On June 8, 2020, the Texas Board of Pardons and Parole granted Bobby Moore parole, concluding his lengthy and hard-fought legal journey. He was released from prison on August 6. Originally sentenced to death in 1980, Mr. Moore served almost 40 years on death row in Texas and twice brought his case before the U.S. Supreme Court.
Mr. Moore challenged Texas’s framework for determining intellectual disability and the leeway that Atkins v. Virginia awarded states in making these determinations. In Atkins, the Supreme Court held that the execution of intellectually disabled individuals violated the Eighth Amendment’s ban on cruel and unusual punishment but left it to states to create their own frameworks for assessing intellectual disability. Texas announced its framework in Ex parte Briseño, a 2004 case before the Texas Court of Criminal Appeals (TCCA). The so-called Briseño factors assessed intellectual disability through clinically unsound criteria such as lay stereotypes and a focus on perceived adaptive strengths instead of deficits. In applying Briseño to Mr. Moore’s case, the TCCA found Mr. Moore eligible for the death penalty. In 2017, the Supreme Court rejected the Briseño factors, finding that they “advanced lay perceptions of intellectual disability” rather than medical standards, creating an unacceptable risk that an individual with an intellectual disability would be executed. Holding that states are constrained by the medical community’s current standards when determining intellectual disability, the Supreme Court remanded Mr. Moore’s case to the TCCA.
On remand, the TCCA acknowledged the Supreme Court’s decision in Moore v. Texas but continued to apply the same non-scientific analysis now barred by the Supreme Court, and again denied Mr. Moore Atkins relief. After a second certiorari grant, on February 19, 2019 the Supreme Court issued a per curiam decision ruling that “Moore has shown he is a person with intellectual disability,” and rebuking the TCCA for its failure to sufficiently follow the Court’s precedent.
Nearly nine months later, on November 6, 2019, the TCCA officially acknowledged the Supreme Court’s holding in Mr. Moore’s favor and commuted Mr. Moore’s death sentence to a sentence of life imprisonment. Upon resentencing, Mr. Moore became eligible for parole because he was originally sentenced in 1980, before the enactment of a sentence of life in prison without the possibility of parole and when prisoners became eligible for parole after serving 20 years.
Although Harris County District Attorney Kim Ogg, who supported the resentencing, remained silent regarding parole, Mr. Moore’s case garnered support from the newly-formed bipartisan Texas House Criminal Justice Reform Caucus. In March 2020, 23 members sent a letter to the Texas Board of Pardons and Parole advocating for Mr. Moore’s release. They argued that while wrongfully incarcerated on death row, Mr. Moore was “improperly denied both numerous parole reviews and the chance to meet some of the criteria that would weigh in his favor at them.”
“After careful consideration of the totality of the information,” the Texas Board of Pardons and Parole granted Mr. Moore parole. Congratulations to Mr. Moore’s pro bono team led by now-retired Skadden partner Cliff Sloan, and everyone else who contributed over the years to Mr. Moore’s hard-won release.