Texas still doesn't have a law on intellectual disability and the death penalty. Will that change this year?

Texas judges have begged the state Legislature for years to come up with a process for determining whether death penalty defendants are intellectually disabled and therefore ineligible for execution.

After the U.S. Supreme Court ruled in 2002 that executing people with intellectual disabilities is cruel and unusual punishment, states were left to come up with their own methods of defining the condition. But the Texas Legislature hasn’t done so, leaving that job to the courts — resulting in a hodgepodge system of deciding the crucial question of whether a person facing a death sentence should be spared from execution.

Texas’ top criminal appeals court stepped in and created its own test for deciding intellectual disability for death row inmates, but in 2017, the U.S. Supreme Court struck it down as unconstitutional because it used decades-old medical standards and a set of nonclinical questions the Supreme Court said advanced stereotypes, including how well an inmate could lie.

The Texas court later said it would use current science in its test, but the inmate whose case sparked the Supreme Court ruling is arguing to the high court that Texas’ system remains just as flawed as before.

A handful of Texas Democrats are hoping that the controversy and the threat of another defeat in the Supreme Court will motivate their colleagues in the Legislature to finally establish a procedure to determine if someone is ineligible for execution — before a capital murder trial even begins. Similar legislation has been proposed for years and gone nowhere.

“There’s a disconnect between the U.S. Supreme Court and our court down here,” state Rep. Senfronia Thompson, D-Houston, told The Texas Tribune. “We just want to make sure that we’re doing justice, that we’re following the law.”

Thompson and state Sen. Borris Miles, another Democrat from Houston, have filed bills this session that would allow a capital murder defendant to request a hearing to determine intellectual disability before trial. Under the proposed legislation, if a judge determines the defendant is intellectually disabled — defined as having a low IQ with deficits in practical and social skills since youth — the death penalty would be taken off the table and the defendant would receive an automatic life sentence without the possibility of parole if convicted.

Two other House Democrats, Joe Moody of El Paso and Armando Walle of Houston, signed on as co-authors of Thompson’s legislation when she filed the bill earlier this week.

Advocates for the bill point out that legislatures in most other death penalty states have created a uniform pretrial procedure guiding courts on how to determine whether a defendant is intellectually disabled. In Texas, prosecutors often simply don’t seek the death penalty when there is a credible claim of intellectual disability, and sometimes juries are told to weigh the issue after convicting someone — when they’re deciding between life and death during a trial’s punishment phase.

In at least one case, a Texas judge granted a pretrial hearing on the question — just as the current legislation proposes — only to have that decision appealed by prosecutors. The case landed in the lap of the Texas Court of Criminal Appeals, which slammed the Legislature for not taking action.

“Without a unified procedure, intellectual-disability determinations may vary from county to county, court to court, and case to case,” Court of Criminal Appeals Judge Michael Keasler wrote in a 2015 opinion in the case. “The gravity of defendants’ intellectual-disability claims are too weighty to be subject to such disparity.”

Prosecutors largely agree that a determination of intellectual disability should be handled before a sentence is handed down, according to Shannon Edmonds, director of governmental relations at the Texas District and County Attorneys Association. But he said past legislation has failed in part because of disagreements over timing: Should the decision be made by a judge before a trial begins or by jurors after hearing the facts of a case?

“Part of the fundamental problem is not the standards or the science, it’s who gets to decide and when do they get to decide it,” he said. “That’s been a sticking point for 20 years.”

Edmonds also said the bill could add costs to death penalty trials by adding another hearing to an already lengthy trial process. Thompson, meanwhile, argued that the hearings would likely save millions by reducing appeals and, in cases where a judge finds a defendant intellectually disabled and takes the death penalty off the table, eliminating the punishment phase of the trial.

Hoping to spark change

Elsa Alcala was a judge on the Texas Court of Criminal Appeals and has watched as previous bills to address this issue have died quickly and quietly, usually without any hearings.

This year, she is hoping Bobby Moore will act as a catalyst at the Capitol.

Moore was sentenced to death more than 38 years ago after fatally shooting a Houston store clerk during a robbery. For the last five years, the question of his mental capacity has wound through the courts.

After a lower court ruled in 2014 that Moore was disabled, the Texas Court of Criminal Appeals reversed the decision, faulting the court’s use of current medical standards to reach its conclusion rather than the Court of Criminal Appeals’ test — which used older standards and its own set of questions.

When the Supreme Court tossed out the Texas appeals court’s ruling in 2017 and sent Moore’s case back for further review using a test based on current medical standards, even the prosecutor handling Moore’s case requested that his sentence be changed to life in prison. The Court of Criminal Appeals again rejected the plea, ruling that Moore wasn’t intellectually disabled under either set of medical standards.

Moore’s lawyers have again appealed the decision to the Supreme Court, where the pending decision from the justices has caught the attention of many death penalty critics.

“The Bobby Moore case has given the state of Texas a black eye in many ways in the sense that we just haven’t done a good job in this area of the law,” said Alcala, a Republican who was on the appeals court during both Moore rulings but voted against the majority both times.

After not seeking re-election last year, Alcala now serves as a policy director for the Texas Defender Service, an advocacy group critical of Texas' death penalty practices. She told the Tribune she hopes the problems highlighted in Moore’s case push lawmakers to take action this year.

“Maybe the Legislature will view it as a ripe opportunity to step in and to correct it,” she said.

But in a Republican state with the busiest execution chamber in the nation by far, state lawmakers have generally been wary of any changes that appear to weaken the state’s tough death penalty laws. Edmonds warned that many of those pushing for a tweak to this aspect of the death penalty have a bigger agenda as well.

“The goal of many pushing a change in this area is not to exclude just people with intellectual disability from the death penalty,” he said. “Their goal is to exclude everyone from the death penalty.”

But the climate may be shifting. At a Texas Tribune event in November, conservative state Rep. Jeff Leach, R-Plano, said he’s not afraid of tackling changes to the death penalty, “nor should any legislator be.” He went on to say that there are innocent men on death row and he’d consider a moratorium on capital punishment.

Still, even the lawmakers proposing the legislation say their bill is not an attack on the death penalty.

Miles said he’s not against executing those convicted of heinous crimes, but "I want to make sure that before we do that, they’re at the right mental capacity.”