Texas Prosecutor, September-October 2018

Atkins litigation in the wake of Ex parte Moore

Texas has a new legal standard to apply when an individual challenges his death sentence as being cruel and unusual punishment due to an alleged intellectual disability (abbreviated as ID). In Ex parte Bobby James Moore (Moore II), a case on remand from the United States Supreme Court, the Court of Criminal Appeals determined that the American Psychiatric Association’s (APA’s) most recent diagnostic framework of ID would control these Eighth Amendment challenges.1 This framework is contained within the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5).2 The Court of Criminal Appeals also held that a court could rely on the ID framework advanced by the American Association on Intellectual and Developmental Disabilities (AAIDD) in the 11th edition of its definition manual (AAIDD-11).
    However, the DSM-5 controls when there is a conflict between the two clinical standards.3 Although the DSM-5 and AAIDD-11 are quite similar, they do possess important distinctions. The authors compose this article as a primer on these similarities and differences.4
    The issue of who qualifies as intellectually disabled is clinically and legally complicated. In the context of the death penalty, the issue has confounded the legal system ever since the United States Supreme Court determined (in 2002) in Atkins v. Virginia that “evolving standards of decency” preclude execution of persons with ID.5 In reaching this conclusion, the Supreme Court purposefully opted not to provide any procedural or definitional guide regarding who fell within the Atkins ambit and instead left the matter to the proverbial laboratory of the states.6 However, in Moore, the Supreme Court intervened when it believed the Atkins procedures and definitions put in place by the Court of Criminal Appeals created an “unacceptable risk” that an intellectually disabled person might be executed.7

Moore’s procedural history
In 1980, Moore was convicted of capital murder and sentenced to death.8 In 2001, following a grant of federal habeas corpus relief for ineffective assistance of counsel, he was again convicted of capital murder and sentenced to death.9 During his retrial, Moore did not raise an ID defense. However, following his 2001 conviction, Moore filed a writ of habeas corpus alleging that he is ID and could not be executed. Applying the Atkins test it set forth in Ex parte Briseno,10 the Court of Criminal Appeals determined in 2015 that Moore did not meet his burden of proving that he is ID, and the Court denied habeas corpus relief (Moore I).11
    The United States Supreme Court vacated and remanded Moore I, concluding that Briseno was based on superseded and unsupported medical standards, the application of which created an “unacceptable risk” that a person with ID will be executed in violation of the Eighth Amendment.12 The Supreme Court was particularly critical of two aspects of the Court of Criminal Appeals’ Moore I opinion. Understanding these criticisms explains the Court of Criminal Appeals’ Moore II decision to adopt the DSM-5 as the new Atkins standard.
    First, in Moore I, the Court of Criminal Appeals applied the definition of ID from its 2004 opinion in Briseno. Briseno adopted the then-current criteria from the American Association on Mental Retardation’s 1992 definition manual (AAMR-9).13 However, that definition had changed by the time Moore I reached the Court of Criminal Appeals in 2015.14 The Supreme Court determined that the Court of Criminal Appeals improperly applied the 1992 AAMR-9 definition because it disregarded “current medical standards” contained within the most recent versions of the DSM-5 and AAIDD-11. The Supreme Court held that these current clinical manuals supply “the best available description of how mental disorders are expressed and can be recognized by a trained clinician.”15
    Second, the Supreme Court unanimously rejected the Court of Criminal Appeals’ application of judicially created “factors” set forth in Briseno to assess Moore’s Atkins claim.16 Among the Briseno factors the Court of Criminal Appeals considered in Moore I were:
    •    Did those who knew the person best during the developmental stage—his family, friends, teachers, employers, authorities—think he was mentally retarded at that time, and,
    •    If so, did they act in accordance with that determination?17
    These “factors” had been the subject of extensive clinical criticism for being based on lay stereotypes of the intellectually disabled.18 The Supreme Court concluded the Briseno factors ran afoul of the Eighth Amendment because they were “nonclinical” and an “outlier” among the states.19
    Interpreted collectively and conservatively, Atkins and Moore recognize that legal and clinical determinations of ID are distinct. Clinicians may, and often do, disagree as to whether or not an individual is intellectually disabled. The Supreme Court becomes concerned when procedures and definitions to assess ID claims create an “unacceptable risk” that a person with ID would be executed, rather than a general “risk” inherent in differing clinical opinions. Underscoring this point, the Supreme Court used the word “unacceptable” three times in Moore—hardly an accident. Therefore, the “risk” of executing an intellectually disabled person becomes an “unacceptable risk” under the Eighth Amendment when a court’s Atkins analysis deviates from current clinical practice.20

