Should a person with an IQ score of as low as 57 be sentenced to die because “[m]ost Texas citizens might agree” that his “reasoning ability and adaptive skills” are greater than those of John Steinbeck’s character Lennie from Of Mice and Men? That, in a sense, is the question presented by Moore v. Texas, a pending Supreme Court case for which oral argument was heard in November 2016. Moore challenges the standards by which Texas determines if a defendant’s intellectual disability makes them ineligible for the death penalty under the Eighth Amendment (as interpreted in Atkins v. Virginia and Hall v. Florida). Specifically, Moore asks whether it is cruel and unusual for for Texas to “prohibit the use of current medical standards” and “require the use of outdated medical standards” when assessing intellectual disability.

In 1980, Bobby James Moore, along with two other men, robbed a supermarket, and a store employee was killed. Moore was sentenced to death for the shooting. A federal court granted habeas corpus relief, and in 2001, Moore was sentenced to death again. He turned to the state for habeas relief on the grounds that he was intellectually disabled—he failed first grade twice but was promoted to the second grade so he wouldn’t be too much older than other students; he didn’t understand the days of the week, how to tell time, or that subtraction is the opposite of addition at age 13; and he suffered a traumatic head injury as a child. The state granted relief based on the standard in Atkins v. Virginia. The Criminal Court of Appeals reversed the decision, holding that Moore was not disabled based on case law that relied on a 1992 definition of intellectual disability

In 2002, the Supreme Court ruled in Atkins v. Virginia that the Eighth Amendment prohibits executing intellectually disabled defendants. The Court left it to the States to develop “appropriate ways to enforce the constitutional restriction upon its execution of sentences.” The Court (somewhat ambiguously) refined its holding in 2014, when it ruled in Hall v. Florida that the criteria for determining intellectual disability “is distinct from a medical diagnosis but is informed by the medical community’s diagnostic framework.”

Texas’ response to Atkins and Hall has been to implement its own standard for intellectual disability as developed in a 2004 Texas Court of Criminal Appeals case, Ex parte Jose Garcia Briseno.  Whereas most states use “a combination of intelligence testing and clinical assessment to confirm that a defendant has severe intellectual disabilities,” Texas looks for a “level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty.” According to the American Bar Association, Texas has sentenced to death “defendants with intellectual disabilities whom other jurisdictions almost certainly would have recognized as exempt.”

Moore v. Texas raises important questions about constitutional and reliable assessments of intellectual disability for the purpose of capital punishment. More broadly, however, Moore illustrates how constitutional rights may be influenced by scientific and technological advancements. Other legal areas, such as the use of polygraphs, capital punishment, and forensics, also reveal the complicated framework between science and civil rights.

Polygraphs

As an indicator of truth, the polygraph—or “lie detector”—carries a special weight in social consciousness. In reality, however, polygraphs are generally not admissible as evidence in courts. The National Academy of Sciences has said that the accuracy of polygraphs can range from 55 to 99 percent, depends on the specific contexts of each test. Despite their suspect status as reliable evidence, law enforcement officials nonetheless use polygraph tests while conducting investigations and when monitoring people on probation. If the results of lie detectors aren’t trusted as evidence in court, what does it mean that they are permitted in other parts of the legal process?

The 10th Circuit recently tried to reduce that inconsistency, by barring the use of lie detectors in probations for sex offenders. In a 2016 decision, the court held that “sex offenders released from custody cannot be compelled to answer potentially incriminating polygraph questions as a condition of their supervised release.” In its decision, the 10th Circuit focused specifically on the Fifth Amendment implications of compelling the use of a polygraph. Even disregarding the debated reliability of these tests, polygraphs as a part of probation can still conflict with constitutional rights.

At the same time, lawyers and courts should remain aware of lie detectors’ dubious reliability. A Duquense law professor noted her concern about the subjectivity of these tests as well as the lack of scientifically accepted methods and standards for the administration of the test. She added that she thought polygraphs have become common in probation cases because “we’re just terrified of sexual offenders.”

Death penalty

For centuries, citizens and policymakers have searched for a “humane” way of executing the perpetrators of the most heinous crimes. The guillotine, bloody symbol of France’s Reign of Terror, was actually adopted by the revolutionaries because it was believed to provide a quick, painless death. Today, the preferred civilized killing method is lethal injection. Sodium thiopental “renders the person deeply unconscious and unable to feel the paralysis brought on by the pancuronium bromide, which causes the person to lose the ability to breathe,” and the “extremely painful” potassium chloride. But a molecular biologist, Teresa Zimmers, studying this process with colleagues “found no evidence to support the use of this protocol, the dosage of the drugs or the order in which the drugs were administered in executions.”

