Amicus Curiae Brief — Moore v. Texas, 136 S. Ct. 2407 (2016) (No. 15-797)

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RECORD

AND SEP 13 ANG

BRIEFS No. 15-797 OFTICE OF THE CLs

IN THE

Supreme Court of the United States

BOBBY JAMES MOORE,

Petitioner,

Us,

STATE OF TEXAS,

Respondent,

On Writ of Certiorari to the

Court of Criminal Appeals of Texas

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

KENT S. SCHEIDEGGER

Counsel of Record

KYMBERLEE STAPLETON

Criminai. :stice Legal Fdn.

2131 L Street

Sacramento, CA 95816

(916) 446-0345

briefs@cjlf.org

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

QUESTION PRESENTED

Does Atkins v. Virginia delegate to unaccountable

private organizations the power to redefine the content

of the Eighth Amendment rule identified in Atkins,

rendering unconstitutional state laws (either statutory

or case law) that comply with the scope of the Atkins

rule as initially announced?

(i)

TABLE OF CONTENTS

Es a ee eS ee ee i

tke ke fete 6hee san eee we Vv

BUUROOGR GE GEECIND GEIFEME . w 5 ww cc eevee ewes 1

Ng errr eT ee eee eee 2

I ON gs 5 o's ong 0 Se 6h Wash ae ie were 5

EE rere ere ee ene eee ey Cee 7

I

No other mental issue in the criminal law is

controlled by a definition from clinical practice, and

there is no reason the Atkins issue should be .... 7

Il

Categorical exemptions are contrary to the principle

of individualized capital sentencing and should be

PI hn oc avucsouweccesicusss 10

iil

Giving legal force to definitions by private

organizations distorts the definition-making

ES Cea aden barasesOte tN eee er eae oe

The APA’s and AAIDD’s revised definitions are social

and policy documents, not unanimous and not

science as generally understood .............. 17

(ili)

iV

A. The controversial DSM-5

a een are a La ae Se ee ar a.

B. Intellectual disability as a sociai

Ce sun « &s

NE TT Oe oe ae

ee rt oF ya wy 2 oe a Ok we ak Oe fe

TABLE OF AUTHORITIES

Cases

Atkins v. Virginia, 536 U. S. 304 (2002)..... 3, 10, 12

Bobby v. Bies, 556 U.S. 825 (2009) ............. 14

Bobby v. Van Hook, 558 U.S. 4 (2009) .......... 17

Clark v. Arizona, 548 U.S. 735 (2006) ............. 8

Drope v. Missouri, 420 U.S. 162 (1975) .......... 7

Ex parte Briseno, 135 S. W. 3d 1

es Es SE ED & oo voc ses sekdavceess 3,4

Ex parte Moore, 470 S. W. 3d 481

Cee ee I IN «55 oS sa vine bin ae wien <' 3, 4, 5

Ford v. Wainwright, 477 U.S. 399 (1986) ......... 9

Hall v. Florida, 134 S. Ct. 1986 (2014) ........... 10

Indiana v. Edwards, 554 U.S. 164 (2008) ...... 8,15

Jennings v. Stephens, 135 S. Ct. 793 (2015) ...... 15

Kennedy v. Louisiana, 554 U.S. 407 (2008) ...... 10

Kimble v. Marvel Entertainment, LLC,

Se a I co's se cnc oes es ces 4

Leland v. Oregon, 343 U.S. 790 (1952) ........... 8

Marks v. United States, 430 U.S. 188 (1977) ..... 12

Miller-El v. Dretke, 545 U.S. 231 (2005)......... 15

Moore v. Johnson, 194 F. 3d 586 (CA5 1999) ...... 2

Moore v. State, 700 S. W. 2d 193

ye A ee 2

Panetti v. Quarterman, 551 U.S. 930 (2007) .... 8,9

Papachristou v. City of Jacksonville,

ee PE ss 60 ba oe ns ad Caddie wewcen 4

Penry v. Lynaugh, 492 U.S. 302 (1989) ....3,11,12

Penry v. State, 903 S. W. 2d 715

ee eee rer ere ee 12

Powers v. Ohio, 499 U. S. 400 (1991) ............ 15

Roper v. Simmons, 543 U.S. 551 (2005) ......... 10

Sumner v. Shuman, 483 U.S. 66 (1987) ......... 11

Woodson v. North Carolina, 428 U.S. 280

NT aera Ae wrk GOS ord we bene Ook 11

State Statute

aem. Come Comm. Pree... Art. 10.071 2.5.62. ce oe 3

Secondary Authorities

American Psychiatric Association, Diagnostic and

Statistical Manual of Mental Disorders

I dN a eo a bo ke ce gas aw spark 7,18

Baumeister, Mental Retardation: Confusing

Sentiment with Science, in H. Switzky &

S. Greenspan, eds., What Is Mental Retardation?

Ideas for an Evolving Disability in the 21st

ge er rere rere 23

vil

Covarrubias, Lives in Defense Counsel’s Hands:

The Problems and Responsibilities of Defense

Counsel Representing Mentally Ill or Mentally

Retarded Capital Defendants, 11 Scholar:

St. Mary’s Law Review on Minority Issues 413

RS a arto fae Sine We CEC REE YOK e a 6.e 8 13

Detterman & Gabriel, Look before You Leap:

