hear argument this morning in case fifteen seven nine seven more versus texas mr sloan mr chief justice and may please the court in at ken's versus virginia this court held that the eighth amendment prohibits executing people who are intellectually disabled and in hall versus florida this court reiterated that the inquiry into whether somebody is intellectually disabled for that important eighth amendment purpose should be informed by the medical communities diagnostic framework and by clinical standards texas has adopted a unique approach to intellectual disability in capital cases in which it prohibits the use of current medical standards it relies on harmful and inappropriate lay stereotypes including the so called factors it uses an extraordinary virtually insuperable and clinically unwarranted causation requirement and most fundamentally it challenges and disagrees with this court's core holding in atkins namely that the entire category of the intellectually disabled every person who is intellectually disabled is  and requires outdated medical standards and i think several of the other points you made are not in compassed within the question presented maybe there are questions that should be looked at but they don't seem to be covered by that and i mean in in what you mention the correspondence with clinical practices has that changed did texas similarly depart from clinical practice is under the old standard as it is under the  new it did the prohibition and the use of current medical standards aggravates and exacerbates that but if i could address your honor's question about the question presented because i'd like to make two points with regard to that your honor which is that first of all  it is woven into the texas court of criminal appeals decision in the judgment that is before the court because the texas court grounded its determination and the prohibition of consulting in using current medical standards on its percent opinion and for sending a framework in the courts that what we decided in percent in two thousand and four that framework governs including the clinical standards at the time but also its view that medical standards generally are exceedingly subjective that was very important to the court in its determination here it's a six day of the petition appendix almost as if i had the same question as the chief judge of it just seems to me the question presented doesn't cut to the heart of the case as you describe it my understanding of your argument and again i don't think it's wholly reflected in the question is that whether you use the most current or even slightly slightly older medical standard there's still a conflict is that right am i right about that that that's your theory yes your honor and if i could add one point though it is that the current clinical standards accentuate the conflict make it even more clear and what has happened with that we wouldn't need that would we mr sloan we could say that the percentage standards are in conflict with the old at and standards as well as the new ones they wouldn't need to be a difference between the old ones and the new ones for you to win this case that's correct your honor but you got in the door by a question presented that is a little more eye catching which is that they prohibit the current standards and rely on the outdated one and that's all it says and i'm just wondering if you got yourself in the door with the with the dramatic question presented and are now going back to a concern that was just as present as i understand your argument under the old standards so two points on that your hon first again as i was saying it is it is woven into the court of criminal appeals decision one cannot look at their judgment on the prohibition of the use of current medical standards without looking at the framework in which they grounded it but secondly you're right i just mean i'm sorry to interrupt mr sloan but could i just make sure i understand that because what you're essentially saying is that the court of appeals said you are barred from using new standards you must use the percentage standards so the two are flip sides of the same reflecting their essential hold on which is we have this percent ok so and you have to use it that that's exactly right your honor and then why didn't you say that i mean really the question presented talks about a comparison between current and outdated and it seems it's pretty dramatic to say you can't use current standards you're only using david it's quite a different question is you know they used to pursue no standards and they shouldn't you don't think they should have used to pursue no standards under the old medical state standards do you know that's correct but i think your honor first of all the question presented we absolutely stand by it because they have prohibited the use of current medical standards and instead they have required the use of the one thousand nine hundred two standard well let me ask you about let me ask you the same question and in different terms and you can tell me that whether this is not a fair power phrase of your question i few can give me a yes or no answer to this question i'd appreciate it under hall and have kids must the state use current medical standards for example d s m five as opposed to older standards for presented talks about prohibiting if your honor had said can a state prohibit well i don't understand what you mean by prohibit you mean prohibit the lower courts from using a standard different from the one that the court of criminal appeal said is the standard that has to be used everywhere in texas so each each trial level judge would apply a different standard whatever that judge thinks is the right one and that the court said prospectively the law of texas is it is that you are prohibited from using the current medical stand and you know you think that if this is a question of trial court discretion a trial court has the discretion to use the newer standards as opposed to the as opposed to the standards that the court of criminal appeals says are the appropriate ones no i don't think it's discretion i think the court has prohibited the court said that the state trial court erred by employing the current standards that's the language th to the ones that the floor of criminal appeals had itself adopted from from one nine hundred ninety two and so it is helpful to consider if the court of criminal appeals decision stands how to cut to the chase if the underlying