Texas’s Own Expert Says Edward Busby Can’t Be Executed

On Edward Busby

On Thursday, May 14, the State of Texas plans to strap Edward Lee Busby Jr. to a gurney inside the Huntsville Unit and kill him. There is one fact the state has not yet figured out how to argue around: every qualified expert who has examined Mr. Busby, including the expert the Tarrant County District Attorney’s Office hired to evaluate him, concluded that he is intellectually disabled. Under the United States Constitution, that should be the end of the conversation.

If Texas goes through with it, Edward Busby will be the 600th person it has executed since the death penalty came back in 1976. That milestone should not be reached over the unanimous objection of the experts the prosecution itself retained.

Edward Busby: The consensus Texas is trying to ignore

In Atkins v. Virginia (2002), the U.S. Supreme Court held that executing people with intellectual disability violates the Eighth Amendment’s ban on cruel and unusual punishment. In Moore v. Texas (2017), the Court told Texas to stop using its homegrown “Briseño factors”…a set of seven non-clinical criteria invented by a Texas court…and to assess intellectual disability the way clinicians do. Even the three dissenters in Moore agreed the Briseño factors were outdated. The legal direction is not subtle: courts must defer to current medical standards, not to a judge’s intuition about who “really” seems disabled.

Edward Busby’s case is the textbook scenario Atkins and Moore were written for. Two independent experts evaluated him: one retained by the defense, one retained by the same Tarrant County prosecutors who put him on death row. Both concluded he meets the full diagnostic criteria for intellectual disability under current clinical standards. The District Attorney’s Office did not go looking for a third opinion. The State agreed Mr. Busby was ineligible for the death penalty.

Then a Texas trial judge, who is not a clinician, substituted his own view for the experts’ and rejected their findings. This is exactly the kind of lay reasoning the Supreme Court has spent two decades telling Texas courts to stop using. Since 2017, at least 19 people have been removed from Texas’s death row after courts finally recognized they were intellectually disabled. Clarence Curtis Jordan was the most recent, just last month. Each of those decisions was a course correction toward what the Constitution already required. Mr. Busby has been denied the same relief. The only thing distinguishing him from the people who got it is timing.

A fight over procedure, not personhood

The recent litigation in this case has not been about whether Mr. Busby is intellectually disabled. It has been about whether his lawyers raised that argument in the right document at the right time. A federal district court denied him funding for additional testing. The Fifth Circuit on May 8 issued a 2-1 temporary stay, with Judge Stephen Higginson writing that “in a matter of life and death, we must be certain that we apply the proper constitutional rule.” Attorney General Ken Paxton has asked the Supreme Court to vacate that stay so the execution can go ahead Thursday.

Consider what that ask amounts to. Texas is asking permission to kill a man whose intellectual disability its own expert documented, because his lawyers allegedly missed a procedural deadline. A life-and-death constitutional protection should not turn on a clerical failure. If it does, Atkins protects no one in practice. It becomes a procedural maze that only the well-resourced and well-represented can navigate and the disability the Constitution exists to protect is the same disability that makes the maze impossible to walk.

Edward Busby: A case that looks like every other Texas execution

What’s unusual about Mr. Busby’s case is the strength of the disability evidence. Almost everything else about it is depressingly typical of Texas capital cases.

He is a Black man condemned for killing a white woman, in a state where roughly 70 percent of executed prisoners were convicted of killing a white victim. He was sentenced in Tarrant County, which holds just 7 percent of the state’s population but has produced nearly a quarter of all Texas death penalty trials since 2020. Since 2012, Tarrant County prosecutors have sought death against 13 defendants. Twelve of them were people of color. Mr. Busby has been on death row for 21 years, several years longer than the average for prisoners executed in Texas last year. He is one of three people scheduled for execution in Texas in 2026, in a state whose death penalty has shrunk from a routine practice to an artifact of four counties and a handful of prosecutors.

This is what a system in decline looks like when it refuses to stop. It keeps reaching past its own experts and past the Supreme Court to finish what it started.

Laura Crane’s life’s work and Edward Busby’s execution

Laura Lee Crane should not have died the way she did. She was a 77-year-old retired Texas Christian University professor, picked at random from a Fort Worth grocery-store parking lot, robbed, suffocated and left in her car across the Oklahoma line. Her killing was awful and deserves accountability. That is not in dispute.

What is worth sitting with is the work Professor Crane spent her career on. She helped people with learning disabilities. No one can say for certain what she would have wanted for the man who killed her and it would be presumptuous to put words in her mouth. But it is fair to ask whether a woman who devoted decades to understanding cognitive difference would have wanted the state to kill a man whom every expert agrees has a cognitive disability of the exact kind the Constitution shields from execution.