Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida, 134 S. Ct. 1986 (2014) and Atkins v. Virginia, 536 U.S. 304 (2002) to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.
For the third time in four terms, the high Court will examine an individual state’s standard for determining whether a capital defendant is so intellectually disabled that imposing the death penalty would constitute cruel and unusual punishment under Atkins. In 2014, the Court struck down Florida’s bright-line rule that a person who had never scored below 70 on an IQ test could be executed. Hall v. Florida, 134 S. Ct. 1986 (2014). Last year, in Brumfield v. Cain, 135 S. Ct. 2269 (2015), the Court found that a Louisiana court’s rejection of a death-row inmate’s attempt to show his intellectual disability was “based on an unreasonable determination of the facts” and remanded for a hearing. The Louisiana court had, again, relied heavily on a test setting Brumfield’s IQ at 75 to deny relief.
Now comes Texas. Moore was convicted of felony murder and sentenced to death 36 years ago, in 1980. He petitioned for habeas raising a claim of ineffective assistance of counsel and won a new sentencing; he was again sentenced to death in 2001. He eventually filed a state habeas claim, alleging, among other things, that he could not constitutionally be executed because he is intellectually disabled. The state habeas court agreed with him, but the state appellate court reversed. In so doing, it held that the lower court had erred by applying contemporary medical standards regarding intellectual disability, rather than the (apparently quite outdated) standard the appellate court had adopted in a 1992 case. Regarding the intervening–and controlling–Supreme Court decisions, the Texas appellate court opined that it was up the Texas legislature to pass legislation implementing them. It may be that SCOTUS takes a different view of a court’s responsibilities vis-à-vis the federal constitution.
Moore raised a second question in his petition, which the Court declined to hear: whether it would be cruel and unusual to execute him after his 36-year stay on death row (mostly in segregation). Justice Breyer has repeatedly argued that the Court should take up the constitutionality of this sort of delay, but it appears the votes are not yet there.