Supreme Court Justice Makes Powerful Plea For The Disabled On Death Row

YouTube screen grab:

Daily Caller News Foundation logo
Kevin Daley Supreme Court correspondent
Font Size:

A narrow majority of justices at the U.S. Supreme Court appeared ready to side with a Texas death row inmate and further refine the constitutional prohibition on executing the mentally deficient.

The justices are charged with deciding whether the courts may use non-clinical or outdated medical information in assessing whether a person is intellectually disabled, and therefore protected from capital punishment.

The justices found that executing a mentally disabled person is an unconstitutionally cruel and unusual punishment in 2002. They further developed that ruling in Hall v. Florida in 2014, finding that courts may not use a rigid threshold IQ test, but must rely on a range of clinical factors.

In this case, a death row convict named Bobby James Moore challenged the state of Texas’ use of components called the Briseno factors, which assist courts in making findings concerning intellectual disability. These seven factors are derivative of Lennie Smalls, from Steinbeck’s “Of Mice and Men.” Moore was sentenced to die for his role in the robbery of a grocery store which resulted in the death of a clerk. He attempted to vacate his execution by proving he is intellectually disabled, but failed in a state appeals court. The parties would not contest that Moore is developmentally challenged (he could not add or subtract until his teenage years, for example), but disagree as to his status as intellectually disabled.

Though the Briseno factors are not the primary test the Texas courts use to make findings of mental deficiency, they do help inform and shape such findings. In this case, the lower court also relied on a 1992 edition of the American Association on Mental Retardation, which is no longer current. (RELATED: Supreme Court Considers ‘Of Mice And Men’)

Clifford Sloan, Moore’s attorney, characterized Texas’ non-clinical factors as “harmful and inappropriate lay stereotypes.” Sloan said reliance on medical frameworks is a “life and death question that goes to the human dignity of the intellectually disabled.”

Chief Justice John Roberts, sounding perturbed, repeatedly wondered if Moore’s lawyers were raising arguments and issues unrelated to the question the Court granted review on. Roberts’ concern seemed to draw sympathy from Justices Anthony Kennedy and Samuel Alito. Elsewhere in the argument, Kennedy suggested a conflict existed between Texas’ practice and up to date medical standards. He also was troubled by the possibility that a mentally deficint individual could fail Briseno factors scrutiny and still be executed, as has happened on at least three occasions, according to an American Bar Association amicus brief.

Justice Stephen Breyer, the Court’s clarion death penalty opponent, made a powerful intervention during Sloan’s argument, asserting that national standards could not possibly be set for assessing mental deficiency, given the extreme subjectivity involved in such diagnoses. To his thinking, it follows that disparate outcomes will result.

“There will be a bunch of easy cases. And then there are going to be cases like your client who has been on death row for 36 years. And there will be borderline cases…what is the Court supposed to do? Are we supposed to have all those hearings here? I mean, you’ve made very good arguments for your client. There are probably several others in the country in different states which may have different standards. And if you have some view that the law in this area should be law, i.e., that it should be uniform across the country, point me to something that will tell me how a district judge should go about making this determination in borderline cases.”

“And if you 23 want my true motive, I don’t think there is a way to apply this kind of standard uniformly across the country, and therefore, there will be disparities, and uncertainties, and different people treated alike, and people who are alike treated differently,” he added.

Texas Solicitor General Scott Keller argued that the states were not bound to strictly adhere to a particular organization’s clinical definition of intellectual disability. He also argued that the Briseno factors are merely a secondary test the Texas courts use in addition to a constitutionally-valid three part test. He also aggressively rebuted the notion that the Briseno factors were derived from Lennie Smalls.

“Lennie, and the character from “Of Mice and Men,” was never part of the test,” he said. “It’s not part of the test. It was an aside in the opinion, and the Court said it was not going to address that separate question and instead adopted the clinical standards.”

A decision is expected in the coming months.

Follow Kevin on Twitter

Send tips to

Content created by The Daily Caller News Foundation is available without charge to any eligible news publisher that can provide a large audience. For licensing opportunities of our original content, please contact