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A Disappointing Sequel in Moore v. Texas

In 1980, Bobby James Moore literally blew the head off James McCarble, 72, while robbing the supermarket where Mr. McCarble worked. Today the U.S. Supreme Court overturned Moore's death sentence for the second time.

The opinion relies on criteria for defining intellectual disability (formerly called mental retardation) established by two private organizations with agendas, the American Association on Intellectual and Developmental Disabilities and the American Psychiatric Association. For the reasons why this is a bad idea, see our brief in the first case. Science has little or nothing to do with it.

The first case was decided 5-3, with Justice Scalia's chair vacant and Chief Justice Roberts dissenting, joined by Justices Thomas and Alito. This time, the Chief concurs because he believes the Texas Court of Criminal Appeals did not properly apply the previous decision. It is binding precedent, even if he does not agree with it. Justice Alito writes the dissent joined by Justice Thomas and Justice Gorsuch.

There is no express indication of Justice Kavanaugh's position. "Per curiam" opinions are not expressly joined, though they express the position of a majority of the Court. It is disappointing not to see him join the dissent. Hopefully he merely has a position like Justice Roberts's, that he does not think the state court followed the precedent, without revisiting the issues decided there. He seems to be generally lying low after his brutal confirmation battle.

There are many bad ideas in constitutional law, but delegating to private, unaccountable, agenda-driven organizations the power to amend the Eighth Amendment and decide who can be executed for murder is among the worst. I had hoped that this case would be taken for full briefing and argument to reconsider that question, but the Court should take it up in another one soon.


I think we will see Justice Kavanaugh's
position a bit clearer when SCOTUS decides

I did read the decision as well as the CCF brief and am now ashamed to be in
the same human race as those who overturned the death penalty herein.

This seems invaluable: “The procedural part of Penry is still the law,”.

SCOTUS seems hell-bent to expand Atkins – as CCF claims –
beyond its original scope”.

By doing so they fall short in “establish[ing Justice”, but rather aid one to
“flee from Justice”, which was administered by duly appointed people
of his state.
As the murderer’s guilt is not in doubt, neither is that of the Justices who
knowingly liberated him from just punishment.

This postulate by SCOTUS confounds me:
“Second, the appeals court “stressed Moore’s improved behavior in prison.” Id., at ___ (slip op., at 13). But “[c]linicians . . . caution against reliance on adaptive strengths developed ‘in a controlled setting,’ as a prison surely is.””


‘Don’t recognize evidence because it was realized in an environment too controlled’? ‘


[From an anonymous lawyer, a friend of mine]

Fascinating brief.
However, I disagree with two of his premises - one that intellectual disability should be analogous to mental illness; - second that there should be no National Standard.
Having different mental illness standards within the states means a person in one state can be insane, and in another state not insane, for criminal purposes.
Using the National Competency standard has greatly improved the process for court proceedings.

Second, mental retardation is different than mental illness since medication cannot improve this permanent condition. Mental illness can be often controlled or improved by medication and therapy. I believe we need a National Standard, and to recognize that in actions where the IQ was borderline, the matter was returned to a jury who took into consideration his functioning in the community which was high, and did find that he was not intellectually disabled.

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