question was the criminal court of appeals using any clinical standard medical clinical standard no your honor based mr sloan i don't think you finished answering from the medical publications that were current as of the time of that decision and then there are these additional considerations and that's wisconsin were guarded as  say no factors but if you let's take a disregard that the latter the first part our current our medical standards that were current at that time are they not well i respectfully disagree your honor in this respect because what the court said in percentage you know was after talking about fine following the nine hundred ninety two standard it said we view the medical standards as exceedingly subjective that's the wording that the court used in percent and that's why we're going to come up with these percentile factors on our own that are non clinical in fact they're anti clinical because they're they're based on these less stereotypes and that's exactly what the court said here as its justification for its prohibition and the use of current medical standards its justification as it says the six eight to seven day of the petition appendix is the court's longstanding view about the subjectivity surrounding the medical  diagnosis of the intellectual disability which stands in sharp contrast to what this court has said in atkins and in the hall where nat the big clinical definitions were fundamentalists this court said and halt the clinical definitions were a fundamental promise of hall and as hall said the inquiry has to be informed by the medical community diagnostic framework and there is no way that it can be informed by the medical communities diagnostic framework if the if there's an exclusion and a prohibition disabled here in that respect  opinion in light of the passage that justice ginsburg just quoted the critical passage is that to judges to lawyers into clinical experts testifying in texas the message is clear and unmistak may not consult or rely on current clinical guidance and so think about that from a clinicians perspective a clinical expert who's been intrusted with evaluating and making this vitally important evaluation of somebody about  disabled that person has gotten the clear and unmistakable instruction and will by the lawyers you have to go back to the one thousand nine hundred two standard you can't consider the standards since then mr sloan i think it's more than that because it's not just you can't consult the current guidance you have to go back to the ninety two standards it says you have to go back to percent now and we're saying now has these seven factors that are not consistent with the old standards just as they're not consistent with the new standards that that's exactly right your honor and it's also part out i think there's a conflict there absolutely isn't it and it's all rooted both the conflict with clinical standards generally and the prohibition and the use of current medical standards and the hostility to practice i think it's the rule that the court announced in explained in hall which is that the state must be informed by the medical community stag gnostic framework and so what i understand that to mean is that and of course  the court said in holland brumfield the clinical definitions are very very important you have to inform and if a state wants to conflict with or disagree with the clinical standard then there has to be a sound reason for doing so and i think in hall this court identified several considerations for considerations in particular that would go into evaluating whether there's a sound reason for doing so in the first is is there genuinely a clinical consensus on that point the second is what do other states do on that point the third is what does the state do in other intellectual disability context and very tellingly here texas uses these factors in this probation and current medical standard only in the death penalty context no other intellectual disability context and as the court explained in hall the condition as the court said in hall of intellectual disability has applicability far beyond the death penalty and so when a state does as texas to the practical application of what you're saying for a moment but stake the decision of the c c a here all right they found two prongs that mr moore had not met that he couldn't prove that he was clinically intellectually disabled that his i q was higher than what was generally recognized clinically what did they do wrong with respect to that pro and then secondly with respect to the adapted function work to the court below to identify the two ways in which what they're doing and how they are applying the standards we're talking criminal appeals accepted as valid and i q test of seventy four which is the court explained in hall with the standard error of measurement would take it down to sixty nine well within the range for intellectual disability but what the court did here is that it chopped off the lower end of the standard error of measurement it then treated the seventy four the number seventy four as decisive and as in of itself determining that mr moore could not establish an intellectual deficit and he could not establish intellectual disability which conflicts with clinical standards current clinical standards in this court's decision in hall the reasons that the court gives for lopping off the end of the lower end of the standard error of measurement are completely clinically unsupportable the court says that he had a history of poor academic performance well course that's not inconsistent with an intellectual deficit or with intellectual disability the court also says well he may have been depressed because he was on death row well there's no death row there's no rule that if some he's on death row you cut off the lower end if there's no medical that's right medical supplies or do there's no medical support there's no greece where that that things like poverty poor nutrition poor performance in school would not attributable to intellectual honor is referring to and there are there are three major problems with the way the court dealt with causation from what i think the courts would you say something about the adaptive behavior because i think that may be a the court says at page ten a petition appendix that intellectual deficits caused it rather than some other cause like the causes your honour's talking about and is well understood is a clinical matter that there is a very high