Agreement between the DSM-5 and AAIDD-11
The definition and diagnostic criteria of ID in the DSM-5 and the AAIDD-11 are similar in four areas:
    1)    clinical criteria,
    2)    importance of clinical judgment,
    3)    comorbidities, and
    4)    examination of adaptive functioning during incarceration.
We will discuss each of these in more detail below.

Clinical criteria. The DSM-5 and AAIDD-11 agree that ID is characterized by significant deficits in 1) intellectual and 2) adaptive functioning 3) during a defined developmental time period. A significant deficit is recognized as performance approximately two deviations below the population average while taking into account margins for measurement error and other factors that may affect test scores, including practice effects and overly high scores due to out-of-date test norms.21 An individual must satisfy each of the three prongs to meet the ID definition. According to the DSM-5:

Intellectual disability (intellectual developmental disorder) is a disorder with onset during the developmental period that includes both intellectual and adaptive functioning deficits in conceptual, social, and practical domains. The following criteria must be met:
    A. Deficits in intellectual functions, such as reasoning, problem solving, planning, abstract thinking, judgment, academic learning, and learning from experience, confirmed by both clinical assessment and individualized, standardized intelligence testing.
    B. Deficits in adaptive functioning that result in failure to meet developmental and socio-cultural standards for personal independence and social responsibility. Without ongoing support, the adaptive deficits limit functioning in one or more activities of daily life, such as communication, social participation and independent living, across multiple environments, such as home, school, work, and community.
    C. Onset of intellectual and adaptive deficits during the developmental period.22

The AAIDD-11 presents a similar, three-prong construct:

Intellectual disability is characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. The disability originates before age 18.23

    The adaptive functioning second prong focuses on deficits, not strengths.24 For example, a person with significant deficits in intellectual functioning may be otherwise mature in social interactions and act appropriately in terms of personal care. However, if he possesses significant deficits in learning academic skills such as reading, writing, arithmetic, or money management, a clinician may determine he is intellectually disabled.25 In short, strengths cannot outweigh or balance out the deficits.

Importance of clinical judgment. Atkins recognizes the importance of clinical judgment to an ID determination: “To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded.”26
    Clinical judgment is recognized as “a special type of judgment rooted in a high level of clinical expertise and experience. It emerges directly from extensive data and is based on training, experiences, and specific knowledge of the person and his or her environment.”27 Clinicians are expected to conduct a thorough review of (or at least attempt to review) all relevant clinical information; consider, validate, and weigh all the information; and rule out an alternative diagnosis.28 In a treatise published by the AAIDD, three scholars advocate that the level of expertise required for an Atkins evaluation transcends basic legal competence:

It is recommended that to achieve the level of competence required for ethical participation in Atkins assessments, practitioners must become well versed in the fields of both intellectual disability and forensic mental health assessment. … Experts in Atkins cases should, ideally, have previous experience conducting forensic evaluations with people who may have ID, as well as prior experience providing expert testimony regarding ID in other types of noncapital cases. … The heightened ethical responsibilities that come with practicing in a forensic role, especially in death penalty cases, require experts to maintain a highly specialized area of expertise that is generally not possessed simply by holding an advanced clinical degree and licensure to practice independently.29