Implications of the 1992 and 2002 Definitions of

Mental Retardation, in H. Switzky & S. Greenspan,

eds., What Is Mental Retardation? Ideas for an

Evolving Disability in the 21st Century

I eo er yg ce betes a irate a 4 8 20, 23

Frances, DSM-5 Is a Guide, Not a Bible: Simply

Ignore Its 10 Worst Changes, available at

http://www. huffingtonpost.com/allen-frances/

dsm-5 b_2227626.html (Dec. 3, 2012)

(as visited September 8, 2016)............. 18, 20

Greenspan & Switzky, Lessons from the Atkins

Decision for the AAMR Manual, in H. Switzky &

S. Greenspan, eds., What Is Mental Retardation?

Ideas for an Evolving Disability in the 21st Century

I oe ca ha ae bet avea eeu eee ens 16

Greenspan, Mental Retardation in the Real World:

Why the AAMR Definition Is Not There Yet, in

H. Switzky & S. Greenspan, eds., What Is Mental

Retardation? Ideas for an Evolving Disability in

the 21st Century (rev. ed. 2006) .............. 22

MacMillan, Siperstein, & Leffert, Children with Mild

Mental Retardation: A Challenge for Classification

Practices—Revised, in H. Switzky & S. Greenspan,

eds., What Is Mental Retardation? Ideas for an

viil

Evolving Disability in the 21st Century

(wey; OE TD) 6 occ cer cceddetawesesenceeae 23

Mossman, Atkins v. Virginia, A Psychiatric Can of

Worms, 33 N. M. L. Rev. 255 (2003) ........ 12, 22

Switzky, H., & Greenspan, S., eds., What Is Mental

Retardation? Ideas for an Evolving Disability

in the 21st Century (rev. ed. 2006) ............ 16

Wakefield, DSM-5, Psychiatric Epidemiology and

the False Positives Problem, 24 Epidemiology and

Psychiatric Science 188 (2015) ............ 18, 19

IN THE

Supreme Court of the United States

BOBBY JAMES MOORE,

Petitioner,

US.

STATE OF TEXAS,

Respondent.

—

a eee

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a

non-profit California corporation organized to partici-

pate in litigation relating to the criminal justice system

as it affects the public interest. CJLF seeks to bring the

constitutional protection of the accused into balance

with the rights of the victim and of society to rapid,

efficient, and reliable determination of guilt and swift

execution of punishment.

The present case involves an attempt to overturn a

judgment that became final on direct appeal over 12

1. Both parties have filed blanket consents to amicus briefs.

No counsel for a party authored this brief in whole or in part,

and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief.

No person other than amicus curiae CJLF made a monetary

contribution to its preparation or submission.

years ago by claiming that the state must change the

standard it uses to determine whether a murderer is

intellectually disabled in order to keep up with current

fashion. Such a constitutional moving target would

further obstruct the already obstructed path of justice

in cases of capital murder. No showing has been made

that such continual revision is needed to exclude the

class of persons for whom Atkins v. Virginia found a

national consensus to exist. This obstruction of justice

is contrary to the interests CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

Prior to the crime in this case, petitioner Bobby

James Moore had already committed numerous crimes.

He had three prior convictions for burglary and one for

aggravated robbery. Moore v. Johnson, 194 F. 3d 586,

598 (CA5 1999). In addition, he was positively identi-

fied at his first trial of having committed robberies of

two other small grocery stores in the weeks prior to the

crime in this case. Ibid.

On April 25, 1980, Moore and two accomplices

attempted to rob the Birdsall Super Market in Houston,

Texas. Moore v. State, 700 S. W. 2d 193, 195 (Tex.

Crim. App. 1985). James McCarble, 72, a longtime

employee of the store, was working there among others.

Edna Scott, another employee, shouted that the store

was being robbed and dropped to the floor. Then she

heard a noise, and McCarble fell on the floor right

beside her. She “observed that ‘Jim’s head [had been

shot] off.’” Id., at 195-196.

Moore was convicted and sentenced to death, and

the Court of Criminal Appeals affirmed. Id., at 207.

Habeas corpus proceedings eventually ended with a

grant of relief for ineffective assistance of counsel as to

penalty only. See Moore v. Johnson, 194 F. 3d, at 622.

In the course of his habeas corpus proceedings, Moore

presented the testimony of Dr. Robert Borda. Dr.

Borda did not diagnose Moore as intellectually disabled.

See Ex parte Moore, 470 S. W. 3d 481, 495 (Tex. Crim.

App. 2015).

In 2001, the year before Atkins v. Virginia, 536 U.S.

304 (2002), but long after Penry v. Lynaugh, 492 U. S.

302 (1989), a new sentencing hearing was conducted.

Under Penry, th» defendant had the right to have

retardation (as the condition was then known) consid-

ered in mitigation, but Moore did not claim he was

retarded. Instead, he presented the testimony of social

worker Bettina Wright, who “concluded that [Moore]

‘was nowhere near retarded.’”* Ex parte Moore, 470

S. W. 3d, at 503. Moore was again sentenced to death.

Id., at 484. The Texas Court of Criminal Appeals

affirmed in an unpublished decision.

