Support Process to Determine ID in Capital Cases: House Bill 869

Chairwoman Collier and committee members, thank you for the opportunity to testify in support of HB 869.

My name is Alex Cogan, and I am Manager of Public Policy & Advocacy for The Arc of Texas.
HB 869 codifies in Texas law what the Supreme Court has already decided three times. It aligns Texas law and procedures with the Supreme Court’s mandates and make standards consistent across the state in the following ways:

First, it defines intellectual disability, or ID, which is a complex diagnoses, in a more comprehensive way. An IQ helps determine the presence of an ID, but it is not the sole determinate. Deficits in adaptive behavior must also be considered.

Secondly, by applying prevailing scientific medically recognized criteria to diagnose ID prior to the trial and sentencing phase, any disputes over disability claims can be litigated without a redo of the sentencing phase. This saves the state a lot of money.

Finally, it defines who can evaluate and diagnose an individual with an ID by creating uniform standards. We know that people with IDD are overrepresented in the criminal legal system. Although they are 1 to 3% of the general population, they make up 4 to 10% of our jail and prison population. Because those with IDD have unique characteristics, which may trap them in a chain of exploitation and make them susceptible to be used to commit crimes, and unable to assist in their own defense. 

Secondly, those characteristics require communication and behavioral adjustments, which may not be initially evident to first responders and legal professionals. So they enter the system at higher rates, and without the necessary supports and those gaps have yet to be fully addressed in policy. But this bill takes a step to set a precedent. 

I’ll end with a brief history of death penalty and ID. In 2002, the U.S. Supreme Court said that sentencing someone with ID to death violates the 8th amendment because it inflicts cruel and unusual punishment on persons, who as the Atkins ruling states, “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.” As recently as 2019, the U.S. Supreme Court issued the second of two rulings regarding Bobby Moore, stating that Texas’s standard for identifying ID in capital punishment cases were outdated and not based in science.

We are not debating whether we can put someone with ID to death; the U.S. Supreme Court has decided that three times. Rather, this bill establishes a process for Texas courts to make those assessments, which saves the state time and money, and ensure a fair and consistent application of the law to individuals with ID. I’m happy to answer any questions.