WEBVTT - Supreme Court Could Change Texas Death Penalty Laws (Audio)

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

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<v Speaker 1>with June Grosso in New York. In two thousand two,

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<v Speaker 1>the Supreme Courts of the death penalty is unconstitutional for

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<v Speaker 1>people who are intellectually disabled or, using the parliance of

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<v Speaker 1>the day, mentally retarded. But to a large degree, the

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<v Speaker 1>High Court left it up to the states and their

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<v Speaker 1>courts to decide who qualifies as intellectually disabled. Today, the

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<v Speaker 1>Supreme Court heard arguments that Texas, one of the nation's

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<v Speaker 1>biggest death penalty states, has two narrow definition of intellectual disability,

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<v Speaker 1>among other problems. Lawyers for death row inmate Bobby Moore

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<v Speaker 1>argued the state is using an outdated medical definition of

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<v Speaker 1>intellectual disability, and a pivotal justice, Anthony Kennedy suggested he

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<v Speaker 1>saw problems with the Texas system. With us to talk

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<v Speaker 1>about the case and its implications is Robert Owen, a

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<v Speaker 1>professor at northwesterns Pritsker School of Law. Rob thanks for

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<v Speaker 1>joining us, uh, if you can do this in a nutshell,

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<v Speaker 1>give us the overview of how the courts in Texas

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

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<v Speaker 1>good to be here, the Texas courts have since two

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<v Speaker 1>thousand and six, have applied their own judge made criteria

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<v Speaker 1>for judging whether a defendant meets the standard to be

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<v Speaker 1>exempt from execution under Atkins. The Atkins decision itself identified

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<v Speaker 1>three traditional criteria for a diagnosis of what was then

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<v Speaker 1>called mental retardation. The first is significantly sub average intellectual functioning,

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<v Speaker 1>which is usually represented by an i Q score. The

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<v Speaker 1>second is what's called deficits and adaptive functioning, which essentially

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<v Speaker 1>is the the ways in which the low intellectual functioning

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<v Speaker 1>translates into behavior, so it has to do with how

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<v Speaker 1>the defendant adapts to functioning in the real world. And

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<v Speaker 1>the third criterion is a simplest one, which is that

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<v Speaker 1>ordinarily this diagnosis has to be manifest itself prior to

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<v Speaker 1>age eighteen, so or the condition has to manifest itself

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<v Speaker 1>prior to age eighteen. So those are the three diagnostic

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<v Speaker 1>criteria that are in play in applying Atkins and what

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<v Speaker 1>the Court of Criminal Appeals in Texas. And I should

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<v Speaker 1>note for your listeners that the Court of Criminal Appeals

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<v Speaker 1>is effectively the Texas Criminal Supreme Court because the Texas

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<v Speaker 1>Supreme Court doesn't hear criminal cases, and Rob, I just

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<v Speaker 1>want to interject to mention that when you said Atkins,

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<v Speaker 1>you're referring to that two thousand two case that said

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

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<v Speaker 1>Atkins is the lead, the leading Supreme Court case on

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

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<v Speaker 1>in a moment that I think has a lot of

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<v Speaker 1>influence on why they agreed to hear the More case

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

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<v Speaker 1>of Criminal Appeals, in deciding how to apply these three criteria,

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<v Speaker 1>departed from the scientific UH community in how it applied

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<v Speaker 1>the second criteria at this question of adaptive functioning. In

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<v Speaker 1>other words, rather than looking to the kinds of behaviors

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<v Speaker 1>that mental health experts say are relevant, the Court of

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<v Speaker 1>Criminal Appeals came up with what are essentially a kind

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<v Speaker 1>of set of lay person's questions that you might ask

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<v Speaker 1>about a defendant to judge whether he is a person

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<v Speaker 1>with an intellectual disability, Questions like is he a leader

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<v Speaker 1>or a follower? Can he make plans? Uh? Can he

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<v Speaker 1>lie effectively in his own interest? So these were the

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<v Speaker 1>the criteria that the court came up with which it

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<v Speaker 1>essentially then substituted in its analysis for the consensus of

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<v Speaker 1>the scientific community about what kinds of behaviors are relevant.

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<v Speaker 1>And that's been the that's been the subject of the

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<v Speaker 1>of the controversy that gave rise to the More decision.

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<v Speaker 1>Explain why it's difficult for the Supreme Court to set

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<v Speaker 1>out specific standards for mental disability. I really think it's

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<v Speaker 1>not that difficult. I mean, we mentioned the other Supreme

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<v Speaker 1>Court case that I think comes into play here in

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<v Speaker 1>in Atkins. In two thousand and two, in the Supreme

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<v Speaker 1>Court first announced this prohibition on executing defendants with intellectual disability,

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<v Speaker 1>they said that it would be primarily left up to

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<v Speaker 1>the states to define what constituted intellectual disability or, as

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<v Speaker 1>we called it at the time, mental retardation. In two

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<v Speaker 1>thousand and fourteen, however, the Court took another case, this

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<v Speaker 1>one from Florida, a case called Hall, where they asked

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<v Speaker 1>the question, had Florida gone too far in narrowing its

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<v Speaker 1>definition of the first prong of the Atkins definition, in

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<v Speaker 1>other words, what constitutes significantly sub average intellectual functioning. What

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<v Speaker 1>Florida had done was set a firm cap on the

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<v Speaker 1>I Q score. They said on less you score less

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<v Speaker 1>than seventy on an IQ test. As a matter of law,

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<v Speaker 1>you can never be UH quality. You can't qualify under

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<v Speaker 1>Atkins for exemption from the death penalty. And what the

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<v Speaker 1>Supreme Court said, through Justice Kennedy very emphatically in the

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

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

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<v Speaker 1>they can't define intellectual disability in a way that is

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<v Speaker 1>inconsistent with a broad scientific consensus among the relevant professional

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<v Speaker 1>medical community. And I think that that's why the Court

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<v Speaker 1>of Criminal Appeals UH sort of factors that they are

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<v Speaker 1>using in this kind of analysis is something that Supreme

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<v Speaker 1>Court won't have any trouble turning aside because the Court

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<v Speaker 1>itself doesn't have to come up with the standards. The

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<v Speaker 1>Court just has to say the standards are what the

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<v Speaker 1>professional communities say they are. Robber are we if that's

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<v Speaker 1>if that's the case, it might take on the argument

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<v Speaker 1>was that your analysis is probably going to be right.

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<v Speaker 1>It seemed like Justice Kennedy today was favoring the the

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<v Speaker 1>inmates and would say that that you have to use

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<v Speaker 1>the current medical standards are we moving towards a world

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<v Speaker 1>where there's a single uniform national standard instead of the

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<v Speaker 1>state by state approach that Atkins suggested. I think that

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<v Speaker 1>what we may see is that it will turn out

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<v Speaker 1>that when the Court made that statement and Atkins it

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<v Speaker 1>UH intended for it to have much less weight than

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<v Speaker 1>the States took it to have. In other words, the

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<v Speaker 1>Court probably intended all along that the scientific consensus, rather

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<v Speaker 1>than the views of judges around the country, should control

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<v Speaker 1>in this regard. And I think that the fact that

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<v Speaker 1>just As Kennedy is taking the lead in this area

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

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<v Speaker 1>very knowledgeable about mental health issues. He often asks really

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<v Speaker 1>penetrating questions in oral argument that has to do with

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<v Speaker 1>a range of different you know, mental health applications in

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<v Speaker 1>the criminal law, but also in other kinds of social settings.

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<v Speaker 1>So I think he is uh, he is disturbed or

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<v Speaker 1>concerned that the that the States seem to have moved

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<v Speaker 1>away from what appears to be a national consensus among experts.

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<v Speaker 1>And I think that consensus is reflected in the fact

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<v Speaker 1>that there are multiple uh amicust briefs or a Friend

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<v Speaker 1>of the Court briefs that were filed in the more

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<v Speaker 1>lawsuit on behalf of Mr Moore. The American Psychological Association

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<v Speaker 1>filed on his behalf. The American Psychiatric Association filed on

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<v Speaker 1>his behalf. The American Association on Intellectual Disabilities and Developmental

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<v Speaker 1>Disabilities filed on his behalf. So there's there's a solid

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<v Speaker 1>wall of professional authority speaking to the court with a

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<v Speaker 1>single uh, mixing my metaphors of wall speaking with a

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<v Speaker 1>single voice, but this chorus of of experts speaking to

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<v Speaker 1>the court with really a single voice in saying that

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<v Speaker 1>texas As approach seems to be fundamentally at odds with

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<v Speaker 1>the scientific consensus around the country. And is Texas approach

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<v Speaker 1>similar to other states approaches? If the court rules in

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<v Speaker 1>this case and the way we think they're going to

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<v Speaker 1>rule them, will other states be affected? I am unaware

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<v Speaker 1>of any other state June that has tried to depart

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<v Speaker 1>from this consensus in the way that Texas has. For example,

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<v Speaker 1>no other state has adopted these factors that were created

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<v Speaker 1>by the Court of Criminal Appeals for use in other

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<v Speaker 1>states analysis of consclaims. I think in this regard, the

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<v Speaker 1>Texas practice is a clear outlier. And UH, it may

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<v Speaker 1>be that all the Court is doing here is sort

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<v Speaker 1>of correcting what it sees as an extreme deviation from

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<v Speaker 1>the appropriate approach, and it's unlikely that that would have

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<v Speaker 1>a wide, far reaching effect. And other death penalty states