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When the U.S. Supreme Court ruled late last month that Texas was using outdated standards in determining the intellectual impairment of Bobby James Moore, whom it had sentenced to death, it also addressed the issue of ethnic adjustment.

In her opinion for the 5-3 majority, Justice Ruth Bader Ginsburg wrote that, “Texas cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual’s life is at stake.”

Moore’s case was sent back to the lower court with instructions to apply current clinical standards of intellectual disability.

Moore, who is 56, was convicted of killing a clerk in a grocery store during a robbery in May 1980. He was sentenced to death three months later.

Moore’s IQ score has ranged from the low 50 to the 70s, and after Atkins v. Virginia found that it was unconstitutional to execute people with an intellectual disability, based on a strict 70 IQ cutoff, his attorneys appealed his death sentence and the Texas Court of Appeals reversed his sentence in 2015.

The state appealed, and the Texas Court of Criminal Appeals (CCA), citing a 1992 standard of intellectual disability, as well as the Briseno factors, a set of seven non-clinical subjective standards, found that he was not intellectually impaired and upheld his death sentence. (The CCA said the 1992 standard must be applied until the state legislature enacts new guidelines.)

“By design and in operation, the lay perceptions advanced by Briseno “create an unacceptable risk that persons with intellectual disability will be executed,” Ginsburg wrote, and added, “the Briseno factors are an outlier, in comparison both to other states’ handling of intellectual-disability pleas and to Texas’ own practices in contexts other than the death penalty.”

“The opinion by Justice Ginsburg set aside the anachronistic and contrived Briseno factors
. . . and made clear that intellectual disability determinations should be informed by the current views of medical experts,” says Robert M. Sanger, criminal defense attorney (and DPF board member).

Sanger also points out that the court’s ruling addresses the issue of “ethnic adjustment” which, he says, “we have been fighting about in California and elsewhere, which has not been addressed by the California or U.S. Supreme Court until now.”

Sanger wrote about “ethnic adjustment” in the American University Law Review and was the source for an article we wrote on the practice in November 2015. According to Sanger, statistically, some minorities tend to perform worse on tests than Caucasians so “prosecutors argue that this discrepancy is not based on intellectual inferiority, but rather on testing biases and behavioral factors that cause minority test-takers to underperform.

“Thus (the prosecution experts say) . . . minority IQ scores should be increased to control for these biases and behavioral factors.”

He says prosecution expert witnesses testify to ethnic adjustment in capital cases to artificially raise minority defendants’ IQ scores, adding enough points to disqualify them from protection by Atkins v. Virginia and Hall v. Florida, two decisions prohibiting the execution of the intellectually disabled.

Now, with the Moore ruling, Sanger says, “I hope the clear language regarding IQ testing will be of help to lawyers and judges in California and elsewhere in ending the pernicious and unconstitutional practice of ethnic adjustment.”

Chief Justice John Roberts wrote the dissenting opinion, and was joined by Justices Clarence Thomas and Samuel Alito

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