Whether Texas is violating the Constitution by using a test to determine intellectual disability in death penalty cases that is inconsistent with both Supreme Court precedent and science.

The Supreme Court has held that the Eighth Amendment prohibits the death penalty for intellectually disabled defendants.  In implementing that categorical bar, Texas has adopted an idiosyncratic rule for determining intellectual disability that has no basis in science.  Rather, as the ACLU points out in its amicus brief, the so-called Briseno factors are based on a stereotyped view of intellectual disability derived from the character of Lenny in John Steinbeck’s novella, Of Mice and Men.  In practice, the Briseno factors subject defendants with mild intellectual disability to the death penalty in violation of the Supreme Court’s ruling.

Update (3/28/17): Victory! A majority of the Court reversed the Texas high court ruling, and found that Bobby James Moore has intellectual disability and is ineligible for execution. The majority and dissenting justices all agreed that the non-scientific factors applied by Texas were inappropriate for determination of intellectual disability going forward.

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