Although in 1989 the Supreme Court of the United States initially held that the Eighth Amendment did not prohibit executing persons with intellectual disabilities in Penry v. Lynaugh, in 2002 it subsequently reversed this decision in Atkins v. Virginia, citing changing state legislation. Since the Atkins decision, state courts have interpreted the Court’s Atkins provisions in a variety of ways, some more faithfully than others. As a result, the Court provided additional clarification in its 2014 and 2015 Hall v. Florida and Brumfield v. Cain decisions, ruling that states must apply a Standard Error of Measurement of +5/-5 to all capital defendant IQ test scores. Despite this requirement, some state courts still delivered opinions contrary to the Court’s Atkins and Hall holdings, prompting the Court to offer yet more guidance in 2017. In Moore v. Texas I, the Court established that states must evaluate intellectual disabilities in capital defendants according to current medical standards, which include: (1) using the diagnostic criteria outlined in the DSM-5 or AAIDD-11; (2) focusing on adaptive deficits, not strengths; and (3) prohibiting determinations of intellectual disability from being based on functioning in prison. In 2019 the Court determined in Moore v. Texas II that the analysis undertaken by the Texas Court of Criminal Appeals continued to offend Court precedent. Given the long history of some state courts disregarding clear holdings of the Supreme Court, this Article examines how state courts have interpreted Moore I and Moore II.



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