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Top court questions death row criteria

| Tuesday, Nov. 29, 2016, 11:00 p.m.

The Supreme Court on Tuesday seemed inclined to agree with a Texas death row inmate who is challenging how that state determines whether a person is intellectually disabled and thus should be spared execution.

The court ruled in 2002 that executing the “mentally retarded” violated the Constitution. But the justices left up to states how to define who meets that standard.

At a hearing Tuesday, the court's liberals, joined by Justice Anthony M. Kennedy, sharply questioned whether Texas's procedure was simply a way to make more people eligible for execution.

Kennedy said the theme of death row inmate Bobby James Moore's challenge was that Texas uses a procedure that is “intended to really limit the classification of those persons with intellectual disability as defined by an almost uniform medical consensus.”

Texas Solicitor General Scott A. Keller responded that the state's high court, the Court of Criminal Appeals, “has never said that the purpose of these factors is to screen out individuals and deny them relief.”

Kennedy shot back, “But isn't that the effect?”

Justice Elena Kagan, Keller's most persistent interrogator, said the Texas court inserted factors — for instance, what do neighbors say about his abilities, or whether he can effectively lie in his own self-interest — as a way around the medical consensus over what constitutes intellectual disability.

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