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SCOTUS Just Made It Harder to Execute Intellectually Disabled Prisoners

Texas has been trying to execute Bobby Moore for decades. The Supreme Court once again said "no."
The Texas death chamber in Huntsville, Texas, pictured on June 23rd, 2000, the day after death row inmate Gary Graham was put to death by lethal injection.

The Texas death chamber in Huntsville, Texas, pictured on June 23rd, 2000.

In 1980, Bobby Moore was convicted and sentenced to death for his role in a robbery at a grocery store in Houston, Texas, that resulted in the death of a clerk. Almost 40 years later, the state of Texas is still trying to kill him. Earlier this month, the Supreme Court finally, probably, forced the Lone Star State to stop.

As Pacific Standard reported in 2017, Moore, a disabled African-American man, has been at the center of recent jurisprudence on how the government measures and defines intellectual disability. By all reasonable standards, Moore is intellectually disabled. In Atkins v. Virginia in 2002, the Supreme Court ruled that it was unconstitutional to execute people with intellectual disabilities, but did not rule on how to measure intellectual disabilities. Texas came up with "The Lennie Standard," by which judges and juries were asked to compare a convicted person's intellectual capacity to that of "Lennie" in the John Steinbeck novel Of Mice and Men. If the person was deemed more competent than Lennie, they were eligible for execution. Because Moore could mow the lawn, steal food, and handle basic math in the commissary, the Texas Court of Appeals decided that he met the criteria for execution.

In 2017, the Supreme Court disagreed, remanding the case back to Texas and ordering the state to assess disability based on medical or clinical expertise, rather than based on literary allusion. Though the Supreme Court made no ruling on whether Moore was or was not disabled, it seemed at the time that Moore was safe. Even the Harris County Prosecutor, the office responsible for pursuing the verdict, filed a brief indicating that the district attorney thought Moore had an intellectual disability. But the Texas Court of Appeals ruled, once again, that Moore displayed too many adaptive strengths to be truly disabled, and once more confirmed his death sentence.

Experts in both the death penalty and disability advocacy have been working on Moore’s case for years. Shira Wakschlag, director of legal advocacy for The Arc, an organization that advocates for the human rights of people with intellectual and developmental disabilities, tells me over the phone that The Arc submitted a brief in the case arguing that Moore clearly has intellectual disability according to clinical standards. She tells me that the court brought in five experts, four of whom agreed Moore has an intellectual disability, and one who did not.

Ultimately, the court sided with the lone expert against all the other testimony, and the new ruling made its way back to the Supreme Court.

Wakschlag tells me that the 2017 ruling wasn't about whether the Texas court's conclusion about Moore's disability was flawed, but was instead a ruling on "the way that the court arrived at that conclusion." This time, she says, "they ruled on the merits" and told the court of appeals to re-sentence based on the understanding that Moore has an intellectual disability.

This latest ruling means that Texas can no longer re-impose the death penalty, though Moore will likely still spend the rest of his life in prison. The ruling may have broader implications as well.

"It's a really strong statement" that rejects the use of bad stereotypes about disability in legal settings, Wakschlag says. "Using clinical standards instead of stereotypes can have broader impacts," she adds, because the ruling pushes everyone "to use clinical, informed definitions based on expert knowledge."