On May 27, 2014, the U.S. Supreme Court delivered its opinion in Hall v. Florida, finding Florida’s method for assessing intellectual disability in capital cases to be unconstitutional. The decision marked the first time that the Court had considered the standard for executing the intellectually disabled since its 2002 opinion in Atkins v. Virginia.
In Atkins, the Court held that executing a person who is intellectually disabled violates the Eighth Amendment’s prohibition on cruel and unusual punishment. That decision, however, gave the states total discretion about how to evaluate intellectual disability in individual cases. There has been considerable concern that this discretion has permitted states to use tests that do not fully implement the meaning of Atkins. In Texas, for example, the current test for assessing intellectual disability utilizes what is known as the “Briseno factors,” which have no relationship to any medical or psychological understanding of the condition. Clinical psychologists look to a variety of factors when diagnosing intellectual disability: intellectual functioning as determined by standardized test scores; adaptive functioning as determined by the individual’s abilities to function in real-world situations; and age of onset. The state of Florida incorporated these same criteria into its statute for determining intellectual disability in capital cases. Unlike most other states, however, Florida gave determinative weight to the first factor. According to the statute, if an individual scores higher than two standard deviations below the mean on an IQ test, which translates to an IQ score above 70, the court will not consider any additional evidence of intellectual disability. The Florida courts interpreted this statute as creating a bright line rule that does not take into account the Standard Error of Measure (“SEM”) inherent in the test. Thus a Florida capital defendant with a score of 71 would not be allowed to present clinically significant evidence of intellectual disability under the second and third factors, even though that score falls well within the margin of error.
Writing for the Court, Justice Kennedy found that the Florida scheme for assessing intellectual disability “creates an unacceptable risk that persons with intellectual disability will be executed.” The petitioner, Freddie Lee Hall, presented evidence of IQ scores ranging from 60 to 80. Because some of his scores were above 70, he was not allowed to present a wealth of additional evidence about his life-long intellectual deficits, including a court finding prior to the Atkins decision that “Freddie Lee Hall has been mentally retarded* his entire life.”
The Court’s opinion restated the rationale behind Atkins – that “[n]o legitimate penological purpose is served by executing a person with intellectual disability” and that “[t]o do so contravenes the Eighth Amendment . . ..” Justice Kennedy then looked to the standards used by other states and the practice of the medical community for assessing intellectual disability. He found that only two other states, Kentucky and Virginia, have adopted an IQ test score cutoff identical to Florida’s. A handful of other states have statutes that could potentially be interpreted in a similar manner, although the question had not been addressed by the courts in those states. Using the “evolving standards of decency” analysis used in Atkins, the Court noted that no state other than Virginia had imposed a new bright-line cutoff in the 12 years since the Atkins decision.
The Court found unanimous agreement among evidence submitted from mental health professionals that all three factors are probative of intellectual disability, and a person with an IQ score above 70 may in fact be intellectually disabled, particularly where adaptive functioning is especially poor. It also found that the SEM is an inherent part of the test, and that any IQ test score should be viewed as a range. Fluctuation in scores can be due to mental and physical health at the time of test administration, testing environment, tester attitude, learning from repeated testing, and even lucky guesses. For those reasons, the test score cannot be reliably used without taking into account the SEM. The Court found that the Florida statute “disregards established medical practice” both by taking the IQ score as “final and conclusive evidence” of intellectual capacity and by refusing to recognize the inherent imprecision in that score.
Finding that “[i]ntellectual disability is a condition, not a number,” the Court held that Florida’s law violates the Eighth Amendment and that “when a defendant’s IQ test score falls within the [SEM], the defendant must be able to present additional evidence of intellectual disability, including adaptive deficits.” That holding has the potential to impact a number of prisoners currently on death row, but there is already debate about whether those individuals should receive the benefit of the Court’s decision.
Shortly after Hall was announced, the U.S. Court of Appeals for the Eleventh Circuit held that Hall did not apply in the case of John Ruthell Henry, finding that Hall announced a new rule of constitutional law that was not retroactive. The U.S. Supreme Court declined to review the Eleventh Circuit’s opinion, and Mr. Henry was executed. In that case, Mr. Henry’s IQ test scores all fell above 75 and therefore outside of the SEM, although his lawyers argued that evidence of poor adaptive functioning demonstrated that he was intellectually disabled. Another case arguing for retroactive application of Hall is currently pending, and the Eleventh Circuit has granted a certificate of appealability on that issue. Although the Court in Hall unquestionably reaffirmed its commitment to the principles in Atkins, it is clear that that Florida intends to utilize its restrictive scheme as much as possible.
* Prior to the Hall decision, courts used the term “mentally retarded.” Justice Kennedy acknowledged in Hall that this term is now disfavored because of its pejorative connotations and explicitly adopted use of the term “intellectually disabled.”