The Supreme Court Considers What Role States May Play in Intellectual Disability Determinations
In a few weeks, the Supreme Court will hear oral argument in Hall v. Florida. The case presents one of the many housekeeping questions that often follow in the wake of a landmark decision breaking new doctrinal ground—here, the question of how to determine whether a criminal defendant is intellectually disabled, and thus categorically ineligible for the death penalty, under the Court’s 2002 ruling in Atkins v. Virginia.
Yet Hall also has potentially far-reaching implications for a whole range of issues quite far afield from death penalty eligibility. Florida argues that states have an important role to play in defining the contours of federal constitutional law. Although that argument is not entirely novel, until now it has only been accepted in very limited circumstances. If the Court were to rule for Florida in the Hall case, it could dramatically undermine the uniformity of federal constitutional law.
The Issue in Hall
In Atkins, the Supreme Court cited a national consensus and its own analysis in support of the conclusion that it would violate the Eighth Amendment’s prohibition on cruel and unusual punishments to execute an intellectually disabled person—even if he committed a heinous crime. The Court explained that diminished capacity both weakens the deterrent effect of the death penalty and reduces the culpability of the criminal. (The Atkins Court referred to intellectual disability as “mental retardation,” but since 2002 that term has generally come to be regarded as offensive, and so I will use the now-preferred “intellectual disability” as a substitute, without signifying any substantive distinction between the two terms.)
The Court in Atkins did not provide a complete definition of intellectual disability, instead referring to standards set by two professional organizations. In addition, the Court left “to the States the task of developing appropriate ways to enforce the constitutional restriction . . . .” The dispute in Hall concerns the scope of the power that the Atkins Court left to the states in light of its seeming incorporation of professional standards.
In the Florida courts, Hall’s lawyers presented substantial clinical evidence that he was intellectually disabled from childhood through adulthood. Nonetheless, the Florida courts ultimately determined that Hall was not intellectually disabled because he scored above 70 on several I.Q. tests, and Florida law (as interpreted by the Florida courts) sets 70 as a strict numerical cutoff. In its brief in the Supreme Court, Florida suggests that even taking account of some of the clinical evidence, Hall should still not be regarded as intellectually disabled, but the case was accepted by the Justices on the assumption that Florida would execute Hall regardless of the clinical evidence, and so I shall also make that assumption here.
Hall’s brief argues that in leaving it to the states to devise “appropriate ways to enforce” the command of Atkins, the Supreme Court was signaling that it would tolerate a range of procedural mechanisms for determining intellectual disability, but that Florida has instead impermissibly arrogated to itself the power to provide a substantive definition of intellectual disability. However, Hall’s lawyers argue, it is up to the Court to define the substance of the rights it recognizes, and Atkins makes clear that it defined the cutoff by incorporating the considered opinion of the professional community. That standard, in turn, takes account of measurement error in IQ tests as well as clinical evidence.
Constitutional Limits on Federal Incorporation of State Law
At first blush, Florida’s position appears peculiar. After all, Atkins was an interpretation of the federal Constitution—the Eighth Amendment as made applicable to the states via the Fourteenth Amendment. We would thus naturally expect that federal law, rather than state law, controls the definition of intellectual disability.
Although I think that conclusion is ultimately justified, there may be more to the state’s argument than at first meets the eye. In particular, there are some contexts in which the content of federal law depends on state law. For example, under the doctrine set forth in the 1979 case of United States v. Kimbell Foods, federal law frequently incorporates state property law and state contract law. Likewise, there is generally no federal law of domestic relations, and so to determine whether a couple is married under federal law, one looks to see whether the partners are married under state law.
Of course, in the foregoing examples, the question is usually only a matter of federal common law or statutory construction. The courts ask whether a uniform national rule, or one that varies with state law, better serves federal policies. By contrast, where constitutional rights are involved, state law may be displaced. Thus, in the 1967 case of Loving v. Virginia, the Supreme Court rejected a state definition of marriage that excluded mixed-race marriages. And it is probably only a matter of time before the Court rejects state definitions of marriage that exclude same-sex marriages.
As a general matter, in interpreting constitutional rights, the Supreme Court insists on national uniformity. Accordingly, in the 2010 case of McDonald v. Chicago, Justice Alito wrote for a majority that the Bill of Rights has generally been applied to the states according to the same uniform rules that apply to the federal government.
Two Exceptions to the Uniformity Principle
Two cases that escaped mention in the McDonald case arguably provide some support for Florida’s position in the Hall case. One is the 1973 landmark ruling in Miller v. California. There, the Court held that states may only proscribe obscenity if they comply with various federal requirements that were announced in the case. But one of those requirements—that the material be evaluated by reference to “community standards” as determined by local juries—necessarily varies from state to state and even within states.
A second precedent is even more directly relevant. In Ford v. Wainwright, in 1986, the Justices held that the Eighth Amendment forbids the execution of an insane defendant, but left to states the development of ways to enforce the prohibition. Indeed, in Atkins, the Court quoted its prior language from Ford in leaving to states the parallel task with respect to intellectual disability.
Incorporation of State Law Should Remain Exceptional
Nonetheless, Atkins is best read as leaving states with only procedural discretion, rather than the power to define the substance of intellectual disability. For one thing, procedure is all that appears to have been at stake in Ford itself. In the sentence immediately preceding the language later quoted by the Atkins Court, the Ford plurality opinion indicated that it was leaving open procedural questions about how to prove insanity, rather than the substantive question of what insanity is. The Supreme Court’s 2007 ruling in Panetti v. Quarterman confirms this reading of the Ford caveat.
Meanwhile, although Miller’s test for obscenity shows that it is conceptually possible for state law to play some role in filling in the content of federal constitutional rights, it remains an isolated exception that should not be expanded. The whole rationale for permitting the regulation of obscenity is that certain sexually explicit materials give offense to the community. Along with other civil libertarians, I find that rationale problematic, but if one accepts it—as the Supreme Court’s cases do—then it makes sense for the application of the standard to give some effect to local sentiment.
By contrast, there is nothing about the concept of intellectual disability that would call for varying definitions in different times and places. The core idea animating Atkins is that below a certain intelligence threshold, people should not be required to pay the ultimate price for their conduct.
In 1958, in Trop v. Dulles, the Supreme Court stated that the Eighth Amendment draws “its meaning from the evolving standards of decency that mark the progress of a maturing society.” Every Eighth Amendment case since then makes clear that the relevant society is national, or even international. Indeed, the whole point of modern Eighth Amendment jurisprudence is that outlier states must come up to the national standard. Nothing about the facts or circumstances of the Hall case calls for a departure from the national uniformity that is the hallmark of the Court’s Eighth Amendment jurisprudence.