March 01, 2017

Supreme Court Finds Texas Briseno Factors for Establishing Intellectual Disability Unconstitutional

On March 28, 2017, in a 5-3 decision, the U.S. Supreme Court rejected Texas’s decade-long practice of using unscientific and anecdotal factors for assessing intellectual disability in capital cases in Moore v. Texas. Justice Ginsburg wrote the majority opinion; Chief Justice Roberts authored a dissenting opinion joined by Justices Alito and Thomas. The Court granted certiorari to determine whether the Texas Court of Criminal Appeals (“CCA”) violated the Eighth Amendment and U.S. Supreme Court precedent by failing to rely on medical standards to determine whether a capital defendant is intellectually disabled.

In 2002 in Atkins v. Virginia, the Supreme Court found that the execution of intellectually disabled individuals violated the Constitution’s ban on cruel and unusual punishment. Accordingly, Atkins required states to create frameworks for assessing whether individuals accused or convicted of capital crimes were intellectually disabled and therefore ineligible for execution. Most death penalty states passed legislation governing how this determination was to be made; Texas, however, did not, and in 2004 in Ex parte Briseño, the CCA created its own set of rules for evaluating intellectual disability in capital cases.

Among the factors the CCA advised Texas courts to evaluate in assessing intellectual disability were whether the defendant’s “family, friends, teachers, employers… [thought] he was mentally retarded,” whether the commission of the crime required “forethought, planning, and complex execution of purpose,” and whether the defendant’s conduct “in response to external stimuli [was] rational and appropriate, regardless of whether it [was] socially acceptable.”

In evaluating Texas’ practices, the Supreme Court found that rather than relying on medical standards, the Briseno factors “advanced lay perceptions of intellectual disability.” It advised that lay “stereotypes, much more than medical and clinical appraisals, should spark skepticism.” The Court also noted that in the twelve years since the CCA had adopted the Briseno factors, scholars and critics have consistently objected to and fought their application. In particular, the Court cited the ABA’s 2013 Texas Capital Punishment Assessment Report and cited to briefs, including one filed by the ABA in support of Mr. Moore with the assistance of pro bono counsel from WilmerHale.

The Moore decision is likely to have a far-reaching impact on cases in Texas. Texas must now reform its standard for determining intellectual disability, and this new standard will certainly affect future cases. In addition, the decision also provides new hope for many of Texas’s 254 death row prisoners whose claims of intellectual disability were previously rejected by courts using the unscientific, and now unconstitutional, Briseno factors.