In 2008, the Supreme Court held in Baze v. Rees that Kentucky’s method for lethal injection (which was similar to the method used by most states) was constitutional under the Eighth Amendment. Indeed, in the opinion, Chief Justice Roberts wrote that the lethal injection was the result of “progress” to “more humane means of carrying out the sentence.” Since Baze, however, issues with the sodium thiopental supply have arisen because of domestic and international restrictions on its sale. States have started using alternate substances (such as pentobarbital—which Oklahoma state officials have said is ideal “for humane euthanasia in animals”—and midazolam), the question of the method’s “humaneness” persist.

In the 2015 case Glossip v. Gross, the Supreme Court held that the use of midazolam was constitutional (because the petitioners “failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims”). The syllabus began, “Because capital punishment is constitutional, there must be a constitutional means of carrying it out.” Yet Justices Breyer and Ginsburg dissented in Gross, and questioned the basic constitutionality of the death penalty.

The Supreme Court’s holdings have not changed the graphic descriptions of death row inmates suffering under lethal injection. A 75-year-old Alabama prisoner on death row requested execution by firing squad, but his appeal was rejected in February by the Supreme Court under the caption Arthur v. Dunn. Justice Sotomayor dissented, writing that “[i]n addition to being near instant, death by shooting may also be comparatively painless. Condemned prisoners, like Arthur, might find more dignity in an instantaneous death rather than prolonged torture on a medical gurney.” (Though she did not question the constitutionality of the punishment itself.)

While lethal injections are still legal, there is growing outcry about the humaneness of the method, leading to the question of what humane methods of execution are.

DNA exoneration

“The forensic DNA age dawned with little fanfare on August 14, 1989,” writes the Northwestern Pritzker School of Law Center on Wrongful Convictions. Gary Dotson had been convicted of rape and aggravated kidnapping a decade earlier, based on a story told by the presumed victim, Cathleen Crowell. The original case relied on Crowell’s story as well as forensic testimony (eventually proven to be erroneous) based on a pair of Crowell’s underwear that had semen and vaginal fluids.

After an eventful decade with new hearings, clemency appeals, and parole violations, DNA testing became an option for Dotson’s parole hearing in 1988. The judge and Illinois governor agreed to the testing, and Alec Jeffreys—a British geneticist who developed restriction fragment length polymorphism (RFLP)—agreed to perform a test that could link suspects to crime based on their unique DNA. Unfortunately, the genetic material from Crowell’s underwear was too old to support the analysis.

A new method, though, called polymerase chain reaction (PCR), had been patented in the mid-1980s, and while PCR could not identify the exact suspect, it could “include or exclude a suspect among a group of the population who could have been the source of genetic material recovered from a crime scene.” More importantly, PCR could work with old samples as well as new ones. This technology conclusively proved that Dotson could not have produced the semen found in Crowell’s underwear. Although Dotson languished in prison for another year, the charges against him were finally dropped and he was released.

Since Dotson, over 300 people have been exonerated of crimes based on DNA evidence. Much like polygraphs, DNA forensics has become inextricably tied to the criminal system in popular culture (and in the minds of jurors) as the technology has grown more common. DNA exoneration is a strong example of how changes in technology can affect criminal law, civil rights, and the popular conception of justice. Now, lawyers can use science to convict the guilty and exonerate the innocent.

Yet even as DNA forensics provides an important check against wrongful convictions, it also raises new problems for the criminal justice system. There have been instances of police technicians misinterpreting DNA analyses, which can produce wrongful convictions that carry the imprimatur of scientific authority—as Matthew Shaer writes in the Atlantic, “science is only as reliable as the manner in which we use it.” For DNA, the manner in which the technology is used also is evolving rapidly. With new advancements, the analysis becomes more complicated and errors become more common.

Furthermore, jurors’ and lawyers’ focus on DNA evidence often means that other developments in criminology have been ignored. Common reasons for wrongful convictions include eyewitness misidentifications, false confessions, poor decision-making, and the use of dubious forensic science. Changing the standards for eyewitness identifications or videotaping police interrogations could help decrease the incidence of wrongful convictions, especially in cases for which no DNA evidence is available. DNA exoneration is an essential part of the criminal justice system, but the focus on the science should not be at the expense of other critical reforms.

Written by

Sonia is a 1L at HLS. She is interested in how international ideas influence domestic laws, the relationships between law and fairy tales, and the role of local government in implementing change. She is a part of the Mississippi Delta Project, the Access to Justice Lab, the Journal of Law and Gender, and HLS ACLU. She studied English literature and human rights at the University of Chicago.

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