Death Penalty

Capital Punishment After the 2016 Elections - Podcast

Criminal Law & Procedure Practice Group Podcast
William G. Otis, Carol Steiker February 06, 2017

In recent decades, there has been much study and debate in the criminal justice community regarding capital punishment and its continued use in most jurisdictions in the United States. Some argue that years of litigation and growing cost have contributed to a new fragility in support for the death penalty and point to polling that reflects decreased enthusiasm for it. Others assert the November 2016 election results at the State and Federal levels demonstrate capital punishment continues to be firmly backed by the public and will remain in place indefinitely.

Professor Carol Steiker of Harvard Law School, author of the recently released, Courting Death - The Supreme Court and Capital Punishment and Professor William Otis, Adjunct Professor of Law for Georgetown University Law Center and former federal prosecutor, joined us for an insightful look at this important topic.


  • Professor William G. Otis, Adjunct Professor of Law, Georgetown University Law Center
  • Professor Carol Steiker, Henry J. Friendly Professor of Law, Harvard Law School

Moore v. Texas - Post-Argument SCOTUScast

SCOTUScast 1-13-17 featuring Kent S. Scheidegger
Kent S. Scheidegger January 13, 2017

On November 29, 2016, the Supreme Court heard oral argument in Moore v. Texas. In 1980, Bobby James Moore was convicted of capital murder for the shooting of James McCarble, a seventy-year-old store clerk, in Houston, Texas. Moore was convicted and received a death sentence, which was affirmed on appeal. After a federal court granted habeas corpus relief, a new punishment hearing occurred in 2001, and Moore was again sentenced to the death penalty. His sentence was again affirmed on appeal. Moore sought state habeas relief and argued that, under the U.S. Supreme Court’s 2002 decision in Atkins v. Virginia he was exempt from execution, because he was intellectually disabled. The state court granted habeas relief based on Moore’s Atkins argument, applying a definition of intellectual disability used by the American Association on Intellectual and Developmental Disabilities (AAIDD). The Court of Criminal Appeals of Texas reversed the grant, noting that the Texas legislature had not yet passed Atkins legislation and that the AAIDD definition of intellectual disability diverged from that previously adopted by Texas courts in the wake of Atkins--a 1992 definition used by AAIDD’s predecessor the American Association on Mental Retardation (AAMR), as well as the Texas Health and Safety Code.  Moore, the Court of Criminal Appeals held, ultimately failed to establish by a preponderance of the evidence that he was intellectually disabled within the meaning of Atkins, as applied by Texas courts.

The question before the U.S. Supreme Court is whether it violates the Eighth Amendment and the Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

To discuss the case, we have Kent S. Scheidegger who is Legal Director and General Counsel for the Criminal Justice Legal Foundation.

Courthouse Steps: Moore v. Texas - Podcast

Criminal Law & Procedure Practice Group Podcast
Kent S. Scheidegger December 02, 2016

On November 29, the Supreme Court heard oral arguments in Moore v. Texas. This case involves the death penalty and the intellectually disabled. Specifically, whether in capital cases it violates the Eighth Amendment and the High Court’s prior rulings in Hall v. Florida and Atkins v. Virginia to preclude the application of current medical standards and require older medical standards to determine the intellectual disability of a criminal defendant.


  • Kent S. Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation