Still No Clear Test for Courts to Determine Whether Someone Has an Intellectual Disability for Sentencing Purposes

Emily Westerfield, Associate Member, University of Cincinnati Law Review

Background

In Atkins v. Virginia, the Supreme Court held that the Eighth Amendment’s prohibition on cruel and unusual punishment rendered people with intellectual disabilities ineligible for the death penalty.[1] The Court reasoned that the execution of criminals with intellectual disabilities would not “measurably advance the deterrent or the retributive purpose of the death penalty.”[2] In interpreting the Eighth Amendment’s ban on cruel and unusual punishment in this context, the Court drew from its opinion in Trop v. Dulles, which provides that “‘the [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’”[3] Thus, the Court in Atkins concluded that whether a punishment qualifies as excessive under the Eight Amendment ought to be determined by contemporary standards, rather than the standards in effect at the time the Bill of Rights was ratified.[4] Although the Court ultimately decided that the execution of criminals with intellectual disabilities constituted a violation of the Eighth Amendment, the Court also held that the states would be individually responsible for “developing appropriate ways to enforce the constitutional restriction.”[5] Thus, the Court effectively left the question of whether a criminal who would otherwise be eligible for the death penalty has an intellectual disability to the states.

The Supreme Court’s holding in Atkins became relevant in the Court’s recent decision in Moore v. Texas. When Moore was first heard in the state habeous court, Moore presented affidavits and testimony from members of Moore’s family, former counsel to Moore, and several court-appointed experts in the mental health field.[6] The record indicated that Moore had “significant mental and social difficulties at an early age.”[7] Specifically, the evidence demonstrated that, at thirteen years of age, Moore “lacked a basic understanding of the days of the week, the months of the year,”[8] could “scarcely tell time or comprehend the standards of measure or the basic principle that subtraction is the reverse of addition,”[9] and could not keep up with the rest of his classmates due to his “limited ability to read and write.”[10] In the state habeous  court’s assessment of Moore’s mental capacity, it also considered the fact that Moore dropped out of school after failing every subject when he was in the ninth grade, and that Moore proceeded thereafter to live on the streets and subsist in part off of food from trash cans, despite suffering multiple instances of food poisoning.[11] Based on that evidence, the state habeous court held that Moore did indeed have an intellectual disability and that, therefore, sentencing him to the death penalty would violate the Eighth Amendment under the Supreme Court’s holding in Atkins.[12]

When Moore reached the Texas Court of Criminal Appeals in 2015, that court reversed the decision of the state habeous court, which held that Moore had an intellectual disability and, therefore, was not eligible for the death penalty under the Eighth Amendment’s ban on cruel and unusual punishment.[13] When Moore appealed to the Supreme Court, the Court vacated the decision of the Texas Criminal Court of Appeals and remanded the case for further proceedings not inconsistent with its opinion.[14] Before reaching that conclusion, the Court evaluated the three-prong test—derived from publications from the American Association on Intellectual and Developmental Disabilities and the American Psychiatric Association—that both the state habeous court and the appeals court used to determine whether Moore had an intellectual disability.[15] Pursuant to that test, in order to determine that someone has an intellectual disability, the court must find the following: (1) deficits in intellectual functioning; (2) adaptive deficits, “assessed using both clinical evaluation and individualized . . . measures;”[16] and (3) that the onset of those deficits took place when the defendant was a minor.[17] The Court agreed with the appeals court’s conclusions that Moore was a “borderline case” with regard to the first criteria and that, with regard to the third criteria, the onset of any intellectual deficits took place while Moore was still a minor.[18] Thus, the second criteria became the determinative factor in determining whether Moore was, indeed, intellectually disabled. The Court took issue with the appeals court’s analysis of the second criteria.[19]

With regard to the second criteria, the Court’s first majority opinion indicated that, according to the American Association on Intellectual and Developmental Disabilities, “clinicians look to whether an individual’s adaptive performance falls two or more standard deviations below the mean in any of the three adaptive skill sets (conceptual, social, and practical).”[20] While the trial court determined that Moore “fell roughly two standard deviations below the mean in all three skill categories,”[21] the appeals court ruled that Moore failed to prove by a preponderance of the evidence that he exhibited the adaptive deficits necessary to be considered intellectually disabled.[22]

When the Supreme Court first heard Moore, the majority opinion identified five errors with the appeals court’s analysis of Moore’s adaptive deficits.[23] First, the Court majority indicated that the appeals court placed undue emphasis on Moore’s adaptive strengths instead of focusing its analysis on Moore’s adaptive deficits.[24] Second, the majority took issue with the appeals court’s consideration of the adaptive strengths Moore exhibited while he was in prison.[25] In establishing that part of the appeals court’s opinion as error, the Court majority cited a publication by the American Psychiatric Association, which indicated the tendency of clinicians to “caution against reliance on adaptive strengths developed in a controlled setting,”[26] such as a prison.[27] Third, the Court majority found that the appeals court erroneously determined that Moore’s difficulties in school and the abuse he suffered as a child, experiences which are considered risk factors for intellectual disability by the medical community at large, were mostly irrelevant to Moore’s intellectual capacity.[28] Fourth, the appeals court required Moore to demonstrate that his adaptive deficits were not related to a personality disorder, without considering the brief presented to the state habeous court from the American Psychological Association providing that clinicians recognize that someone with a personality disorder may very well have an intellectual disability in addition to the personality disorder.[29] Finally, the Court majority took issue with the appeals court’s reliance on a prior Texas case, ex parte Briseno.[30]