The present habeas corpus proceeding was filed

under Article 11.071 of the Texas Code of Criminal

Procedure. Under that statute, the application is filed

in the convicting court but the writ is returnable in the

Court of Criminal Appeals. Jd., § 4(a). When an eviden-

tiary hearing is warranted, the convicting court holds a

hearing, id., §9(a), and transmits to the Court of

Criminal Appeals, among other things, its findings of

fact and conclusions of law. Id., $9(M)(1)(F). The Court

of Criminal] Appeals can adopt these findings, but it

remains “the ultimate factfinder in [the] case.” Ex

parte Moore, 470 §. W. 3d, at 489.

The Court of Criminal Appeals restated its test for

intellectual disability. See id., at 513-514 (citing, inter

alia, Ex parte Briseno, 135 S. W. 3d 1, 7 (Tex. Crim.

2. A mile that a defendant is estopped from making an Atkins

claim im these circumstances would be proper, but Texas does

not assert such a rule.

App. 2004)). Briseno adopted the then-current AAMR

definition, or alternatively the Texas Health and Safety

Code codification of it for the purpose of mental health

services, with a reference to the then-current DSM-IV

for the definition of “significantly subaverage intellec-

tual functioning.” Briseno, at 7, and n. 24.°

Applying this long-established three-part test, the

court found that Moore had not established that he is

intellectually disabled. Among the various intelligence

tests administered, the court appropriately gave the

greatest weight to the Wechsler scales (WISC for

children; WAIS for adults), a preference thoroughly

supported by expert opinion and the academic litera-

ture. The court discounted one of the three, however,

the one administered in preparation for the present

case, based on expert testimony of malingering. See Ex

parte Moore, 4708S. W. 3d, at 518-519. Considering the

two best scores and taking into account the standard

error of measurement,‘ the court found that the peti-

tioner’s “intellectual functioning |is] above the intellec-

tually disabled range.”

3. The “urban legend” that the standard is based on literature

rather than science merely because of a passing reference in

the introductory discussion of the opinion, see id., at 6, is

preposterous. It would be a sad day for judicial writing if a

precedent could be discredited merely because the author

spiced it up with a literary or cultural reference. Is Kimble v.

Marvel Entertainment, LLC, 135 S. Ct. 2401, 2415 (2015),

“based on” a comic book? Is Papachristou v. City of

Jacksonville, 405 U.S. 156, 164 (1972), “based on” a poem?

4. Even when the lower tail of the two-sigma interval dips barely

below 70, that represents only a very small probability that the

true IQ is below 70. See Brief for Criminal Justice Legal

Foundation as Amicus Curiae in Hall v. Florida, No. 12-10882,

pp. 13-16, available at http://cjlf.org/program/briefs/HallF..pdf.

While this finding alone would be sufficient to

preclude intellectual disability under the conjunctive

test, the court went on to consider the testimony on

adaptive behavior. The state’s expert testified that

Moore’s “level of adaptive functioning had been too

great, even before he went to prison, to support an

intellectual-disability diagnosis.” Id., at 526. The court

found her opinion to be “far more credible and reliable

than those of applicant’s experts.” IJd., at 524. On

these facts, the court found that Moore was not entitled

to relief. Id., at 527-528.

SUMMARY OF ARGUMENT

No other mental issue in the criminal law is con-

trolled by clinical definitions which may be changed

from time to time by private organizations. Compe-

tency to stand trial, competency to exercise the right of

self-representation, competency for execution, and

being not guilty by reason of insanity are all based on

standards established in law and not dependent on

whether the defendant fits the criteria for any specific

mental diagnosis. Atkins v. Virginia is based on a

national consensus which is not necessarily congruent

with the ever-expanding scope of intellectual disability

as defined by private organizations.

Individualized sentencing procedures in which the

sentencer can weigh aggravating and mitigating circum-

stances, as they exist for the particular offense or

particular offender, is the cornerstone of this Court’s

modern capital punishment jurisprudence. Categorical

exemptions from punishment based on the characteris-

tics of the offender run contrary to this principle,

effectively requiring that the typical characteristics of

a class of persons be deemed to necessarily outweigh all

aggravating circumstances, even though the individual

defendant may be far from typical. Given this tension,

categorical exemptions should be narrowly construed

and applied only where the justifications for them are

strongest. The rationale of Atkins is at its weakest in

borderline cases where a person may be considered

intellectually disabled or not depending on which of the

multiple definitions is used. States should, at a

minimum, be allowed to choose among these defini-

tions.

Giving legal force to definitions established by

private organizations distorts the definition-making

process. These organizations have an interest in

influencing the outcome of cases, and giving their

definitions controlling force provides an incentive for

them to write expansive definitions.

The APA’s and AAIDD’s revised definitions are

social and policy documents. They do not represent

unanimous opinion in the profession, and they are not

based on science as that term is generally understood.

The DSM-5 has been severely criticized within the

psychiatric profession for the secretive and unscientific

manner in which it was created, for expanding the

scope of what is considered mental illness, and for

promoting “false positives,” diagnosis of people who are

not really ill. The AAIDD’s own publications demon-

strate conclusively that there is nothing close to una-

nimity on the definition of intellectual disability. They

also indicated that policy considerations, including

expanding the class of people who will be exempt under

Atkins, enter into the consideration.

