In this issue
Welcome to the second International Law Bulletin
Human Rights Law’s Myths
Closing the gap between human rights and investment protection: What role for human rights impact assessments?
Terrorism and French Criminal Justice
Ukraine passes sweeping ban on Russian media and social networks in expansion of economic sanctions
Bobby Moore v Texas: The protection of intellectually disabled death row inmates in Texas
Rocking the boat in small island communities – lessons from the “Jersey Way”.
Bobby Moore v Texas: The protection of intellectually disabled death row inmates in Texas
International Human Rights Law

By Kirsty Brimelow QC & Nicola Peart

In March 2017 the US Supreme Court delivered a significant victory for intellectually disabled death row inmates in Texas. The decision in Moore v. Texas 581 U.S. _ (2017), held that the State of Texas could not use an outdated definition of intellectual disability to determine whether the death penalty could be imposed.

Doughty Street’s Kirsty Brimelow QC and Mark Wassouf, together with lawyers from Three Crowns LLP, were part of the legal team submitting an Amicus Curiae brief in support of Mr. Moore’s petition for certiorari to the Supreme Court. Geoffrey Robertson QC was one of 16 world-renowned human rights lawyers who signed the brief. The Bar Human Rights Committee of England and Wales was one the leading International Human Rights Law Associations to add its signature.


The injustice of Mr. Moore’s case was particularly compelling. Mr. Moore was convicted of capital murder after shooting a supermarket employee during a robbery in 1980. By the time his case came before the Supreme Court, he had been on death row for over 35 years and in solitary confinement for over 14 years. Twice, the State signed death warrants and set his execution date: one warrant was stayed less than 24 hours before he was to be executed; the other only 5 days prior to execution.


The basis for his sentence also was concerning - above and beyond it being a death sentence. In sentencing Mr. Moore, the Texas court had to determine whether he was intellectually disabled. This followed the decision of the US Supreme Court in Atkins v. Virginia 536 U.S. 304 (2002), which ruled that executing an intellectually disabled person violates the Constitution. In Mr. Moore’s case, the Texas court proceeded by using outdated medical criteria for intellectual disability as well as the Briseño factors, which aim to define “that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty” – an example, according to the Texas Criminal Court of Appeal, being “Lennie”, the fictional character in Steinbeck’s Of Mice and Men. According to the Texas court, Mr. Moore fell outside the threshold qualifying him as intellectually disabled despite reaching his teenage years without understanding how to tell time, the days of the week, or the relationship between subtraction and addition.


The petition of certiorari presented two legal questions: first, whether the US Constitution’s Eighth Amendment prohibiting “cruel and unusual punishment” prevented the Texas court from using outdated medical criteria when determining whether an individual may be executed; second, whether the Eighth Amendment barred the execution of an individual who had been on death row for more than three and a half decades.


Amicus briefs were filed in support of both questions by a number of legal and medical experts. The brief drafted by Mark Wassouf and Kirsty Brimelow QC and Three Crowns LLP focused on the second question, arguing that “[c]lear consensus has emerged in international and regional courts and institutions around the world that execution of those subject to prolonged incarceration under a death sentence is unconstitutional and/or in violation of international human rights norms, because it adds a significant degree of suffering and punishment over and beyond the judicial sanction of the death sentence itself”.


In June 2016, certiorari was granted on the first question. When the Supreme Court announced that it would hear Mr. Moore’s case, it said the Justices would also consider the second question. However, some two hours later, the Court issued a revised order, limiting its review to the intellectual-disability issue. On this narrower scope of pleadings, the Supreme Court’s decision by a vote of 5-3 vacated the Texas court’s ruling on the basis that it violated the Eighth Amendment. The Texas court had erred in not considering Mr. Moore’s lowest possible IQ and for wrongly assuming that Mr. Moore was suffering from “emotional” rather than intellectual difficulties. Pointing to evidence in one of the Amicus briefs the Supreme Court found that this departed from current domestic clinical and medical practice.


The Supreme Court also criticised the standard applied by the Texas court for lacking any basis in medicine or law and instead relying on stereotypical assumptions about what people with intellectual disability can and cannot do. On behalf of the majority, Justice Ginsburg wrote: “Texas cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual’s life is at stake.”


This is undoubtedly an important win for Bobby Moore as well as being a significant judgment. As a result of the ruling, the case has been remanded back to the Texas courts for re-sentencing.

As to the second important question, the time remains ripe for a decision on the constitutionality of this practice. Some Justices of the Supreme Court have in the past criticised the use of extended solitary confinement of death row prisoners. In 2015 in Davis v. Ayala 576 U.S. _ (2015) Justice Kennedy stated that “years on end of near total isolation exact a terrible price,” adding that “the condition in which prisoners are kept simply has not been a matter of sufficient public inquiry or interest.”


Finally, back to the Amicus Curiae brief itself and its importance in cases of this kind. We rest our case with the words of the Supreme Court: “For two centuries we have affirmed that the domestic law of the United States recognizes the law of nations . . . It would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals.” (Sosa v. Alvarez-Machain, 542 U.S. 692, 729-30 (2004)). But in light of the limited permission granted in Moore v. Texas, the Justices will have to avert their international gaze from the components of inhuman and degrading treatment and await another opportunity. And so will we.



The ‘Brief of International Law and Human Rights Institutes, Societies, Practitioners and Scholars as Amici Curiae in Support of Petition for Certiorari’ can be found online at:


Kirsty Brimelow QC, Mark Wassouf and Nicola Peart were part of the Drafting Team.


 Geoffrey Robertson QC signed the Brief as an Individual Amici.


The Bar Human Rights Committee of England and Wales signed the brief as an Amici organization.


Three Crowns’ Constantine Partasides QC, Lucy Martinez, Penny Martin and Anastasia Davis Bondarenko, along with Constance de la Vega of the University of San Francisco, acted as Counsel for the Amici Curiae.