On March 3, 2014, the U.S. Supreme Court heard oral arguments in Hall v. Florida, the first time the Court has revisited the standard for the mental retardation* exclusion to the death penalty since its 2002 landmark decision in Atkins v. Virginia. In Atkins, the Court held that executing persons with mental retardation violates the Eighth Amendment prohibition on cruel and unusual punishment, but it left the states to decide how to determine if a person is mentally retarded. The state of Florida subsequently adopted an unusually strict approach, refusing to consider Atkins claims unless the prisoner could demonstrate a score below 70 on an IQ test. Florida death row prisoner Freddie Lee Hall’s IQ test scores were just above this rigid cutoff. Although his scores fell within the margin of error built into the test, the Florida courts still refused to hear any further evidence of his intellectual disability. The Supreme Court is now considering whether that decision violated Mr. Hall’s Eighth Amendment rights.
Psychiatrists look at a variety of factors in addition to test scores when making a diagnosis of mental retardation. Those factors include the age of onset of the disability and the individual’s ability to handle the common tasks and demands of day-to-day life (known as “adaptive functioning”). A large majority of states look to these same factors in the context of Atkins claims. Florida courts, however, will only consider these factors when the prisoner has demonstrated an IQ test score below 70. Although IQ tests are designed to indicate the presence of mental retardation at scores of 70 or below, the tests also contain a built-in “standard error of measure” (SEM) of plus or minus five points. This means that there is a reasonably certain probability that a person’s “true” IQ falls within five points above or below his or her test score. Mr. Hall’s attorneys presented evidence that the legislators who drafted the Florida statute anticipated the SEM would be taken into account, but the Florida Supreme Court later interpreted the statute to require a score below 70 without regard for the SEM.
During the Hall oral arguments, several Supreme Court justices appeared skeptical of Florida’s failure to account for the SEM, particularly when coupled with its refusal to consider other evidence of mental retardation. At several points throughout the argument, different justices noted that the SEM does not represent a “clinical judgment” but rather is a “statistical criteria” that is built into the test by its creators. Among the justices questioning this practice was Justice Kennedy—who many commentators anticipate will cast the deciding vote in the case. He said, “It seems to me that what the State is saying here in declining to use [the SEM], is that it declines to follow the standards that are set by the people that designed and administer and interpret the tests.” In an exchange that hinted at similar thinking, Justice Breyer asked the State’s attorney, Florida Solicitor General Allen Winsor, what harm would come from considering all three factors for mental retardation in each case:
Justice Breyer: “Now [considering all three prongs] would take a little time, maybe 15 minutes, maybe a little longer. . . . And – and why not? I mean, what is so terrible about doing it?
Mr. Winsor: What is so terrible about doing it is you would end up increasing the proportion of people, the number of people who would be eligible for a mental retardation finding.
Justice Breyer: But only those who in fact are mentally retarded.
The Hall case has received widespread attention as some have speculated (and perhaps hoped) that a victory for Mr. Hall could fundamentally alter the way that mental retardation is assessed in capital cases. Others have predicted, however, that the decision is likely to be very narrow and will follow the Court’s usual practice of issuing opinions that go no further than necessary to decide the issue presented. If the Court in Hall simply holds that Florida’s failure to consider the SEM is unconstitutional, then the case’s impact will likely be very limited. Although of vital importance to Mr. Hall, such a ruling would likely only impact prisoners in the handful of states that currently do not use the SEM and, within those few states, only in the narrow set of cases where a prisoner’s IQ test scores fall just above 70.
The case is now under consideration by the Court, and a decision is expected by June 2014.
*The term “intellectual disability” is now considered the appropriate way to describe this condition but the term used in the Atkins case, and therefore in the Hall case, is “mental retardation.”