Comorbidities. The DSM-5 and AAIDD-11 recognize that it is not unusual for persons with ID to also possess other mental or physical ailments such as attention deficit/hyper activity disorder (ADD/ADHD), autism spectrum disorder, and bipolar disorder.30 When this occurs, the coexisting ailment is to be regarded as a “comorbidity,” the presence of which does not per se exclude a clinical determination of ID.31 Clinicians are to note comorbidities when they exist.32

Examination of adaptive functioning during incarceration. Clinicians and courts often confront the problem of how to assess second-prong adaptive functioning in an individual who has been incarcerated for an extended period of time. For example, Moore has been in continuous incarceration since Jimmy Carter was President of the United States.
    Assessments of adaptive functioning measure an individual’s everyday ability to function in a typical environment—but there is nothing typical about being incarcerated. Therefore, both the DSM-5 and AAIDD-11 caution against overreliance of adaptive functioning evidence from the controlled prison setting. While both standards acknowledge that adaptive functioning during incarceration can be examined, it should be corroborated with information from outside a prison setting and reviewed with a heightened level of clinical judgment.33

Disagreement between the DSM-5 and AAIDD-11
The dissent in Moore II regards a conflict between the DSM-5 and AAIDD-11 as “highly unlikely.”34 The authors of this article do not share this view. The definition and diagnostic criteria of ID in the DSM-5 and the AAIDD-11 are dissimilar in at least three areas:
    1)    whether ID is a “trait” or a “state” (we will define these in a moment),
    2)    the appropriate cutoff for the age of onset, and
    3)    whether deficits in adaptive functioning must be “directly related” to deficits in intellectual functioning.
    The last dissimilarity—direct relatedness—is almost certain to generate clinical and legal disagreement in Atkins litigation.

“Trait” versus “state.” A profound difference between the APA and AAIDD rests in their respective views as to whether ID is a “trait” or a “state.”35 Understanding this distinction helps explain the differences regarding age of onset and direct relatedness.
    The DSM-5 treats ID as a trait that may be hereditary. It is regarded as a neurodevelopmental, brain-based disorder among a group of other brain-based disorders that typically manifest during development, including autism spectrum disorder and attention deficit/hyperactivity disorder.36 In fact, the technical title of ID in the DSM-5 is “Intellectual Disability (Intellectual Developmental Disorder).”37 Even though it is regarded as a brain-based disorder, the APA maintained the phrase “intellectual disability” because that term is used to acquire services under federal law and is commonly used by other professions and the lay public.38
    The DSM-5 categorizes ID by its level of severity (mild, moderate, severe, or profound), and severity is determined by an assessment of adaptive functioning. To facilitate this severity classification, the DSM-5 provides examples of conceptual, social, and practical deficits. For example, a school-age child with mild ID may express significant deficits in adaptive functioning by being immature in social interactions, having difficulty perceiving peers’ social cues, and expressing immature communication.39 Importantly, the DSM-5 does not advance or suggest a support system for this hypothetical school-age child with ID, or any person with ID. The focus is on classification of the trait.40
    By contrast, the AAIDD-11 treats ID as a state of being (a “state”). Its construct is premised on ID not as a mental defect (“retardation”) but as a limitation in typical human functioning (“disability”).41
    Unlike the DSM-5, the AAIDD-11 does not categorize ID by severity level. Instead its focus is on the “pattern and intensity of supports necessary for a person to participate in activities linked to normative human functioning”42—put differently, the individualized supports necessary to help a person with ID interact with his environment. Examples of an individualized support structure can include providing a less-distracting section of a classroom for taking a test, instruction using a calculator for money management, use of sensory aids, and teaching a person how to use the local health club.43

