In 2002, the Supreme Court ruled in the landmark Atkins decision that it is unconstitutional to execute those with intellectual disability. The Court concluded that such individuals are less culpable for their actions because of their limited ability to understand and process information. As the death penalty is supposedly reserved for the ‘worst of the worst’, executing those who are not able to fully understand the implications of their crime, the court ruled, is not effective. Immediately, Texas’ highest criminal court appealed the decision and ruled on its own set of criteria for what constitutes intellectual disability.

Despite the fact that the U.S. Supreme Court enforced guidelines requiring that states refer to a medical diagnosis for intellectual disability, Texas continues to defend its own, unique set of standards, which defy the medical communities’ reasoning. In fact, Texas prohibits the use of any medical definition of intellectual disability in capital cases, despite relying on such a definition in other contexts, like placing a child in special education or as eligibility criteria for disability benefits. Instead, the court asks arbitrary and non-medical questions such as whether the individual’s family considers him/her to be intellectually limited, or whether ‘Texas citizens’ would agree with the label being applied. Astonishingly, the court has referred to John Steinbeck’s fictional Of Mice and Men character, Lennie, as a benchmark for a person with an intellectual disability.

This month the U.S. Supreme Court will review Texas’ unique approach to intellectual disability in capital cases. At the center of the case is Bobby Moore, a man considered intellectually disabled by all standards other than those of the Texas Court of Criminal Appeals, who was involved in a botched robbery in Houston in 1980 during which a store clerk was killed. His lawyers argue that as a teenager, Moore did not even understand the days of the week, how to tell the time, and has repeatedly scored within the ‘retardation’ range in IQ tests. The prosecution states that, because Moore was able to ‘adapt to circumstances’ that meant he survived living on the streets after his father kicked him out aged 14, he is deemed mentally efficient enough to be considered for the death penalty.

The U.S. Supreme Court will have to decide whether the standards used by Texas to define intellectual disability can stand. Years before the Atkins decision, in 1990, the Tennessee legislature voted to exclude those with an intellectual disability from the death penalty. Fair-minded Tennesseans determined, even before the U.S. Supreme Court, that the death penalty was not appropriate for individuals with intellectual disability.

Today in Tennessee, a coalition of mental health advocates and other organizations called the Tennessee Alliance for the Severe Mental Illness Exclusion (TASMIE) is advocating for this exclusion to be extended to those with severe mental illness. These individuals could still be found guilty and receive sentences like life without the possibility of parole, but a death sentence would be off the table, saving taxpayers millions in capital litigation costs that could provide more resources for law enforcement and more access to treatment for those with mental illness.

TASMIE is educating Tennesseans about these concerns and organizing citizens to advocate for this change in 2017. If you would like to get engaged in supporting the work of TASMIE, please visit TASMIE.org.

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