The U.S. Supreme Court Narrows States’ Discretion to Execute the Intellectually Disabled
Last month, the U.S. Supreme Court decided Hall v. Florida. In this case, the Court invalidated Florida’s approach to identifying criminal convicts who are intellectually disabled and therefore constitutionally ineligible for the death penalty. Under Florida statutory law, as interpreted by Florida courts, a person whose intelligence quotient (I.Q.) falls above 70 (as determined by I.Q. testing) is eligible for capital punishment, without regard to other evidence of intellectual disability. The Supreme Court held this approach unconstitutional for (1) failing to take into account the standard error of measurement (SEM) that applies to an I.Q. score and thus renders any score number imprecise as a measure of intellectual disability and, therefore, for (2) failing to allow a condemned prisoner with an I.Q. score between 71 and 75 the opportunity to offer other evidence of intellectual disability, including adaptive deficits. The Court remanded the case for the state courts to apply the more flexible test and thereby determine whether or not Freddie Lee Hall is eligible for the death penalty.
Freddie Lee Hall
The petitioner in Hall, Freddie Lee Hall, was convicted of murder after he and an accomplice kidnapped, beat, raped, and killed a pregnant 21-year-old newlywed. At the time that Hall was sentenced to death for the murder, the U.S. Supreme Court had yet to announce the constitutional rule, under Atkins v. Virginia, that people with intellectual disability (formerly known as mental retardation) are ineligible for the death penalty, because executing a person with intellectual disability constitutes cruel and unusual punishment in violation of the Eighth Amendment. Various professionals who had been in contact with Hall, including medical clinicians, offered their opinions that he was in fact intellectually disabled, but the judge in his case nonetheless adopted the jury’s recommendation that he be sentenced to death.
Once the U.S. Supreme Court handed down its decision in Atkins, Hall—like many other death row inmates—attempted to appeal his death sentence on the ground of intellectual disability. Up until Atkins, intellectual disability was constitutionally considered a mitigating factor that the sentencing body had to have the opportunity to consider in the process of deciding whether to sentence a prisoner to death. After Atkins, however, what had previously been only a factor in the mix had become a dispositive characteristic that would preclude execution. In trying to prove his intellectual disability, Hall underwent a number of I.Q. tests, but his resulting scores fell above the 70-point cutoff for death-penalty-disqualifying intellectual disability under Florida law.
Hall attempted to offer other evidence of intellectual disability, including his impairments in adaptive functioning throughout his life prior to incarceration, but the state courts held that under Florida law, such evidence is irrelevant if an inmate has an I.Q. score above 70.
It might seem odd to some readers that Florida would have its own rule about who is and who is not intellectually disabled and that the rule might differ from that of other states. After all, isn’t intellectual disability a fact about a person? If so, how can states define that fact in their own ways?
The answer is that although intellectual disability is a fact about a person, the Court in Atkins did leave states leeway in deciding how they would go about enforcing the Eighth Amendment ban on executing the intellectually disabled. Part of determining enforcement will arguably entail the identification of definitional criteria for intellectual disability that a prisoner must satisfy before becoming eligible for exemption. To give an uncontroversial example, a state could legitimately determine that anyone receiving a score of 100 on the I.Q. test (indicating average intellect, as measured by the test) automatically falls outside the category of intellectually disabled people and therefore cannot offer independent evidence of his cognitive or adaptive impairment.
Another state, by contrast, might legitimately provide that an I.Q. score alone does not take a person outside the category of intellectual disabled persons, absent a look at other indices of intellectual and adaptive functioning over his lifetime. Stated differently, although there are people about whose intellectual disability there might be no dispute, there are others about whom reasonable minds might differ, and states retain some freedom in developing ways of figuring out who among those people does and does not “count.”
One could interpret the Supreme Court’s ruling in Hall as a simple finding that Florida had waded outside of the proper waters of discretion permitted by the Atkins decision, by failing to take into account the SEM (a band of scores above and below an actual score within which the “true” score is thought to fall by a certain probability, given the imprecision of the test) and by prohibiting Hall from offering other evidence of his cognitive or adaptive impairment. My interpretation, however, is that something else changed between 2002, when the Court decided Atkins, and now. As one can see by reading Justice Alito’s dissent, the dissenting Justices believe that things have changed as well (although their reaction is different from mine). My interpretation of what has changed is that a majority of the Court is now less tolerant of the death penalty (and thus of states’ freedom to decide who is eligible for execution) and that a majority is also (and not coincidentally) more aware of the perspective of those who are sentenced to death.
