The Supreme Court bolsters a rule against executing prisoners with low IQs

By S.M. | WASHINGTON, DC

ANTONIN SCALIA warned fifteen years ago that prohibiting the execution of intellectually disabled criminals as a violation of the Eighth Amendment’s bar on cruel and unusual punishment would turn “capital trial[s] into a game” where defendants would “feign” mental retardation in order to escape the ultimate punishment. The prediction has not been borne out. Instead, Atkins v Virginia, the 2002 ruling from which Mr Scalia dissented, has been gamed by states determined to execute low-IQ individuals. In 2014, in Hall v Florida, the Sunshine state was scolded by the Supreme Court for inappropriately interpreting IQ tests. Now another recalcitrant state has now been chastened by a 5-3 vote. In Moore v Texas, announced on March 28th, the justices have told the Lone Star state that its resistance to medical science has no place in death-penalty jurisprudence.

The case centres on Bobby James Moore, then 20, who was sentenced to die in 1980 after fatally shooting a grocery store clerk during a botched burglary in Houston. The crime was a violent capstone to a tragic childhood. Mr Moore repeated first grade twice and was advanced in school only to avoid placing him in classrooms with much younger children. Classmates, teachers and his own father called Mr Moore “stupid”; he sat alone drawing while other students were learning the daily lesson. Mr Moore was badly injured in a racist school-bus brawl in fifth grade and at 13, he could neither read a clock, name the days of the week nor subtract. By the ninth grade, he failed every subject and dropped out of school. Mr Moore’s father then kicked him out of the house.

In 2014, a Texas judge found that evidence that Mr Moore was intellectually disabled and, in line with Hall v Florida, recommended that his death sentence be reduced to life in prison. But the Texas Court of Criminal Appeals (CCA) thought differently. Based on its own review of Mr Moore’s intellectual profile, the CCA returned Mr Moore to death row. The Supreme Court roundly disagreed. “The CCA’s decision that Moore’s IQ scores established he is not intellectually disabled”, Justice Ruth Bader Ginsburg wrote, “is irreconcilable with Hall”. Joined by Stephen Breyer, Elena Kagan, Anthony Kennedy and Sonia Sotomayor, Ms Ginsburg wondered why Texas was willing to apply “current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual’s life is at stake”.

In Hall, Ms Ginsburg wrote, the court said states had “some flexibility...in enforcing Atkins’ holding”. But this does not mean they have “unfettered discretion”. The definition of intellectual disability must be “informed by the medical community’s diagnostic framework” and may not “disregard established medical practice”. In deeming Mr Moore fit to be executed, the majority opinion noted, the CCA had relied upon a 1992 diagnostic manual rather than updated sources and had used a dreamed-up list of seven factors (including the ability to “lie effectively” and “formulate plans”) purportedly belying his claim to intellectual disability.

In his dissent, joined by Justices Samuel Alito and Clarence Thomas, Chief Justice John Roberts agreed that the seven factors “are an unacceptable method of enforcing the guarantee of Atkins” and that the CCA “erred in using them to analyse adaptive deficits”. But Mr Roberts was happier with the Texas court’s analysis of “Mr Moore’s intellectual functioning”. Though Mr Moore’s intelligence was tested repeatedly, Mr Roberts found only two IQ scores worthy of attention: a 78 and a 74, both higher than the 70-point threshold of Atkins and Hall and with a standard error of measurement between 69 and 83. The CCA correctly decided “Moore’s score was unlikely to be in the lower end of the error-generated range”, Mr Roberts explained, “because he was likely exerting poor effort and experiencing depression at the time the test was administered”.

Siding with Texas, Mr Roberts was happy to err on the side of executing Mr Moore where evidence of his intellectual functioning was less than precise. And despite his formal disavowal of the seven casually formulated empirical factors the CCA used in returning Mr Moore to death row, Mr Roberts seems to harbour some of them himself. Emphasising the savvier aspects of Mr Moore’s 1980 crime—and not-so-subtly suggesting that he may not have been as intellectually disabled as he claimed—Mr Roberts noted that Mr Moore and his co-conspirators “negotiat[ed] their respective shares of the money they intended to steal”. After the robbery and shooting, Mr Moore “fled Houston and remained on the run until his arrest in Louisiana ten days after the murder”. The implication is clear: intellectually disabled people neither negotiate with fellow miscreants nor successfully flee and hide from law enforcement. Despite continued scepticism among the conservative justices of the holding in Atkins, the court’s liberal bloc plus Anthony Kennedy remain committed to curtailing the death penalty—although only Stephen Breyer seems convinced that it should be ended altogether.