The Eighth Amendment of the United States Constitution bars the infliction of cruel and unusual punishments. On Monday, March 3, 2014, the Supreme Court heard arguments in Hall v. Florida, a case that presents the biggest challenge to the death penalty in over a decade; the Court is being asked to decide if under the Eighth Amendment, Florida can put to death a man who may be mentally delayed given its statutory scheme for determining "mental retardation." If this sounds familiar it is because in 2002, the Court decided Atkins v. Virginia, in which it held that “executions of mentally retarded criminals were cruel and unusual punishments prohibited by the Eighth Amendment.” However, in Atkins, the Court also left it to the states to “enforce the constitutional restriction” it announced, which is where Hall v. Florida comes in.
Freddie Lee Hall is by all accounts mentally delayed. Just how mentally delayed, and how accurate the myriad IQ tests he has taken are issues that have complicated his case. He has an IQ of around seventy based on numerous tests, and seventy happens to be the bright line drawn by the state of Florida, below which it is unconstitutional to execute a person. Florida wants to execute him, by lethal injection or electric chair, for the 1978 sexual assault and murder of Karol Hurst, a twenty-one year old girl who was seven months pregnant at the time of her death. Lee was with another man during the crime, who was never tried, when what supposedly started out as a robbery ended as first degree murder. Hall was convicted and sentenced to death; at a resentencing hearing some years later, in which the trial court agreed that Hall was mentally retarded, but again sentenced him to death, testimony was presented from a number of doctors and family members. His IQ test scores were anywhere from seventy-one to eighty; his family members described a person who had trouble with reading, writing, and caring for himself—factors used to determine what is known as adaptive functioning. Because Florida has designated seventy or below as the cut off for mental retardation precluding the death penalty, Hall was not found to be ineligible for execution.
At oral argument on Monday, the attorney for Hall argued that a state cannot ignore the margin of error, or standard error measurement (SEM) that is an inherent, statistical feature of the IQ test instrument. The SEM, or margin of error of the IQ test, is determined by the test developers. Though Florida has a firm IQ cut off of seventy for the death penalty, and does not take into account the margin of error, it does apply the SEM when using IQ as a proxy for intellectual functioning as a determinant of things other than the death penalty, like for educational remediation, or vocational rehabilitation. The problem in criminal cases is that without a score of seventy or below, a defendant is unable to present evidence of his or her adaptive functioning and age of onset when the behavior or deficits manifested. Wouldn’t the state want to be sure they were not executing defendants whose intellectual functioning is just low enough to turn the execution into state-sponsored killing? The Attorney General from Florida’s response was that the state has an interest in being more restrictive to make sure people do not evade execution by gaming the system; he asserted that “malingering” inmates might have incentives to score lower than they would ordinarily in order to avoid execution.
As it stands, in Florida if you are facing the death penalty and score even a seventy-one or seventy-two on an IQ test, the state has no obligation to hear any additional evidence about your intellectual capacity. The rule is a strict cut off, despite the general acceptance by clinicians, doctors, and even the developers and administrators of the test of a margin of error inherent in the test. There are seven other states that use the same firm cut off standard as Florida—though mercifully one was Maryland, which no longer has the death penalty.
Governor John Hickenlooper, of Colorado, said, “[i]f the state of Colorado is going to undertake the responsibility of executing a human being, the system must operate flawlessly.” Though flawless might be too much to ask, at a minimum we can hope the Supreme Court holds Florida, and likeminded states, to a standard consistent with the Eighth Amendment. Instead of setting a firm cut off at seventy, experts say a score of seventy-five reflects a ninety-five percent probability that the actual IQ is between sixty-five and seventy-five. If the Court finds Florida’s statutory scheme to be unconstitutional, it would essentially set a national standard for determining a defendant’s eligibility for the death penalty based on intellectual disability, even though in Atkins, the Court allowed the states discretion to decide for themselves. This would give defendants waiting on death row across the country a new basis for challenging their sentences. The Court’s decision is expected in June 2014.
Managing Editor, Criminal Law Practitioner