ARGUMENT

I. No other mental issue in the

criminal law is controlled by a definition

from clinical practice, and there is no reason

the Atkins issue should be.

Petitioner in this case misstates the issue presented

as whether a state court can “prohibit the use of

current medical standards on intellectual disability.”

The position he actually asserts to this Court is that the

state court is obligated to use clinical definitions

recently adopted by private organizations as the stan-

dard by which it decides the legal question of whether

a murderer is exempt from capital punishment by

reason of intellectual disability. In no other area of

criminal law where a mental excuse or exemption is

claimed is such a clinical definition deemed controlling.

We can begin with competency to stand trial.

“It has long been accepted that a person whose

mental condition is such that he lacks the capacity

to understand the nature and object of the proceed-

ings against him, to consult with counsel, and to

assist in preparing his defense may not be subjected

to a trial.” Drope v. Missouri, 420 U.S. 162, 171

(1975).

Where in the DSM-5° or its predecessors does one

find this diagnosis? Nowhere. It is not a diagnosis.

The legal system is concerned with the effects of the

defendant’s mental condition on its obligation to

provide a fair trial, while psychiatric diagnosis is

concerned with providing appropriate treatment and

5. American Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders (5th ed. 2013).

supportive services. Given these different purposes, it

is not surprising that different criteria are applied.

A different rule applies to the competence of the

defendant to conduct his own defense. “|T|he Constitu-

tion permits States to insist upon representation by

counsel for those competent enough to stand trial under

Dusky but who still suffer from severe mental illness to

the point where they are not competent to conduct trial

proceedings by themselves.” Jndiana v. Edwards, 554

U.S. 164, 178 (2008). The Edwards Court considered

the input of the American Psychiatric Association

(APA) to the effect that “ ‘symptoms of severe mental

illnesses can impair the defendant’s ability to play the

significantly expanded role required for self-representa-

tion,’ ” id., at 176 (quoting APA brief), but again it did

not adopt any clinical definition of an illness as the

standard.

Moving from procedure to substance, Clark v.

Arizona, 548 U.S. 735, 749 (2006), upheld a definition

of the insanity defense that was even more restrictive

than the much-criticized M’Naghten test dating back to

Victorian England. The Court noted, “medical defini-

tions devised to justify treatment, like legal ones

devised to excuse from conventional criminal responsi-

bility, are subject to flux and disagreement.” Id., at

752. Clark cited with approval Leland v. Oregon, 343

U.S. 790, 801 (1952), which held that the “choice of a

test of legal sanity involves not only scientific knowl-

edge but questions of basic policy as to the extent to

which that knowledge should determine criminal

responsibility.”

Finally, in Panetti v. Quarterman, 551 U.S. 930, 955

(2007), the question was not whether Panetti met the

diagnostic criteria for a psychotic disorder, whether

schizophrenia, schizoaffective disorder, or anything

else. He clearly was psychotic. “The legal inquiry

concerns whether these delusions can be said to render

him incompetent.” Jd., at 956.° Neither of the compet-

ing standards from Ford v. Wainwright, 477 U.S. 399

(1986), is framed in terms of a clinical diagnosis. See

Panetti, at 948-949, 958-959. Although Panetti does not

establish a standard, id., at 960-961, it is clear from the

opinion that no psychiatric diagnosis constitutes the

standard. A psychotic disorder is “(t|/he beginning of

doubt about competence,” id., at 960, not the final

conclusion of incompetence.

All of these cases indicate that a mental defense

should not be tightly bound to a clinical definition, but

Clark appears to present the closest parallel to the

present case as it involves a substantive question going

to the propriety of the judgment as opposed to compe-

tence to go forward with a particular portion of the

proceedings. There has long been a national consensus

that a person who is insane should not be convicted of

an offense, but there is also substantial and long-

standing disagreement on how to define that category.

Similarly, this Court has found that there is now a

national consensus against executing persons with

intellectual disability, regardless of the circumstances

of the crime, but has acknowledged the widespread

disagreement on how to define that category.

The answer is to allow the states the same latitude

on this question that they have on the insanity ques-

tion. Convicting an innocent person of murder is a

vastly greater injustice than the execution of any guilty

6. The great irony of this case is that Panetti was probably

sentenced to death because of an overly expansive view of his

constitutional rights. If he had been tried after Indiana v.

Edwards, supra, he would have had trial counsel who could

have presented his mental illness properly to the jury.

10

murderer, and there is no reason for the states to have

any less latitude on sentencing than they have on guilt.

The Atkins rule will not be nullified by allowing the

states such latitude so long as this Court retains the

ability to rein in radical departures from the national

consensus or clearly erroneous misuses of assessment

instruments.’ At a minimum, the states should have

the ability to choose among any of the definitions that

have seen broad acceptance from the time of Atkins to

the present.

Il. Categorical exemptions are contrary

to the principle of individualized

capital sentencing and should be

narrowly construed.

Atkins v. Virginia, 536 U. S. 304 (2002), is one of

two precedents of this Court establishing a categorical

exemption based on the personal characteristics of the

murderer regardless of the circumstances of the crime.°

The other is Roper v. Simmons, 543 U. S. 551 (2005),

exempting all murderers a day or more short of their

18th birthdays at the time of the crime. In effect,

Atkins and Roper require that a single mitigating

circumstance be deemed to necessarily outweigh any

and all aggravating circumstances that may be present

without any individualized consideration of the circum-

stances of the particular offense or of any other charac-

teristics of the offender, such as criminal record.