            In Briseno, the Texas Court of Criminal Appeals provided several factors for determining whether someone has an intellectual disability, including: (1) whether those who were close to the person believed that he had mental or intellectual deficits; (2) whether the person could independently make and carry out plans; (3) whether the person exhibited any leadership capabilities; (4) whether the person exhibited a rational response to “external stimuli;” (5) whether the person was capable of answering questions “coherently” and “rationally;” (6) whether the person could effectively tell lies; and (7) whether the specific offense at hand was the result of “forethought, planning, and complex execution of purpose.”[31] The Court majority’s issue with the appeals court’s consideration of the Briseno factors in its analysis of Moore’s intellectual capacity was two-fold. First, the Briseno factors were not based in “prevailing medical practice.”[32] Second, the factors included the perceptions of people with no medical expertise with regard to the issue of intellectual capacity.[33] Thus, in the Supreme Court’s first majority opinion for Moore, the Court created a caveat to the Court’s holding in Atkins. The Court held that although Atkins reserved the task of deciding how exactly to determine whether someone has an intellectual disability for sentencing purposes for the state courts, the state court’s determination of whether someone has an intellectual disability “must be informed by the medical community’s diagnostic framework.”[34]

Ultimately, the aforementioned errors that the Supreme Court found with the appeals court’s analysis led the Court to vacate the appeals court’s holding and remand the case for further proceedings not inconsistent with its opinion.[35] When the appeals court reconsidered the issue, however, it again decided that Moore did not have an intellectual disability and was, therefore, eligible for the death penalty.[36]

The Majority

Just last month, the Supreme Court granted Moore’s petition for certiorari. Ultimately, the Court majority found that the decision of the appeals court failed to apply the doctrine it set forth in its prior majority opinion concerning how courts ought to determine whether a defendant has an intellectual disability for the purpose of determining whether imposing the death penalty would be in line with the Eighth Amendment and the Court’s holding in Atkins.[37] Specifically, the majority concluded that the appeals court’s second opinion on the matter borrowed too much from the aspects of its first opinion that the Supreme Court previously determined were error.[38] Furthermore, the majority held that “extricating that analysis from the opinion leaves too little that might warrant reaching a different conclusion than the trial court.”[39] Thus, the majority held that, based on the record from the state habeous court, Moore sufficiently demonstrated that he has an intellectual disability and, therefore, is ineligible for the death penalty under the Eighth Amendment.[40]

            While the majority found slight differences between the appeals court’s first and second opinions, it determined that the appeals court’s opinion employed much of the same analyses that the Court found problematic in its first opinion.[41] Specifically, the Court majority found four issues with the appeals court’s holding: (1) the appeals court placed too great an emphasis on Moore’s adaptive strengths rather than on his adaptive deficits;[42] (2) the appeals court unduly relied on the improvements Moore exhibited while he served time in prison;[43] (3) the appeals court once again deviated from prevailing medical practice and analysis when it distinguished between Moore’s “deficits in general mental abilities”[44] and Moore’s “emotional problems,”[45] in evaluating the cause of Moore’s “deficient social behavior”;[46] and (4) the appeals court relied on the Briseno factors in reaching its conclusion that Moore did not have an intellectual disability for sentencing purposes.[47]

With regard to the Court majority’s first issue with the appeals court’s decision, the majority indicated that the appeals court failed to consider a significant amount of evidence of Moore’s adaptive deficits which had been considered in the state habeous court.[48] For example, the appeals court did not utilize evidence that Moore was barely able to read at the second-grade level by the time he was in the sixth grade and Moore’s apparent difficulty to understand and respond to members of his family.[49] The appeals court also failed to consider the extensive coaching Moore had received from his lawyers before providing what the appeals court considered to be “coherent testimony.”[50] Thus, while the appeals court forewent noting a variety of scenarios pertaining to Moore’s adaptive deficits throughout Moore’s life, the appeals court alluded to several examples of Moore exhibiting adaptive strengths, many of which took place during the time Moore spent in prison.

