In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

Justices side with Texas death row inmate who argued intellectual disability

The Supreme Court on Tuesday sided with a Texas man on death row who argued he was mentally disabled and could not be executed.

In a 5-3 ruling, the court said the state's definition and standards for assessing intellectual disability "create an unacceptable risk that persons with intellectual disability will be executed."

Those standards, known as the Briseno factors, take into account whether neighbors, teachers and friends think the person is intellectually disabled, makes plans or was impulsive, is a leader or a follower, responds in a rational way to situations, respond coherently to oral or written questions and can hide facts or lie to others in their own interest.

In delivering the opinion of the court, Justice Ruth Bader Ginsburg said adjudications of intellectual disability should be informed by the views of medical experts.

"Texas cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual's life is at stake," she wrote in the majority opinion, which Justices Anthony Kennedy, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined.

The case centered on Bobby James Moore, who was convicted of capital murder and sentenced to death for fatally shooting a store clerk during a botched robbery that occurred when Moore was 20 years old.

Evidence at his trial showed that he had significant mental and social difficulties beginning at an early age. At 13, he lacked basic understanding of the days of the week, the months of the year and the seasons. He could hardly tell time or understand the basic principle that subtraction is the reverse of addition.

The Texas Court of Criminal Appeals (CCA), however, said Moore had failed to prove significantly sub-average intellectual functioning with an IQ score of 74.

Ginsburg said, however, that when an IQ score is close to, but above, 70, court precedent requires courts to account for the test's "standard error of measurement" and consider a defendant's adaptive functioning.

She said the court also deviated from prevailing clinical standards in considering his adaptive functioning.

Chief Justice John Roberts filed a dissenting opinion that Justices Samuel Alito and Clarence Thomas joined.

Roberts said he agrees that the state used unacceptable standards to analyze Moore's adaptive deficits, but disagreed that it erred in analyzing Moore's intellectual functioning.

"The Court overturns the CCA's conclusion that Moore failed to present sufficient evidence of both inadequate intellectual functioning and significant deficits in adaptive behavior without even considering 'objective indicia of society's standards' reflected in the practices among the states," he wrote.

"The Court instead crafts a constitutional holding based solely on what it deems to be medical consensus about intellectual disability."

Source: thehill.com, March 28, 2017

Texas Used Wrong Standard in Death Penalty Cases, Justices Rule

 Bobby J. Moore
Bobby J. Moore
WASHINGTON — The Supreme Court on Tuesday continued a trend toward limiting capital punishment, rejecting Texas’ approach to deciding which intellectually disabled people must be spared the death penalty.

Writing for the majority in the 5-to-3 decision, Justice Ruth Bader Ginsburg said Texas had failed to keep up with current medical consensus, relied too heavily on I.Q. scores and took account of factors rooted in stereotypes.

“Texas cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual’s life is at stake,” Justice Ginsburg wrote. She was joined by Justices Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

The case was the latest in a series of decisions refining the court’s 2002 decision in Atkins v. Virginia, which barred the execution of the intellectually disabled as a violation of the Eighth Amendment’s ban on cruel and unusual punishment. The Atkins decision gave states substantial discretion to decide just who was, in the language of the day, “mentally retarded.”

But the decision did set out a general framework. It said a finding of intellectual disability required proof of three things: “subaverage intellectual functioning,” meaning low I.Q. scores; a lack of fundamental social and practical skills; and the presence of both conditions before age 18. The court said I.Q. scores under “approximately 70” typically indicated disability.

The case before the court on Tuesday concerned Bobby J. Moore, who has been on death row since 1980 for fatally shooting a 72-year-old Houston supermarket clerk, James McCarble, during a robbery.

Justice Ginsburg wrote that Mr. Moore’s I.Q. was in the range of 69 to 79, meaning that other factors had to be considered. In dissent, Chief Justice John G. Roberts Jr. wrote that only two I.Q. scores had been found reliable, of 78 and 74.

“The court’s ruling on intellectual functioning turns solely on the fact that Moore’s I.Q. range was 69 to 79 rather than 70 to 80,” Chief Justice Roberts wrote.

The reliable scores were enough, he said, to decide the case and to allow Mr. Moore’s execution.

Justice Ginsburg said the courts have more work to do when I.Q. scores are close to the line. For instance, she wrote, Mr. Moore had reached his teenage years without having learned the most fundamental things.

“At 13,” she wrote, “Moore lacked basic understanding of the days of the week, the months of the year, and the seasons; he could scarcely tell time or comprehend the standards of measure or the basic principle that subtraction is the reverse of addition.”

Click here to read the full article

Source: The New York Times, Adam Liptak, March 28, 2017

The Supreme Court Keeps Tinkering With Death

It’s been more than two decades since Justice Harry Blackmun renounced the death penalty, calling it a “failed” experiment and writing that “I no longer shall tinker with the machinery of death.” By refusing to stop the use of capital punishment, the Supreme Court has consigned itself to tinkering with the death machine, trying in vain to make a barbaric, irrational system appear predictable and just.

