Twenty months after the Unites States Supreme Court unanimously struck down Texas’s non-scientific standard for evaluating intellectual disability in death penalty cases, the landmark case in which it made that decision is back before the Court. On December 7, 2018, the Court will conference Moore v. Texas, to decide if it will review whether the Texas Court of Criminal Appeals (CCA) once again unconstitutionally relied on lay stereotypes and non-clinical criteria in rejecting Bobby James Moore’s claim that he is not subject to the death penalty because he is intellectually disabled. A diverse group of prominent voices, including the district attorney’s office that originally prosecuted Moore, argue that Moore clearly satisfies the clinical definitions of intellectual disability and may not be executed.

Sentenced to death more than 38 years ago, Moore has a long history of intellectual and adaptive impairments that have been documented since his childhood, including IQ scores ranging from the low 50s to the low 70s. The American Psychological Association and American Bar Association filed briefs on November 7 supporting Moore’s claim and the urging the Supreme Court to again reverse the Texas court. They were joined by a group of prominent conservatives—including former Solicitor General Kenneth Starr, Congressman Bob Barr, conservative strategist Richard Viguerie, and David A. Keene, the longtime chair of the National Conservative Union, among others—whose brief, also filed November 7, described the Texas court’s decision as a threat to the integrity of the judicial process. They wrote: “Quoting a Supreme Court decision highlighting the errors made by the CCA in its previous review of this case, but proceeding to make those same errors on remand, is inimical to the rule of law.”

Moore initially presented his claim that he is intellectually disabled and therefore ineligible for the death penalty under the 2002 U.S. Supreme Court ruling Atkins v. Virginia to a Harris County, Texas trial court. Following contemporary medical diagnostic criteria, the court agreed that Moore was intellectual disabled and ruled that his death sentence should be vacated. However, the Texas Court of Criminal Appeals reversed, applying an idiosyncratic standard based on unscientific stereotypes, including the behavior of a fictional character from the novel Of Mice and Men. After the U.S. Supreme Court reversed and remanded for a new decision “informed by the medical community’s diagnostic framework,” the Harris County District Attorney’s office conceded that Moore qualified as intellectually disabled. Nonetheless, in a ruling three dissenters criticized as an “outlier,” a sharply divided (5-3) Texas Court of Criminal Appeals in June 2018 again upheld Moore’s death sentence.

In a November 28 op-ed in The Washington Post, Starr, who served as United States Solicitor General under President George H.W. Bush from 1989-1993, urged the Supreme Court to “save[] Bobby Moore from execution … again.” Starr wrote, “The job of a judge is to follow the law … [and] carefully apply the precedent of the Supreme Court. … If the system were working as it should, Moore’s case would have been a routine matter of the Texas court applying the Supreme Court’s decision and current medical standards as directed and prohibiting Moore’s execution.” Quoting then-U.S. appeals court Judge Brett M. Kavanaugh, Starr said: “As a lower court in a system of absolute vertical stare decisis headed by one Supreme Court, it is essential that we follow both the words and the music of Supreme Court decisions.”

Special Olympics Chairman Timothy Shriver also asked the Supreme Court to block Moore’s execution. In a November 19 op-ed in the Los Angeles Times, Shriver criticized the Texas court’s reasoning as “absurd, wrong and harmful.” “But most important,” Shriver wrote, the standard the court applied was “not how the medical community diagnoses intellectual disability…. Pervasive stereotypes about intellectual disability are inaccurate and harmful. In this Texas court case, they are a matter of life or death. Let’s finally recognize the complexity of people with intellectual disability,” Shriver said. “The world will be much richer for it.”

(Kenneth W. Star, The Supreme Court saved Bobby Moore from execution once. It should do it again., Washington Post, November 28, 2018; Timothy P. Shriver, The Supreme Court should block the execution of a Texas man with intellectual disability — again, Los Angeles Times, November 19, 2018.) See U.S. Supreme Court, Intellectual Disability, and Arbitrariness.

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