The Supreme Court on Tuesday seemed inclined to agree with a Texas death row inmate who is challenging how that state determines whether a person is intellectually disabled and thus should be spared execution.
The court ruled in 2002 that executing the “mentally retarded” violated the Constitution. But the justices left up to states how to define who meets that standard.
At a hearing Tuesday, the court’s liberals, joined by Justice Anthony M. Kennedy, sharply questioned whether Texas’s procedure was simply a way to make more people eligible for execution.
Kennedy said the theme of death row inmate Bobby James Moore’s challenge was that Texas uses a procedure that is “intended to really limit the classification of those persons with intellectual disability as defined by an almost uniform medical consensus.”
Texas Solicitor General Scott A. Keller responded that the state’s high court, the Court of Criminal Appeals, “has never said that the purpose of these factors is to screen out individuals and deny them relief.”
Kennedy shot back: “But isn’t that the effect?”
Justice Elena Kagan, Keller’s most persistent interrogator, said the Texas court inserted factors — for instance, what do neighbors say about his abilities, or can he effectively lie in his own self-interest — as a way around the medical consensus over what constitutes intellectual disability.
“The genesis of these factors was that the court said the clinical standards are just too subjective and they don’t reflect what Texas citizens think,” Kagan said, adding that “Justice Kennedy is right about how they operate and also how they were intended to operate.”
Keller was sensitive to questions about the factors, which the Texas court introduced as a way to judge “adaptive behavior,” another way of saying whether a person can go about daily life as others would.
The Moore case has drawn attention because a Texas judge likened the factors to the “Lennie” standard, a reference to Lennie Small, the gentle but deadly fictional farmhand in John Steinbeck’s “Of Mice and Men.”
The judge wrote that most Texas citizens might agree that Lennie should be exempt from execution because of his lack of reasoning skills but that other killers might not be exempt.
After Justice Sonia Sotomayor made a reference to the Lennie standard, Keller said it was an “aside” in the opinion. “The Lennie standard has never been part of a standard,” Keller said. “That’s one of the most misunderstood aspects of the briefing here.”
Moore, 57, was convicted of shooting and killing someone in a 1980 robbery in Houston. His cases has had many twists and turns since then, most of them concerning his intellectual capacity.
His attorney, Clifford M. Sloan, told the justices that at the age of 13, “Mr. Moore did not understand the days of the week, the months of the year, the seasons, how to tell time, the principle that subtraction is the opposite of addition.”
At one of his rehearings, a judge found Moore to be intellectually disabled and ineligible for the death penalty. But the Court of Criminal Appeals reversed that, saying in part that the judge had used current medical standards about defining intellectual disabilities rather than the ones it had directed lower courts to use. That was the decision the Supreme Court was reviewing.
Sloan said Texas’s approach challenges the court’s 2002 ruling that “the entire category of the intellectually disabled, every person who is intellectually disabled, is exempt from execution under the Eighth Amendment,” which prohibits cruel and unusual punishment.
But Chief Justice John G. Roberts Jr. chastised Sloan for his “long laundry list” of what is wrong with Texas’s procedures. Sloan had persuaded the court to take the case, Roberts said, only to consider whether Texas may constitutionally prohibit the use of current medical standards and require outdated medical standards.
But Roberts and Justice Samuel A. Alito Jr. were the only outspoken critics of Sloan’s arguments.
Other justices seem to think the case raised more overarching issues. Justice Stephen G. Breyer, who has said he thinks the court should reconsider whether the death penalty can be carried out in a way consistent with the Constitution, said the problem was deciding cases involving borderline intellectual disability.
“If you want my true motive,” Breyer told Sloan, “I don’t think there is a way to apply this kind of standard uniformly across the country, and therefore, there will be disparities, and uncertainties, and different people treated alike, and people who are alike treated differently.”
The case is Moore v. Texas.
The court also issued its first ruling of the term in an argued case. Justice Ruth Bader Ginsburg wrote for her unanimous colleagues that the concept of “double jeopardy” did not prevent the government from prosecuting a bribery case from Puerto Rico.
The complicated tale involved a Puerto Rican businessman and a senator in the local legislature. The two men had been acquitted of one bribery charge, were convicted of another, and then saw that conviction thrown out on appeal because the jury had been improperly instructed about what was necessary to convict.
The men said the government does not get to retry them for the convictions that were overturned. But Ginsburg, reading the opinion with a voice made faint from laryngitis, said the justices disagreed.
Of course, the defendants cannot be retried on the acquittals, she said. But they may be retried, she said, “when a jury has returned inconsistent verdicts of conviction and acquittal; the inconsistency remains even if the convictions are later vacated for legal error unrelated to the inconsistency.”
The case is Bravo-Fernandez v. U.S.