« Making the case that the next Administration needs to demonstrate that "laws are not just for the little people" | Main | Two new headlines from the same paper highlighting (inevitable?) sentencing disparities »

November 29, 2016

Will more than just a handful of condemned murderers be impacted by latest SCOTUS review of capital punishment disability limits?

Washington_terry1The question in the title of this post is my indirect effort to get a quantitative notion of the import and impact of the Texas case, Moore v. Texas, being heard by the US Supreme Court this morning.  The folks at SCOTUSblog have this helpful round-up of some recent previews and commentaries on this case:

Today, the court will hear oral argument in Moore v. Texas, which asks whether Texas can rely on an outdated standard in determining whether a defendant’s intellectual disability precludes him from being executed. Amy Howe previewed the case for this blog. Another preview comes from Karen Ojeda and Nicholas Halliburton for Cornell University Law School’s Legal Information Institute.

Additional coverage of Moore comes from Nina Totenberg at NPR, who notes that “the state’s test is based on what the Texas Court of Criminal Appeals called ‘a consensus of Texas citizens,’ that not all those who meet the ‘social services definition’ of ‘retardation’ should be exempt from the death penalty,” and from Steven Mazie in The Economist. In an op-ed in The Washington Post, Carol and Jordan Steiker argue that rather than “relying on the same approach to intellectual disability that Texas uses in every other context (such as placement in special education or eligibility for disability benefits),” the state appeals “court sought to redefine the condition in the capital context so that only offenders who meet crude stereotypes about intellectual disability are shielded from execution.”

Efforts by Texas to execute intellectually disabled murderers strike very close to home for me because I was actively involved in representing and trying to prevent the execution of Terry Washington back in 1996-97 when there was not yet a constitutional restriction on application of the death penalty for those with certain intellectual disabilities.  I got involved in the Washington case pro bono during my last few months as an associate at Paul, Weiss, Rifkind, Wharton & Garrison in NYC.  I had the opportunity to help author a cert petition to SCOTUS and a clemency petition to then-Texas-Gov. George W. Bush in which we asserted on Terry's behalf that the ineffectiveness of trial counsel and his intellectually disabilities (which were then called mental retardation) justified sparing him from the ultimate punishment of death.

Terry Washington was sentenced to death for the stabbing murder of a co-worker at a restaurant in College Station, Texas.  As the case was litigated through the federal habeas courts in Texas, there was no real dispute over Terry's mental disabilities because considerable evidence from his childhood indicated diminished mental capacities and in two IQ tests after his initial sentencing to death Terry scored 58 and 69.  But Terry's case was tried in the 1980s when it was not considered ineffective for counsel to fail to investigate and present mitigating mental health and family background evidence.  In the words of the Fifth Circuit rejecting a final habeas appeal in 1996, counsel made "a reasonable strategic decision not to investigate Washington's mental health by retaining a mental health expert or to present evidence of Washington's mental health and family background at the punishment stage of trial." Washington v. Johnson, 90 F.3d 945 (5th Cir. July 25, 1996) (available here).

I cannot help but think of Terry Washington today because I recall drafting sections of the cert petition and clemency petition making the case for a categorical ban on the execution of persons with (as called then) mental retardation.  Unfortunately for Terry, the Supreme Court would not embrace the constitutional position we pushed on his behalf until 2002 when it ruled in Atkins v. Virginia that the Eighth Amendment's prohibition on cruel and unusual punishment bars the execution of individuals who are intellectually disabled.  (According to this DPIC accounting, 44 persons with intellectual disabilities were executed between 1976 and the SCOTUS Atkins ruling in 2002.)  Based on the medical records and supporting evidence, I now believe that Terry would have indisputably been shielded from execution by Atkins even though Texas has been trying its best since Atkins to limit the number of condemned murderers who get shielded from execution by its holding.

