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Hall v. Florida: One-time Error Correction or the Dawn of Micromanagement?

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In the 2002 case of Atkins v. Virginia, the Supreme Court decided that the Eighth Amendment to the United States Constitution provides an absolute exemption from capital punishment to a person diagnosable as mentally retarded. I do not doubt that their was a consensus to that effect for persons with moderate or more severe levels of retardation, which is what most people think of when the hear the word "retarded."  I very much doubt that most people would agree as to mild retardation, if they understood the level of functioning that classification represents.

At the same time Atkins found a consensus on that underlying rule, it noted there was "serious disagreement about ... determining which offenders are in fact retarded."  That would seem to mean that there is no constitutional constraint and states can choose their methods, at least within reason.  Today in Hall v. Florida, a bare 5-4 majority of the Supreme Court decided that Florida's method of making that determination is unconstitutional.

Is today's decision a one-time correction of a rule that was, to be frank, hard to defend scientifically?  Or is the opening of a long line of decisions to judicially micromanage the retardation determination, with each twist in the road reaching back to further delay or possibly deny justice in cases fairly tried in accordance with the law in effect at the time?
First, a brief digression on terminology.  "Mentally retarded" was, until recently, the term preferred by advocates for persons with the condition in question.  It replaced other terms that had become pejorative, such as "moron" and "imbecile."  "Mentally retarded" was the term used in the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual (the DSM-IV), and it was the term used in Atkins.  Now, in a pattern all too familiar in the modern history of the English language, the Language Police have decided that the term once preferred as a replacement for pejoratives has itself become pejorative and must itself be replaced.  The accepted term is now, for the moment, "intellectually disabled," until the Language Police decide that term has become pejorative and must itself be replaced by something even more awkward.  This is the term used in the fifth edition of the DSM, the DSM-5 (note also the change from Roman to Arabic numbers), and it is used in today's opinion.

Back to definitions and IQ.  IQ originally stood for "intelligence quotient."  In testing of school children it originally represented "mental age" divided by chronological age.  A 10-year-old child who could only perform academically at a level expected of a 7-year-old had an IQ of 7/10 converted to a 100-based scale, or 70.  That original meaning is long gone.  Today, IQ is defined as intellectual ability relative to the peer group, based on the "normal" distribution (the bell-shaped curve), with a mean of 100 and a standard deviation of 15.  A person who performs at a level above about 17% of the population and below about 83% is one standard deviation below the mean and therefore has an IQ of 85.  A person who performs at a level above about 2.5% of the population and below about 97.5% is two standard deviations below the mean and therefore has an IQ of 70.

The traditional definition of retardation/intellectual disability has three components, all of which have to be true for the diagnosis: (1) intellectual ability two standard deviations below the mean (i.e., IQ at or below 70); (2) deficits in adaptive behavior; and (3) onset (not necessarily diagnosis) before age 18.

Florida's statute defining retardation for the purpose of exemption from capital punishment, enacted before Atkins and cited by the Atkins Court as evidence of the consensus, adopted this framework.  See Fla. Stat. ยง921.137(1).  The U.S. Supreme Court today said that the statute on its face "could be consistent with the views of the medical community noted and discussed in Atkins."  The primary problem at issue in today's case was that the Florida Supreme Court interpreted the statute to mean that a test score at or below 70 was required, rather than a test score that included 70 within its margin of error.

The Florida Supreme Court's interpretation was a misstep.  In any scientific endeavor, interpretation of results should always consider margins of error.  If that is all today's decision requires, then it is an improvement for future cases in the states that previously had a rigid 70-score cutoff, and the only adverse impact is to require new hearings in the borderline cases already adjudicated under the old rule, which are probably not numerous.

But will the holding be so limited?  There is plenty in this opinion to support such an interpretation.  For example, on page 9 the opinion of the Court says:

On its face this statute could be interpreted consistently with Atkins and with the conclusions this Court reaches in the instant case. Nothing in the statute precludes Florida from taking into account the IQ test's standard error of measurement, and as discussed below there is evidence that Florida's Legislature intended to include the measurement error in the calculation.
This appears to say that use of an IQ cutoff is perfectly okay as long as the standard error of measurement (SEM) is accounted for.  That is, we must allow for the possibility that an examinee's true IQ is different from his test score.

But to what level of confidence must we allow for that possibility?  The best of the available tests has an SEM of 2.16.  In the dissent, Justice Alito rounds this off to 2 and notes that if the defendant has a test score of 72 we know there is a 83% chance that his true IQ is above 70, and if his test score is 74 we know there is a 97.5% his true IQ is above 70.  Similarly, a table calculated with the actual SEM of 2.16 is on page 14 of my brief.

If IQ cutoffs are allowed at all, a state is probably "safe" in saying that the defendant is not exempt from the death penalty on this ground if his measured IQ is above 75.  A state court opinion to that effect would not be an unreasonable application of Hall and should not be subject to collateral attack in federal habeas corpus.

