Mental Disability Standards in Texas Capital Cases Challenged by ABA

In August, the American Bar Association (ABA) submitted an amicus brief to the U.S. Supreme Court in the case Bobby James Moore v. Texas in regard to Texas’ standard for determining if someone has a mental disability. The way a state determines this type of disability is crucial because a jury cannot sentence an individual with an intellectual disability to the death penalty.

The ABA’s amicus brief, which is a document filed by a non-party to a lawsuit and draws the court’s attention to a specific issue within the case, argues that Texas’ current non-clinical mental disability standards are unconstitutional. The ABA wants the Supreme Court to strike down the Texas standard as a violation of the Eight Amendment, which prohibits cruel and unusual punishment.

A Brief History of the Death Penalty for Individuals With Mental Disabilities

Prior to 2002, it was legal for states to sentence individuals with intellectual disabilities to death. The Supreme Court held that this type of disability should be a mitigating factor in determining whether the death sentence was appropriate, but it did not outright ban the practice.

However, popular opinion about the death penalty for people who are intellectually disabled shifted in 2002. Eighteen states and the federal government had already made such a verdict illegal. Then, the U.S. Supreme Court ruled in Atkins v. Virginia that executing individuals with an intellectual disability, previously referred to as “mental retardation,” violated the Eighth Amendment, which states “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” While states can no longer sentence people with intellectual disabilities to death, there is still controversy regarding how states determine if someone has a mental disability.

Determining Intellectual Disability

According to the American Association on Intellectual and Development Disabilities, an intellectual disability is defined by a person’s intellectual functioning and adaptive behavior being greatly impaired prior to the age of 18. Intellectual functioning is represented by mental capacity and ability to learn, which can be measured with an IQ test. Adaptive behavior involves social, practical, and conceptual skills.

There are objective clinical standards available for determining if someone has an intellectual disability. The basis for the ABA’s amicus brief is that Texas does not use these clinical standards or anything close to them. In fact, Texas currently prohibits courts from using clinical standards to determine intellectual disability and whether a person is eligible for the death penalty. The state requires that courts use standards developed by the Texas Court of Criminal Appeals known as the Briseño Factors (or informally known as the “Lennie Test” in reference to Steinbeck’s character in the novel Of Mice and Men).

The seven factors are:

1. Did those who knew the person best during development, such as friends, family, and teachers, think the person was mentally retarded at the time and act in accordance with this?

2. Has the person formulated plans and carried them through, or is the person’s conduct impulsive?

3. Does the person’s conduct show leadership or is he or she led around by others?

4. Is the person’s conduct in response to external stimuli rational and appropriate, whether or not it is socially acceptable?

5. Does the person respond coherently and rationally to oral or written questions or do his or her responses go off subject?

6. Is the person able to lie effectively in his or her own interest?

7. Disregarding the heinousness or gruesomeness of the alleged capital offense, did the commission of the crime require planning and forethought?

The ABA argues that Texas has purposefully created a standard that “excludes most people with intellectual disabilities,” and relies heavily on stereotypes of individuals with intellectual disabilities instead of scientific facts. The seven factors make it difficult for anyone to be found intellectually disabled.

A Skilled Houston Criminal Defense Lawyer Can Help

If you or someone you love is facing harsh criminal penalties despite having an intellectual disability, you need an experienced criminal defense attorney help you meet Texas’ intellectual disability standard. Call an experienced criminal defense attorney at the Law Offices of Ned Barnett at (713) 222-6767 to learn more about the state’s current standards and how Barnett can help you or your loved one.