During argument November 29 in the case of Moore v. Texas, the U.S. Supreme Court expressed skepticism about Texas’ idiosyncratic method of deciding whether a capital defendant has Intellectual Disability and is therefore ineligible for the death penalty. A trial court, applying the criteria for Intellectual Disability established by the medical community, found that Bobby James Moore (pictured) was not subject to the death penalty. However, the Texas Court of Criminal Appeal reversed that ruling in 2015, saying that Moore did not qualify as intellectually disabled under Texas’ “Briseño factors” (named after the Texas court decision that announced them), an unscientific seven-pronged test based in part on the character Lennie Smalls from John Steinbeck’s “Of Mice and Men.” Moore’s attorney, Clifford Sloan, argued that “Texas is very extreme and stands alone” in rejecting clinical standards used by the medical community to determine Intellectual Disability and replacing them with “nonclinical” and “anti-scientific” criteria. Five justices seemed sympathetic to Moore’s case, raising concerns about the arbitrariness of allowing states to set their own criteria for deciding who is intellectually disabled. Justice Ruth Bader Ginsburg said, “You’re opening the door to inconsistent results … something that we try to prevent from happening in capital cases.” Justice Stephen Breyer said that, without nationwide uniformity, there will be “disparities and uncertainties” and “people who are alike treated differently.” Justices Elena Kagan and Sonya Sotomayor questioned whether application of the Briseño factors excluded some individuals whom clinicians would regard as being intellectually disabled. Justice Anthony Kennedy asked Texas Solicitor General Scott Keller whether the purpose of Texas’ system was to “really limit” the definition of intellectual disability. When Keller said that was not the intent, Kennedy asked, “But isn’t that the effect?” The Court is expected to rule on the case by June 2017.

(A. Howe, “Argument analysis: Texas inmate seems likely to prevail in death-row disability challenge,” SCOTUSBlog, November 29, 2016; C. Geidner, “Supreme Court Skeptical Of Texas Standards For Intellectual Disability In Death Cases,” BuzzFeed News, November 29, 2016; A. de Vogue, “Supreme Court takes up question of death penalty and intellectual disability,” CNN, November 29, 2016; L. Hurley, “U.S. justices sympathetic to death row inmate on intellectual disability,” Reuters, November 29, 2016; R. Wolf, “Supreme Court skeptical of Texas on death penalty,” USA Today, November 29, 2016.) Listen to DPIC’s podcast on Moore v. Texas, featuring Cornell Law Professor John Blume. See Intellectual Disability and U.S. Supreme Court.