by Lawrence O. Gostin, Founding O'Neill Chair in Global Health Law at Georgetown Law, Faculty Director of the O'Neill Institute for National and Global Health Law, Director of the World Health Organization Collaborating Center on Public Health Law & Human Rights, and University Professor at Georgetown Law
Since 2002, the Supreme Court has banned the execution of people with intellectual disability. Writing for the Court, Justice John Paul Stevens looked to the clinical understanding of intellectual disability and explained that people with that condition bear diminished culpability “by definition” and are “categorically excluded from execution,” lest cruel and unusual punishment be imposed.
In spite of this categorical ban, people with intellectual disability still face execution in the U.S. because Texas – the state that carries out far more executions than any other state – has disregarded the Supreme Court’s directive that intellectual disability evaluations in death penalty cases must be informed by the medical community’s diagnostic framework. The Supreme Court will soon have an opportunity to address Texas’s unusual and bizarre approach.
Texas is a global outlier when it comes to its method for evaluating intellectual disability claims in death penalty cases. Remarkably, Texas prohibits the use of current medical standards. It is difficult, if not, impossible to locate any other jurisdiction in any country where it is forbidden to use current medical standards in evaluating intellectual disability. As with any field, when policy makers or courts not only defy scientific evidence or standards, but also disregard them, the results can be catastrophic—in this case, literally a matter of life or death. And briefs in the Supreme Court show that no other jurisdiction in the U.S. follows that practice.
The case before the Supreme Court is that of Bobby Moore. In 2014, a trial court in Texas conducted a two-day evidentiary hearing concerning Mr. Moore, a death row prisoner. Among many pieces of evidence, Mr. Moore, at 13, could not tell time and lacked an understanding of the days of the week. Relying on the most current medical standards, and after considering the testimony of multiple professionals trained in intellectual disability, the judge determined that Mr. Moore was intellectually disabled and ineligible for execution.
The Texas Court of Criminal Appeals overturned this finding. It held that the trial court erred in using current medical standards, and that seven distinctly non-clinical factors – known as the “Briseno factors” or “Lennie factors” – weighed heavily against Mr. Moore’s claim. Texas judges created these anti-clinical factors based on lay stereotypes about people with intellectual disabilities and the fictional character Lennie in John Steinbeck’s Of Mice and Men.
The stated purpose of Texas’s “factors” was to carve out a subset of people who meet the clinical definition of intellectual disability but who could still be executed in the state. Texas clung to its non-clinical factors even after the Supreme Court, in 2014, emphasized that “[i]n determining who qualifies as intellectually disabled, it is proper to consult the medical community’s opinions.” Significantly, Texas does not prohibit the use of current medical standards on intellectual disability in any other context, such as special education, disability claims or non-capital criminal justice matters.
On Nov. 29, 2016, the Court will hold oral argument in Moore v. Texas, which challenges Texas’s unscientific standard for determining whether an individual is intellectually disabled and therefore exempt from execution. As it has in the past, the Court should consider the views and consensus of other countries, the international community and the clear weight of scientific evidence.
Around the world, medical professionals are ethically required to stay abreast of developments in their fields and to use current medical standards and techniques. For reasons that are self-evident, doctors are not permitted to apply outdated or unsubstantiated medical standards. In fact, around the globe, refusing to keep current or apply current medical standards, may be cause for disciplinary action against medical professionals.
When law and medicine intersect, in various non-U.S. jurisdictions, the courts are naturally expected to apply the most up-to-date medical standards on a given issue. International organizations and individuals with expertise in medicine and psychiatry, including the British Medical Association, The Royal College of Psychiatrists and the World Psychiatric Association, have communicated this common sense position to the Court by filing a friend-of-the-court brief in the Moore case. All these expert organizations strongly oppose unscientific standards.
I am not aware of any instances of a statute, court decision or other law requiring the use of outdated medical standards, tests or guidelines, as Texas does. On the contrary, there are many examples of statutes and cases in other countries that prohibit the use for legal purposes of standards that have been abandoned by the medical community.
The international amicus brief concludes that the courts of many non-U.S. jurisdictions are “expressly required not to, or are not bound to, apply medical standards abandoned by the medical community,” including the United Kingdom, Canada, Australia, New Zealand, Ireland, Sweden, Germany, Japan and the European Court of Human Rights. In other countries, the point is too obvious to have been documented. Medical knowledge does not stand still, and courts in other countries do not act as though it does.
The Texas Court of Criminal Appeals deliberately uses an outdated and non-clinical definition of intellectual disability in death penalty cases that is contrary to the way medical professionals and legal systems around the world make their judgments. By using unscientific standards, Texas is certain to execute some individuals who have the medical condition of intellectual disability. This inevitable, tragic result of Texas’s outlier approach offends the U.S. Constitution, goes against the common-sense approach to medical standards globally and denies the human dignity of the people whom Texas executes.