Seventeen years after the U.S. Supreme Court found in Atkins v. Virginia that executing intellectually disabled prisoners constitutes cruel and unusual punishment in violation of the Eighth Amendment, the Texas House last week approved by voice vote a bipartisan measure that would put in place a system to determine whether a defendant has intellectual disabilities and is therefore ineligible for execution.

The bill is in response to the U.S. Supreme Court’s decision in Moore v. Texas (2017) that the standards set by the Texas Court of Criminal Appeals (the state Supreme Court) for determining intellectual disability, the so-called Briseno factors, were non-scientific and outdated. Justice Ruth Bader Ginsburg, writing for the majority, said 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why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual’s life is at stake.”

HB 1139 would allow a defendant in a capital murder case to request a pretrial hearing for a judge to determine if he or she is intellectually disabled. If the judge finds that is the case, the death penalty would be off the table and, if the defendant is found guilty at trial, the sentence would automatically be life without parole.

“The bill . . . aims to take the life-or-death decision out of the hands of judges at the Court of Criminal Appeals — sometimes decades after a person has been sentenced to death — and instead set up a process to tackle it ahead of the murder trial,” the Texas Tribune reports

The bill’s sponsor, Democratic Rep. Senfronia Thomson, says the bill could save millions of dollars by cutting the number of appeals, while critics argue that it will actually be more expensive because it will add another hearing to the process. But, as the Tribune points out, “In a Republican-controlled 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.”

The bill is now in a Senate committee. If it is passed, and signed by the governor, it will go into effect on September 1, and would apply to trials that begin after that date.

In another possible change to the state’s death penalty scheme, on Thursday the House passed, by a vote of 77-66, HB 1936, which, the Tribune reportswould prohibit sentencing to death a defendant who suffers from a severe mental illness. Evidence would be presented at trial that the defendant was mentally ill at the time of the crime and, if the jury agrees, the defendant would be sentenced to life without parole if found guilty. The bill now goes to the Senate.

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