incidence intellectual disability of multiple causation co morbidity so that view of the inquiry is rather than some other cause is completely at odds with the clinical understanding to begin with secondly factors that the court points to include things in addition to what your honor was saying like again poor academic performance his terrible childhood abuse that he suffered which not only do not detract from a finding of intellectual disability they are well recognised as as risk factors and associated characteristics of intellectual disability and third and very importantly is the america as the a i d d explains in its amica speak from a clinical perspective there is absolutely no way to make the kind of showing that the court requires hear about rather than some other cause as a clinical matter it's simply impossible to do and this court in hall talked about the risk and the threat that at it would be turned into an elegy and there is no question with that kind of causation requirement that it turns it into a now maybe you can respond to justice alito yes your honor in terms of the adaptive deficit's your honor and it's important at the outset to recognize certain points that are undisputed in the record it's undisputed for example that at the age of thirteen mr moore did not understand the days of the week the months of the year the seasons how to tell time the principle that subtraction is the opposite of addition standard units of measurement and there are numerous other deficits like that that are in dispute  the deficit's and ok on that one is there a consensus in the medical community that that's improper yes your honor and here's an article written by a number of experts from  recent article from the journal of american academy of psychiatry and the law assessing adaptive functioning in death penalty cases after all and d s m five one of these experts was cited in the  one of the supporting amicus briefs by professional organizations and hall which says that any assessment of adaptive functioning must give sufficient consideration to assets and deficit's alike so what do you make of that these are just psychiatric association in their definitive clinical guidance which comes out about once every ten years is is very explicit that the adaptive deficit inquiry focuses and deficits and not and strengths and for two very very important reasons in the first is that it is that the clinical inquiry is about the degree to which somebody is impaired in their everyday lives and so it's focusing on the impairments and the second reason is that there is a very common stereotype in misunderstanding that if somebody has strengths they're not intellectually disabled in the and that both of those authoritative sources of clinical guidance mr emphasized were in there or if they were prefer if the professional organizations by i suppose a majority vote or something like that conclude one thing and but there are respected experts who disagree you're saying the state is obligated you know i matter of constitutional law to follow the organism i'm not saying that your honor as i said to justice kennedy i think all identifies considerations if the case if the court is going to disagree and the first one i mentioned was is there a clinical consensus going escalator you might be talking about two different things and i might be wrong about this but as i understand adaptive function in there are these particular areas of function and that have been set out and what the consensus is is to say well if you have deficits and four of these areas it doesn't matter that you don't have a deficit in another area and that's what the consensus is now with in each area people psychologists can look at you know within an area to short term and whether you have a deficit you know you have to look at what you can do and what you can't do to decide whether there's a deficit in that area so the two things might not be in conflict at all that that's exactly right your honor or if there's a dispute for example about a particular skill somebody says he cannot drive there's proof on the other side that yes the person  client who has been on death row for thirty six years and they'll be borderline cases and the reason they're borderline is because the testing is right at the border like an i q test and then you'll put weight on what's called rel weighted limitations and adaptive functioning a matter that on its face sounds as if it's maybe easy in some cases and tough in another all right what is a court supposed to do are we supposed to have all these hearings here i mean you've made very good arguments for your client there are probably several others in the country in different states which may have different standards and if you have some view that the law in this area should be law that it should be uniform across the country point me to something that will tell me how a district judge should go about making this determination in borderline cases yes your my suspicion is that there is no such thing but that's why i asked the question i want to be sure there might be well let me make two points which is that first of all your honor says what it what do courts do and i do think it's important that the general principle this court was clear about in which is being informed by the medical to understand what you're saying whatever they should do it shouldn't be what i want to hear ok i got that point i'm asking a different point and if you want my true motive i don't think there is a way to apply this kind of standard uniformly across the country and therefore there will be disparities and uncertainties and different people treated alike and and people who are alike treated differently ok now that's my whole story and i want you to say no you're wrong there is a way to do it what well your honor i think actually the best places to look on this would be the a i d d current manual the eleventh edition as well as the pages in the d s m five that address it and it actually points up an important difference in the current standards because for the first time the eleventh edition because of this problem about stereotypes that if people have strengths they can't be considered intellectually disabled for the first time the current eleventh edition the very one that the court said was off limits here has an entirely new chapter chapter twelve about the issues and problems of people who have high q who are intellectually disabled but they're at the high end