What if the defendant has multiple test scores, some within the range of possible retardation and some outside the range.  The majority opinion today simply shrugs and says "it's complicated."  (Page 11.)  Complicated, maybe, but not that hard for experts who really understand this stuff.  In a nutshell, the more tests you have above 70, even if they are within the 70-75 range, the less likely it is that the defendant's true IQ is below 70, at least as long as the spacing of the tests and the forms used preclude a "practice effect."  (If you give people multiple tries at the same test, they get better.)

But is the traditional understanding, as reflected in the DSM-IV, "safe"?  Will constitutional requirements change as the positions of professional associations and advocacy groups (not entirely distinct categories) change.  This is what has Justice Alito particularly alarmed.  Have we delegated the power to amend the Eighth Amendment to the American Psychiatric Association, just as some Supreme Court opinions seem to imply that we have delegated amendment of the Sixth Amendment right to counsel to the American Bar Association?

The best expression of the danger here lies, surprisingly, in the majority opinion rather than the dissent:

Those professionals use their learning and skills to study and consider the consequences of the classification schemes they devise in the diagnosis of persons with mental or psychiatric disorders or disabilities.
Excuse me, but that is exactly why we should not consider the views of the APA et al. controlling.  The consequences of expanding the definition of intellectual disability are that more people are eligible for taxpayer-funded services and fewer murderers are eligible for capital punishment.  Those consequences give these highly politicized and ideological organizations a strong incentive to push the envelope as far as they can get away with. See pages 10-13 of my brief. 

If the APA's word is law, then they have the power to abolish capital punishment by defining everybody as "intellectually disabled."  Is that absurd?  It is considerably less absurd than the Hall majority's statement, "If the States were to have complete autonomy to define intellectual disability as they wished, the Court's decision in Atkins could become a nullity, and the Eighth Amendment's protection of human dignity would not become a reality."  That is, the APA is much more likely to push the envelope outward to execute fewer people, or none at all, than state legislatures are to retract it inward to execute people who are, in fact, intellectually disabled.

There is already a movement afoot to remove IQ ceilings from the definition of intellectual disability altogether.  This must not succeed in the Atkins realm.  There is no other objective measure.  The "adaptive skills" component is highly subjective and subject to manipulation.  Given the strong opposition to capital punishment in the mental health professions, there will experts opining under oath that people are intellectually disabled who never would have been considered so before.  At least with a cutoff of 75 we have an objective measure of confining these controversies to a very limited number of cases.  That line has to be held.

6 Comments

Despite its claim that it is not doing so, I read the majority's opinion as equating the legal definition of intellectual disability with the APA/DSM-5's definition. I don't believe the Hall majority would uphold a cutoff of 75 as constitutional. Indeed, from my reading, the overall message being sent to any state legislature or court that would consider adopting any cutoff is "don't go there."

I believe that the majority isn't too concerned about the APA pushing the envelope so as to narrow the category of murderers who are eligible for the death penalty, so long as that envelope has the support of a consensus of experts in the field. The majority seems to believe that this narrowing won't occur for the simple purpose of, ultimately, eliminating capital punishment, because the APA definition of intellectual disability is important to many areas of psychiatric medicine and the provision of social benefits that have absolutely no relation to capital punishment.

We shall see.

I skimmed the amicus briefs filed by the American Psychological Association and The American Association on Intellectual and Development Disabilities and the best I can gather is a diagnosis of mental retardation requiring more than an IQ test. I think this makes sense (to the extent Atkins makes sense which it doesn't in my mind) as presumably a person with a sub 70 IQ could be found to be mentally non-retarded for capital punishment purposes (I guess this term would just be dumb) if the other factors pointed towards being smarter or whatever the term.

As an aside, I gave up on the language policing when retarded became intellectually disabled and rich people became job creators. I always think back to Mr. Burns describing a nuclear meltdown as "an unrequested fission surplus".

The Court seemed very deferential to the APA and it's worth noting that the current DSM defines intellectual disability (in part) as:

"Deficits in intellectual functioning... confirmed by both clinical assessment and individualized, standardized intelligence testing."

Note that there is no cut off anymore. So, is anything less than 100 a deficit? There's a lot of room there for interpretation. It is true that the descriptive notes in the DSM mention the 2 standard deviations but it also says that IQ scores are "approximations."

That is one of the reasons that, in my opinion, the Court (a/k/a Kennedy) will not uphold a fixed 75 cutoff.

The "intellectual" dishonesty of the majority opinion is obvious. So too is the acceptance of an intellectually insufficient quasi-science known as psychiatry. Perhaps it is time to change the law to pleading guilty by reason of mental disease and/or defect instead of not guilty. Sentencing guidelines would be the same except to be served with mandatory mental health services. I would also hold the mental health professional (psychiatrist/psychologist) accountable for determining mental condition prior to parole and/or release.

Mr. Scheidegger,

I agree wholeheartedly with everything you have written about the reach of Hall, as well as your criticism of the opinion.

I thought you might be interested to read this recent opinion from the Eleventh Circuit, which (as far as I can tell) is the first circuit court opinion to address Hall's retroactivity and the scope of its holding. The Eleventh Circuit majority in this case largely agrees with your analysis above.

The opinion can be found here: http://www.ca11.uscourts.gov/opinions/ops/201412623.pdf

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