Deadly games

How can you tell if a criminal is too mentally disabled to merit the death penalty?

If you're a justice on the U.S. Supreme Court, you look at the prevailing standards of psychology and medicine.

If you're a judge on the Texas Court of Criminal Appeals (CCA), you look at his ability to hustle pool.

This mismatched standard has the state's highest criminal court rehearing the death sentence of Bobby Moore, who was convicted for shooting a grocery store employee during a robbery in 1980. Moore's lawyers have argued that he is mentally disabled and executing him would violate the Eighth Amendment's prohibition against cruel and unusual punishment.

In a 5-3 decision released in March, the Supreme Court found that the CCA failed to consider current clinical standards when determining Moore's intelligence and relied too much on invented standards that have no real basis in medicine or law. Among those invented standards were the facts that Moore "lived on the streets, mowed lawns, and played pool for money."

Now the CCA is going to reconsider Moore's death sentence, and we encourage them to listen to the dissenting judge who had it right the whole time: Judge Elsa Alcala.

Over the past several capital punishment cases to face the CCA, Alcala has refused to shy away from pointing out the flaws in our state's death penalty process. In fact, the former prosecutor and trial judge has twice called for the CCA to address the underlying constitutionality of the death penalty itself.

There are three key legal arguments to consider: Is the death penalty in Texas unconstitutionally arbitrary because race, rather than violence, is a better predictor of its application?

Is the death penalty in Texas unconstitutionally cruel because it essentially requires convicts on death row to sit in solitary confinement for years, if not decades?

Is the death penalty in Texas unconstitutionally unusual because, since 2010, capital punishment is practiced in only 16 counties out of more than 3,000 across the United States?

Beyond the legal realm of Alcala's expertise, Texas also needs to consider the deep questions of policy and morality wrapped up in the application of government-administered death.

Innocent people like Anthony Graves have been rescued from death row. Others, like Cameron Todd Willingham, were executed while questions of guilt still lingered.

There's no undoing a mistaken execution, yet Texas persists.

The death penalty doesn't save money - the constitutionally compelled appeals process is often more expensive than life in prison. And there's no conclusive evidence that it does a better job at deterring crime. In fact, states without capital punishment routinely have lower murder rates.

That's why the rest of western civilization has abandoned the practice. Countries like Iran, China, North Korea and Saudi Arabia sit among Texas' peers in executing criminals - not exactly the company the Lone Star State should want to keep.

Questions of life and death aren't a game - pool hustling or otherwise. Nor should executions be treated like a political pawn. The CCA and the entire state of Texas need to address the death penalty with a new and serious skepticism.