The 2002 Atkins v. Virginia decision by the Supreme Court of the United States held that execution of persons with intellectual disabilities violates the 8th Amendment to the Constitution banning cruel and unusual punishment.  It was then left to the states to define who has intellectual disability and how it should be determined.  Texas did not put a definition in place at that time, though numerous bills were introduced in every session after Atkins.  As a result, in 2004, the Texas Court of Criminal Appeals (CCA) came up with its own set of non-clinical factors in Ex Parte Briseno to provide guidance to the courts in considering capital cases of individuals who claimed to have intellectual disability.  In constructing these factors, the result was a distinctive and restrictive definition of intellectual disability that relied on stereotypes and misinformation, such as characterizing those who met criteria as looking and behaving like Lennie in Steinbeck’s Of Mice and Men.  In Hall v. Florida in 2014, the Supreme Court of the United States ruled that Florida’s use of a bright line IQ cutoff score was unconstitutional in that it created a distinctive and restrictive definition of intellectual disability that diverged from professional standards.  Texas’s use of the Briseno factors was challenged in Moore v. Texas I & II (2017 & 2019), with the Supreme Court ruling that Texas’s use of non-scientific factors to determine if a person is ineligible for the death penalty because of intellectual disability was not in line with the Court’s rulings and not informed by current professional practice.  

 

The definition in HB 1139 (Thompson) echoes the currently accepted definition of intellectual disability which has 3 criteria: subaverage general intellectual functioning, significant deficits in adaptive functioning, and onset of these deficits during the developmental period.  Both the American Association on Intellectual and Developmental Disabilities in their 11th Edition of the AAIDD Definition Manual (AAIDD, 2011) and the American Psychiatric Association in their Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) (2013) include these 3 criteria.  

 

The procedures set out in HB 1139 allow for determination of intellectual disability by a judge in a pretrial hearing.  This process can avoid the high cost to the taxpayers of capital felony trials.  Currently, issues of intellectual disability may not be heard until after a death qualified jury has been selected, heard testimony on all the disturbing details of the capital offense, and found the defendant guilty.  Then, in the sentencing phase, the jury is asked to consider the defendant’s intellectual disability and, if they agree on its presence, put aside a death verdict and replace it with a life sentence.  In these cases, it may be easy for jurors to ignore even a well-supported Atkins claim of intellectual disability. That seems like a great deal of time, effort, emotion and money to spend when an individual may not be eligible for the death penalty.  A pretrial hearing would only consider the issue of intellectual disability rather than focusing on criminal conduct, elements of the offense, or guilt or innocence, none of which are parts of the definition of intellectual disability.

 

In Conclusion

HB 1139 appears to outline a fair and just process for the consideration of intellectual disability in capital cases.  It contains a definition of intellectual disability that reflects current professional standards and practice.  It provides for a pretrial hearing to determine the presence of intellectual disability which allows the focus to be on the functioning of the defendant rather than on the facts of a heinous crime or guilt or innocence.  It can also save taxpayer money since the costs of a death penalty focused capital trial may be avoided. There are at least 14 other states that use a pretrial hearing process to determine intellectual disability in capital felony trials, and several others allow this process.  Texas may join these states and demonstrate its acknowledgment of a fair and just process for defendants with intellectual disability in capital felonies by adopting this bill.   It passed out of the House of Representatives on April 29 and was headed for the Senate as of the time of the writing of this article.