| Perspectives on Texas

On March 28, 2017, the U.S. Supreme Court ruled that the Texas Court of Criminal Appeals (CCA) violated the U.S. Constitution in rejecting Bobby Moore’s claim that he is intellectually disabled and thus ineligible for the death penalty. In the wake of that Supreme Court decision, the prosecutors in the case appropriately agreed that Moore is intellectually disabled and may not receive the death penalty.

Yet today, more than a year later, Bobby Moore remains under a death sentence and is still on death row — which means that, under Texas law, he is automatically kept in solitary confinement 23 hours a day. This is unconscionable. The CCA should immediately change Bobby Moore’s death sentence to life in prison so that he may be moved off of death row, as law and justice require.

Moore has been on death row since 1980, when he was involved in a bungled robbery of a grocery store in Houston and was convicted of killing a store clerk during the crime.

In Atkins v. Virginia (2002), the Supreme Court ruled that the Constitution prohibits imposing the death penalty on any person who is intellectually disabled.

In 2014, a Harris County trial court determined that Moore is intellectually disabled. After considering current medical standards and evidence from a two-day hearing, the court detailed its findings in a 186-paragraph opinion. But, unfortunately, the CCA, rejecting current medical standards, concluded that Moore is not intellectually disabled and that his death sentence must remain in place.

The Supreme Court emphatically rejected that ruling. The high court held that Texas courts, like all courts in the country, must use current medical standards to evaluate intellectual disability claims in capital cases. In a decision that left no doubt about Moore’s intellectual disability, the court explained that Moore’s very low IQ score was well within the clinically established range for intellectual disability. The Supreme Court also emphasized the “considerable objective evidence” of Moore’s adaptive problems, another characteristic of intellectual disability. For example, at age 13, Moore did not even understand the days of the week, the months of the year, the seasons, or how to tell time.

The Supreme Court returned the case to the CCA with instructions to follow its decision. It is deeply troubling that, one year after that decision, and seven months after the completion of all legal briefings in the CCA, Bobby Moore remains on death row. The CCA now should act immediately to remove Moore’s death sentence.

It should do so for at least three reasons. First, in light of the Supreme Court’s ruling, there is nothing left to be decided. The CCA is bound to follow the federal decision that compels the conclusion that Bobby Moore is intellectually disabled. Removing Moore’s death sentence is the proper and just result — and the only result consistent with the Constitution.

Second, there is no longer any disagreement between the prosecutors and the defense about the appropriate course of action. Last November, the prosecutors told the CCA that Moore “is intellectually disabled, cannot be executed, and is entitled to Atkins relief.” In other words, he is entitled to have his death penalty struck down. In doing so, the prosecutors agreed with a broad range of medical and intellectual disability associations, faith leaders and religious organizations, prominent Texans from across the opinion spectrum (including conservatives and death-penalty supporters), leading lawyers and many others who have implored the CCA to remove Bobby Moore’s death sentence.

Third, and perhaps most important in terms of the current inexcusable delay: As a death row prisoner, Bobby Moore is automatically kept in solitary confinement approximately 23 hours a day, every day. For people with intellectual disabilities like his, solitary confinement is especially cruel and intolerable. Every day he remains in solitary confinement, Moore’s intellectual disability means that being on death row — and isolated from other people — is continuing torture and a living hell.

More than a year after the Supreme Court made clear that he should not be on death row due to his intellectual disability, Bobby Moore remains marooned on death row, waiting for the CCA to act. That is unjust and unacceptable. If the CCA needs more time to fashion a new standard for evaluating intellectual disability claims in Texas, it should at least issue an interim order striking down Moore’s death penalty immediately and allowing him to be moved off of death row and out of solitary confinement. Such an order would give effect to the Supreme Court’s decision, remove the specter of an unconstitutional death sentence and allow Moore to return to the general prison population.

The time has come for the CCA to do justice in Bobby Moore’s case. More than a year since the Supreme Court’s decision in his favor, it is long past time for him to be moved off of death row and out of solitary confinement.