You're listening the Bloomberg Law. I'm Greg's store in Washington with June Grosso in New York. In two thousand two, the Supreme Courts of the death penalty is unconstitutional for people who are intellectually disabled or, using the parliance of the day, mentally retarded. But to a large degree, the High Court left it up to the states and their
courts to decide who qualifies as intellectually disabled. Today, the Supreme Court heard arguments that Texas, one of the nation's biggest death penalty states, has two narrow definition of intellectual disability, among other problems. Lawyers for death row inmate Bobby Moore argued the state is using an outdated medical definition of intellectual disability, and a pivotal justice, Anthony Kennedy suggested he
saw problems with the Texas system. With us to talk about the case and its implications is Robert Owen, a professor at northwesterns Pritsker School of Law. Rob thanks for joining us, uh, if you can do this in a nutshell, give us the overview of how the courts in Texas
define what is an intellectual disability? Sure, thanks, Gregg. It's good to be here, the Texas courts have since two thousand and six, have applied their own judge made criteria for judging whether a defendant meets the standard to be exempt from execution under Atkins. The Atkins decision itself identified three traditional criteria for a diagnosis of what was then called mental retardation. The first is significantly sub average intellectual functioning,
which is usually represented by an i Q score. The second is what's called deficits and adaptive functioning, which essentially is the the ways in which the low intellectual functioning translates into behavior, so it has to do with how the defendant adapts to functioning in the real world. And the third criterion is a simplest one, which is that ordinarily this diagnosis has to be manifest itself prior to age eighteen, so or the condition has to manifest itself
prior to age eighteen. So those are the three diagnostic criteria that are in play in applying Atkins and what the Court of Criminal Appeals in Texas. And I should note for your listeners that the Court of Criminal Appeals is effectively the Texas Criminal Supreme Court because the Texas Supreme Court doesn't hear criminal cases, and Rob, I just want to interject to mention that when you said Atkins, you're referring to that two thousand two case that said
intellectually disabled people can't be executed. That's exactly right. Greg Atkins is the lead, the leading Supreme Court case on this issue. Although there's another Supreme Court case I'll mention in a moment that I think has a lot of influence on why they agreed to hear the More case and how it's likely to come out. So, the Court of Criminal Appeals, in deciding how to apply these three criteria, departed from the scientific UH community in how it applied
the second criteria at this question of adaptive functioning. In other words, rather than looking to the kinds of behaviors that mental health experts say are relevant, the Court of Criminal Appeals came up with what are essentially a kind of set of lay person's questions that you might ask about a defendant to judge whether he is a person with an intellectual disability, Questions like is he a leader or a follower? Can he make plans? Uh? Can he
lie effectively in his own interest? So these were the the criteria that the court came up with which it essentially then substituted in its analysis for the consensus of the scientific community about what kinds of behaviors are relevant. And that's been the that's been the subject of the of the controversy that gave rise to the More decision. Explain why it's difficult for the Supreme Court to set out specific standards for mental disability. I really think it's
not that difficult. I mean, we mentioned the other Supreme Court case that I think comes into play here in in Atkins. In two thousand and two, in the Supreme Court first announced this prohibition on executing defendants with intellectual disability, they said that it would be primarily left up to the states to define what constituted intellectual disability or, as
we called it at the time, mental retardation. In two thousand and fourteen, however, the Court took another case, this one from Florida, a case called Hall, where they asked the question, had Florida gone too far in narrowing its definition of the first prong of the Atkins definition, in other words, what constitutes significantly sub average intellectual functioning. What Florida had done was set a firm cap on the I Q score. They said on less you score less
than seventy on an IQ test. As a matter of law, you can never be UH quality. You can't qualify under Atkins for exemption from the death penalty. And what the Supreme Court said, through Justice Kennedy very emphatically in the whole case is that's you know, that's wrong. You can't. You can't. Although the States has some latitude under Atkins, they can't define intellectual disability in a way that is inconsistent with a broad scientific consensus among the relevant professional
medical community. And I think that that's why the Court of Criminal Appeals UH sort of factors that they are using in this kind of analysis is something that Supreme Court won't have any trouble turning aside because the Court itself doesn't have to come up with the standards. The Court just has to say the standards are what the professional communities say they are. Robber are we if that's if that's the case, it might take on the argument was that your analysis is probably going to be right.
It seemed like Justice Kennedy today was favoring the the inmates and would say that that you have to use the current medical standards are we moving towards a world where there's a single uniform national standard instead of the state by state approach that Atkins suggested. I think that what we may see is that it will turn out that when the Court made that statement and Atkins it UH intended for it to have much less weight than
the States took it to have. In other words, the Court probably intended all along that the scientific consensus, rather than the views of judges around the country, should control in this regard. And I think that the fact that just As Kennedy is taking the lead in this area is noteworthy because, as you both know, I'm sure he's
very knowledgeable about mental health issues. He often asks really penetrating questions in oral argument that has to do with a range of different you know, mental health applications in the criminal law, but also in other kinds of social settings. So I think he is uh, he is disturbed or concerned that the that the States seem to have moved away from what appears to be a national consensus among experts.
And I think that consensus is reflected in the fact that there are multiple uh amicust briefs or a Friend of the Court briefs that were filed in the more lawsuit on behalf of Mr Moore. The American Psychological Association filed on his behalf. The American Psychiatric Association filed on his behalf. The American Association on Intellectual Disabilities and Developmental
Disabilities filed on his behalf. So there's there's a solid wall of professional authority speaking to the court with a single uh, mixing my metaphors of wall speaking with a single voice, but this chorus of of experts speaking to the court with really a single voice in saying that texas As approach seems to be fundamentally at odds with the scientific consensus around the country. And is Texas approach
similar to other states approaches? If the court rules in this case and the way we think they're going to rule them, will other states be affected? I am unaware of any other state June that has tried to depart from this consensus in the way that Texas has. For example, no other state has adopted these factors that were created by the Court of Criminal Appeals for use in other states analysis of consclaims. I think in this regard, the
Texas practice is a clear outlier. And UH, it may be that all the Court is doing here is sort of correcting what it sees as an extreme deviation from the appropriate approach, and it's unlikely that that would have a wide, far reaching effect. And other death penalty states