The Supreme Court Decision to Protect People With an Intellectual Disability From Execution Was Long Overdue

In 2002, the U.S. Supreme Court ruled in Atkins v. Virginia that the government could no longer execute people with an intellectual disability, then called “mental retardation,” because the practice violated the Eighth Amendment. Texas skirted the ruling by creating wholly unscientific criteria to determine intellectual disability, based on, of all things, the fictional character Lennie from Steinbeck’s Of Mice and Men. A new ruling last week by the court in Moore v. Texas should put an end to that and other unscientific measures states have used to execute people with intellectual disabilities.

This is a victory. But as with many victories in modern Supreme Court jurisprudence, they come after many defeats that saw a great human toll.

I think of my executed client, Robert Ladd. He had an IQ of 67, and had been identified by the Texas Youth Commission as “fairly obviously” intellectually disabled. As he awaited execution in 2015, he still had hope. He knew our Supreme Court petition showing he was intellectually disabled would succeed. I could see hope in Robert’s eyes, as we said goodbye through the death-house bars. Robert was right. The Supreme Court would see the light. Just too late for Robert.

The court had established the protection for people with intellectual disabilities like Robert in Atkins because “of their disabilities in areas of reasoning, judgment, and control of their impulses.” People with intellectual disabilities, as the court recognized,  “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.” As defense lawyers, we felt the court had provided us with a shield to protect some of our most vulnerable clients.

Unfortunately, this feeling was premature. Prosecutors cynically argued — and many courts agreed — against the application of established medical standards to determine intellectual disability. They argued that our clients were not intellectually disabled because their real problem was mental illness manifesting as a personality disorder — a concept distinct from intellectual disability. They argued for execution of clients whose IQ fell on the wrong side of a 70 score. They argued for execution of clients who showed “strengths,” such as the ability to follow basic directions in prison or hold a low-skilled job.

Texas took it a step further. In 2004, their high criminal court came up with a list of non-scientific factors to find that a man named Jose Briseño was not intellectually disabled. The court created the list based on the gentle-giant character Lennie  in Steinbeck’s Of Mice and Men, reasoning that “most Texas citizens might agree” that the only people who should be saved from execution must resemble Lennie Small in their disability, or worse. Though a figment of Steinbeck’s imagination, Lennie had obvious disabilities, couldn’t hold down a job, and had foibles that constantly landed him in trouble, including ultimately for a homicide.

Relying on fiction in place of science allowed executions of intellectually-disabled Texas prisoners to continue, even though in other states they would be spared. This became the law of our nation’s largest execution state.

Now, 15 years after Atkins, the Supreme Court has rendered a decision that can protect these prisoners.

The court ruled that Texas’s unscientific criteria were inconsistent with medical practice, the Eighth Amendment, and Atkins itself. The court found that Texas had improperly used the Lennie standard to deny Bobby Moore Atkins relief.

It also went beyond the Lennie problem to overrule two more of the Texas court’s unscientific and incorrect approaches. First, the Texas court improperly rejected Moore’s 70 IQ score because statistical error meant it could have been above that score (ignoring that it could also be below). Second the court incorrectly counted the trauma, abuse, discrimination, and mental illness Moore suffered as better explanations for his mental deficits than intellectual disability – explanations not exempting Moore from execution. The Supreme Court rejected both conclusions as unscientific.   

The court has now provided the protection for this population that attorneys like me have fought for over our entire careers. My relief is tinged with sadness.

Why couldn’t we convince the court earlier? 

How many prisoners with intellectually disability had to die because we did not?

Can this decision be used once and for all to stop Georgia from executing those with intellectual disability?

These are haunting questions that should hasten our fight for justice for those who face the government’s ultimate punishment.

View comments (8)
Read the Terms of Use


Liberals are so insane that they want to protect first degree murderers while at the same time support the wholesale murder of innocent babies in the womb.


"Liberals are so insane that they want to protect first degree murderers while at the same time support the wholesale murder of innocent babies in the womb."

Conservatives answer for everything is to kill it. The only exception for them is when they can cause more harm to more people by demanding life: abortion.


"Liberals are so insane that they want to protect first degree murderers while at the same time support the wholesale murder of innocent babies in the womb."

Obviously this poster doesn't understand that the whole point of the case is that these people with intellectual disabilities aren't capable of first-degree murder. Unfortunately we have a country full of willfully-ignorant, callous, self-proclaimed experts who are eager to push aside the experts in favor of their beliefs, be they political, religious, whatever.


You raised some excellent points (IMHO)


Robert Ladd bound, raped, strangled and set a woman on fire for 5 rocks of crack. Let's not ignore that please...


That's, of course, a different case from the Moore case. Maybe Ladd had a better sense of what he was doing than Moore and maybe not. Maybe Ladd was able to understand the implications of his actions enough to qualify for execution, and maybe not, but I still stand by the standards which I have already described, in that mental illness, developmental disabilities, trauma, etc. all ought to be considered as mitigating factors.


I know I'm not a person with legal background, but to me common sense would dictate that the factors if trauma, mental illnesses, etc which people such as Bobby James Moore have experienced do not negate their low IQ scores which should disqualify them from being competent to receive the death penalty. Having read some background on the Moore case on the Supreme Court and Texas Criminal Court of Appeals website, I would think that any trauma and/or mental illness experienced by Moore (He was repeatedly​ beaten and finally thrown out on the streets at a young age by his so-called father simply for being developmentally disabled!) would be mitigating factors which, along with his developmental disabilities would make it difficult for him to understand the implications of what he was doing when he fired that gun. I think he went around with bad company who took advantage of his gullibility because this was the only way Moore could understand to keep himself alive as a street person and to find a perceived protection. He was confused both because of his low IQ and because of his trauma. Killing him won't bring his victim back and even if the victim's loved ones think it will bring them closure that's not something the judicial system cares about one way or the other. I am not ashamed to say I am a bleeding heart. I want there to be compassion and healing for all traumatized people whether they be the victim's surviving loved ones or Moore himself. Where was the legal system to protect Moore before he shot this store clerk? when Moore was vulnerable and at the mercy of brutal people like his abusive father and later on street gangs that were beyond his ability to cope with? Why don't self-righteous advocates of "personal responsibility" think more about that?


i agree. they should have prosecuted the gang members instead for taking advantage of the disabled person. and possibly the dad for abusing him..society is so screwed..there is no justice with the justice system when the courts do dont use common sense as you describe perfectly.

Stay Informed