November 12, 2018

In round two, ABA urges Supreme Court to again reject Texas’ disability standard in capital cases

CHICAGO, Nov. 8, 2018 — The American Bar Association filed an amicus brief Thursday with the U.S. Supreme Court, arguing that Texas “failed to faithfully follow” the high court’s previous ruling prohibiting the state from using nonclinical judicially created standards for determining intellectual disability in death penalty cases.

In March 2017 in a 5-3 decision, the Supreme Court told the Texas Court of Criminal Appeals (CCA) that it erred in its use of nonclinical factors in rejecting a habeas corpus, or due process, application from a death row inmate. Lawyers for the petitioner, Bobby James Moore, contended their client could not be executed by Texas because he has an intellectual disability under clinical standards — a standard the Supreme Court set as a bar in prior decisions.

In Atkins v. Virginia in 2002, for instance, the high court ruled 6-3 that executing people with intellectual disabilities violates the Eighth Amendment’s ban on cruel and unusual punishment and cited clinical scientifically based standards as proper measures to determine whether a criminal defendant is intellectually disabled. But the ruling also gave states leeway on how to define intellectual disability.

On remand, the Texas court, the state’s highest for criminal matters, used nearly identical factors to again affirm Moore’s death sentence. But his lawyers contend those factors run afoul of the Supreme Court’s holding in Moore I. Since the first Moore decision, Associate Justices Neil Gorsuch and Brett Kavanaugh have joined the court, changing its makeup.

“In Moore I, this court provided clear instructions to the CCA to avoid the constitutional errors that had infected its earlier decision regarding Moore’s sentence,” the ABA brief said. “The CCA ignored those instructions and reprised precisely the analysis that this court rejected as contrary to the Eighth Amendment. But the Eighth Amendment prohibition against execution of the intellectually disabled, as articulated and interpreted by this court, is ‘binding upon the states and, under the Supremacy Clause of Article VI of the Constitution, it must be obeyed.’”

The amicus brief in Bobby James Moore v. Texas is available here.

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