The term “mental retardation” was formally changed to “intellectual disability” in the Federal Register on August 31, 2013. This formal terminology adjustment began in 2007 when the American Association on Mental Retardation (AAMR) changed its name to American Association on Intellectual and Developmental Disabilities (AAIDD).


In 2002, the U.S. Supreme Court in Atkins v. Virginia held that the execution of a person suffering from mental retardation would constitute cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution.


The Atkins rule, however, pretty much allowed the states to formulate their own definition of mental retardation. At the time Atkins was decided the Texas Health and Safety Code said the term mental retardation “means significantly sub-average general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period.”


Should Mental Retardation Exempt a Person from Execution?


In 2002, the Texas Court of Criminal Appeals (“CCA”) in Ex parte Briseno listed seven “evidentiary factors” a jury should considered when determining whether mental retardation should exempt a person from the death penalty:


  1. Did those who knew the person best during the developmental stage—his family, friends, leaders, employers, authorities—think he was mentally retarded at that time, and, if so, act in accordance with that determination?
  2. Has the person formulated plans and carried them through or is his conduct impulsive?
  3. Does his conduct show leadership or does it show that he led around by others?
  4. Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?
  5. Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject?
  6. Can the person hide facts or lie effectively in his own or others’ interests?
  7. Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?


Against the backdrop of these seven evidentiary factors, the CCA established a three-prong criteria for determining on appellate review in capital cases whether mental retardation would preclude the death penalty under the Eighth Amendment: a defendant had to prove by a preponderance of the evidence that (1) he suffers from significantly sub-average general intellectual functioning, generally shown by an intelligence quotient (IQ) of 70 or less; (2) his significantly sub-average general intellectual functioning is accompanied by related and significant limitation in adaptive functioning; and (3) the onset of the above two characteristics occurred before the age of eighteen.



Executing the Intellectually Disabled, Mentally Retarded


Put simply, the CCA put in place an appellate standard of review that allowed the continued execution of mentally retarded individuals, so long as their retardation was “mild.” This was evidenced in August 2012 when the State executed Marvin Lee Wilson, a man with an IQ of 61. Five IQ tests and numerous witnesses had determined that Wilson was mentally retarded.


Then came the Bobby James Moore case—a man who was convicted in 1980 for the murder of a store clerk in Houston. His case had meandered through the state and federal appellate post-conviction process for 35 years before, finally, the state trial court in 2014, following a two-day evidentiary hearing, determined that Moore “had established by a preponderance of the evidence that he is intellectually disabled under the diagnostic criteria stated in the fourth and fifth editions of the American Psychiatric Association’s (APA’s) Diagnostic and Statistical Manual of Mental Disorder (DSM), i.e., the DSM-IV and DSM-V.”


This conclusion was outlined in September 2015 by the CCA in Ex parte Moore—a decision that overruled the trial court’s finding of retardation and upheld Moore’s death sentence under the Briseno standard. The court pointed that the state legislature had failed to do what many other death penalty states had done in the wake of Atkins: establish a legal protocol for Texas trial courts to utilize in making reasonable intellectual disability determinations.


Texas Factors Unscientific, Unconstitutionally Harsh, Stereotypical


Moore sought, and secured, certiorari review before the U.S. Supreme Court. That court in March 2017 ruled that the CCA’s “Briseno factors” were unscientific and unconstitutionally harsh. The high court sent Moore’s case back to the CCA for equitable resolution.


In an extraordinary move designed to constitutionally and humanely resolve the Moore case, Harris County District Attorney Kim Ogg eight months later filed a legal brief with the CCA presenting both factual and legal reasons why the condemned man’s death sentence could not be constitutionally carried out by the state of Texas. It was a remarkable display of professional integrity, especially given Harris County’s historical, and quite deplorable, history of dealing with the death penalty.


This gesture did not persuade the CCA in its determination to keep in place, as much as possible, unreasonable and most certainly unscientific standards that would permit the continued execution of intellectually disabled individuals. The Republican-controlled court in a June 2018 5-3 decision effectively rebuffed the Supreme Court’s 2017 decision and maintained the Briseno factors. Judges Elsa Alcala, Scott Walker, and Bert Richardson joined in a 67-page dissent from the court’s decision.


Moore once again sought, and secured, certiorari review before the U.S. Supreme Court.


SCOTUS Halts Execution of Mentally Disabled Man


On February 19, 2018, the nation’s high court in language that even the CCA cannot ignore effectively said the Briseno factors are unconstitutional and the state of Texas will not be permitted to execute Bobby James Moore under those factors. The court noted that in its 2017 ruling that it had “criticized the use of these (Briseno) factors both because they had no grounding in prevailing medical practice, and because they invited ‘lay perceptions of intellectual disability’ and ‘lay stereotypes’ to guide assessment of intellectual disability … Emphasizing the Briseno factors over clinical factors, we said, ‘creates an unacceptable risk’ that persons with intellectual disability will be executed.”


The court then expressed its conclusion that the CCA must not only understand but accept:


“We conclude that the appeals court’s opinion, when taken as a whole and when read in the light both of our prior opinion and the trial court record, rests upon analysis too much of which too closely resembles what we previously found improper. And extricating that analysis from the opinion leaves too little that might warrant reaching a different conclusion than did the trial court. We consequently agree with Moore and the [Harris County] prosecutor that, on the basis of the trial court record, Moore has shown he is a person with intellectual disability. “


Perhaps the Texas Legislature will also get this message and establish a legal protocol acceptable to the Supreme Court in determining the issue of intellectual disability in capital cases.