With regard to the second issue, the Court majority specified that the “length and detail of the [appeals] court’s discussion on [Moore’s improvements in prison] is difficult to square with our caution against relying on prison-based development.”[51] Thus, the majority indicated that while improvements made in prison can be of relevance in determining someone’s intellectual capacity for purposes of sentencing under the Eight Amendment, the appeals court took that part of its analysis too far. Based on the majority’s analysis of the appeals court’s decision, it seems that the appeals court drew conclusions of great significance with regard to Moore’s intellectual capacity from relatively insignificant instances of Moore’s conduct while in prison. For example, the appeals court determined that Moore’s commissary purchases demonstrated that Moore had a command of elementary math.[52] The appeals court also concluded that Moore’s occasional refusal to clean up spilled food, shave, get a haircut, and sit down when told demonstrated his leadership abilities.[53]

With regard to the third issue, the Court majority asserted that the appeals court once again erroneously determined that Moore would be required to prove that Moore’s adaptive deficits resulted from from an intellectual disability, as opposed to emotional issues.[54] In so holding, the majority concluded that the appeals court effectively ignored the amicus brief from the American Psychological Association, which provided that the presence of personality disorders and other issues involving one’s mental health does not indicate a lack of an intellectual disability.[55]

With regard to the Court majority’s fourth and final issue with the appeals court’s second opinion for Moore, the majority concluded that the appeals court employed several factors in its second analysis of Moore’s intellectual capacity that closely resembled the Briseno factors.[56] The majority held that, while aspects of this part of the appeals court’s analysis might be relevant to determining Moore’s intellectual capacity, the appeals court’s analysis still came too close to the Briseno factors.[57] This part of the majority’s opinion is one of the most prominent examples of the problematic ambiguity of the majority’s opinion.

The Dissent

The ambiguity of the majority’s first and second opinions for Moore is the dissent’s predominant issue with the majority’s evaluation of the appeals court’s second ruling on Moore’s intellectual capacity. According to the dissent, the ambiguous nature of the majority’s first opinion led to a great “lack of guidance [offered] to states seeking to enforce the holding in Atkins.”[58] The dissent further indicated that the majority’s second opinion failed to make its first opinion any clearer.[59] According to the dissent, for example, while the majority held that the appeals court “‘overemphasize[d]’ adaptive strengths [and] place[d] too much ‘stress’ on improved behavior in prison,”[60] the majority failed to set any guidelines for determining when proper emphasis would become undue overemphasis on those factors.[61]

Moreover, the dissent took issue with the majority’s decision to correct the factual findings made by the appeals court and reverse the judgment.[62] The dissent cited Supreme Court precedent in concluding that the majority’s decision was distinct from the Court’s “usual practice.”[63] In United States v. Johnson, for example, the Court held that it is not the Court’s rule, after granting certiorari, to “‘review evidence and discuss specific facts.’”[64] Instead, according to the dissent, the majority Court should have vacated the judgment of the appeals court, set forth a clear standard for the appeals court to follow, and remand the case to the appeals court so that it may take it upon itself to apply that standard.[65]

Conclusion

            Once again, it seems that the Supreme Court majority has failed to provide a clear path for resolving the issue of a person’s intellectual capacity for the purpose of determining whether he or she may be sentenced to the death penalty under the Eighth Amendment’s prohibition on cruel and unusual punishment. The lack of enlightenment in the Court majority’s second opinion will undoubtedly pose difficulties for other state courts that will inevitably confront this issue in the future. Thus, the dissent’s reservations with the majority’s decision to take on the appeals court’s role after the appeals court failed to apply whatever standard could have been drawn from the vague doctrines provided by the majority’s first opinion seems well-founded.

 

           

           

[1] Atkins v. Virginia, 536 U.S. 304, 321 (2002).

[2] Id.

[3] Id. at 311-12 (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958)).

[4] Atkins, 536 U.S. at 311.

[5] Id. at 317.

[6] Moore v. Texas, 2019 U.S. LEXIS 821, 1 (2019).

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 2.

[11] Id.

[12] Id.

[13]Id. at 1.

[14] Id. at 1.

[15] Id. at 2-3.

[16] Id.

[17] Id.

[18] Id. at 3.

[19] Id.

[20] Id. at 3-4.

[21] Id. at 4.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id. at 4-5.

[29] Id. at 5.

[30] Id. at 5-6.

[31] Id. at 5-6 (quoting ex parte Briseno, 235 S.W.3d 1, 8-9 (Texas Crim. App. 2004).

[32] Id. at 6.

[33] Id.

[34] Id.

[35] Id. at 7.

[36] Id. at 18.

[37] Id. at 1.

[38] Id. at 13-14.

[39] Id.

[40] Id. at 14.

[41] Id. at 8-9.

[42] Id. at 9.

[43] Id. at 10.

[44] Id. at 11.

[45] Id. at 11.

[46] Id. at 11.

[47] Id. at 12-13.

[48] Id. at 9-10.

[49] Id. at 9-10.

[50] Id. at 10.

[51] Id. at 11.

[52] Id. at 10.

[53] Id. at 11.

[54] Id. at 11.

[55] Id. at 11.

[56] Id. at 12-13.

[57] Id.

[58] Id. at 15-16.

[59] Id. at 16.

[60] Id.

[61] Id.

[62] Id. at 16-17.

[63] Id. at 17.

[64] Id. (quoting United States v. Johnson, 268 U.S. 220, 227 (1925)).

[65] Id.