By Lawrence Hurley
WASHINGTON (Reuters) - The Supreme Court on Tuesday faulted Texas, the U.S. leader in executions, in a death penalty case for the second time in a month and again ruled in favor of a black inmate, finding the state used an obsolete standard to assess whether he is intellectually disabled and exempt from capital punishment.
The justices, in a 5-3 decision, threw out a Texas court's ruling upholding the death sentence of Bobby Moore, 57, who was convicted at age 20 of fatally shooting an elderly grocery store clerk during a 1980 robbery in Houston. Moore's lawyers argue he is intellectually disabled and thus not eligible for the death penalty, and now get another chance to show that in court.
"Today, the Supreme Court reaffirmed that all persons with intellectual disability are exempt from execution, and that current medical standards must be used to determine whether a person is intellectually disabled," said Cliff Sloan, Moore's lawyer.
The Supreme Court ruled in 2002 that the execution of people who are intellectually disabled violates the Eighth Amendment to the U.S. Constitution, which bans cruel and unusual punishment. In Moore's case, in a ruling authored by liberal Justice Ruth Bader Ginsburg, the court held that the Texas system for gauging the intellect of defendants is deficient.
On Feb. 22, the court gave another Texas death row inmate, Duane Buck, a chance to avoid execution because his trial was tainted by testimony from a psychologist who stated Buck was more likely to commit future crimes because he is black. Chief Justice John Roberts denounced the "noxious strain of racial prejudice" seen in that Texas case.
Since the resumption of capital punishment in the United States four decades ago, Texas has carried out 542 executions, far more than any other state. Texas has executed four inmates so far this year, more than every other state combined.
Republican Texas Attorney General Ken Paxton's office said he was disappointed in the ruling on Moore but offered no further comment.
The lower court that upheld Moore's sentence wrongly used a quarter-century old definition employed in Texas when it determined Moore was not intellectually disabled, the court ruled. Moore's lawyers said a lower court found that Moore's IQ of 70 was "within the range of mild mental retardation."
'DIMINISH THE FORCE'
Ginsburg noted that the Supreme Court had previously said consideration of intellectual disability must be guided by the views of medical experts.
"That instruction cannot sensibly be read to give courts leave to diminish the force of the medical community's consensus," Ginsburg wrote.
Conservative Justice Anthony Kennedy joined the court's four liberals in the ruling. Three of the court's conservatives, Roberts, Justice Clarence Thomas and Justice Samuel Alito, dissented.
Roberts wrote in dissent that court precedent did not compel a ruling favoring Moore.
"The court instead crafts a constitutional holding based solely on what it deems to be medical consensus about intellectual disability. But clinicians, not judges, should determine clinical standards; and judges, not clinicians, should determine the content of the Eighth Amendment," he wrote.
Moore, a repeat offender at the time of the murder, shot store clerk James McCarble in the head with a shotgun after entering the Birdsall Super Market with two other robbers wearing a wig and sunglasses, according to prosecutors. Authorities apprehended him in Louisiana 10 days later.
More death row inmates from Harris County, where Moore was prosecuted, have been executed since the resumption of the death penalty than any other county. In fact, the number of inmates executed from that single county exceeds the total of any other whole state other than Texas.
U.S. executions are becoming less common, with opinion polls showing rising opposition to the death penalty. Twenty executions were carried out in 2016, the lowest total since 1991, and they took place in only five of the 50 states.
The Supreme Court's justices have differed among themselves over capital punishment but the court has shown no indication it will take up the broader question of the whether the death penalty itself violates the Constitution.
In 2015, they upheld Oklahoma's lethal injection process in a 5-4 ruling. But Ginsburg and fellow liberal Justice Stephen Breyer asserted that the way the death penalty is implemented may be unconstitutional in part because of state-to-state differences.
On Feb. 21, liberal Justice Sonia Sotomayor faulted the court for declining to consider whether Alabama's lethal injection procedures amounted to unconstitutional cruel and unusual punishment.
(Reporting by Lawrence Hurley; Additional reporting by Jon Herskovitz in Austin, Texas; Editing by Will Dunham)