In recent months, name calling and bullying have grown to unprecedented levels. Even as both the President and the President-elect signal the need for unity, social media is full of venom, talk shows remain full of virulent attacks, winners gloat arrogantly and losers bemoan angrily. In our culture, nasty has become the new normal.
Our nation's treatment of people with intellectual disabilities is more than enough evidence of this pattern. For them, labeling and ridicule are deadly serious problems. Labeling someone "retarded" isn't a joke: it's a sentence. People with intellectual disabilities are still institutionalized and abandoned because of the label. Isolation, unemployment and poverty are too often the norms.
That's why it's so important that laws look beyond stereotypes and fears and protect rights and dignity. The Supreme Court has a chance to do that on Nov. 29, 2016, when Justices will hear Moore v. Texas and determine whether Texas overstepped in its standards for determining intellectual disability in death penalty cases.
In 2002 when the Supreme Court handed down its landmark decision Atkins v. Virginia, it moved in the right direction. After suffering through centuries of injustice, people with intellectual disabilities won a small measure of protection when the Court ruled that any individual with an intellectual disability had vulnerabilities that made it unconstitutional for the state to execute them. The same court that in 1927 authorized the forced sterilization of people with intellectual disabilities in state institutions with the infamous words of Oliver Wendell Holmes, "three generations of imbeciles are enough," this time got it right.
In so doing, the court overturned deep and terrifying stereotypes and recognized what both science and experience should have long made clear: people with intellectual disabilities have abilities but also challenges: they are less able to advocate for themselves; more likely to be coerced into behaviors they don't understand; less likely to understand the implications of their actions and at higher risk for unreliable trials and wrongful convictions.
As a result of Atkins, the law of the United States now makes it illegal to kill a person with an intellectual disability—even for the state. But sadly, that hasn't stopped the old stereotypes from remerging.
When Bobby Moore, a person with an intellectual disability, was 14-years old, his father became enraged that Moore couldn't read and threw him out on the street. As a teen, Bobby did not understand the days of the week, how to tell time, and other basic information and skills.
Bobby ate out of trash cans, mowed lawns for money, and eventually lived in the back of a pool hall where he sometimes played pool. Like every person, including those with intellectual disability, Bobby was better at some things than others. With the help of others, he managed to survive.
But at the age of 20, Bobby was involved in a bungled robbery with two other people in which an employee was tragically shot and killed. He was convicted and sentenced to death. After a lower court found that Bobby had an intellectual disability and was therefore exempt from execution, Texas's highest criminal court ruled that Bobby's ability to play pool and mow lawns proved he never had an intellectual disability and could therefore be executed.
Remarkably, the court prohibited the use of current medical standards in evaluating intellectual disability in death-penalty cases and instead used its own unscientific approach and outdated stereotypes. The age-old tendency to label allowed the court to use age-old bias to create a unique set of Texas factors to determine intellectual disability while ignoring decades of science. It is especially shocking that these factors were and are based, in part, on John Steinbeck's fictional character Lennie from the 1937 novel, Of Mice and Men.
In this case, fiction and stigma trumped science and the Constitution. Never mind that the Texas factors for determining intellectual disability are not used in any medical or clinical setting in the nation. In fact, they're not even used elsewhere in Texas. In countless situations where the state is responsible for determining intellectual disability, it uses current scientific standards.
The inaccurate Texas standard reinforces one of the most damaging stereotypes about people with intellectual disability—that they can’t be “good” at anything. The reasoning is dangerous and flawed: if you can mow a lawn, you can’t have an intellectual disability. If you have an intellectual disability, therefore, you can’t do anything. Both are wrong—dangerously wrong.
Happily, today people with intellectual and developmental disabilities are living longer and more productive lives than ever thanks to a deeper understanding of their strengths and more generous support for their challenges. In a time of otherwise hopeful change, Texas' use of stigmatizing stereotypes is a dark blot on our nation's laws and culture.
Labels have consequences. What we may allow in public discourse, we should not and cannot tolerate in law. It's time for the Supreme Court to remind our nation that the Constitution and the vision of rights it embodies have no place for ill-informed and deadly stigmas.