Bobby Moore, Whose Case Changed How Texas Determines Intellectual Disability, Granted Parole After 40 Years in Prison

Bobby Moore (pic­tured), the man at the cen­ter of a case that altered how Texas deter­mines intel­lec­tu­al dis­abil­i­ty in death-penal­ty cas­es, has been grant­ed parole after spend­ing 40 years in prison. He served near­ly all of that sen­tence on Texas’ death row. 

The U.S. Supreme Court twice reversed Texas appeals court deci­sions that would have per­mit­ted Moore’s exe­cu­tion before his death sen­tence was ulti­mate­ly over­turned. In 2017, in Moore v. Texas, the Court unan­i­mous­ly struck down Texas’ ​“out­lier” stan­dard for deter­min­ing intel­lec­tu­al dis­abil­i­ty, say­ing it “[b]y design and in oper­a­tion, … create[s] an unac­cept­able risk that per­sons with intel­lec­tu­al dis­abil­i­ty will be exe­cut­ed.” Two years lat­er, after the Texas Court of Criminal Appeals (TCCA) again reject­ed Moore’s intel­lec­tu­al dis­abil­i­ty claim, the Supreme Court inter­vened again, paving the way for Moore’s resentencing. 

In 2002, the Court issued a land­mark rul­ing in Atkins v. Virginia (2002) declar­ing that exe­cut­ing peo­ple with intel­lec­tu­al dis­abil­i­ties was uncon­sti­tu­tion­al, but it left to the states the task of estab­lish­ing stan­dards and pro­ce­dures for deter­min­ing who is intel­lec­tu­al­ly dis­abled. The Texas courts had repeat­ed­ly reject­ed pris­on­ers’ claims of intel­lec­tu­al dis­abil­i­ty, apply­ing a set of unsci­en­tif­ic stereo­types known as the ​“Briseño fac­tors.”

The Briseño fac­tors, named after the Texas Court of Criminal Appeals (TCCA) deci­sion that announced them, were a set of sev­en lay cri­te­ria based in part on the fic­tion­al char­ac­ter Lennie Smalls from John Steinbeck’s Of Mice and Men. In place of clin­i­cal­ly valid cri­te­ria, the fac­tors includ­ed such things as whether the crime required fore­thought or plan­ning, whether the per­son was capa­ble of lying effec­tive­ly, and whether the defen­dant was more of a leader than a fol­low­er. The Supreme Court called the test an ​“inven­tion” of the TCCA that was ​“untied to any acknowl­edged source” and that lacked sup­port from ​“any author­i­ty, med­ical or judicial.”

The Court returned Moore’s case to the state appeals court with direc­tions to recon­sid­er his claim based upon pre­vail­ing clin­i­cal stan­dards for assess­ing intel­lec­tu­al dis­abil­i­ty. Despite the agree­ment of Harris County pros­e­cu­tors, defense lawyers, and med­ical pro­fes­sion­al asso­ci­a­tions that Moore met the diag­nos­tic cri­te­ria for intel­lec­tu­al dis­abil­i­ty and should be resen­tenced to life in prison, the TCCA upheld Moore’s death sen­tence. Moore again appealed the CCA rul­ing to the Supreme Court, and in 2019 the Court rebuked the Texas court for par­rot­ing a con­sti­tu­tion­al­ly accept­able def­i­n­i­tion of intel­lec­tu­al dis­abil­i­ty while apply­ing the same inap­pro­pri­ate stan­dard that the Court had pre­vi­ous­ly struck down. The Court once again reversed the CCA’s rul­ing and once again remand­ed the case to the Texas appeals court. 

This time, the TCCA resen­tenced Moore to life, con­ced­ing that the U.S. Supreme Court has deter­mined that ​“Moore … is a per­son with intel­lec­tu­al dis­abil­i­ty.” Given that deter­mi­na­tion, the TCCA wrote, “[t]here is noth­ing left for us to do but to imple­ment the Supreme Court’s decision.”

At the time of Moore’s tri­al in 1980, life sen­tences in Texas were parole eli­gi­ble after 20 years, so his resen­tenc­ing in November 2019 made him imme­di­ate­ly eli­gi­ble for parole. In March 2020, 23 mem­bers of the bipar­ti­san Texas House Criminal Justice Reform Caucus wrote a let­ter to the parole board, urg­ing them to release Moore on parole. ​“Mr. Moore has been improp­er­ly denied both numer­ous parole reviews and the chance to meet some of the cri­te­ria that would weigh in his favor at them,” the leg­is­la­tors said. ​“That is wrong, and while we will con­tin­ue to work towards leg­isla­tive solu­tions to the issues that led us here, you have the oppor­tu­ni­ty to act right now — to step in where the leg­is­la­ture has failed to step up.”