ABA urges justices to reject Texas' disability standard in capital cases

The American Bar Association filed an amicus brief on Nov. 8 with the U.S. Supreme Court, arguing that Texas “failed to faithfully follow” the high court’s previous ruling prohibiting the state from using nonclinical judicially created standards for determining intellectual disability in death penalty cases.

In March 2017 in a 5-3 decision, the Supreme Court told the Texas Court of Criminal Appeals (CCA) that it erred in its use of nonclinical factors in rejecting a habeas corpus, or due process, application from a death row inmate. Lawyers for Bobby James Moore contended their client could not be executed by Texas because he has an intellectual disability under clinical standards — a standard the Supreme Court set as a bar in prior decisions.

In Atkins v. Virginia, for instance, the high court ruled 6-3 in 2002 that executing people with intellectual disabilities violates the Eighth Amendment’s ban on cruel and unusual punishment. The ruling cited certain scientifically based clinical standards as proper measures to determine intellectual disability, but also gave states leeway on how to define it.

On remand, the Texas court used nearly identical factors to again affirm Moore’s death sentence. But his lawyers contend those factors run afoul of the Supreme Court’s holding in Moore I.

“In Moore I, this court provided clear instructions to the CCA to avoid the constitutional errors that had infected its earlier decision regarding Moore’s sentence,” the ABA brief said. “The CCA ignored those instructions … But the Eighth Amendment prohibition against execution of the intellectually disabled, as articulated and interpreted by this court, is ‘binding upon the states and, under the Supremacy Clause of Article VI of the Constitution, it must be obeyed.’”

The ABA House of Delegates has not taken a position on the death penalty per se. But since 1979, the House has adopted a series of policies providing recommendations to lawmakers and other criminal justice stakeholders in capital punishment cases.