Serving a death sentence upon a person with severe intellectual disabilities is a violation of the Eighth Amendment. Several Supreme Court cases from the past few decades have explored the intersection between capital punishment and intellectual disabilities. In Ford v. Wainwright (1986), the Supreme Court ruled that capital punishment of an “insane” prisoner is a violation of the Eighth Amendment for two main reasons. First, an Eighth Amendment analysis should incorporate “evolving standards of decency,” as Justice Warren declared in Trop v. Dulles (1954). Second, the Court recognized the questionable retributive and deterrent value of capital punishment imposed on individuals who are unable to comprehend the consequences of their actions.
In Atkins v. Virginia (2002), the Supreme Court decided that an execution of a “mentally retarded*” criminal also violates the Eighth Amendment. The Court again used “evolving standards of decency” as one of the bases for its decision. In the 1990s and early 2000s, a number of states passed legislation consistently exempting people with “mental retardation” from the death penalty. Additionally, the Court recognized that capital punishment for persons with “mental retardation” could not be justified based on retributive and deterrence theories. Atkins granted the States authority to “develop appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Problems with this standard arise when states create their own (debatable) definitions of “mentally retarded.”
On March 3rd, the Supreme Court heard oral arguments for the case of Hall v. Florida. Petitioner Freddie Lee Hall, an intellectually disabled inmate, currently faces a death sentence in Florida. Hall’s attorneys argue that Florida’s definition of “mentally retarded” violates the standard set forth in Atkins. Florida chooses to preclude individuals with an IQ above 70 from qualifying as “mentally retarded.” The State argues that its own definition of “mentally retarded” need not to adhere to a particular medical definition or diagnostic criteria. The State includes a section in its brief entitled “States Should Not Be Forced to Agree With Authorities That Themselves Cannot Agree.” The brief goes on to detail the minute differences between the guidelines proposed by the American Psychiatric Association and the American Association on Intellectual and Developmental Disabilities (AAIDD), as well as between the American Psychological Association and the World Health Organization (WHO).
In its unnecessary focus on the differences between these organizations’ standards, Florida fails to recognize what they all agree upon: that a clinician must consider a variety of factors in the diagnosis of intellectual disabilities. To the extent that the definitions include IQ, none of the organizations advocates for a strict IQ cutoff.** Atkins gives leeway to Florida to develop its own method of enforcing the constitutional restriction. However, Atkins does not allow Florida to invent an arbitrary standard that diverges from clinical norms through a wildly simplistic standard.
Lastly, Hall could also prevail based on another aspect of the case: Florida’s mathematical analysis of IQ tests. The problem with Florida’s categorical cutoff is that it does not allow incorporation of standard error of measurement. By ignoring the significant margin of error in IQ tests, the State is excluding individuals, like Hall, who score just above 70 on the IQ scale. This glaring omission necessarily makes Florida’s definition of “mental retardation” underinclusive. Such an underinclusive, clinically inaccurate definition carries profoundly disturbing implications for intellectually disabled individuals sentenced to death.
*Petitioner, respondent, and the Supreme Court Justices in Hall v. Florida use the phrase “mentally retarded” in briefs/oral argument. Note that leading organizations in the mental health field (including the American Psychiatric Association and the American Association on Intellectual and Developmental Disabilities) have adopted the term “intellectual disability.”
** American Psychiatric Association: After describing the characteristics of intellectual disability, an explanatory report based on the DSM-V (diagnostic manual) states “…IQ or similar standardized test scores should still be included in an individual’s assessment” (emphasis added). The DSM-V determines severity of the intellectual disability based on adaptive functioning, not IQ.
AAIDD: The AAID considers IQ “[o]ne way to measure intellectual functioning,” in conjunction with adaptive behavior and age of onset (emphasis added).
WHO: In the ICD-10 (International Classification of Diseases), the WHO explicitly states, “[t]he IQ levels given are provided as a guide and should not be applied rigidly in view of the problems of cross-cultural validity.”