exactly the group of people that you are psyching about and the user's guide accompanying that manual for the first time has a list of harmful stereotypes which includes exactly that and the other thing your honor though i do have to emphasize is that whatever one thinks about the application across the country there is no question that texas is very extreme and stands alone in its view that basically disagreeing with the core premise of actions and repeatedly in its decision distinctions between those who are severely mentally retarded in many of the decisions and those who are mildly in saying that there is no bright line exemption for those who are mildly and also in percent you know itself the court said  of criminal appeals said our task is to decide what a consensus of texas citizens thinks the line should be and of course this court napkins had just decided for eighth amendment purposes the consensus of united states says there is no material difference between the language in texas is standard which is based on a memoir ninth clinical framework and current clinical frameworks so essentially this case has shifted to a discussion of the seven percent you have an entry factors and if i can put those into context the seven percent factors are all grounded in this court's precedents as we point out in our bullet points to pages fifty three to fifty five are brief what those go to are the second prong of the clinical definition the adaptive deficit's inquiry all of those questions are asking can someone function in the world that's precisely what the pennsylvania supreme court noted when it also endorsed the percent factors described leak is coming from it did however and this court and pages fifty three to fifty five of our brief we go factor by factor and quote this court's precedents to show how there can group with factors this court itself is considered and also a petition appendix one sixty two a the trial court adopted petitioners proposed conclusions of law and that said that analyzing the facts under that second prong that adaptive deficit prong even under the current a i did the eleventh quote answered many of the factors on quote so the analysis that's done under the second prong of the clinical framework the adaptive deficit's prong that is going to overlap with these were saying your factors and so this is not a free floating test that negates or  that the texas can choose to execute people whom a complete consensus a one hundred percent consensus of clinicians would find to be intellectually disabled would you agree with that i  don't believe that's what the percent you opinion said what the percent of opinion said was it was going to adopt clinical standards i'm i'm asking about percent and other court of appeals decisions and i thought that you said this in your brief that the that your view of the point of state discretion is that a person who everybody every clinician would find to be intellectually disabled the state does not have to find to be intellectually disabled because a consensus of texas citizens would not find that person to be intellectually disabled isn't that the premise of the court of appeals decisions no quite the contrary let me very clearly state about the texas consensus language in the opinion know opinion flags the issue about what a texas consensus materialize on an issue but the court then twice said it was not going to answer that question it was not going to do that that was for the legislature and instead what the court did was it the m m r ninth's clinical standards in the texas health safety code and i guess i just don't understand this and i really don't understand it in light of your brief which i'm going to start to quote from pretty soon but what the it seems to me with the texas court did is to say look we're going to accept the three dimensions adaptive deficits in the i q and the age but with respect to that quality and the degree of impairment i think that that's their language we're not going to accept the clinicians view so that people with mild impairment can be executed even though the clinicians would find those people to be intellectually disabled and bruce and you very clearly adopted the three  national standard that you were saying too that the texas school and if you're not i mean i guess i'm surprised by that that you're saying that the texas courts do need to follow clinical assessments of intellectual impairment because that's it's just not what you say on page one thousand and twenty and twenty one of your brief justice kagan is true this court has recognized there is a difference between a legal determination regarding a familiar culpability and a medical diagnosis but points to says there is an imperf it fit between those two concepts and this court decided that exact language in previous versions for that same proposition and so no it is not the case that states have to categorically wholesale adopt the positions of current medical organizations but what we're saying you itself actually did was in fact adopt a memoir knight the precursor to a idea levon and petitioners reply brief now says there's really no material difference between the eleventh and the once language and that's why we're not talking about the three prong let me just take one of the persona factors right and it's the idea that what people think about the person growing up is relevant to an assessment of adaptive function now no clinician would ever say that the clinicians say no that's sort of like stereotypical lay person view of adaptive functioning which is different from the clinician the clinical view of adaptive function and but the persona factors made very clear sort of point one that you're supposed to sort of that you're supposed to  y on on the neighbor said and what the teacher with absolutely no experience with respect to intellectual disability said so that seems to me a very big difference between the percent of factors and the clinical view with intellectual disability this cornhole looked at what siblings and teachers from the developmental period also did in clinicians would also look to those in fact here there was testimony at the penalty phase retrial about people lay witnesses that this can trump everything and it says that this can trump everything cause of the underlying view of percent zero and other texas court of appeals cases that we don't have to look at the clinical standards and that we can execute people clinicians would find to be disabled  