One indicator of the Court’s growing consciousness about those sentenced to death is Justice Kennedy’s unusually poignant description of the condemned prisoner’s background. In the guise of offering evidence of Hall’s history of manifesting serious intellectual impairments, evidence that had been ignored by the state courts in ruling on Hall’s Atkins claim, the majority opinion elaborates on the abusive childhood endured by the condemned, as follows:
Hall was raised—in the words of the sentencing judge—“under the most horrible family circumstances imaginable.” Although “[t]eachers and siblings alike immediately recognized [Hall] to be significantly mentally retarded . . . [t]his retardation did not garner any sympathy from his mother, but rather caused much scorn to befall him.” Hall was “[c]onstantly beaten because he was ‘slow’ or because he made simple mistakes.” His mother “would strap [Hall] to his bed at night, with a rope thrown over a rafter. In the morning, she would awaken Hall by hoisting him up and whipping him with a belt, rope, or cord.” Hall was beaten “ten or fifteen times a week sometimes.” His mother tied him “in a ‘croaker’ sack, swung it over a fire, and beat him,” “buried him in the sand up to his neck to ‘strengthen his legs,’” and “held a gun on Hall . . . while she poked [him] with sticks.”
These details, though perhaps relevant to Hall’s mental status (by virtue of the likely impact of such trauma on his mental functioning), seem far more probative on the question of whether we ought to have mercy on someone who has endured such sadistic cruelty and spare his life for that reason. Indeed, Justice Kennedy immediately follows this description with the observation that “[t]he jury, notwithstanding this testimony, voted to sentence Hall to death, and the sentencing court adopted the jury’s recommendation.” (emphasis added). Rather than simply noting that there was (ample) non-I.Q. evidence of Hall’s intellectual disability, Justice Kennedy (for a majority of the Court) saw fit to reflect on the mitigating evidence regarding the condemned, evidence to which someone deciding a sentence (rather than a reviewing court) perhaps should have given greater consideration in determining whether to spare the prisoner’s life.
One can easily hear Justice Kennedy’s implicit thinking here: This poor, wretched man was never shown any mercy or nurturance as a young and still-innocent child but was instead punished, as a child, for being “slow,” by the very person who should have been most responsive to his needs and most considerate of his vulnerabilities. I would have chosen to spare him the death penalty, as his life has punished him enough already, well in advance of his crime.
The way in which Justice Kennedy presents the torturous childhood of Freddie Lee Hall demonstrates a sense of outrage on Hall’s behalf rather than a cold and antiseptic consideration of overlooked evidence of adaptive impairment. Justice Kennedy and, by hypothesis, the four Justices who joined his majority opinion, feel for the condemned. Though the majority sends the case back down to the state courts to figure out whether Hall is or is not intellectually disabled, the majority’s distaste for the decision to sentence Hall to death, notwithstanding all that he had been through in his life, is manifest in its opinion and indicates, I suspect, a general and growing willingness to scrutinize states’ imposition of the harshest penalty available under U.S. law.
Dissenting on a Different Wavelength
Justice Alito’s dissent plainly conveys the fact that neither he nor his fellow dissenters are on board with the majority’s newfound empathy for the condemned. The dissent makes a rather strong case for the proposition that the Court has turned its back on Atkins, a decision that, among other things, required that a condemned prisoner demonstrate both intellectual and adaptive impairment to become ineligible for execution. By contrast, the majority now requires states to consider adaptive impairment to help bolster questionable intellectual impairment, when the latter falls within the SEM of the cutoff score, thereby effectively requiring less impairment than Atkins did to qualify for the Eighth Amendment exemption.
Justice Alito’s dissent is also effective at questioning the Court’s ostensible reason for demanding that states utilize the standard error of measurement in evaluating I.Q. scores that fall above the 70 line. Though one score alone might be imprecise, Justice Alito points out that Florida law permits a condemned prisoner to take multiple I.Q. tests, and considering multiple scores is one respected method for addressing the imprecision of utilizing one potentially rogue score, a method that might even prove more accurate than considering the SEM. Justice Alito notes as well that permitting evidence of adaptive deficits for a subset of convicts makes the determination of intellectual disability less reliable and hence less equitable, because unlike I.Q. scores, testimony about adaption will, by its nature, be less systematic and consistent.
The dissent makes several other arguments that raise questions about the majority’s judgment in this case. More important than the strength of these arguments, however, may be their tone. The dissent is irate that the Supreme Court has narrowed the discretion of states to impose the death penalty as they see fit, thereby increasing the odds that someone who is not actually intellectually disabled might, under the Court’s demanding standards, evade execution.
The dissent’s perspective is thus very different from that of the majority. The dissent wishes to protect the freedom of states to execute the people they wish to execute for brutal murders. The dissent accordingly regards the majority as meddling in the states’ business and thereby frustrating the demands of justice where reasonable minds could reject a finding of intellectual disability.
The majority, on the other hand, is far more worried about executing the wrong person than it is about letting a non-disabled person slip through the cracks (into life imprisonment without the possibility of parole). Rather than simply disagreeing on the proper definition (or definitions) of intellectual disability or on the proper source for arriving at such a definition (or definitions)—professional organizations versus political bodies—the majority and the dissent appear to disagree about what a “worst case scenario” would look like: whether it would be worse to execute the wrong person (one who is intellectually disabled) or whether it would be worse to spare the wrong person (one who is not disabled) from execution.
Understood in these terms, the death penalty may be on its way out. Once a majority of the Court has felt the pull of a guilty murderer’s Eighth Amendment claim—as it clearly has when it says in Hall that “[n]o legitimate penological purpose is served by executing a person with intellectual disability”—there is likely no going back, save for a change in the Court’s personnel.