Contentious oral arguments at the Supreme Court began Tuesday in Moore v. Texas, a death penalty case that gives the high court a chance to deliver a new judgment on how states decide when a person’s mental capacity prevents them from receiving a death sentence.
Texas’ defense of its current practices rankled the court’s liberals, particularly Justice Sonia Sotomayor, while Justice Samuel Alito aggressively challenged the plaintiff’s attorney about the propriety of those practices.
In Moore, the court will determine whether the execution of an inmate after a prolonged period of incarceration, much of it spent in isolated confinement, violates the 8th Amendment’s protection against cruel and unusual punishment.
The court has already ruled that the 8th Amendment bars a state from executing a person with an “intellectual disability,” but it did not provide judgment about how states determine whether a person has such a disability.
The hot-button issue at Tuesday’s argument hinged on Texas’ death sentence of Bobby James Moore, given his limited intellectual capacity. During a failed robbery attempt of a grocery store in April 1980, Moore shot and killed a store employee.
Texas charged Moore with capital murder and he was found guilty that July. Moore was sentenced to death, but was later found to be denied his right to effective counsel during the trial and punishment phase. The state conducted a new sentencing hearing and Moore was again sentenced to death in 2001.
Moore’s petition noted that his mean IQ score is within the range of “mild retardation,” and that he dropped out of school in ninth grade after failing year after year in primary school.
Given the Supreme Court’s previous rulings, Texas relied on a 2004 Criminal Court of Appeals ruling, Ex Parte Briseno, that put forward sevreral factors on how a low IQ and deficit in “adaptive behavior” should play a role in determining whether an intellectual disability exits.
To explain its reasoning, the Criminal Court of Appeals relied upon the example of the fictional character “Lennie” from John Steinbeck’s Of Mice and Men. Lennie, a large man with a mental disability, commits an accidental murder and is subsequently executed by a friend to spare him from the wrath of vigilantes.
“Most Texas citizens might agree that Steinbeck’s ‘Lennie’ should, by virtue of his lack of reasoning ability and adaptive skills, be exempt [from the death penalty],” the criminal court explained in 2004. “But, does a consensus of Texas citizens agree that all persons who might legitimately qualify for assistance under the social services definition of mental retardation be exempt from an otherwise constitutional penalty?”
When Sotomayor raised the Lone Star State’s reliance on the fictional work on Tuesday, Texas Solicitor General Scott Keller grew visibly frustrated. Keller argued that, “The ‘Lennie’ aside has never been a part of the standards” and is one of the most misunderstood matters about the case.
Keller’s argument proffered that Texas did not rely upon a “free-floating test” to judge intellectual disability.
While Keller was peppered with questions from Justices Sotomayor and Elena Kagan, whose tag-team style of questioning was briefly interrupted by Chief Justice John Roberts, Justice Samuel Alito trained his fire on Moore’s attorney, Clifford Sloan.
Sloan argued that Texas’ approach was “harmful and inappropriate,” and he and Alito sparred over whether the clinical community had reached a consensus medical opinion about evaluating the “adaptive behavior” of a person with a limited mental capacity.
Questions from the justices largely came along predictably ideological lines, with the notable exception of Justice Anthony Kennedy, who may once again factor in as the key swing vote. Kennedy’s questioning yielded a clarification from Keller that Texas’ Briseno factors were not an exhaustive list for determining intellectual disability.
