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

Lethal Injection Chair
Lethal Injection Chair
Brian Stull,
Senior Staff Attorney ,
ACLU Capital Punishment Project
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April 3, 2017

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.

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