‘Mice and Men’ Reference in Death-Penalty Statute Riles Justices

WASHINGTON (CN) – The Supreme Court seemed prepared Tuesday to overturn a Texas ruling that allows some people with intellectual disabilities to face the death penalty.

Hearing the case of Bobby James Moore, a Texas man who claims to be intellectually disabled and has been on death row for more than 30 years, the justices voiced concern this morning that reliance on old standards for diagnosing mental disability would allow the state to go forward with executions that should be prohibited under Supreme Court precedent.

“I thought that was the entire point of Hall,” Kagan said, referring to Hall v. Florida, which held states must consider medical definitions of intellectual disability rather than use a simple IQ cutoff when determining whether someone is eligible for execution.

“No, that’s wrong,” Kagan said, explaining the holding of Hall. “You don’t get to apply it however you want.”

Moore has been on death row since being convicted in 1980 of killing an employee at a store during a robbery attempt gone wrong. In a 2003 state appeal, attorneys for Moore argued the combination of an abusive childhood and a brick taken to the head during Texas’ school integration battles left the defendant with intellectual and adaptive disabilities.

Four experts persuaded the court that the Eighth Amendment prohibited his execution, testifying Moore had signs of intellectual disabilities and poor adaptive functioning.

Moore could not differentiate the days of the week, tell time or understand that addition is the opposite of subtraction as late as 13, the experts said.

But the Texas Court of Criminal Appeals reversed, finding that it made a mistake by considering “subjective” medical standards for diagnosing intellectual disabilities, rather than relying on ex parte Briseno. This precedent uses a 1992 definition of intellectual disability as well as other, nonclinical factors, one of which references Lennie from John Steinbeck’s “Of Mice and Men.”

Moore’s attorney argued Tuesday that such “hostility” to current medical consensus violates the Supreme Court’s decisions in Hall and Atkins v. Virginia, which bars states from executing people with intellectual disabilities.

“As Hall said, the inquiry has to be informed by the medical community’s diagnostic framework, and there is no way that it can be informed by the medical community’s diagnostic framework if there is an exclusion and a prohibition on using current medical standards,” said Moore’s attorney Clifford Sloan.

By relying on an outdated definition of intellectual disability, Texas is placing itself outside the norm for states that still use the death penalty, Sloan argued.

“To judges, to lawyers, experts, the message is clear and unmistakable: you may not consult or rely on current clinical questions,” Sloan said.

The attorney said courts should instead look to the most recent versions of leading medical guides that define disabilities to determine whether someone is intellectually disabled.

But Justice Stephen Breyer suggested simply putting in place a rigid rule like this would not help people like Moore who sit on the border of intellectually disabled.

“I don’t think there is a way to apply this 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,” Breyer said.

Sloan also railed against the nonclinical factors used in Texas’ Briseno standard, including the Lennie reference.

Solicitor General Scott Keller, who argued for Texas, strongly disputed the allegation that Texas was using a fictional character to determine death penalty cases, saying the reference to Lennie in the Briseno standards are simply an aside and has not been used in other cases.

But Justice Sonia Sotomayor disagreed with Keller and criticized the appeals court for pointing to Moore’s job mowing lawns as evidence his adaptive deficiencies were overstated.

“The problem with Lennie, who the Briseno factors were fashioned after – Lennie was working on a farm,” Sotomayor said. “How is that different from mowing a lawn?”

Keller spent most of his time before the court defending his state’s Briseno standard from the justices, especially Kagan and Sotomayor. He insisted Texas is within its rights under Supreme Court precedent to come up with its own standard for intellectual disability and that its standard is “well within the norm.”

“Since you have those different purposes, it is valid for a state to have a different definition of when someone is morally culpable under the Eighth Amendment versus when someone should be able to get social-services benefit,” Keller said.

But Sotomayor and Kagan provided tough pushback to Keller’s claims, especially those regarding the court’s nonclinical standards. Sotomayor pointed out that some people can be intellectually disabled while still being able to function at a high level on certain tasks.

“Is it your position that if someone can calculate math in their head they can’t be intellectually disabled?” Sotomayor said.