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Speaker 1: You're listening the Bloomberg Law. I'm Greg's store in Washington

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Speaker 1: with June Grosso in New York. In two thousand two,

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Speaker 1: the Supreme Courts of the death penalty is unconstitutional for

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Speaker 1: people who are intellectually disabled or, using the parliance of

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Speaker 1: the day, mentally retarded. But to a large degree, the

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Speaker 1: High Court left it up to the states and their

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Speaker 1: courts to decide who qualifies as intellectually disabled. Today, the

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Speaker 1: Supreme Court heard arguments that Texas, one of the nation's

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Speaker 1: biggest death penalty states, has two narrow definition of intellectual disability,

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Speaker 1: among other problems. Lawyers for death row inmate Bobby Moore

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Speaker 1: argued the state is using an outdated medical definition of

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Speaker 1: intellectual disability, and a pivotal justice, Anthony Kennedy suggested he

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Speaker 1: saw problems with the Texas system. With us to talk

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Speaker 1: about the case and its implications is Robert Owen, a

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Speaker 1: professor at northwesterns Pritsker School of Law. Rob thanks for

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Speaker 1: joining us, uh, if you can do this in a nutshell,

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Speaker 1: give us the overview of how the courts in Texas

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Speaker 1: define what is an intellectual disability? Sure, thanks, Gregg. It's

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Speaker 1: good to be here, the Texas courts have since two

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Speaker 1: thousand and six, have applied their own judge made criteria

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Speaker 1: for judging whether a defendant meets the standard to be

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Speaker 1: exempt from execution under Atkins. The Atkins decision itself identified

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Speaker 1: three traditional criteria for a diagnosis of what was then

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Speaker 1: called mental retardation. The first is significantly sub average intellectual functioning,

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Speaker 1: which is usually represented by an i Q score. The

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Speaker 1: second is what's called deficits and adaptive functioning, which essentially

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Speaker 1: is the the ways in which the low intellectual functioning

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Speaker 1: translates into behavior, so it has to do with how

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Speaker 1: the defendant adapts to functioning in the real world. And

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Speaker 1: the third criterion is a simplest one, which is that

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Speaker 1: ordinarily this diagnosis has to be manifest itself prior to

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Speaker 1: age eighteen, so or the condition has to manifest itself

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Speaker 1: prior to age eighteen. So those are the three diagnostic

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Speaker 1: criteria that are in play in applying Atkins and what

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Speaker 1: the Court of Criminal Appeals in Texas. And I should

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Speaker 1: note for your listeners that the Court of Criminal Appeals

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Speaker 1: is effectively the Texas Criminal Supreme Court because the Texas

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Speaker 1: Supreme Court doesn't hear criminal cases, and Rob, I just

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Speaker 1: want to interject to mention that when you said Atkins,

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Speaker 1: you're referring to that two thousand two case that said

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Speaker 1: intellectually disabled people can't be executed. That's exactly right. Greg

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Speaker 1: Atkins is the lead, the leading Supreme Court case on

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Speaker 1: this issue. Although there's another Supreme Court case I'll mention

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Speaker 1: in a moment that I think has a lot of

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Speaker 1: influence on why they agreed to hear the More case

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Speaker 1: and how it's likely to come out. So, the Court

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Speaker 1: of Criminal Appeals, in deciding how to apply these three criteria,

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Speaker 1: departed from the scientific UH community in how it applied

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Speaker 1: the second criteria at this question of adaptive functioning. In

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Speaker 1: other words, rather than looking to the kinds of behaviors

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Speaker 1: that mental health experts say are relevant, the Court of

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Speaker 1: Criminal Appeals came up with what are essentially a kind

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Speaker 1: of set of lay person's questions that you might ask

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Speaker 1: about a defendant to judge whether he is a person

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Speaker 1: with an intellectual disability, Questions like is he a leader

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Speaker 1: or a follower? Can he make plans? Uh? Can he

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Speaker 1: lie effectively in his own interest? So these were the

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Speaker 1: the criteria that the court came up with which it

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Speaker 1: essentially then substituted in its analysis for the consensus of

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Speaker 1: the scientific community about what kinds of behaviors are relevant.

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Speaker 1: And that's been the that's been the subject of the

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Speaker 1: of the controversy that gave rise to the More decision.

