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Argument preview: Measuring mental handicap

At 10 a.m. next Monday, the Supreme Court will hold one hour of oral argument on the authority of states to define mental handicap in determining eligibility for a death sentence.  In Hall v. Florida, death row inmate Freddie Lee Hall will be represented by Seth P. Waxman of the Washington, D.C., office of Wilmer Cutler Pickering Hale & Dorr.  Arguing for the state will be its solicitor general, Allen Winsor of Tallahassee.  (When the Supreme Court ruled on this issue in 2002, it referred to the condition as “mental retardation.”  The Court has now been advised that the preferred clinical term is”intellectual disability.”)


After twelve years of allowing the states to make up their own minds on how to define the mental defect that makes an individual convicted of murder ineligible for a death sentence, the Supreme Court is pondering whether to provide at least the beginnings of a constitutional definition.  At issue in a Florida case is whether a state can constitutionally use a specific IQ score — seventy — as the basis for allowing execution of anyone whose intellectual capacity measures above that number.

In a process that began in 1986, the Court has been defining categories of individuals who will be spared execution after committing murder — the only crime for which the Court allows a death sentence.  The basic cultural theory at work in that process is that some individuals are not sufficiently competent or old to know the difference between right and wrong, and so should not be held fully accountable for their crimes.

In the beginning twenty-eight years ago, in the Court’s decision in Ford v. Wainwright, capital punishment was ruled out for individuals who were found to be insane at the time the sentence was to be carried out, with states allowed to define that condition.

In 2002, the Court reached the claim of mental incapacity that is less severe than insanity, and it ruled that this condition (“mental retardation”), too, makes a convicted individual ineligible for execution.  But, in its decision in Atkins v. Virginia, the Court said explicitly that not every person who claims such an impairment would “fall within the range of mentally retarded offenders about whom there is a national consensus” against subjecting them to a death sentence.  “We leave to the states the task of developing ways” to define the protected category, the Court said.

A year after the Atkins decision, the Florida Supreme Court interpreted an existing state law defining mental retardation to mean that the individual’s IQ score had to be seventy or below.  Although Freddie Lee Hall at one time had an IQ test score of sixty, the state court would rule later in his case that a more recent test showed a score of seventy-one, thus making him eligible for the death penalty.  Hall, who is now sixty-nine years old, has long been on death row for a 1978 murder, and has repeatedly attempted to avoid execution by claiming mental incapacity.

The crime for which he was convicted, and twice sentenced to die, began in February 1978, when a pregnant twenty-one-year-old housewife, Karol Hurst, disappeared from a grocery store parking lot in Leesburg, Florida.  Her body was found a day later in a different county; she had been sexually assaulted and shot to death.

Hall was arrested, and he told police that he and another man, Mark Ruffin, had gone to that parking lot seeking to steal a car for use in a planned robbery.  He said they abducted Mrs. Hurst and that they took her in her car to a wooded area where, Hall said, Ruffin had raped and shot the woman.

Prosecutors later said that the two men then went to a convenience store in a neighboring county, and, in an encounter outside that store, one of them shot dead a deputy sheriff who had been called to the scene because of suspicious behavior by the two men.

The two men left behind Mrs. Hurst’s car, and were captured.  They were each convicted in separate trials for the Hurst murder, and each received a death sentence for that crime. They also were convicted of killing the deputy sheriff, but Hall’s murder conviction for that crime was later reduced to second-degree murder.

Hall’s case has been reviewed repeatedly in Florida courts, but his challenge failed again last year in the latest state supreme court ruling, following its earlier precedent holding that anyone whose IQ test score was above seventy remained eligible for the death penalty.

His attorneys then pursued an appeal to the Supreme Court, raising the single question: “Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia.”  State officials opposed Supreme Court review, arguing that Florida had simply done what the Court had allowed, in defining the mental incapacity issue, and that Hall was merely quarreling with the state’s choice.

Although the Court had several times refused to hear cases seeking some clarification of what states could do under the Atkins decision, it agreed last October to hear Hall’s challenge to Florida’s approach.

Briefs on the merits

The main thrust of Hall’s brief on the merits is that, while the Atkins decision left states with some discretion, it did not give them the authority to alter the constitutional dimensions of the protection that the ruling laid down.  Atkins, the brief argued, stands for the proposition that states are required to follow scientific definitions of mental incapacity that “take the standard error of measurement inherent in IQ tests into account in interpret IQ scores and diagnosing mental retardation.”

Focusing the definition on a single test score, the brief contended, leads a state into constitutional error because it does not deal with “the measurement error inherent in all IQ tests….No IQ test is a perfect measure of intellectual ability.  The best that any test can do, even when correctly administered, is to provide a certain level of confidence, as a statistical matter, that a person’s ‘true’ IQ score — the score he or she would obtain on a hypothetical test with no measurement error — is within a particular range.”

A properly administered IQ test, in an up-to-date format, the Hall brief suggested, generally would yield a range of plus-or-minus five points from the registered score.  Thus, if the score was seventy, the most that that would suggest, according to this argument, would be a range of sixty-five to seventy-five.

Thus, the brief went on, a measurement that yielded a top-of-the-range figure of seventy-five would permit a diagnosis of “mental retardation if that person displays limitation in adaptive functioning and on onset of disability before age eighteen.”

“The predictable consequence of Florida’s rule,” Hall’s attorneys contended, “is that persons with mental retardation will be executed.  Without this Court’s intervention, that will happen here.  The evidence is overwhelming that Freddie Lee Hall has mental retardation.”

At one point, before the Atkins decision, the brief said, Florida courts had actually concluded that Hall “had been ‘mentally retarded his entire life.'” But now, he faces a death penalty solely because he had a test score above seventy, the brief concluded.

Florida’s merits brief argued that the core issue in the case is not determined by scientific judgment, but whether, as a matter of law, the Supreme Court “truly left any determination to the states” about defining the mental incapacity that rules out a death sentence.

What Hall and his supporters are demanding, according to the state’s lawyers, is to bind the states constitutionally “to vague, constantly evolving — and sometimes contradictory — diagnostic criteria established by organizations committed to expanding Atkins’s reach.  Nothing in Atkins compels the rule Hall advances.”

What the Supreme Court has asked of states, according to the Florida brief, is that they make “a purely legal” judgment, and Florida has done just that, rather than rely on “any particular organization’s latest publication.”

Moreover, the state said, Hall over a period of several decades had consistently scored above seventy, and his conduct in committing the crimes as well as other evidence demonstrates that he does not suffer from “intellectual and adaptive defects.”

Hall has drawn amicus support from a variety of mental health groups, disability rights organizations, former judges and law enforcement officials, and the American Bar Association.  Florida has the backing of nine states and the Criminal Justice Legal Foundation.


The Court has now established a clear pattern of narrowing the categories of individuals for whom the Eighth Amendment’s ban on cruel and unusual punishment prohibits the death penalty.  But it has an equally clear pattern, after having once defined a vulnerable or immature group that is to benefit from that line of decisions, of leaving the states with a considerable measure of discretion to implement the results.

What most often has been found most persuasive by the Court is where it can find a national consensus, actual or emerging, that will inform the meaning of the ban on excessive punishment.  It has been told, in this new case, that, although the states are taking varying positions on who qualifies as mentally retarded (or intellectually disabled), there is no lack of consensus in the science and health communities about what that condition constitutes.  Florida officials, of course, dispute that there is such a common understanding, arguing that the concept is still evolving.

The Court’s first task, then, may be to try to sort out whether there is something approaching an accepted version of this mental condition.  But, if it finds that, then comes perhaps the harder part for a court:  should that be constitutionalized, by writing a scientific definition into the Constitution through the Eighth Amendment?

Hall’s attorneys have made an argument that, indeed, the Eighth Amendment should reflect the prevailing mental health assessment.  And, in response, Florida’s attorneys have contended that, if the Court does that, it will take out of the hands of the states the opportunity to make their own judgments about how to enforce their punishment regimes.

It is clear that, by stepping into this controversy after several times choosing explicitly to stay out of it, the Justices have now volunteered to confront the task of providing at least a measure of guidance for the states.  The task, though, has been made more difficult by the deep chasm of difference between the two contending sides.

Recommended Citation: Lyle Denniston, Argument preview: Measuring mental handicap, SCOTUSblog (Feb. 28, 2014, 12:05 AM),