A Texas appeals court has stayed the August 30 exe­cu­tion of Steven Long (pic­tured) to pro­vide him an oppor­tu­ni­ty to lit­i­gate a claim that he is inel­i­gi­ble for the death penal­ty because of intel­lec­tu­al dis­abil­i­ty. On August 21, the Texas Court of Criminal Appeals issued the stay and remand­ed Long’s case to a Dallas County tri­al court, direct­ing the court to recon­sid­er his claim of intel­lec­tu­al dis­abil­i­ty in light of the U.S. Supreme Court’s March 2017 rul­ing in Moore v. Texas. The Texas courts had pre­vi­ous­ly reject­ed Long’s intel­lec­tu­al dis­abil­i­ty claim, but had applied an over­ly harsh def­i­n­i­tion of intel­lec­tu­al dis­abil­i­ty that was declared uncon­sti­tu­tion­al in Moore. Long was con­vict­ed and sen­tenced to death in Dallas for the rape and mur­der of an 11-year-old girl in 2005. Although the U.S. Supreme Court had ruled in Atkins v. Virginia in 2002 that it was uncon­sti­tu­tion­al to apply the death penal­ty to a per­son with Intellectual Disability — then known as men­tal retar­da­tion — and had pre­vi­ous­ly ruled in a Texas case in 1989 that juries must con­sid­er a defen­dan­t’s men­tal retar­da­tion as a poten­tial basis to spare his or her life, Long’s tri­al lawyer did not have him eval­u­at­ed for men­tal retar­da­tion. In May 2008, his post-con­vic­tion lawyers raised the issue in his state habeas cor­pus pro­ceed­ings, and the state courts reject­ed his claim, ana­lyz­ing the issue under the ​“Briseño fac­tors,” a non-sci­en­tif­ic series of ques­tions devel­oped by the state court in the case of Jose Garcia Briseño. Mr. Long then raised — and lost — the issue in the Texas fed­er­al dis­trict court, with the U.S. Court of Appeals for the Fifth Circuit refus­ing to con­sid­er his appeal. However, on March 28, 2017, the U.S. Supreme Court struck down Texas’s use of the Briseño fac­tors, and less than one month lat­er Long filed a peti­tion in the U.S. Supreme Court ask­ing the Court to apply its rul­ing in Moore to his case. While that appeal was pend­ing and brief­ing was ongo­ing, Texas sched­uled an exe­cu­tion date for Long dur­ing a peri­od in which the Court was in sum­mer recess. Long filed an appli­ca­tion for a stay of exe­cu­tion in the Supreme Court. He then filed a new habeas peti­tion in state court on August 3, 2017, reassert­ing the intel­lec­tu­al dis­abil­i­ty claim the state courts had ini­tial­ly denied and sought a stay of exe­cu­tion in the Texas Court of Criminal Appeals. The state court wrote, ​“In light of this new law and the facts of applicant’s appli­ca­tion, we have deter­mined that applicant’s exe­cu­tion should be stayed pend­ing fur­ther order of this Court.” Briefing has been com­plet­ed on his peti­tion seek­ing U.S. Supreme Court review, and a deci­sion is expect­ed in ear­ly October on whether the Court will review his case. 

S. Marloff, ​“Steven Long Spared Execution,” Austin Chronicle, August 23, 2017; J. McCullough, ​“Court halts exe­cu­tion of con­vict­ed child killer who claims intel­lec­tu­al dis­abil­i­ty,” Texas Tribune, August 21, 2017.) Read the Texas Court of Criminal Appeals stay order in Ex Parte Steven Lynn Long. See Texas, Intellectual Disability, and Executions and Stays 2017.

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