Cutoff for age of onset. The “trait” versus “state” dichotomy is reflected in differences between the DSM-5 and AAIDD-11 regarding the age-of-onset prong. Age of onset can become a contested matter in Atkins litigation.44
    The DSM-5 requires a showing of intellectual and adaptive deficits “during the developmental period.”45 “Developmental period” is undefined, although the manual notes that onset during the developmental period “refers to the recognition that intellectual and adaptive deficits are present during childhood or adolescence.”46 Consistent with its view that ID is a neurodevelopmental, brain-based disorder (i.e., a trait), this definition provides some flexibility for an individual to demonstrate that his particular brain development extended beyond age 18.47
    By contrast, the AAIDD maintains that 18 is an appropriate cutoff age for neurological and public policy reasons (i.e., a “state”). Among the public policy reasons cited is that an age-18 cutoff is consistent with the diagnostic practices of Asia and Europe.48
    In Moore, the Supreme Court made clear that all intellectually disabled individuals are per se excluded from the death penalty.49 As such, age of onset at age 19 or 20 must be permissible. By selecting the DSM-5 standard, the Court of Criminal Appeals avoided the “unacceptable risk” posed by the AAIDD-11’s hard age cutoff.

Direct relatedness between intellectual and adaptive functioning. The difference between the DSM-5 and AAIDD-11 that is likely to cause the most conflict in Atkins litigation relates to whether significant deficits in intellectual and adaptive functioning are “directly related.”
    The DSM-5 requires: “To meet the diagnostic criteria for intellectual disability, the deficits in adaptive functioning must be directly related to the intellectual impairments described in Criterion A.”50 By contrast, the AAIDD-11 possesses no relatedness requirement.51
    The absence of a relatedness inquiry from the AAIDD-11 makes sense when ID is a state—a construct to identify the “intensity of supports necessary for a person to participate in activities linked to normative human functioning.”52 Under this approach it should not matter if the deficits are “directly related” because the individual needs support services. However, when ID is viewed as a “trait,” as in the DSM-5, the reasons for why there are significant deficits in adaptive functioning do matter so as to properly classify the individual as having an intellectual disability, a different condition, or both.
    In adopting the DSM-5 in Moore II, the Court of Criminal Appeals implicitly held that it views ID as a trait rather than a state. The Court explained that there is “logic of requiring that adaptive deficits be related to deficient intellectual functioning.”53 Unfortunately, the Court did not explain what “directly related” means.
    The APA provided the following helpful explanation in its amicus brief to the Supreme Court in Moore:

The current diagnostic criteria require a connection between the deficits in intellectual functioning, but that connection need only exclude the obvious limits imposed by other ailments. The most obvious of those include physical disabilities that impair sensory abilities (e.g., blindness or deafness). Whether a deficit in adaptive functioning is ‘related’ to intellectual impairments is a clinical judgment and cannot be reduced to a layperson’s ‘just so’ stories.54

The APA’s use of the words and phrases “connection,” “obvious limits imposed by other ailments,” and “clinical judgment” require explanation. The APA chose the word “connection,” not “causation.” There is no requirement that the significant deficits in intellectual functioning caused a person’s significant deficits in adaptive functioning. The “directly related” inquiry is an examination of correlation, not causation.55   
    The phrase “obvious limits imposed by other ailments” is noteworthy. An “ailment” is a physical or mental disorder.56 While the APA recognizes that the “most obvious” physical disabilities of blindness or deafness could affect adaptive functioning, other ailments also unquestionably pose “obvious limits,” including attention deficit/hyper activity disorder, autism spectrum disorder, bipolar disorder, and traumatic brain injury.
    Ultimately, “clinical judgment” is the keystone in the “directly related” arch. The scope of judgment that is professionally required of the forensic clinician testifying or providing a report in an Atkins proceeding is clear:

The task of determining the cause(s) of what may be an adaptive deficit is different [from] determining the cause of [ID]. Some behaviors or patterns of behavior could be related to intellectual difficulties, personality traits, both, or a combination of those and other factors. For example, a person might drop out of school after repeated failure to succeed no matter how hard he tried. Or a person might drop out to pursue a criminal lifestyle. Both could be true for the same person.
    Recognizing that deficits in adaptive functioning may arise from multiple sources, forensic clinicians in Atkins cases should neither assume that adaptive deficits are invariably related to intellectual impairments nor exclude intellectual impairment as an etiological factor in the presence of other contributing factors. We recommend forensic clinicians consider and be prepared to explain the role of any intellectual impairment in the observed deficiency in adaptive functioning. Review of the trajectory of adaptive deficits over time may inform this differential.57

    In essence, a clinician offering an expert opinion in Atkins litigation needs to be able to show her work. She must explain in detail why significant deficits in adaptive functioning can be explained by significant deficits in intellectual functioning and not by the presence of a different physical or neurological ailment.