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Speaker 1: Explain why it's difficult for the Supreme Court to set

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Speaker 1: out specific standards for mental disability. I really think it's

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Speaker 1: not that difficult. I mean, we mentioned the other Supreme

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Speaker 1: Court case that I think comes into play here in

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Speaker 1: in Atkins. In two thousand and two, in the Supreme

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Speaker 1: Court first announced this prohibition on executing defendants with intellectual disability,

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Speaker 1: they said that it would be primarily left up to

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Speaker 1: the states to define what constituted intellectual disability or, as

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Speaker 1: we called it at the time, mental retardation. In two

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Speaker 1: thousand and fourteen, however, the Court took another case, this

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Speaker 1: one from Florida, a case called Hall, where they asked

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Speaker 1: the question, had Florida gone too far in narrowing its

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Speaker 1: definition of the first prong of the Atkins definition, in

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Speaker 1: other words, what constitutes significantly sub average intellectual functioning. What

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Speaker 1: Florida had done was set a firm cap on the

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Speaker 1: I Q score. They said on less you score less

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Speaker 1: than seventy on an IQ test. As a matter of law,

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Speaker 1: you can never be UH quality. You can't qualify under

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Speaker 1: Atkins for exemption from the death penalty. And what the

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Speaker 1: Supreme Court said, through Justice Kennedy very emphatically in the

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Speaker 1: whole case is that's you know, that's wrong. You can't.

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Speaker 1: You can't. Although the States has some latitude under Atkins,

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Speaker 1: they can't define intellectual disability in a way that is

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Speaker 1: inconsistent with a broad scientific consensus among the relevant professional

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Speaker 1: medical community. And I think that that's why the Court

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Speaker 1: of Criminal Appeals UH sort of factors that they are

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Speaker 1: using in this kind of analysis is something that Supreme

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Speaker 1: Court won't have any trouble turning aside because the Court

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Speaker 1: itself doesn't have to come up with the standards. The

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Speaker 1: Court just has to say the standards are what the

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Speaker 1: professional communities say they are. Robber are we if that's

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Speaker 1: if that's the case, it might take on the argument

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Speaker 1: was that your analysis is probably going to be right.

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Speaker 1: It seemed like Justice Kennedy today was favoring the the

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Speaker 1: inmates and would say that that you have to use

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Speaker 1: the current medical standards are we moving towards a world

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Speaker 1: where there's a single uniform national standard instead of the

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Speaker 1: state by state approach that Atkins suggested. I think that

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Speaker 1: what we may see is that it will turn out

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Speaker 1: that when the Court made that statement and Atkins it

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Speaker 1: UH intended for it to have much less weight than

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Speaker 1: the States took it to have. In other words, the

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Speaker 1: Court probably intended all along that the scientific consensus, rather

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Speaker 1: than the views of judges around the country, should control

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Speaker 1: in this regard. And I think that the fact that

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Speaker 1: just As Kennedy is taking the lead in this area

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Speaker 1: is noteworthy because, as you both know, I'm sure he's

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Speaker 1: very knowledgeable about mental health issues. He often asks really

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Speaker 1: penetrating questions in oral argument that has to do with

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Speaker 1: a range of different you know, mental health applications in

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Speaker 1: the criminal law, but also in other kinds of social settings.

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Speaker 1: So I think he is uh, he is disturbed or

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Speaker 1: concerned that the that the States seem to have moved

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Speaker 1: away from what appears to be a national consensus among experts.

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Speaker 1: And I think that consensus is reflected in the fact

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Speaker 1: that there are multiple uh amicust briefs or a Friend

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Speaker 1: of the Court briefs that were filed in the more

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Speaker 1: lawsuit on behalf of Mr Moore. The American Psychological Association

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Speaker 1: filed on his behalf. The American Psychiatric Association filed on

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Speaker 1: his behalf. The American Association on Intellectual Disabilities and Developmental

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Speaker 1: Disabilities filed on his behalf. So there's there's a solid

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Speaker 1: wall of professional authority speaking to the court with a

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Speaker 1: single uh, mixing my metaphors of wall speaking with a

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Speaker 1: single voice, but this chorus of of experts speaking to

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Speaker 1: the court with really a single voice in saying that

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Speaker 1: texas As approach seems to be fundamentally at odds with

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Speaker 1: the scientific consensus around the country. And is Texas approach

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Speaker 1: similar to other states approaches? If the court rules in

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Speaker 1: this case and the way we think they're going to

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Speaker 1: rule them, will other states be affected? I am unaware

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Speaker 1: of any other state June that has tried to depart

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Speaker 1: from this consensus in the way that Texas has. For example,

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Speaker 1: no other state has adopted these factors that were created

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Speaker 1: by the Court of Criminal Appeals for use in other

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Speaker 1: states analysis of consclaims. I think in this regard, the

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Speaker 1: Texas practice is a clear outlier. And UH, it may

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Speaker 1: be that all the Court is doing here is sort

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Speaker 1: of correcting what it sees as an extreme deviation from

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Speaker 1: the appropriate approach, and it's unlikely that that would have

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Speaker 1: a wide, far reaching effect. And other death penalty states