by John H. Blume, Professor of Law, Director of Clinical, Advocacy and Skills Programs, Cornell Law School; Director, Cornell Death Penalty Project; Faculty Advisor, Cornell Law School ACS Student Chapter
In Hall v. Florida, the Supreme Court of the United States reaffirmed the core holding of Atkins v. Virginia, which – more than a decade ago – erected an Eighth Amendment categorical bar to executing persons with an intellectual disability. While the Atkins Court utilized and embraced the clinical consensus definitions of intellectual disability, it stated (in an unfortunate choice of language) that it was leaving “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction.” Some states, Florida being one, concluded that the Court was giving them license to narrow the scope of the constitutional exclusion by adopting legislative (or as in Hall, judicially created) variations to the clinical definition of intellectual disability.
The deviation from the “unanimous professional consensus” at issue in Hall was the refusal to consider the standard error of measurement inherent in any IQ score. The first prong of the clinical definition of intellectual disability is that the person must have “significantly subaverage intellectual functioning,” which translates to an IQ score of approximately 70 (two standard deviation below the mean). Even though the test designers, the American Psychological Association (APA) and the American Association for Individuals with Intellectual and Developmental Disabilities (AAIDD) all stated before and after Atkins that the measurement error of 5 points had to be taken into account, the Florida Supreme Court concluded that any death sentenced inmate who did not have an IQ score of 70 or below was precluded as a matter of law from arguing that he was intellectually disabled. Applying this non-scientific rigid cut-off, the Florida courts rejected Hall’s claim that he was intellectually disabled because his IQ was measured at 71.
In Hall, the Court made clear (again) that the clinical definitions of intellectual disability, including the well settled fact that IQ scores “represent a range, not a fixed number, were a fundamental premise of Atkins.” The Court recognized that if states were free to define intellectual disability as they wished, then its decision in “Atkins could become a nullity and the Eighth Amendment’s protection of human dignity [for those with intellectual disability] would not become a reality.” Thus, it concluded that Florida’s strict cut-off, which flouted the “unanimous professional consensus” that an IQ score is “an approximation not a final and infallible assessment of intellectual functioning” could not stand. Allowing a state to ignore the “inherent imprecision of [IQ] tests,” the Court reasoned, created a constitutionally intolerable risk of “executing a person who suffers from intellectual disability.” Given that the death penalty “is the gravest sentence our society may impose,” the Court stated that persons “facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution.” Florida’s law contravened those basic constitutional principles and thus was at odds with “our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world.”
While Hall addressed (and fixed) one departure from the definition of intellectual disability, other states have created other equally if not more severe impediments to intellectually disabled death sentenced inmates seeking Atkins’ exemption from capital punishment. One such state, not surprisingly, is Texas, whose Court of Criminal Appeals in Ex Parte Briseno created from whole cloth a list of factors for courts to consider in deciding whether an inmate met the second prong of the test for intellectual disability (“deficits in adaptive functioning”). These “factors”–junk science at best–are not only fundamentally at odds with the “unanimous professional consensus,” but were, by the state court’s own admission, created to limit the reach of Atkins to those whom Texans would believe had sufficiently diminished moral capacity to be exempt from the death penalty. The court’s maneuver worked and the “Briseno factors” have made intellectual disability claims almost impossible to win in the Lone Star State.
Going forward, the question will be whether the Court meant what it said in Hall. Was Hall a one-off, or will state and federal courts, including the Supreme Court, hold states to the clinical definition of intellectual disability which–in the Court’s own words–was and ostensibly remain a “fundamental premise of Atkins.” Hall is a significant step in the right direction, but there are more steps to take before the risk of executing persons with intellectual disability is dissipated, and our commitment to dignity and human decency is fulfilled.
Finally, the Court stated that “[i]ntellectual disability is a condition, not a number.” That is both poetic and true. What is equally true, however, is that Hall is a person, not just a case. And the evidence that Hall is a person with intellectual disability is incontrovertible. In addition to the experts who evaluated him, his family members, schoolteachers and even his trial counsel, uniformly believed he was “significantly” disabled and had the level of understanding typically seen in toddlers. Prior to Atkins, Florida courts reviewing his death sentence concluded that there was “substantial evidence in the record” to support a conclusion that “Freddie Lee Hall has been mentally retarded his entire life.” Following its typical procedures, the Supreme Court remanded Hall’s case back to the Florida courts to allow him to present his evidence of intellectual disability unencumbered by the unconstitutional 70 IQ cut-off. Thus, the case slogs on. But justice will not be done, nor the Court’s professed commitment to dignity fulfilled, until Hall’s death sentence is vacated and modified to life imprisonment.