adapt a function and you have to look to youth it doesn't tell you anything about what qualities you look to and the extent of impairment within those factors and that's where the texas court has insisted upon its freedom to go out on its own we even of factors even though that court had analyzed the case and you're the clinical standards it appears to be acting as if those personal factors are the clinical factors  controlling even though there are stereotypes built into them that they're not stereotypes built into them when they entered the d n a and all the other clinicians recognize that some mentally disabled people can have some adaptive functioning idiot savant for example is it your position that if someone can calculate math in their head they can't be intellectually disable of the recount if that same person has a job in nasa calculating the air space shuttle launches is that person not intellectually disabled simply because they can use that particular skill in a way that means that employment no and as what texas standard says it looks to actually the current frameworks and says for adaptive deficits you look at conceptual social and practical skills but ask a question about what the court did in this case now on pages sixty two and sixty three of the petition in the appendix to the petition it sets out the three factors and then it discusses those at length and then on played indispensable role in the decision in this case which is what we were reviewing you know they did not they were only two pages to bolster a second alternative holding on relatedness and that weighs heavily language that is only talking about  the relatedness inquiry the court had already concluded in pages of its analysis that there was sufficient intellectual functioning of the first prong and there were sufficient adaptive deficit's compton's testimony said i do not have the deficit's to find a diagnosis that was even before prison that is a sufficient basis to affirm without getting into the relating this inquiry or getting into the brain of factors or are you saying in the first thing you know factors capture all individuals with intellectual disability no the percent factors there could be other circumstances or other facts in the record that would bear on the adaptive deficit's prong and that's why the c c a said these are discretionary these are different ways of phrasing how when it's discretionary what the c c said in this is the cathy case it says the trial appellate courts may ignore some or all of them if they are not helpful in a particular case they were and this is just looking at the record is there evidence on any of these factors if there is not that's not you're factors are intended to really limit the classification of those persons with intellectual disability as defined by almost uniform subjective and they just reflect what clinicians think they don't reflect what texas citizens think that was the genesis of the standards which suggests that justice kennedy is right about how they operate and also how they were intended to operate th did mention subjectivity the texas consensus point though was not part of the basis to do that what the c c a was really trying to do here was take the adaptive deficit problem which is phrased in the terms of related and significant limitations in adaptive functioning and put that into more concrete terms where you could apply it to a record now i think you are there are two things wrong possibly with the factors which we've heard one i can't deal with at this moment in oral argument you could go through them there in the briefs one by one and say reading them actually they're not consistent with or they reflect an error when compared with psychiatry some psychologists think your answer is they don't the other side says they do but i can't go further than the other is the question of why did the texas court write the stand i have to admit that in reading through bristow i came to at least pause when i read the words that they're trying to figure out what to do in borderline cases and what they've done is not you know i understand it but they say we have to figure out the level at which a consensus of texas citizens would agree that a person should be exempted from the death penalty when i read that and when i read there are some other words that's on page six of the of the report of the reported when i read some of the things that they said i thought were they're trying to do this which we do often in law what's the purpose of this the whole purpose is to try to figure out who not to execute because of their functioning the way they function that's the purpose let's look at what texas citizens would think about this person and let's try to get standards that reflect that i really did think that's what they're trying to do in that opinion and they're arguing that that's the wrong thing to try to do in this instance first because it would produce non uniformity among fifty states or among the many states that have the death penalty second because the question is not what the citizens of the state think about who should be executed that has nothing to do with it oddly enough in this case what has to do with it is a technical matter about this individual that would free some subjecting others to the death penalty irrespective of what texas citizens think so do you see my question what were they up to in this opinion bri i think they were up to going back to the citizens of texas it's you so what i think they're up to and you tell me if i'm right or wrong or why i believe that's mistaken because there are two points after that discussion texas consensus where the court says and this is page six of her saying you know as a court dealing with individual cases and litigants we declined to answer that normative question about the texas consensus without to significant greater assistance from the citizenry acting through its legislature and then to page late two pages later it's again assessing the difference for a legal determination the medical diagnosis and the court says that definitional question is not before us in this case because it goes on to adopt the m m r ninth clinical stand suggests going just europe that what texas is trying to do is determine who is truly on the clinical borderline as opposed to trying to say that in texas i'm mildly disabled person is unlikely to be considered disabled by the c c a under the personell factors no if there was a diagnosis of c a said under