Amicus Brief: Ex Parte Cathey

The Supreme Court has made it clear that the Eighth Amendment’s ban on cruel and unusual punishment prohibits the government from executing people with intellectual disabilities. The Supreme Court has said clinical diagnoses must play a role in determining who has an intellectual disability, but states have leeway in setting up their processes for making that determination. That leeway has led to some states, most notably Texas, using highly dubious standards — standards that actually ignore clinical evidence and deprive people of their constitutional rights in cases of life and death.

The Project On Government Oversight (POGO) and the National Association of Social Workers have filed an amicus brief with the Supreme Court urging it to intervene in one such case. Eric DeWayne Cathey is a man on death row in Texas who, by clinical standards, is clearly intellectually disabled. But the Texas Court of Criminal Appeals disagrees and has substituted its own judgment for clinical evidence. In doing so, it essentially resurrected the non-clinical standards the Supreme Court ordered it to stop using in 2017.

As our brief notes, Texas is an outlier in the way it determines intellectual disability in death penalty cases. Every other state incorporates current medical standards into their laws. Even Texas does so — but only in non-capital cases. If the Supreme Court allows the state’s ruling to stand in Cathey’s case, it will be allowing Texas to continue ignoring the Constitution and the Supreme Court’s own orders.

We are grateful to Allison Mallick at Baker Botts for representing us.