Supreme Court Happenings - 2.19.19

Lloenflys

"Certainty is an illusion ..."
Honoured Citizen
Citizen
The Supreme Court hasn't sat for nearly a month, so there have been no opinions to talk about since January 22. Today, the Court returned to the bench and released a Per Curium decision in a death penalty case that last visited the Court two terms ago, and which produced an interesting decision today.

Moore v. Texas, 18-443 (Court of Criminal Appeals of Texas)

MAJ: PC
Con: Roberts
Dis: Alito, joined by Thomas, Gorsuch

Two years ago, the case of Bobby James Moore wound its way up to the Supreme Court. Moore was on death row for a murder committed during an armed robbery in 1980. In a state habeas proceeding, Moore argued that he was too intellectually disabled to be subject to the death penalty under the Supreme Court's decision in Atkins v. Virginia, the 2002 case that removed the death penalty from the acceptable punishments for defendants shown to have an intellectual disability. The habeas court sided with Moore, and ruled that he could not be executed by the state.

On appeal, the Court of Criminal Appeals of Texas, which serves as the court of last resort for criminal matters within the state, overturned the habeas court's ruling and found that Moore was not intellectually disabled enough to be excused from his death sentence. The Supreme Court took up the case and determined that the Criminal Appeals Court had relied on outdated, no longer medically valid findings in determining that Moore was Constitutionally eligible for the death penalty, such as relying on his adaptive strengths rather than his adaptive weaknesses, and focusing too much on improved behavior and performance in the highly regimented prison structure he had been living in rather than his performance in the less structured world outside of prison. As a result, the Supreme Court sent the case back to the Texas Court of Criminal Appeals to try again, applying more modern medical criteria.

After it took a second look at the case, the Texas Court of Criminal Appeals again found Moore to be eligible for the death penalty. Moore again sought a petition of certiorari to have his case reviewed. Interestingly, the Harris County prosecutor agreed with him that the death penalty should not apply. Nonetheless, the Texas Attorney General sought leave to intervene in the proceedings so as to see the sentence through to its final execution. The Supreme Court granted certiorari and issued a Per Curium opinion today once again overturning the ruling of the Texas Court of Criminal Appeals, declaring that Moore is a person with an intellectual disability, and returning the case to Texas for final disposition not inconsistent with that finding. In other words, Moore wins.

The Per Curium decision does not break new ground. It makes clear that the three important questions to ask when confronting a claim of intellectual disability as regards a death penalty sentence are (1) whether there exist deficits in intellectual functioning, as measured by tests developed for the purpose; (2) whether there exist adaptive deficits, as measured through clinical evaluation and individualized measures suitable for the individual in question; and (3) whether the onset of the deficits occurred at childhood. The Court found that the Texas Court of Criminal Appeals focused primarily on the second deficit, but in so doing that it relied on outdated and unreliable indicators such as whether the person who knew him best at the time of the criminal conduct considered him to be mentally retarded and whether he had a personality disorder, amongst a series of other unacceptable, unscientific, and medically invalid criteria.

Most interesting, however, was the end result of the Per Curium decision - and it was pounced on by the dissent. Normally the Supreme Court does not put itself in the position of a fact-finder, but in this case, having given the Texas Court of Criminal Appeals two bites at the apple to get its death penalty law on intellectual disabilities within constitutional bounds, the Court decided enough was enough and made a factual determination of intellectual disability on behalf of Moore. That's the end of the story - he cannot be executed.

The dissent finds this abominable. How DARE the Supreme Court act as a trial of fact! Indeed, there is plenty of precedent that this is not the role the Court is supposed to play. The dissent in fact goes all the way back to a 1925 case called United States v. Johnston, 268 U.S. 220, 227 (1925) to cite the fact that "We do not grant a certiorari to review evidence and discuss specific facts." This point is regularly made, usually by a more conservative member of the Court, anytime the Court steps in to "right a wrong" that isn't purely based on legal reasoning. Further, the dissent critcizes the Court as being the cause of the Texas Court of Criminal Appeals difficulties in the first place, for not having clearly articulated the standard it expected in the first Moore decision due to wishy-washy language that provided hardly any real guidance.

As much as I dislike it, the dissent has a point. The Supreme Court is not well positioned to be a trying of fact. However, there are two reasons to overlook that in this case. First, the Texas Court of Criminal Appeals was told what it should not rely on in making its decision, and while some words were shuffled around it was pretty clear when reading the new opinion that it basically just applied the old factors and gave lip service to doing anything else. How many times must the Supreme Court send a case back before the offending court loses its turns. At stake is a man's life, and some measure of finality should be available to him. An intransigent court that is determined to find a way to skirt the Supreme Court's rulings on something like the death penalty shouldn't just be given unlimited time to work its will or to find some creative writing that works after the 10th attempt.

Second, it should be remembered that even the prosecutor in this case does not want it to proceed to the death penalty. The only party that does want that is the Attorney General of Texas, who is seeking to impost his will over the local prosecutor. There's no reason for that to occur, so the Supreme Court opinion is recognizing that the Attorney General of Texas would have been an unnecessary interloper in the case and prevented that from happening.

A final note on the Chief Justice's brief concurrence in the case. He still believes that the opinion in this case is not clear enough on what standards states need to apply to meet Constitutional muster as relates to the death penalty for individuals with intellectual impairments, but he acknowledges that however vague the current standards may be, the Texas Court of Criminal Appeals has twice clearly failed to meet them (quite an accomplishment, really). As a result, while he doesn't come right out and say it this directly, his short concurrence and statement that he joins the Per Curium decision indicate clearly that twice is enough times for Texas to get it right, and having failed to do so they've given up the right to try again.

This is the right decision. If there is any question of someone being intellectually disabled and so unable to truly appreciate the consequences of their actions, then the death penalty is simply not the right punishment for that person.
 
Thank you for this brief. I enjoy your Supreme Court findings!

I'm glad someone finds it worthwhile! I enjoy writing them and would do it even if no one read them since it's how I reinforce the ideas to myself (which is why I don't always edit them as much as I should ... if I understand what I'm saying I often consider it good enough haha). But anyone that gets something out of it makes me happy, that's why I post them!
 
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