upheld Moore’s death sentence.[21] Yesterday, the Supreme Court reversed that judgment because the Texas court’s decision “repeats the analysis we previously found wanting, and these same parts are critical to its ultimate conclusion.”[22] The Texas court’s decision, the Supreme Court held, focused on Moore’s adaptive strengths rather than his deficits, which the Court had previously chided the Texas courts for doing.[23] It did not account for evidence that was integral to the state trial court’s recommendation for relief.[24] And “it seems to have used many of those [Briseño] factors in reaching its conclusion” even though the Texas court claimed to abandon those factors.[25] Because of those errors—errors that Chief Justice Roberts, in a one-paragraph concurrence, described as “easy to see”[26]—the Court reversed the Texas court’s judgment.

The Supreme Court’s decision will not end this debate because the Atkins standard is fundamentally unclear. The Court, for example, characterizes the “legal determination of intellectual disability” as “distinct from a medical diagnosis,” but also as “informed by the medical community’s diagnostic framework.”[27] Whether and how courts can diverge from medical standards is an open question.[28] Moreover, even if judges are supposed to follow medical doctrine, it is unclear that they are capable of doing so. As the Chief Justice ably put it in his dissent in Moore, “[C]linicians, not judges, should determine clinical standards; and judges, not clinicians, should determine the content of the Eighth Amendment. [The Moore decision] confuses those roles . . . .”[29]

This is not to say that Moore or Atkins were wrongly decided. They weren’t. Instead, it is to note the inherent tension in anchoring what is fundamentally a moral precept—that the dignity and humanity of those with intellectual disabilities should protect them from execution—to scientific standards. The Court searches for rules, such as in cautioning against relying on adaptive strengths developed in prison by quoting the DSM-5, which says that adaptive strengths developed “in a controlled setting” are not very strong indicators of intellectual disability.[30] But it phrases those rules weakly to suggest the existence of leeway without explaining when and how those rules can be bent.[31] The result is a doctrine that is malleable—one that makes it easy for savvy lower courts to circumvent the moral thrust and obligation that courts have to enforce Atkins.

What makes the Supreme Court’s decision yesterday so important is therefore not any advancement in doctrine. The Supreme Court’s ruling did not clarify many important questions over the Atkins line of cases. Instead, the decision was important as a signal. The Supreme Court not only reversed the judgment of the Texas court; it did so summarily, throwing out the Texas court’s judgment without even slating the case for argument.[32]

Atkins anticipated a blurry line, which is why it left implementation questions to states. In doing so, the Court created a moral obligation that requires other governmental actors to take care to actualize it. The Court’s role, understood thusly, is not in driving constitutional development but in catalyzing it; states are understood as laboratories for exploring how to best actualize constitutional values.[33] Of course, the Court has recognized, “[i]f the States were to have complete autonomy to define intellectual disability as they wished, the Court’s decision in Atkins could become a nullity, and the Eighth Amendment’s protection of human dignity would not become a reality.”[34] But by enforcing the Atkins rule in cases such as Bobby Moore’s—cases that do not provide substantial guidance yet signal to lower courts that their superior court is watching—the justices are attempting to force other actors to value and promote the promise of Atkins.

Government officials swear an oath to affirm and support the Constitution.[35] In doing so, they pledge themselves to the project of building a more perfect union, one grounded in the value and dignity of human individuals. The Supreme Court has ordered lower courts and states to take care, to respect that dignity in good faith. It is now incumbent on them, and on all of us, to further that end.



[1] Moore v. Texas (Moore II), No. 18-443, slip op. at 10 (U.S. Feb. 19, 2019).

[2] Atkins v. Virginia, 536 U.S. 304 (2002).

[3] U.S. Const. amend. VIII.

[4] Atkins, 536 U.S. at 318-20.

[5] Id. at 312-16.

[6] Id. at 321.

[7] Roper v. Simmons, 543 U.S. 551, 572 (2005).

[8] Atkins, 536 U.S. at 331-12 (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (Warren, C.J.)).

[9] Id. at 311 (“[I]t is a precept of justice that punishment for crime should be graduated and proportioned to the offense.” (quoting Weems v. United States, 217 U.S. 349, 367 (1910) (cleaned up)).

[10] Cf., e.g., id. at 318-20 (holding that capital punishment of intellectually disabled individuals does not fulfill legitimate penological justifications).

[11] Hall v. Florida, 572 U.S. 701, 708 (2014) (To execute an intellectually disabled individual “contravenes the Eighth Amendment, for the impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being.”).

[12] Ford v. Wainwright, 477 U.S. 399, 410 (1986).

[13] Hall, 572 U.S. at 708.

[14] Atkins, 536 U.S. at 317 (quoting Ford v. Wainwright, 477 U.S. 399, 405, 416-17 (1986)) (cleaned up).

[15] Moore v. Texas (Moore I), 137 S.Ct. 1039, 1044-45 (2017).

[16] Id. at 1045.

[17] Id. at 1045.

[18] See id. at 1045-46, 1046 n.6.

[19] Id. at 1051 (“By design and in operation, the Briseño factors create an unacceptable risk that persons with intellectual disability will be executed[.]”) (cleaned up); accord id. at 1053 (Roberts, C.J., dissenting) (“I agree with the Court today that those [Briseño] factors are an unacceptable method of enforcing the guarantee of Atkins, and that the CCA therefore erred in using them to analyze adaptive deficits.”).

[20] Id. at 1053 (majority opinion).

[21] Ex parte Moore, 548 S.W.3d 552, 573 (Tex. Crim. App. 2018).

[22] Moore v. Texas (Moore II), No. 18-443, slip op. at 6 (U.S. Feb. 19, 2019).

[23] Id. (slip op. at 6-7).

[24] Id. (slip op. at 7).

[25] Id. (slip op. at 8).

[26] Id. (slip op. at 1) (Roberts, C.J., concurring).

[27] Hall v. Florida, 572 U.S. 701, 721 (2014).

[28] See, e.g., Moore v. Texas (Moore I), 137 S.Ct. 1039, 1058 (2017) (Roberts, C.J., dissenting) (The Court in Moore “assures us that it is not requiring adherence ‘to everything stated in the latest medical guide[]’; States have ‘some flexibility’ but cannot ‘disregard medical standards. Neither the Court’s articulation of this standard nor its application sheds any light on what it means.” (internal citations omitted)).

[29] Id. at 1054.

[30] Moore v. Texas (Moore II), No. 18-443, slip op. at 3 (U.S. Feb. 19, 2019).

[31] See, e.g., Moore I, 137 S.Ct. at 1058-59 (“The Court faults the CCA for ‘overemphasizing’ strengths and stressing’ Moore’s conduct in prison, suggesting that some—but not too much—consideration of strengths and prison functioning is acceptable. The Court’s only guidance on when ‘some’ becomes ‘too much’? Citations to clinical guides. . . . The line between the permissible—consideration, maybe even emphasis—and the forbidden—‘overemphasis’—is not only thin, but totally undefined by today’s decision.” (cleaned up)).

[32] Moore II, slip op. at 10.

[33] Cf. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”); Hall v. Florida, 572 U.S. 701, 724 (2014) (“The States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects.”).

[34] Hall, 572 U.S. at 720-21.

[35] U.S. Const. art. VI, ¶ 2.

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