The latest tweak came Tuesday, when the court tossed out the death sentence of Bobby James Moore, who was convicted in 1980 for murdering a supermarket clerk during a robbery. Mr. Moore has intellectual disabilities — among other things, his I.Q. is in the 70s, he “lacked basic understanding of the days of the week, the months of the year and the seasons” at the age of 13, and he failed out of ninth grade.

After the Supreme Court barred the execution of people with intellectual disabilities in 2002, Mr. Moore challenged his death sentence. A state court ruled in his favor, finding that under current medical standards Mr. Moore was so disabled that executing him would violate the Eighth Amendment’s ban of cruel and unusual punishments.

The Texas Court of Criminal Appeals, the state’s highest court for criminal cases, reversed that decision. The lower court, it said, had mistakenly applied a newer definition of intellectual disability. But Texas case law relied on an older definition, and used a seven-factor test drawn up by a judge in 2004 to determine whether someone has sufficiently severe disabilities to be spared. For example, it asks, “Has the person formulated plans and carried them through or is his conduct impulsive?” Because Mr. Moore mowed lawns, played pool and took part in the planning of the robbery, the court found that he could be executed.

The Supreme Court gives states a good amount of room to set their own intellectual-disability standards, but on Tuesday it found that Texas had crossed the line.

Writing for five members of the court, Justice Ruth Bader Ginsburg said the state’s approach was unconnected to modern medical consensus. Even the dissenting justices — Chief Justice John Roberts Jr. and Justices Clarence Thomas and Samuel Alito Jr. — agreed that the seven-factor test wasn’t acceptable. Instead, they argued, Mr. Moore’s I.Q. score was high enough to render him fit for execution.

Tuesday’s decision was good for Mr. Moore and perhaps a handful of other inmates, although it came too late for many others. More than anything, it drove home the futility of the tortured, macabre exercises the court engages in whenever it deals with capital punishment.

The real question is not whether Mr. Moore’s I.Q. is 69 or 74, or whether he knows the difference between Monday and Thursday — it’s why a few states still insist on engaging in a practice that the rest of the developed world rejected long ago, and why the Supreme Court refuses to end it for good.

Source: The New York Times, The Editorial Board, March 29, 2017

Finally, Texas is forced to stop executing the mentally disabled based on junk science

Death Row cell, Polunsky Unit, Texas
Death Row cell, Polunsky Unit, Texas
In a 5-3 decision Tuesday, the U.S. Supreme Court determined what many in Texas have argued for years: The way the state evaluates mental disability in death row cases is "cruel and unusual punishment."

We second that. Texas' outrageously loose, nonscientific method of assessing a person's intelligence flies in the face of a requirement forbidding states from executing individuals with intellectual disabilities.

Tuesday's decision means Bobby Moore, who has been on death row for more than 36 years, will see his case sent back to Texas' highest criminal court for re-evaluation.

There is no question that Moore did the crime. In 1980, he shot and killed James McCarble, a 73-year-old grocery clerk, during a botched robbery in Houston. However, after he was sentenced to death, Moore's lawyers argued on appeal that he was severely intellectually disabled.

In 2002, the Supreme Court declared the execution of individuals with intellectual disabilities a violation of the Constitution's ban on cruel and unusual punishment. Moore, however, remained in jeopardy because the court also deferred heavily to the states to determine who qualified as intellectually disabled.

And that's where Texas stumbled, spectacularly. Lawmakers failed to adopt updated standards, which left it to the courts. The Texas Court of Criminal Appeals reverted to obsolete evaluation techniques written 25 years ago - and then compounded that misstep by adding several other subjective and problematic determinations.

Those 7 factors are known as "the Lennie standard," because the court invoked Lennie Small, the dim-witted fictional farmhand in John Steinbeck's Of Mice and Men. "Most Texas citizens might agree that Steinbeck's Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt," the court said. That's not science.

When, at a rehearing, a judge using current medical standards found Moore to be intellectually disabled, the Court of Criminal Appeals reversed the decision, absurdly clinging to its old contentions ordering that only the 1992 standards could be used.

Texas' insistence on applying outdated evaluation when better testing methods were available - and widely in use across the country - was the height of hubris. Courts have acknowledged the important role of modern forensic science in the criminal justice system, but when it came to the death penalty, Texas oddly reverted to obsolete evaluation protocols.

Justice Ruth Bader Ginsburg, who wrote the majority opinion, rebuked Texas' actions as a disregard of current medical standards. "Texas," she wrote, "cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual's life is at stake."

Regardless of whether you believe the death penalty is a deterrent, or whether you consider it to be immoral, there is no question that the law of the land doesn't allow states to execute the intellectually disabled. Now Texas has been told so in indisputable terms.

Source: Dallas Morning News, Editorial, March 29, 2017

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