By Christopher Zoukis
Although challenges to the death penalty have not fared all that well at the Supreme Court in recent years, its new term starting in October will contain at least two more cases brought by Death Row inmates. On June 6, the high court agreed to take up two separate appeals brought inmates who received death sentences in Texas.
Each case raises a different issue. The mental ability required for a prisoner to be given a death sentence is the central issue in Moore v. Texas. Since 2002, the U.S. Supreme Court has said it violates the Eighth Amendment’s prohibition of cruel and unusual punishment to execute a person with serious mental deficiencies.
The high court gave only very general guidance on how to assess a defendant’s mental abilities, however, providing a three-factor test: an I.Q. score (the court pegged this at “approximately 70”) showing subpar mental functioning, an absence of fundamental practical and social skills, and the presence of both of those conditions before age 18.
The court also left it to states to adopt methods for assessing defendants’ mental abilities, though in a 2014 case, the court by a 5-4 vote overturned a death sentence in Florida for being too inflexible; the state had sentenced to death a defendant who had an I.Q. score of 71.
Bobby J. Moore, who had four previous felony convictions, was convicted in 1980 of killing an elderly clerk during a robbery of a Houston supermarket. During a sentencing hearing the following year, using the most recent standards set by mental health experts, the trial court determined Moore’s intellectual disabilities disqualified him for the death penalty.
But an appeals court later ruled the trial court had applied the wrong standard for judging intellectual disability, and went back to state case law to substitute an older standard. The Supreme Court will review whether the trial court erred in using the standard it did.
When the Court announced it would hear an appeal of whether Moore had sufficient mental capacity to receive a death sentence, it was erroneously stated a second issue would also be reviewed: whether the 35 years Moore has spent on death row by itself amounts to cruel and unusual punishment. Only two members of the Court – Justices Stephen Breyer and Ruth Bader Ginsburg – have indicated they would welcome a review of whether the death penalty is fundamentally unconstitutional.
The issue in the second Texas death penalty case the high court accepted (Buck v. Stephens) is whether the sentencing hearing was tainted by a psychologist’s testimony that the race of African-American defendant Duane Buck made him a greater future risk to society. Buck was convicted in 1995 of murdering a former girlfriend and a friend of hers.
Incredibly, the psychologist who injected racial issues into the case had been offered at the hearing by Buck’s former attorney. Buck’s new lawyers are trying to overturn his death sentence based on the racially-tinged testimony and also alleging ineffective assistance of counsel. Back in 2011, the Supreme Court had declined to hear an earlier appeal in the case, but at the time four current Justices expressed concern over aspects of Buck’s trial.
Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com