Tuesday, October 9, 2018

Of mice and men and executions and intellectual disabilities

Last week the Texas Court of Criminal Appeals stayed the execution of Juan Segundo pending a determination of whether or not his intellectual disability is so severe as to render him unfit for execution.

At the time of Mr. Segundo's trial, Texas used what have become known as the Briseno Factors to determine whether a person who has a borderline IQ score is or is not mentally retarded in the eyes of the law.

To set the stage, the medical community accepts an IQ of 70 as the cut-off for mental retardation. There is a margin of error built into the test so that scores of just below (and just above) 70 may reflect serious intellectual disability.

In order to satisfy the bloodlust of Texans looking to kill as many inmates as possible, the Court of Criminal Appeals decided in the Briseno case that if a person sentenced to death had an IQ of near 70 then the courts could look at some other factors to determine if he or she was mentally competent enough to strap down to a gurney and murder.

The Briseno factors could also be called the "Lennie Test" after the character in the John Steinbeck novel Of Mice and Men. The Texas Court of Criminal Appeals declared that most Texans would agree that Lennie was not a proper candidate for execution. Maybe Texans of a certain age would be able to apply that test but, thanks to home schooling and religious "know-nothingism," I'm not so certain how many of our younger citizens would even understand the reference.

After considering the IQ score, the Court determined that the amorphous concept of "adaptive functioning" would serve as a good criteria. Of course just because a person has adapted to their surroundings doesn't mean they are competent. And then there was the corollary -- what if a person was unable to show adaptive functioning skills? Heaven forbid the State of Texas couldn't stick a needle full of poison up someone's arm in a fit of revenge.

In response to the US Supreme Court's Atkins decision, the Court of Criminal Appeals adopted the following factors to determine whether a defendant was eligible for execution:

1. Did those who knew the person best during the developmental stage—his family, friends, teachers, employers, authorities— think he was mentally retarded at that time, and, if so, act in accordance with that determination? 
2. Has the person formulated plans and carried them through or is his conduct impulsive? 
3. Does his conduct show leadership or does it show that he is led around by others? 
4. Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable? 
5. Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject? 
6. Can the person hide facts or lie effectively in his own or others’ interests? 
7. Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?

The problem with this test, per SCOTUS, was that it deviated from standard medical practice and placed the burden of proving intellectual disability on the defendant. In addition, a defendant would have to show that a particular deficit was the result of any other mental condition but was the result of the underlying intellectual disability.

In Moore v. Texas, the US Supreme Court struck down the Briseno  factors due to their inherent subjectivity. Unfortunately for Mr. Moore, however, the Nine in Black said it was okay for Texas to kill him.

Mr. Segundo has been spared the needle, for now, while the State of Texas goes about the business of drawing up new criteria for determining when an intellectual disability makes one ineligible for execution.

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