Atkins claims almost exclusively rely on consideration of competing expert opinions. Because Moore requires consistency with “current medical standards,” ID experts—for the prosecution and defense—must be expected to detail with specificity what they examined, the weight they accorded the evidence, and how they exercised clinical judgment to arrive at their professional conclusions58. The DSM-5, AAIDD-11, and Moore require nothing less. As such, it is absolutely appropriate for a court to assess the merits of an Atkins claim through an analysis as to whether an expert exercised clinical judgment in accord with prevailing clinical and professional norms.59


1  Ex parte Moore, 548 S.W.3d 552 (Tex. Crim. App. 2018).

2  For a primer on the changes between the fourth edition of the DSM to the fifth, read this article from the November-December 2013 issue of this journal: www.tdcaa.com/journal/significant-changes-dsm-iv-dsm-5.

3  Ex parte Moore, at 560 n. 50.

4  Applying the DSM-5 standard, the Court of Criminal Appeals determined that Moore is not intellectually disabled. Moore is challenging this decision in the United States Supreme Court. The authors believe that Moore is unlikely to contest the DSM-5 as the appropriate standard to review his claim and will instead argue that the Court of Criminal Appeals erred as it interpreted the DSM-5 and applied it to his specific case. While the outcome of this litigation is unclear, the authors are confident that the DSM-5 will remain the new legal standard in Texas.

5  Atkins v. Virginia, 536 U.S. 304, 321 (2002).

6   Id. at 317 (“To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright with regard to insanity, we leave to the States the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences”).

7  Moore v. Texas, 137 S.Ct. 1039 (2017).

8  Moore v. State, 700 S.W.2d 193 (Tex. Crim. App. 1985).

9  Moore v. State, No. AP-74,059, 2004 WL 231323, at *1 (Tex. Crim. App. Jan. 14, 2004) (not designated for publication).

10  135 S.W. 3d 1, 4-8 (Tex. Crim. App. 2004).

11  Ex parte Moore, 470 S.W.3d 481, 514-28 (Tex. Crim. App. 2015).

12  137 S.Ct. at 1048-53.

13  The AAMR subsequently changed its name to the AAIDD.

14  137 S.Ct. at 1055.

15  Id. at 1049-53.

16  Id. at 1051-52; 1060.

17  Briseno, 135 S.W.3d at 8.

18  See, e.g., “The Briseno Factors,” in The Death Penalty and Intellectual Disability, 219 (Edward A. Polloway ed., 2015) (“Few if any intellectual disability scholars, representative bodies, or specialists consider that the Briseno factors provide a valid diagnostic framework”).

19  137 S.Ct. 1051-53.

20  Id. at 1049-53.

21  DSM-5 at 37.

22  DSM-5 at 33.

23  AAIDD-11 at 5.

24  AAIDD–11, at 47 (“significant limitations in conceptual, social, or practical adaptive skills [are] not outweighed by the potential strengths in some adaptive skills”); DSM–5, at 33, 38 (inquiry should focus on “deficits in adaptive functioning”; deficits in only one of the three adaptive-skills domains suffice to satisfy criteria).

25  DSM-5 at 34.

26  536 U.S. at 317. (“Mental retardation” was the clinically correct term at the time Atkins was issued).

