The Supreme Court’s decision in Moore v. Texas  re-affirmed an earlier ruling in Atkins v. Virginia, holding that the “Constitution ‘restrict[s] … the State’s power to take the life of’ any intellectually disabled individual.” (Emphasis in the majority opinion in Moore.) Given that standard, the 5-3 decision was unsurprising, since the evidence of defendant Moore’s intellectual disability was strong. But the case also serves as a reminder of the abundant pathologies that mar capital punishment in the United States.
37 years ago in April of 1980, a twenty year old named Bobby James Moore tried to rob a grocery store in Texas with two friends. When a store employee screamed, Moore panicked and shot and instantly killed a 71 year old store clerk. Moore claimed the shooting was accidental but the jury apparently did not believe him and he was quickly sentenced to death. With roughly 3000 murders in Texas that year leading to perhaps 30 executions, one might wonder why Moore was singled out to be in the worst 1 percent. While every murder is horrible in that it ends a human life, the Supreme Court has said that the death penalty must be limited to the worst of the worst crimes, committed by the most culpable defendants. On its face, this crime does not compare with many murders that are more vicious, committed by more wanton criminals, and involving far more victim suffering. But two of the most powerful influences on who gets sentenced to death are geography and race. What made Moore’s murder leap out of the pack of 3000 was that it involved a black man killing a white man in Harris County, Texas—the capital of capital punishment.
In addition to the likely pivotal significance of the race of the defendant and victim, we see many of the defects of capital punishment in operation in this case. First, Moore had woeful legal representation at his trial, which actually led to a reversal of his initial conviction on grounds of inadequate assistance of counsel. Second, the fact that the case was litigated for 37 years underscores the prodigious delays—and concomitant expenditure of resources—that attends the modern death penalty.
But perhaps most striking, though, is how the highest court in Texas responded to the Supreme Court’s command that those with severe intellectual disability should not be sentenced to death. Justice Ginsburg noted that “At 13, 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.” Indeed, Moore’s father kicked him out of the home a year later because he was “stupid,” forcing Moore to live on the streets and forage for food in garbage cans, leading to multiple bouts of food poisoning.
After a lower court applied current medical standards in concluding that Moore was intellectually disabled and therefore ineligible for the death penalty, the highest criminal court in Texas reversed saying that in capital cases the state did not rely on a medical definition of intellectual disability, but rather its own standards in which the “consensus of Texas citizens” would decide who “should be exempted from the death penalty.” Of course, this standard would render the command of Atkins a nullity, so the Supreme Court had a clear obligation to reject the Texas standard of determining intellectual disability.
Justice Roberts, writing in dissent for Justices Thomas and Alito, was more forgiving of the approach of the Texas court. Justice Roberts was willing to sustain Moore’s death sentence based on the following rationale: “Moore’s observed academic and social difficulties stemmed, not from low intellectual abilities, but instead from outside factors like the trauma and abuse he suffered as a child and his drug use at a young age.” While some might consider childhood trauma and abuse to be mitigating factors, the Texas court felt they could adequately explain why Moore’s astonishingly poor performance in school beginning in kindergarten was not the product of intellectual deficits.
The dissent did identify a troubling aspect about the majority’s basis for overturning Moore’s death sentence: “The Court’s ruling on intellectual functioning turns solely on the fact that Moore’s IQ range was 69 to 79 rather than 70 to 80.” Had the finding been that the latter range properly described Moore’s intelligence, his death sentence would have remained in place, notwithstanding the likely pernicious influence of race and the implausibility that this crime could be deemed among the worst murders in Texas in 1980. When judgments about who lives and who dies can turn on a difference of one IQ point, we know that the admonition of former Yale law professor Charles Black from years ago is in full force: Given the nature of the decisions that prosecutors, jurors and courts are asked to make, caprice and mistake will be inevitable in the implementation of capital punishment.
Professor John J. Donohue is an economist as well as a lawyer and is well known for using empirical analysis to determine the impact of law and public policy in a wide range of areas, including civil rights and antidiscrimination law, employment discrimination, crime and criminal justice, and school funding.