the perceived no factors that they should not be executed i allot of the cases that you provided me with there was clinical evidence of moderate and mostly severe but moderate a looked at the percentage of factors in granted relief but if i can pull back out the question is did they find him mildly disabled the testimony there was an adaptive deficits and i believe the mild weather is mild or moderate go more towards i q scores if i can pull back out of the question presented here is whether texas is prohibited the current standards from being used and is airing by using outdated standard petitioners conceded we could have used an older version and texas is not prohibiting the use of current standards in this case the c c a repeatedly  would that have been a valid reason for discounting the current clinical standards well there was a second alternative holding here it's facially valid for texas and any other state you have a relating this requirement that's in the d s m five the d s m five talks about needing something to be directly related but it doesn't flush that out so we're talking about is the application of that in this would be an odd case to decide that issue when it's the second alternative holding there's no state consensus on this causation point that's the coleman case from the tennessee supreme court cited in the reply brief we're not aware of any case in which the relatedness inquiry was the dispositive point on which an ak ins claim was denied well i'm not sure how i can accept your characterization of the c c a decision when basically it's his poor intellectual functioning on i q tests which happened when he was younger were not related to his intellectual abilities they were related to his poverty his his morbidity factors if they're saying that how were you saying they weren't finding that he wasn't intellectually disabled because of those other factors well it wasn't just that's how i read their decision but it wasn't just the c c s saying that was wrong on testimony here petitioner are going wait a minute testimony of crompton was having looked at all of the i tests i'm not sure it's probable that he's in selection disabled by q but he wouldn't qualify in my judgment because of his attack to skills but even the it looked at testimony from petitioners retrial in two thousand and one when petitioner affirmatively argued that he was not intellectually disabled and the expert there there was petitioners own expert  well actually at the time penry would have been decided and there would have been a valid basis to say petitioner i'm intellectually disabled there for use as mitigation evidence the strategy which was a reasonable strategy from counsel was to say that petitioner would be able to grow in prison and therefore that was mitigation evidence that he could be reformed but right the the petitioner expert agreed with the prosecutor the petitioner was quote nowhere near unquote intellectually disabled and that a lack of education was to blame that's a joint appendix to sixty nine but that it happened to it's two regrettably so we decided that mental disability was the ground to excuse execution man into mentally disabled to defendants were represented by counsel who thought that arguing differently was a better strategy of course penry would have been on the books and so there would have been an advantage to argue that that's why that's a contradicting argument regardless even if that's not controlling i hear the c c accredited compton's testimony as the most reliable expert who is the only forensic psychologist who thoroughly reviewed the records and personally i'd evaluate a petition for intellectual disability in compton said i don't have the deficit's for diagnosis but this is a fact bound question of the application the test the question presented here is whether texas is well established three prong test for intellectual disability violates they from m and and texas is well within the national consensus there are only four states that have categorically wholesale adopted one of the current framework two of them did so saying there's no material difference in the language between the current framework and that test and that's the precise position the petitioners taken in here so first of all the juvenile offender discharge rule that petitioner cites a page seven the reply brief that actually adopts the three prong test the percent you adopted that's thirty seven texas administrative code three eighty point eight seven seven nine c one now there are other provisions that incorporate by reference the latest manual the d s m but as the d s m five itself noted there is an imperfect fit between a determination of legal a legal determination of culpability for his amendment the point it's the point that we've been making or at least i thought we were but the whole point of bruce and that is really to answer the question that you said tried to say no it isn't really there it's to help determine which persons suffering borderline cases of mental disability ought to be executed or should not be because they are less morally culpable i did think that what they said that does supply a reason for making differences is justice ginsburg just pointed out and then the question is is that what the purpose of atkins and the other case whole ones was it to give each state the right to decide in borderline cases whom were whom not to execute in light of their feelings about capital punishment i thought it had a different purpose unusual in the law but which was to appeal to technical definitions of who and who is not mentally retarded or intellectually disabled and that's a real issue but i think that this case does present that issue and what happens in a hall said was there's a critical role for the states and all states don't have unfettered discretion they do have some discretion and every time the d s m five or the next edition of the a i did eleventh comes twelfth comes out the states don't have to automatically wholesale it up because there is a well established three prong test this test  applied and i know that of strengths in particular no state prohibits the use of adaptive strengths in fact three of the states that use the current frameworks that have adopted wholesale the current frameworks still look at adaptive strengths and the hackett case from pennsylvania is the best example of or how they form the intellectual disability component even dr crompton the state's expert testified that mr moore could not from memory recreate a clock now she says i don't quite believe that but she doesn't quite believe that a person who had there seems father threw him out because he was dumb and illiterate couldn't tell the days of the week couldn't tell the grunts of the year couldn't tell couldn't do anything that one would consider within an average or even a low average intellectual functioning who's eating out of corporate cans repeatedly and getting sick after each time he did it but not learning from his mistakes this is the state's opinion does very little except say those are products of his poor environment they're not products of his intellectual disability no compton's testimony where she did not have the adaptive deficits in addition to analyzing it she said you know there are limitations i see whether it's academic abilities or social skills but there have to be significant limitations and she said that wasn't there she noted petitioner testified four different times in the course of these proceedings even in a full ready hearing and filing pro se motions and was responsive the questions was understanding what was going on he lived on the streets after the in saying that lanny even though he could work earn a living plan his trying to hide the death of the rabbit he killed that he could do all of those things and yet he was not just mildly but severely disabled why is the fact that he could move along and play pool indicative of a strain that overcome in the character from of mice and men was never part of the test it's not part of the test it was an aside in the opinion and the court said it was not going to address that separate question instead adopted the clinical sit in it and its view of how to judge the l court adopted the clinical standards the c c a has only once since then ever cited lenny and it was in a footnote quoting the trial court and the c c a granted acton's relief in that case when the standard has never been part of a standard the most misunderstood aspects of the briefing here general can i ask i'm sort of trying to reconcile the various statements you've made here and in your briefs and here's what i've come up with and tell me whether it's right i think what you are saying is that the texas court of appeals is complying with atkins because it uses a three pronged test focusing on i q and adaptive function and age but within each of those problems in order to make this distinction between clinical  i don't believe so justice kagan because what the court has done as it is adopted the clinical prongs it is adopted three part test right and yes it's adopted the three part test but within each of those problems you get to apply it i thought that that was the entire point of  no that's wrong you don't get to apply it however you want but on intellectual functioning texas has never had an i q cut off as whole recognize it applied this the error of measurement and even on the adaptive prong analysis that is going to account for conceptual social practical skills as texas has he actually adopted the current standards thank you counsel three minutes mr sloan thank you your honor just a few brief points first there was a lot of discussion about the role of resending you know in the relationship to clinical standards in the texas court of criminal appeals decisions and i would suggest that the court look at the american bar association amakosa brief because it goes through three decisions of the court of criminal appeals where in each of those three decisions the clinical testimony the expert testimony was unanimous that the individual was intellectually disabled and the texas courts use the percentage of factors to conclude that in fact he was eligible for execution notwithstanding the unanimity of that expert testimony second my friend said that i conceded that they could have just applied the d s m four and rejected the d s m five just to  be clear and just for the record i did not concede that and in my response justice kennedy i was saying that if the court if a state is going to reject clinical consensus in the current clinical standard as in that example then there would be a number of factors that the court would look at and when i didn't get to was in very importantly is the eighth amendment principles and concerns that this court outlined in holland in atkins and the absolute requirement to ensure that somebody who is intellectually disabled themselves in our search and our reply we repeatedly used the phrases like non clinical unscientific standards completely on tother to clinical consensus and indeed the state in its opposition to the sort of petition rested heavily on the percentage of factors there's a few pages of their opposition that are specifically directed to that so there was very extensively discussed in the search papers at the time could you just clarify what you said about  some five because i had a different impression from her initial argument so if we were to say today every state must adopt d s m five and then at some point a future d s m six comes out would it be your position that those states would all have to go back and reconsider what they're doing they would have to consider them as part of the diagnostic framework and again these new additions come out about once every ten years but yes your honor because those additions represent the scientific method at work people using their best clinical and medical training to refine and to sharpen the tools and with regard to intellectual disability to identify to do that then you know factors are all consistent with the s m four no your honor they are completely inconsistent with clinical factors and they have been from the day that they were announced but it is even more clear that they are inconsistent with clinical factors in light of the current clinical standards and my friend also was suggesting that just briefly want to call the court's attention to what the court criminal appeals has said relying on percent in ex parte hern the court said and i quote this court has expressly declined to establish a mental retardation bright line exemption from execution without significantly greater assistance from the legislature grisanti zero one thirty five southwest third it's six and similarly in ex parte so so the court said answering questions about whether the defendant is mentally retarded for a particular clinical purposes is instructive but not conclusive thank you your honor thank you counsel the case is submitted