7. The failure to consider the standard error of measurement in

Hall v. Florida, 134 8. Ct. 1986 (2014), is an example of the

latter.

8. Categorical exclusions for offenses rather than offenders, see,

e.g., Kennedy v. Louisiana, 554 U. S. 407 (2008), are distin-

guishable and need not be considered here.

1]

For four decades now, this Court has insisted that

individualized sentencing is a constitutional imperative

in capital cases. See Woodson v. North Carolina, 428

U. S. 280, 304 (1976) (lead opinion). States have been

constitutionally forbidden from identifying a single

factor and deciding in advance that the presence of this

factor requires a death sentence without that individu-

alized consideration. Even in the exceptionally compel-

ling circumstance of a life-sentenced murderer who kills

again within prison, the Court insisted that the Consti-

tution requires consideration of the individual circum-

stances of the particular case. See Sumner v. Shuman,

483 U. S. 66, 80-82 (1987).

A categorical exemption from the death penalty

based on a single characteristic suffers the same flaw as

a mandatory death penalty. “It treats all persons

[classified within a given category] not as uniquely

individual human beings, but as members of a faceless,

undifferentiated mass ....” Cf. Woodson, 428 U.S.., at

304.

In Penry v. Lynaugh, 492 U.S. 302, 322-323 (1989),

this Court recognized that mental retardation was a

powerful mitigating factor with regard to a defendant’s

culpability, and it deserved to be weighed in the balance

with the other factors. Giving it conclusive weight by

itself, however, was not warranted, in part because of

the wide variations in abilities among persons who

might qualify for the “retarded” label.

“*The term mental retardation, as commonly used

today, embraces a heterogeneous population, rang-

ing from totally dependent to nearly independent

people. Although all individuals so designated share

the common attributes of low intelligence and

inadequacies in adaptive behavior, there are marked

variations in the degree of deficit manifested and the

presence or absence of associated physical handi-

12

caps, stigmata, and psychologically disordered

states.’” Jd., at 338 (opinion of O’Connor, J.)

(quoting AAMR Manual).°

Both holdings were consistent with the theme of

individualized sentencing that has been a central pillar

of this Court’s capital sentencing jurisprudence from

Woodson forward.

In Atkins, the Court changed course, in part by

accepting as if universally true of al] intellectually

disabled persons the sweeping generalities rejected in

Penry. See 536 U.S., at 318-321. The Atkins opinion

notwithstanding, it surely is not true that all persons

diagnosable as intellectually disabled always act on

impulse rather than premeditation, always follow

others rather than lead or act alone, and are necessarily

so cognitively deficient as to be undeterrable. See

Mossman, Atkins v. Virginia: A Psychiatric Can of

Worms, 33 N. M. L. Rev. 255, 273 (2003).

Atkins says that persons with intellectual disability

“by definition . . . have diminished capacities . . . to

abstract from mistakes and learn from experience,

[and] to engage in logical reasoning ....” 536 U.S., at

318. Yet Penry clearly learned from experience and

could reason logically. From his previous rape convic-

tion, see Penry v. State, 903 S. W. 2d 715, 761 (Tex.

Crim. App. 1995), he learned that leaving a rape victim

alive would result in getting caught, so he logically went

to Pamela Carpenter’s house with the premeditated

design to kill her after he raped her. See id., at 755.

In essence, the Atkins Court engaged in the same

kind of sweeping generality in disregard of the facts of

9. Part IV-C of the opinion is not the opinion of the Court, but it

is the opinion concurring in the judgment on the narrowest

grounds. See Marks v. United States, 430 U.S. 188, 193 (1977).

13

individual cases that this Court forbade the states to

employ in Sumner.

To the extent that Atkins rests on a generalized

characterization of persons with intellectual disability,

those sweeping assumptions are at their weakest in the

very cases at issue here: the ones near the borderline

of qualification for the diagnosis such that a defendant

might qualify under one definition but not another. To

the extent that Atkins rests on a consensus of the

American people that persons with intellectual disabil-

ity should never be executed regardless of their crimes,

that finding of consensus is extremely doubtful as

applied to persons at the borderline that most laymen

would not recognize as intellectually disabled. See

Covarrubias, Lives in Defense Counsel’s Hands: The

Problems and Responsibilities of Defense Counsel

Representing Mentally Il or Mentally Retarded Capital

Defendants, 11 Scholar: St. Mary’s Law Review on

Minority Issues 413, 440 (2009) (noting most lay-

persons think of retarded persons as far more disabled

than the mildly retarded actually are).

Finally, it is important to bear in mind that a

finding that a person does not qualify for the categorical

exemption of Atkins does not mean that person will

necessarily be sentenced to death. The procedural part

of Penry is still the law, and capital defendants are still

entitled to its protection. Before a murderer can be

sentenced to death, he is entitled to a weighing by the

sentencer of the aggravating and mitigating facts of his

individual case, and his actual mental impairment is a

powerful factor in that determination. In such a

proceeding, the question of whether an impaired

defendant falls slightly on one side or the other of the

retardation line is immaterial. Between Penry and

Atkins, such defendants were sometimes referred to as

“retarded” by courts properly weighing their impair-

14

ments without concern for precise line-drawing. See,

e.g., Bobby v. Bies, 556 U.S. 825, 828 (2009).

The only consequence of a negative Atkins finding is

that the defendant receives an individualized determi-

nation of whether his impairment plus any other

mitigation does or does not outweigh the aggravating

circumstances of his offense and prior offenses, rather

than an outcome mechanically determined by a single

factor, ignoring all others. This is not a result that calls

for going to extraordinary lengths to avoid, particularly

in a borderline case where the rationale for the Atkins

rule is weakest. On the contrary, this is the path that

is most likely to lead to a just result in the case.

With unbiased justice as the goal, it makes perfect

sense to reserve the rule of Atkins for cases where it

clearly applies and let the doubtful cases go to individu-

alized sentencing with consideration of all the circum-

stances. Asaconstitutional mandate, Atkins should not

be expanded beyond its original scope. If states want to

extend the exemption into new territory by statute,

they are, of course, free to do so, but this Court should

not force the states to march in lockstep, especially not

to the drumbeat of private organizations with an

agenda to block as many death sentences as they can.

Ill. Giving legal force to definitions by

private organizations distorts the

definition-making process.

Petitioner and his supporting amici, including the

American Psychiatric Association (APA) and the

American Association on Intellectual and Developmen-

tal Disabilities (AAIDD), would have this Court believe

that the new APA and AAIDD definitions are works of

neutral, objective science. They are not, for the reasons

explained in the Brief of Respondent and in Part IV of

15

this brief, infra. A related and very important concern

is that giving legal effect to psychological definitions

produced by private organizations may itself cause a

distortion in the process of making these definitions,

causing them to be different from the definition that

would be established if it had no such effect.

The APA and the AAIDD once again appear in this

case as amici curiae supporting the criminal defendant.

They also supported the defendants in Atkins v. Vir-

ginia and in Hall v. Florida. To the best of amicus

CJLF’s knowledge based on a Lexis search, neither

organization has ever filed an amicus brief in this Court

in support of the prosecution. Even in Jndiana v.

Edwards, 554 U.S. 164 (2008), a highly unusual case

where the APA might have been expected to support

the prosecution, its brief was filed in support of neither

party. Such a pattern establishes a powerful prima

facie case of bias. Cf. Miller-El v. Dretke, 545 U.S. 231,

240-241 (2005).’° When an organization leans in favor

of criminal defendants generally, those leanings tend to

be particularly strong in capital cases. If either of these

organizations could reduce the number of capital

sentences by making its definition of intellectual!

disability more expansive, could that incentive corrupt

the final product?

In 2006, amicus AAIDD, then known as the Ameri-

can Association on Mental Retardation, was in the

process of reconsidering its definition, and it published

a book with a variety of perspectives from “a rare

collection of leading thinkers in the MR |mental retar-

10. CJLF also files almost entirely on one side, with Powers v.

Ohio, 499 U. S. 400 (1991) (supporting defendant) and

Jennings v. Stephens, 135 S. Ct. 793 (2015) (supporting neither

party), being the exceptions. The difference is that we are

candidly advocates for a cause and make no pretense otherwise.

16

dation] field.” H. Switzky & S. Greenspan, eds., What

Is Mental Retardation? Ideas for an Evolving Disability

in the 21st Century xxiii (rev. ed. 2006)."' While none

of the chapters constitutes an official position of the

organization, we can fairly assume that all the views

stated are regarded by AAIDD as within the realm of

reasonable disagreement among experts. We can also

assume that the editors of the book are regarded by the

organization as mainstream and not fringe thinkers in

the field. This book provides a valuable insight into

what really was involved in crafting the new definition,

in contrast to the objective scientific process that the

“topside” briefs in this case would have the Court

believe.

The chapter that specifically addresses Atkins was

written by the editors of the book, one of whom was an

expert witness for the petitioner in this case. These

authors advocate raising the IQ ceiling dramatically or

abolishing it altogether, basing the diagnosis within the

expanded or unlimited range solely on adaptive deficits

and the developmental period criterion, and expanding

“mild MR” to include the relatively large section of the

population that would previously have been classified as

“borderline” and not retarded as defined in Atkins. See

Greenspan & Switzky, Lessons from the Atkins Deci-

sion for the AAMR Manual, in WIMR at 298.

The authors are candid about their motive. Their

proposed solution is motivated in part by a desire to

expand the number of people who would come within

the categorical exclusion of Atkins. See ibid. These are

people who, in the authors’ opinion, are “deserving of

protection,” see id., at 298-299, but that does not mean

11. This book is cited below as “WIMR.” The subtitle alone is a

strong argument against adopting the definition de jour as a

constitutional mandate.

17

that they are within the national consensus that is the

basis of Atkins.

This is a confession of political corruption of the

definition process. The authors chosen by AAIDD to

edit their book openly advocate revising the definition

in order to change the law to conform to their own

views of policy.

