GENERAL INTEREST consensus when there had been at least nine other states, as of 2014, that had a similar statute to that of Florida. 18 In September 2016, Hall’s sentence of death was commuted to life in prison. Another major challenge to the Atkins test was presented to the United States Supreme Court in the case of Moore v Texas . 19 Although Texas was not one of the states mentioned by Justice Kennedy as having a similar statutory scheme to Florida for identifying intellectually disabled persons, the method that they had employed post-Atkins for diagnosing the intellectually disabled drew the attention of the Supreme Court in 2016. The case originated from a murder during an armed robbery which occurred in 1980. Bobby James Moore was convicted of capital murder at the age of 20, sentenced to death and for the next 30 years remained on death row. During this time, Moore challenged his sentence on the grounds of intellectual disability. The Texas Habeas Court received testimony from Moore’s family on petition for relief pursuant to Atkins that Moore had adaptive behavioral defi cits as a youth and further testimony from mental health experts. Subsequently, the Habeas Court recommend-ed that the Texas Court of Criminal Appeals (CCA) reduce his sentence to life in prison and in doing so relied upon the DSM-V and the American Association of Intellectual and Developmental Disabilities (AAIDD-11). 20 However, the CCA emphasized that in diag-nosing intellectual disability, it was necessary to use the standards that had been adopted by Texas in an earlier case Ex Parte Briseno (2004) 21 and consequently denied Moore’s habeas relief. The majority opinion concludes by asserting that while states have some fl exibility in enforcing the constitutional restrictions set out in Atkins , there is not unfettered dis-cretion as it would risk that the judgment in Atkins would “become a nullity and the Eighth Amendment’s protection of human dignity would not become a reality.” The CCA justifi ed its reliance on the Briseno standards citing Atkins and its holding that the “decision to modify the legal standard for intellectual disability in the capital sentencing context rests with this Court.” 22 According to the CCA, Moore failed the second prong 24 VIRGINIA LAWYER | December 2017 | Vol. 66 | GENERAL INTEREST FEATURES of the Atkins test as his academic and social diffi culties were deemed not related to defi cits in intellectual functioning. For example, Moore’s poor grades in school resulted from his changing schools multiple times, drug abuse, absenteeism, and racial harassment. 23 The court also noted that Moore’s socially adaptive strengths were more relevant than any perceived defi cits as he could support himself on the streets and was able to earn money by mowing lawns and playing pool. 24 The United States Supreme Court grant-ed certiorari in the Moore case to address Texas’s reliance on outdated and profession-ally unaccepted standards for evaluating the limitations in adaptive skills. In delivering the majority opinion, Justice Ginsburg high-lighted the recurring theme in both Hall and Atkins, that “to enforce the Constitution’s protection of human dignity… we look to the evolving standards of decency that mark the progress of a maturing society.” 25 The opinion highlights three main issues regarding the Texas court’s assessment of Moore for intel-lectual functioning. First, the court confi rmed the legitimacy of applying the standard error of measure to Moore’s IQ of 74, the “lower end of Moore’s score falls at or below 70 [so] the CCA had to move on to consider Moore’s adaptive functioning.” 26 Yet, Ginsburg goes on to critique Texas for overemphasizing Moore’s adaptive strengths, overcoming the consid-erable objective evidence of Moore’s adap-tive behavioral defi cits. 27 Finally, the Court challenged Texas’s reliance on Briseno factors as they were based on lay perceptions of intellectual disability and were not universally relied upon by Texas in all cases of diagnos-ing an intellectual disability (e.g. diagnosing juveniles). Ginsburg stated that “Texas cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to su-perseded standards when an individual’s life is at stake.” 28 The majority opinion concludes by asserting that while states have some fl exi-bility in enforcing the constitutional restric-tions set out in Atkins , there is not unfettered discretion as it would risk that the judgment in Atkins would “become a nullity and the Eighth Amendment’s protection of hu-man dignity would not become a reality.” 29 Regarding the second prong of the Atkins test, the CCA failed to take into account the “medical community’s diagnostic frame-www.vsb.org