Returning to the Moore case now before SCOTUS (with the Terry Washington case still on my mind), I sincerely wonder how many persons on death row in Texas or in other states are currently in the doctrinal/proof gray area that the Moore case occupies.  My sense is that most defendants with obvious disabilities have had their sentences reduced based on Atkins, and this DPIC accounting hints that maybe as many as 100 condemned murderers have gotten off of death rows in many states thanks to Atkins.  But in Moore it seems like evidence of disability is sufficiently equivocal and the legal standards sufficiently opaque that SCOTUS has to clean up some post-Atkins doctrinal mess.  For Bobby James Moore, this is obviously now a matter of life and death.  But can we know how many other of the roughly 2500 persons now under serious sentences of death nationwide will be potentially impacted by the Moore decision?

November 29, 2016 at 09:18 AM | Permalink


In light of the way the administration of the DP works in Texas, I think you are wrong to assume that a win at SCOTUS will ultimately benefit Mr. Moore

Posted by: John | Nov 29, 2016 1:03:07 PM

He had 69 post-sentencing? Hmmmm. Yeah, let's take that test at face value. The 58 score likely indicates a bit of malingering.

Sounds like Washington got what he deserved.

Posted by: federalist | Nov 29, 2016 4:52:25 PM

Atkins ran a drug business at age 9. He lured his victim, a competitor, into his car, and executed him. As a result of his spending time with learned counsel, his vocabulary and Verbal IQ shot up. He is no longer retarded.

IQ testing has been validated for 100 years, to track and to predict school performance. It is not permissible to use this test result for the purpose of assessing culpability. It has no validity for that use. It use in an appellate decision is quackery, and pretextual.

Given his superior level of function and success in life, the new definition of intellectual disability, and his change in level, Atkins now qualifies for the death penalty. A new cert should be submitted to have the Supreme Court review his death penalty again, and to execute him.

Posted by: David Behar | Nov 30, 2016 3:38:41 AM

I am not sure if anything useful will come out of Moore.

I think it would be a constitutional stretch to say that the folks who work on editing and revising the DSM get to define the meaning of the Eighth Amendment, particular as the professional organizations of psychologists and psychiatrists tend to be opposed to the death penalty. While their professional opinions on who is mentally disabled are relevant to the discussion, I don't see any basis for giving non-governmental actors the power to re-write the meaning of the Constitution.

The real issue in Moore is what test did the state courts actually use (and both sides are trying to spin the lower court opinion in ways that are questionable), whether that test allows the Texas courts and juries to consider all relevant evidence on the defendant's mental condition, and what minimal standards does the Constitution impose (separate from any revisions in the DSM).

Posted by: tmm | Nov 30, 2016 10:26:34 AM

"I don't see any basis for giving non-governmental actors the power to re-write the meaning of the Constitution."

You might not, but such things influence the courts in various cases. For instance, non-governmental actors influence reasonable medical judgment respecting abortion rights. This is so even if someone would red flag doctors are biased toward abortion rights. What "re-write" here means also depends on what the "meaning" is in the first place. If current medical knowledge factors into the accepted test by SCOTUS, it's part of said meaning.

And, the courts ultimately are the ones that "get to" here even if (see the affirmative action context) some degree of discretion is given (in that case educational authorities) to outside judgment.

Posted by: Joe | Nov 30, 2016 12:05:13 PM

Behar: Atkins did not get relief based on intellectual disability. It was the state's Brady violation that resulted in resentencing

Posted by: John | Nov 30, 2016 12:06:17 PM

John. From the decision:

"Held: Executions of mentally retarded criminals are “cruel and unusual punishments” prohibited by the Eighth Amendment. Pp. 5—17."

Posted by: David Behar | Nov 30, 2016 6:08:09 PM

That's true. Atkins v. Virginia bars execution of the intellectually disabled as a violation of the Eighth Amendment.

But Mr. Atkins was not held to be intellectually disabled. To the contrary, a jury found that he was not intellectually disabled. Mr. Atkins did not receive Atkins relief.

The long history of the case is recounted in In re Commonwealth of Virginia, 677 S.E.2d 236 (Va. 2009). Mr. Atkins is no longer under a death sentence because Virginia could not manage to comply with Brady v. Maryland, not because of the SCOTUS case bearing his name.

Posted by: John | Dec 1, 2016 12:40:46 AM

Thanks John. Supreme Court opinions are often not the end of the story.

Posted by: Joe | Dec 2, 2016 9:46:49 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB