SCOTUS for law students (sponsored by Bloomberg Law): Executing the intellectually impaired
on Feb 28, 2014 at 11:02 am
In 2002, in Atkins v. Virginia, the Supreme Court ruled that it was unconstitutional to execute persons who were mentally retarded – a condition for which mental health organizations now use the term “intellectually disabled.” On Monday in the case of Hall v. Florida, the Justices will consider how states should determine when a defendant in a capital case is intellectually disabled.
Although the Court will review the specific practice of only one state, Florida, the decision may have significant practical impact on the definitions in other states that continue to use the death penalty.
The Justices will decide whether a state may make a specific level of IQ testing – seventy or less – a threshold for determining that a defendant is intellectually disabled and therefore ineligible for the death penalty. The case may draw the Court into discussion of how IQs are measured and how much flexibility there must be in weighing variations in IQ test scores for life-and-death criminal justice decisions. The case also challenges the Justices to consider how much deference should be shown to the standards and norms of mental health professionals when states establish a definition for intellectual disabilities.
The case is important not only to students of capital punishment, but also to those who are studying the criminal justice system, sentencing procedures, law and mental health, habeas corpus review, and federalism.
The case also affords a reminder that Supreme Court decisions are often not self-executing and may require consideration of follow-up issues. In Atkins, the Court announced a significant new constitutional principle, but it did not – because it was not required to – consider some of the important practical questions of how the ruling would be implemented. In particular, in Atkins the Court did not adopt a uniform national definition of “intellectual disability.” Writing for the Court in 2002, Justice John Paul Stevens found an emerging national consensus that execution of intellectually disabled criminals was “cruel and unusual punishment” that is prohibited by the Eighth Amendment to the Constitution. But, Stevens wrote, “[t]o the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. . . . Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.” Because the death penalty in the United States is largely administered at the state level, the Court in Atkins left the job of creating rules to protect the intellectually disabled from unconstitutional executions to the states, rather than taking it on itself.
Justice Stevens did make reference, however, to prevailing general guidelines for determining intellectual disability for criminal justice purposes. He wrote that “clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18.”
Enter the Florida law and the case of Freddie Lee Hall. Hall was convicted of the 1978 murder of a twenty-one-year-old Florida woman who was seven months pregnant at the time. (He was also convicted of the murder of a sheriff’s deputy outside a convenience store shortly after the first murder, but that murder is not at issue in this case.)
Hall’s initial encounter with the criminal justice system moved expeditiously. He was tried, convicted, and sentenced to death just four months after the crime. As frequently happens in capital cases, there is a long, winding procedural history to Hall’s appeals, with his death sentence thrown out once by the Florida Supreme Court in 1989 and a new death sentence imposed in 1991. During the second sentencing, the trial court found Hall intellectually disabled but did not find that sufficient to avoid a death sentence. Another round of appeals continued, and when Atkins was decided, Hall’s lawyers challenged the constitutionality of Florida’s law governing the execution of the intellectually disabled.
Florida did not change its law after Atkins, but the Florida Supreme Court adopted a procedural rule to facilitate claims based on intellectual disability. Hall’s claim did not get a hearing until 2009. A number of witnesses testified both for Hall and for the state, but the judge decided that there was insufficient evidence that Hall’s IQ was at seventy or less and, therefore, ruled that Hall did not satisfy the Florida standard for intellectual disability.
In the appeal to the Supreme Court, the case presents a number of questions, but at the heart of the issue is a tension between the power of a state and its supreme court to set a definition for intellectual disability and the role of clinical standards and norms determined by professionals in the mental health community.
Lawyers for Hall maintain that clinical mental health standards consider IQ testing with an understanding that there are errors, fluctuations, and standard deviations which must be taken into account in evaluating a person’s mental disability status. They argue that states must consider clinical standards at least in part because of the Court’s reference in Atkins to “clinical definitions of mental retardation.”
Hall, his lawyers say, clearly meets the clinical definition for intellectual disability. His IQ tests over time have ranged in the sixties and low seventies. According to clinical practices, tests in the low seventies, they argue, are well within the margin of error or standard deviation to establish the existence of mental retardation.
Florida defends the state law on a number of grounds. First, lawyers for the state argue that the Supreme Court left it to the states in Atkins to determine how to implement the decision. The majority in Atkins referred to clinical standards but did not require that states strictly adhere to a particular formula, they say. Moreover, it would be difficult to implement clinical standards if states must change their laws or practices each time mental health professional organizations change their guidelines or definitions. Finally, Florida officials argue that an IQ cutoff of seventy or lower for determination of intellectual disability is a well-established, long-recognized standard that was used by nine states in their legal definitions when Atkins was decided.
And just to ratchet up the arguments a bit, Florida lawyers observed in their brief that some of the mental health organizations that advocate for the use of clinical standards are also generally not fans of the death penalty and might use their ability to define mental retardation to undermine the ability of states to enforce their capital punishment laws.
Some of those very organizations filed friend-of-the-court briefs in the case. The American Association on Intellectual and Developmental Disabilities, for example, is one of several groups urging the Court to view the diagnosis of mental retardation as a holistic process that requires the evaluation not only of IQ tests but also of the degree of functional impairment in the individual. The American Psychological Association filed another brief urging the Court to reject the rigid use of an IQ testing threshold to diagnose intellectual disabilities. The American Bar Association weighed in as well, telling the Court that the use of inadequate methods to assess intellectual disabilities undermines the Court’s decision in Atkins.
For its part, Florida is supported by nine other states which argue that Atkins gave the states leeway to implement their own view of what constitutes an intellectual disability and that there is no consensus among the states that the clinical standards of mental health organizations must be the correct approach.
The makeup of the Court has changed in important ways since Atkins, and that may make the outcome of the case a very close call. First, to the extent that the arguments turn in part on what Atkins meant, the author, Justice Stevens, is no longer on the bench to explain or push for his views. Second, the vote in Atkins was six to three. The majority included Stevens and Justices O’Connor, Kennedy, Souter, Ginsburg, and Breyer. The dissenters were Chief Justice Rehnquist and Justices Scalia and Thomas. The replacements of Justice Stevens with Justice Kagan, Justice Souter with Justice Sotomayor, and Chief Justice Rehnquist with Chief Justice Roberts may not change the balance of opinion on the Court on this issue.
However, Justice O’Connor has been replaced by Justice Alito, who is far more likely to sympathize with Florida’s argument. That means the line-up looks more like a divided Court with, as so often happens these days, Justice Kennedy casting the deciding vote. If Justice Kennedy remains with the Atkins majority, then Hall’s position may prevail, but if Justice Kennedy is persuaded either by deference to the states or an apparent absence of consensus among the states, then Florida seems more likely to prevail.