Intellectually disabled death row inmate will not likely get another bite of the apple from SCOTUS

The Supreme Court appears likely to shut down a Texas death row inmate’s efforts to use updated medical guidelines to secure another chance at challenging his conviction, reported Courthouse News Service.

Dexter Johnson didn’t initially argue that his execution would violate the Eighth Amendment. But the American Psychiatric Association’s 2013 edition of its Diagnostic and Statistical Manual of Mental Disorders, known as DSM-5, adopted new guidelines that classified Johnson as intellectually disabled.

By the time Johnson was convicted of murdering Maria Aparece in 2007, the Supreme Court’s ruling in Atkins v. Virginia, which held it was unconstitutional to execute a person who is intellectually disabled, had been on the books for five years. But Johnson didn’t meet the criteria for such a claim until six years after his conviction.

During his trial, experts testified that Johnson had the intellectual functioning equivalent to a 10-year-old, and his lawyers say he has severe language deficits that place him “well below the lowest one percentile’” of the population. But his IQ scores of 79 and 88 precluded an intellectual disability diagnosis during his trial and initial appeals.

The DSM-5 moved away from solely focusing on IQ scores, taking into consideration other deficits. And the updated guidelines recognized that individuals with IQ scores over 70 may still qualify as intellectually disabled.

The Anti-Terrorism and Effective Death Penalty Act only permits individuals to file one habeas application unless they can show their claim relies on “a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court that was previously unavailable.”

The Fifth Circuit found Johnson qualified for the exception, allowing him to proceed with a successive federal habeas application. But on Wednesday, the Supreme Court appeared to disagree.

Justice Brett Kavanaugh, a Donald Trump appointee, questioned if Johnson’s case would set a precedent for “eternal Atkins claims and zero finality” because medical standards around intellectual disability are constantly evolving.

And his conservative colleagues were generally skeptical that claims under the two-decade-old precedent could be considered new.

“Does Atkins ever stop being a new rule?” Justice Clarence Thomas, a George H.W. Bush appointee, asked.

Justice Amy Coney Barrett, another Trump appointee, compared Johnson’s definition of new to the invention of the telephone.

“I mean when Alexander Graham Bell invented the telephone, that was new,” Barrett said. “I don’t think anybody would describe the telephone as new today.”

The liberal wing of the court seemed to side with Johnson, however, stating the Supreme Court in Atkins indicated that who qualifies as intellectually disabled is keyed to medical standards, which can vary and evolve.

As such, Justice Elena Kagan, a Barack Obama appointee, said it was apt to think of Atkins as having multiple rules as those standards have evolved over the last two decades.

“It would be wrong to think of Atkins as a single rule that we decided exactly when we decided the Atkins case given that Atkins was very cognizant that the substantive standard for the rule was going to be supplied principally by diagnostic criteria,” Kagan said. “So, if the diagnostic criteria fundamentally changes…you basically get an Atkins II rule, and then the question with respect to that defendant would be whether that is new.”

Instead of considering whether the claims were generally “new,” Justice Ketani Brown Jackson, a Joe Biden appointee, said the court should consider whether the claim is new to a particular individual.

Despite support from the three Democratic appointees, it did not appear Johnson had enough support from the Republican appointees to reach a majority.

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