How can this Court depend on an organization’s

definitions and standards to inform its view of a scien-

tific issue when the very act of depending on them may

cause the organization to change them?” It would be

folly to depend on them under these circumstances. It

is one thing to say that courts can and should consider

the views of professional organizations and quite

another to delegate the definition of constitutional

requirements to unelected and unaccountable private

organizations with their own agenda. See Bobby v. Van

Hook, 558 U.S. 4, 8 (2009). Judicial consideration of

the APA and AAIDD positions should be conducted

with a skeptical eye and a keen awareness that these

organizations have policy agendas that influence their

pronouncements.

IV. The APA’s and AAIDD’s revised

definitions are social and policy documents,

not unanimous and not science as

generally understood.

Amici APA, et al., represent to this Court that

“there is unanimous professional consensus on the

criteria applied to diagnose intellectual disability.”

12. There is a somewhat analogous problem in physics. At the

subatomic level, the very act of observing something changes

what one is observing. This conundrum underlies the

Heisenberg Uncertainty Principle.

18

Brief for American Psychological Association, et al., as

Amici Curiae 7 (capitalization omitted).'* This state-

ment is demonstrably false. The APA Brief also treats

the American Psychiatric Association, Diagnostic and

Statistical Manual of Mental Disorders (5th ed. 2013)

(“DSM-5”) as if it were the definitive and universally

accepted word of the mental health professions. Actu-

ally, that book is highly controversial and hotly dis-

puted.

A. The Controversial DSM-5.

To say that the DSM-5 is controversial is an

understatement. Professor Allen Frances of Duke

University, chair of the DSM-IV revision, called the day

of its final approval “the saddest moment in my 45 year

career of studying, practicing, and teaching psychiatry.”

Frances, DSM-5 Is a Guide, Not a Bible: Simply

Ignore Its 10 Worst Changes, available at http://www.

huffingtonpost.com/allen-frances/dsm-5 b_ 2227626.

html (Dec. 3, 2012) (as visited September 8, 2016). He

called the new edition “a deeply flawed DSM-5

containing many changes that seem clearly unsafe and

scientifically unsound,” and he advised against

“follow|ing] DSM-5 blindly down a road likely to lead to

massive over-diagnosis and harmful! over-medication.”

Ibid.

Professor Frances was by no means alone in this

opinion. Professor J.C. Wakefield of New York Univer-

sity noted that the new edition “has been criticized for

its revision process, goals and content.” Wakefield,

DSM-5, Psychiatric Epidemiology and the False Po-

13. In this brief, we use “APA” standing alone to refer to the

American Psychiatric Association, which is among the “et al.”

on the brief listing the American Psychological Association

first. We refer to that brief as the “APA Brief.”

19

sitives Problem, 24 Epidemiology and Psychiatric

Science 188, 188 (2015). The process described by

Professor Wakefield, including secrecy and lack of

documentation, should make courts very reluctant to

rely on anything the DSM-5 says.

“Most egregiously, the deliberations of the DSM-5

Scientific Review Committee, formed in response to

the DSM-5 controversies to evaluate the strength of

the scientific evidence for each proposed change and

provide recommendations to the workgroups, are

being kept strictly secret.” Jd., at 189.

Incredibly for an organization that purports to be

scientific, the APA required workgroup members to

sign confidentiality agreements that limited their

ability to speak in public about the changes. See ibid.

“The needlessly secretive DSM-5 mindset [is] antitheti-

cal to both the appearance and reality of intellectual

integrity ....” Not only does this mindset “short-

change|| future scholarship,” ibid., but it severely

undercuts the trust that courts can place in the prod-

uct.

Even worse than the process is the “false positives

problem.” There are two kinds of errors in research

and diagnosis. A “false positive” is finding something

that does not actually exist, and a “false negative” is

failing to find something that does exist.

“The most vehement and sustained objections |to

DSM-5] were aimed at the content of its diagnostic

criteria. It was argued that the revised criteria

illegitimately expanded psychiatric diagnosis into

areas of normal-range distress and other problems

in living, undermining the integrity of psychiatry as

a medical discipline, obscuring the meaning of its

research results and potentially leading to unwar-

ranted and possibly harmful treatment.” Jd., at 188.

20

“Many millions of people with normal grief, glut-

tony, distractibility, worries, reactions to stress, the

temper tantrums of childhood, the forgetting of old age,

and ‘behavioral addictions’ will soon be mislabeled as

psychiatrically sick and given inappropriate treatment.”

Frances, supra.

If present trends continue, by DSM-8 we will all be

mentally ill.

Specifically for developmental disabilities, the

problem of false positives is greatly aggravated by the

de-emphasis of the more objective intelligence testing

and greater reliance on the more malleable and

informant-dependent adaptive functioning. It is for this

reason that two of the experts in AAIDD’s book, writing

from the perspective of researchers rather than service

providers (or expert witnesses for defendants), recom-

mended doing away with the adaptive skills element

altogether and relying solely on intelligence testing.

“First, the instruments designed to measure adap-

tive skills are simply not adequate. When the

concept of adaptive behavior was first introduced to

the definition in the 1960s [citation], it was criti-

cized because measures of adaptive behavior were

not well-standardized. Often, clinical judgment was

substituted for a formal assessment of adaptive

behavior. There tended to be low agreement be-

tween examiners when diagnosing impairment in

adaptive behavior. Clinical judgment led to low

agreement between examiners, and low agreement

resulted in unreliable diagnosis [citation].” Detter-

man & Gabriel, Look before You Leap: Implications

of the 1992 and 2002 Definitions of Mental Retarda-

tion, in WIMR 135, 138.

