Criminally Yours: How Do You Judge Who’s An ‘Idiot’?

The courts and legislature have long debated the death penalty. Some states have outlawed it in its entirety. The federal government still authorizes it, but only for certain cases and only with the approval of the highest-ranking prosecutor in the country, the U.S. attorney general.

Up for review this fall before the U.S. Supreme Court is a very specific issue relating to the death penalty. While it is agreed that the death penalty is cruel and unusual punishment for people who are “intellectually disabled,” how exactly do you determine who is “intellectually disabled”? What standard should be used? Should there be a national standard, uniformly applied, and if so, based on what criteria? Or, should each state make its own determination? And since these standards are continually evolving, should the standard in place at the time of the crime control, or the standard in place at the time of the appellate review? (For many on death row, decades of time pass between their conviction and the date of their execution.)

The U.S. Supreme Court, in Atkins v. Virginia, ruled in 2002 that the execution of the intellectually disabled was a violation of the Eighth Amendment’s ban on cruel and unusual punishment. How could someone who cannot fully understand or control his actions, in other words who is less “morally culpable,” be put to death for those actions?

In 2014, in Hall v. Florida, the U.S. Supreme Court decided that Florida’s bright line of a 70 IQ as the cutoff between normal functioning and mental retardation was too rigid and failed to take other relevant considerations such as social abilities into account. Cases where people had been condemned to death because their IQ hovered at 70 or slightly above were sent back to district and state courts for further examination.

The debate this fall will focus on the issue of what standard, if any, should be relied upon to determine that someone is incompetent.

Unsurprisingly, the originating case came from Texas, the state that killed more than half the people on death row in the U.S. in 2015 and, according to the Economist, “dwarfs its nearest rival, Oklahoma, in total executions — 537 to 12.”

In 2004, a Texas Court of Appeals evoked a literary character’s dim intellect as a touchstone to determine what qualifies as “intellectually disabled.” Dubbed the “Lennie standard,” the court referred to the hulking sidekick in John Steinbeck’s Of Mice and Men to lay out certain factors that would have permitted Lennie to escape the death penalty. Among them: can the person hide facts or lie effectively; did the person show leadership or was he led around by others; did the person respond coherently, rationally, and on point when questioned, or did his responses wander from subject to subject?

The underlying case involved Bobby Moore, a man who no one disputed was mentally challenged but who the prosecutor argued was not disabled enough to avoid the death penalty. Depending on the test, his IQ score fluctuated between as high as 78 and as low as 57, putting his average right at 70. He could mow lawns and play pool, but he couldn’t tell time, the days of the week, or add and subtract. The state court judge ruled that killing Moore would violate the Eighth Amendment, but the Court of Criminal Appeals in Texas reversed the decision, citing, among other things, the “Lennie” factors.

The appeal that went to the Supreme Court also sought a ruling on whether the amount of time Bobby Moore had been on death row — over three decades in solitary confinement because he was awaiting execution — was cruel and unusual punishment in and of itself. The court, however, declined to decide this issue.

In deciding Moore v. Texas, the court will have to review whether states are free to impose their own standards in determining intellectual function, even if those standards refer to criteria set decades ago and are based on literary characters.

A piece in the Yale Law Journal last year suggested that if judges are going back to earlier standards of competency, why not go way back to standards the Framers originally used in 1791 when the Eighth Amendment was adopted? These standards categorically prohibited the execution of “idiots” and “lunatics.” According to the author of the journal piece, Michael Clemente, the rule was simple: if a person’s functioning was below that of an ordinary 14-year-old, that person should not be executed.

Clemente makes the case that earlier standards were actually broader than those of today and therefore, there are people being executed nowadays who the Founders would have spared.

It’s a compelling argument. With each state free to develop its own standard for what qualifies as intellectually disabled, it becomes arbitrary who is killed. That a person might be judged smart enough to be killed in Texas, but ruled too much of an “idiot” (to use the former terminology) to be killed in New Jersey, seems unfair.

Should the death penalty rise above this mere state-by-state determination?

While there will always remain subjective elements in determining who’s intellectually disabled, by taking on the Moore case, the Supreme Court must decide what the limits of that subjectivity entail.

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Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached by email at [email protected] or tonimessinalaw.com, and you can also follow her on Twitter: @tonitamess.