27  AAIDD-11 at 85.

28  DSM-5 at 37; AAIDD-11 at 90; Denis W. Keyes & David Freeman, Retrospective Diagnosis and Malingering, in The Death Penalty and Intellectual Disability, 263, 263-64 (Edward A. Polloway ed., 2015); John H. Blume & Karen L. Salekin, Analysis of Atkins Cases, in The Death Penalty and Intellectual Disability, 37, 49 (Edward A. Polloway ed., 2015).

29  Gilbert S. Macvaugh, Mark D. Cunningham & Marc J. Tasse, Professional Issues in Atkins Assessments, in The Death Penalty and Intellectual Disability, 325, 333-34 (Edward A. Polloway ed., 2015) (emphasis in original).

30  DSM-5 at 40; AAIDD-11 at 58-63.

31  DSM-5 at 40.

32  DSM-5 at 39-40.

33  DSM-5 at 38; AAIDD-11 at 46. See also Leigh D. Hagan, Eric Y. Drogin, & Thomas J. Guilmette, Assessing Adaptive Functioning in Death Penalty cases after Hall and DSM-5, 44 J. Am. Acad. Psychiatry & L., 96, 102-03 (2016) (“Being in a controlled prison environment does not diminish the rich information available for a comprehensive assessment of adaptive functioning. Although prison life differs in many ways from circumstances in the larger community, both settings require adaptive behavior”).

34  548 S.W.3d at 582 (Alcala, Richardson, Walker, JJ. dissenting).

35  James C. Harris and Stephen Greenspan, “Definition and Nature of Intellectual Disability,” in Handbook of Evidence-Based Practices in Intellectual and Developmental Disabilities, 11, 16-17 (N.N. Singh (ed.).

36  DSM-5 at 31-33.

37  Id. at 33.

38  Id.

39  Id. at 34.

40  Id. at 40-41.

41  AAIDD-11 at 13-19.

42  Id. at 109-122; 151-66.

43  Id. at 116.

44  Van Tran v. Colson, 764 F.3d 594, 612-19 (6th Cir. 2014).

45  DSM-5 at 33.

46  Id. at 38.

47  Stephen Greenspan, George W. Woods & Harvey N. Switzky, Age of Onset and the Developmental Period Criterion, in The Death Penalty and Intellectual Disability, 77, 78 (Edward A. Polloway ed., 2015).

48  AAIDD-11 at 28.

49  137 S Ct. at 1051.

50  DSM-5 at 38 (emphasis added).

51  AAIDD-11 at 43.

52  Id. at 109.

53  548 S.W.3d at 560.

54  Brief for American Psychological Association, American Psychiatric Association, American Academy of Psychiatry and the Law, National Association of Social Workers & National Association of Social Workers Texas Chapter as Amici Curiae Supporting Petitioner, Moore v. Texas, 137 S.Ct. 1039 (2017) (No. 15-797), 2016 WL 4151451, at *9.

55  Marc J. Tasse, Ruth Luckasson, & Robert L. Schalock, The Relation Between Intellectual Functioning and Adaptive Behavior in the Diagnosis of Intellectual Disability, 54 Intell. & Dev. Disabilities, 381, 387 (2016).

56  American Heritage Dictionary, 28 (4th ed. 2002).

57  Gilbert S. Macvaugh & Mark D. Cunningham, Atkins v. Virginia: Implications and Recommendations for Forensic Practice, 37 J. of Psychiatry & L., 131, 170-71 (2009).

58  Hall v. Florida, 134 S.Ct. 1986, 1993 (2014) (“Society relies upon medical and professional expertise to define and explain how to diagnose the mental condition at issue”).

59  Ex parte Hunter, 2016 WL 4793152, at *1 (Tex. Crim. App. March 9, 2016) (not designated for publication); U.S. v. Candelario-Santana, 916 F.Supp.2d191, 204-05 (D. Puerto Rico 2013); see also DSM-5 at 25 (“In most situations, the clinical diagnosis of a DSM-5 mental disorder such as intellectual disability … does not imply that an individual with such a condition meets legal criteria for the presence of a mental disorder or a specified legal standard”).