The APA may be unconcerned with false positives in

this area. No concern is evident from its brief. This

21

Court, however, should be very concerned. A categori-

cal exclusion from punishment is a drastic action,

removing from the people of the state the sovereign

authority they have always possessed to decide which

murderers will be punished with death and which will

not. A false positive wrongly removes the case from the

normal weighing process ..ad exempts a murderer from

the punishment he may very well richly deserve. A

false negative, on the other hand, merely remands the

case to the normal weighing process where the defen-

dant has the right under Penry and its progeny to

present his impairment as mitigating to the jury and

have them instructed to consider it, if he chooses to do

so.

The traditional three-part test from the DSM-IV,

with intellectual functioning two standard deviations

below the mean as a conjunctive requirement with

limitations in adaptive functioning, has important value

in limiting the false positive problem. IQ testing is far

more objective than adaptive functioning scales.

Testing is done by objective examiners, while adaptive

functioning depends on reports from people who know

the defendant, who will very often be his family and

friends and who may have been coached on their

responses. States should not be forced to abandon this

standard, which is written into their statutes in many

states, on the say-so of a document which has been

fiercely criticized within its profession for escalating the

false positive problem.

B. Intellectual Disability as a Social Construct.

Binding the constitutional rule of Atkins to the

frequently changing clinical definitions of intellectual

disability would be particularly inappropriate because

this diagnosis is different from a typical medical diagno-

sis and even from many psychiatric ones. For most

22

disorders, health professions have a keen interest in

scientifically precise and accurate diagnosis because it

is essential to providing the patient with safe and

effective treatment. If a disease is caused by an infect-

ing microbe, a physician must know which one in order

to prescribe a medication that actually attacks that

microbe. A psychiatrist must accurately diagnose

mental disorders to know whether to prescribe an

antipsychotic medication or an antidepressant one.

There is no similar constraint on the definition of

intellectual disability because the diagnosis has gener-

ally been used to decide on eligibility for the provision

of supports rather than treatment in the medical sense.

As noted supra, at 15-16, and n. 11, the problem of

definition is explored from several perspectives in a

book published by amicus AAIDD.

“(Mental retardation], particularly mild MR, isa

socially constructed disability category rather than

a naturally constructed quasi-medical category... .

“The term ‘disability’ originated in the voca-

tional rehabilitation field and is used to indicate that

a person needs significant short- or long-term

supports in order to be able to hold down a job, if he

can at all. It is, thus, a bureaucratic category,

usually defined by a committee, which may be

influenced by political and economic considerations

as much as by ‘science,’ and the decision as to where

to draw the line between disability and nondisabili-

ty, based on an estimate of the amount of supports

needed to function normally, is relatively arbitrary.”

Greenspan, Mental Retardation in the Real World:

Why the AAMR Definition Is Not There Yet, in

WIMR 167, 171 (emphasis added); see also Moss-

man, 33 N. M. L. Rev., at 265 (“line .. . is a chang-

ing and arbitrary one”).

23

Amici AAIDD, et al., insist that their definition is a

“scientific standard.” See Brief for American Associa-

tion on Intellectual and Developmental Disabilities, e¢

al., as Amici Curiae 27. In reality, the details of the

definition are supported by little science. Critics of the

“paradigm shift” in the definition of mental retardation

since the 1990s have noted the lack of empirical evi-

dence, see, e.g., Baumeister, Mental Retardation:

Confusing Sentiment with Science, in WIMR at 96, and

the influence of advocacy motives.

“We are solemnly alerted by the Committee

[citation] that the paradigm shift ‘necessitates . . .

significant changes in one’s thinking’ [citation] and

that service delivery now focuses on ‘strengths and

capabilities of the person, normalized and typical

environments, integrated services with supports,

and the empowerment of individuals served’ [cita-

tion]. Quite aside from the obvious imprecision of

this grandiose terminology (or utter inanity, such as

‘empowerment’ ), blatant and outright advocacy has

no standing in construction of a clinical nosology, no

matter how philosophically honorable and well

intentioned in principle.” Jd., at 109-110 (emphasis

added); see also MacMillan, Siperstein, & Leffert,

Children with Mild Mental Retardation: A Challenge

for Classification Practices—Revised, in WIMR 197,

200 (“designed for the goal of advocacy for a particu-

lar ideology”).

“From the beginning the definition of mental

retardation has been subjected to political forces that

have caused it to be modified. Whether these modifica-

tions are desirable or not will, in part, depend on the

observer’s political orientation.” Detterman & Gabriel,

supra, WIMR at 135.

The definitions, and indeed even the name, of the

condition at issue here have varied widely over the

24

years and between organizations because there is little

scientific basis for drawing the line at a particular place,

no treatment decision to serve as a check, and heavy

influence of advocacy motives to affect government

decisions. Those decisions have always included the

provision of educational and other support services.

Since Atkins, they now include the decision of whether

to hold murderers fully responsible for their crimes.

Those definitions should therefore not be elevated to a

constitutional mandate, overriding the decision of the

people as expressed through the legislative process.

CONCLUSION

The decision of the Texas Court of Criminal Appeals

should be affirmed.

September, 2016

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation