On Tuesday, the U.S. Supreme Court held that Texas has been using an obsolete standard in determining whether persons convicted of capital crimes have the requisite mental capacity to deserve execution for their actions.  In a  5-to-3 decision,  the Court determined that  Bobby James Moore, who killed a store clerk in in Houston in 1980 during a botched robbery, had not been judged by a correct standard for his decided mental deficiencies.  Guilt  was not an issue; nor was the fact that Moore had extremely limited  mental abilities. In fact, prosecution’s expert witness had testified  that Moore “suffers from borderline intellectual functioning.”  The case now goes back to the Texas Court of Criminal Appeals – a court notoriously favorable to upholding death penalty convictions.  The state must come up with a new method to determine if a convicted inmate is intellectually disabled and therefore ineligible for execution.   Texas can no longer rely on decades-old medical standards and a controversial set of factors.   The Texas Tribune has more.

 Moore was convicted of capital murder and sentenced to death in July 1980, three months after he walked into a Houston supermarket with two other men and fatally shot James McCarble, the 73-year-old clerk behind the counter, according to Texas’ brief to the high court.

In 2014, a Texas state court used current medical standards, which looks for deficits in intellectual and adaptive functioning that began as a child, to determine Moore was intellectually disabled and could not be executed. But the Texas Court of Criminal Appeals overruled the decision, claiming the lower court erred by using those standards instead of the state’s test.

The test, commonly known as the Briseno standard, was established by the Court of Criminal Appeals in 2004, two years after the U.S. Supreme Court ruled that executing the intellectually disabled was unconstitutional. The court defined the test using a medical definition from 1992 — which claims intellectual and adaptive functioning must be “related,” meaning Moore’s poor adaptive skills could be traced to something else, like an abusive childhood. The test also uses several other nonclinical factors (the Briseno factors) to help courts determine adaptive functioning. The Court of Criminal Appeals claimed, based on its test, that Moore doesn’t legally have the disability.

Included in the Briseno factors is a controversial reference to Lennie, a character from John Steinbeck’s novel “Of Mice and Men.” The Briseno opinion written by the Court of Criminal Appeals said most citizens might agree a person like Lennie, a childlike character who didn’t intend to kill a woman but simply didn’t understand his strength, should be exempt from execution. The state has argued the reference was an “aside.” Critics say it exemplifies the arbitrariness of defining intellectual disability in Texas.

In the opinion, Ginsburg faults Texas for using current medical standards in other criminal cases, but not with the death penalty.

“Texas cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual’s life is at stake,” she wrote.

The Texas Court of Criminal Appeals ruled Moore was not intellectually disabled by looking at both intellectual and adaptive deficits. But the high court knocked down the ruling not only on adaptive functioning  — how he can learn new skills, etc. — but also on intellectual functioning as well. Previous court rulings have stated that when intellectual functioning is “borderline,” with an IQ at or around 70, the state must look into adaptive behavior. Moore’s IQ, 74, led the high court to rule that this was necessary, which is what triggered Roberts’ dissent.

Roberts agreed that the nonclinical Briseno factors are an “unacceptable method” of determining adaptive deficits but said the Texas Court of Criminal Appeals still performed its due diligence in determining Moore’s intellectual functioning.

“The Court overturns the CCA’s conclusion that Moore failed to present sufficient evidence of both inadequate intellectual functioning and significant deficits in adaptive behavior without even considering ‘objective indicia of society’s standards’ reflected in the practices among the States,” Roberts wrote. “The Court instead crafts a constitutional holding based solely on what it deems to be medical consensus about intellectual disability. But clinicians, not judges, should determine clinical standards; and judges, not clinicians, should determine the content of the Eighth Amendment. Today’s opinion confuses those roles.”

Moore’s case was the third time since 2002 that the high court considered the death penalty and the intellectually disabled. That year, justices ruled that executing people with intellectual disabilities is unconstitutional, but it left it up to the states to legally determine the condition. In 2014, the court weighed in on borderline cases, ruling that states can’t use an IQ below 70 as the sole way to define the disability.