Today's New York Times publishes the editorial, "The Shrinking Death Penalty."
At its core, the Eighth Amendment’s ban on cruel and unusual punishment protects “the dignity of all persons,” Justice Kennedy wrote, and its application “reflects the Nation we have been, the Nation we are, and the Nation we aspire to be.” When it comes to the death penalty, that nation is changing. Since the 2002 decision, the court noted, six more states have abolished the death penalty, for a total of 18 plus the District of Columbia. Nowhere is the death penalty being reinstated.
Tuesday’s ruling may not affect more than a handful of cases, and capital punishment’s defenders will always have an argument about why this I.Q. test or that secret lethal-injection protocol comports with the Constitution. But the tide of history is flowing against them.
"Court's caution on capital punishment," is the Tampa Bay Times editorial.
"Intellectual disability is a condition, not a number,'' Justice Anthony Kennedy wrote. "In using these scores to assess a defendant's eligibility for the death penalty, a state must afford these test scores the same studied skepticism that those who design and use the tests do, and understand that an IQ test score represents a range rather than a fixed number.''
That reasoning, of course, makes perfect sense to educators familiar with IQ tests. There is no reasonable rationale for the state to consider someone who scores 70 on an IQ test to be too intellectually disabled to execute but to have no problem sentencing someone to death with an IQ score a single point higher. Kennedy was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. But as Justice Samuel Alito wrote in a dissent joined by fellow conservative Justices Antonin Scalia and Clarence Thomas, and Chief Justice John Roberts Jr., the court ruling is "likely to result in confusion.'' Alito must have been thinking about the Florida Legislature, where support for the death penalty remains strong and there is little interest in the mental capacity of inmates convicted of unspeakable crimes.
The Atlantic posts, "The Court's Emphatic Ban on Executing the Intellectually Disabled." by Andrew Cohen.
To understand why the Court’s ruling in Hall v. Florida is just, it’s instructive to review just how hard Florida has tried to execute Hall over the decades.
The plaintiff came to death row in 1978 after killing a pregnant woman and a deputy sheriff. Before Atkins, the Florida Supreme Court had declared that Hall had been significantly “mentally retarded” his whole life but that he still was eligible for the death penalty because there was no constitutional rule precluding such executions. Then, in Atkins, the Supreme Court by a vote of 6-3 recognized just such a rule, declaring that the execution of the intellectually disabled was a violation of the Eighth Amendment. So Florida promptly changed its tune and declared that Hall was not mentally disabled enough after all.
Under the state’s post-Atkins standard, overwhelming evidence that Hall is functionally illiterate, is unable to understand adult conversation or activities, and was developmentally disabled as a child was irrelevant to determining whether he fell under the Atkins exception. This was so in Florida because his IQ-test scores hovered between 60 and 80, often above the arbitrary cutoff of 70 that the state had adopted. To make matters more definitive, at least from the state’s perspective, officials refused to account for any standard error of measurement embraced by the scientific community.
In this way Florida—and states like Georgia and Texas, too—flouted the Atkins rule by rendering its mandate almost unrecognizable. Can’t lawfully execute the mentally disabled? No problem, they concluded, we’ll just change the definition of disability. That will be much harder to do after Tuesday’s ruling. By a 5-4 vote, with Justice Anthony Kennedy again the swing vote, the Court has refined and broadened Atkins’s scope. Florida’s onerous rule “disregards established medical practices,” Kennedy wrote for the majority, and those practices require courts to consider the sort of evidence Florida refused to consider in Hall’s case. Will it be enough to spare his life for good? Stay tuned.
David Dow writes, "The Supreme Court's Empty Defense of the Intellectually Disabled," for the New Republic.
Following the decision in Atkins, several states took steps to undermine it. I’ll get to Texas in a moment, but let’s begin with Florida: Florida enacted a law that required that a capital defendant seeking to avoid execution on the basis of Atkins to first establish that he has an IQ of 70 or below, and the Florida Supreme Court then interpreted this law to be an inflexible requirement.
This rule departed from the AAIDD and APA definition in two critical respects: First, IQ scores, just like the GPS application on your smart phone, have an inherent measuring error. It is well-established that IQ scoring has a standard error of measurement (or SEM), and that standard error is five points. Consequently, the intellectual functioning identified by an IQ test is in the range of intellectual disability if it falls between 65 and 75.
Second, deficits in adaptive functioning are as important to the clinical definition as intellectual functioning, yet the Florida statute (at least as it was interpreted by the Florida Supreme Court) made those limitations entirely irrelevant if a defendant had an IQ score of 71. As the APA put it in a brief it filed with the Court on Hall’s behalf: “Relevant clinical authorities all agree that an individual with an IQ score above 70 may properly be diagnosed with intellectual disability if significant limitations in adaptive functioning also exist.”
Hall is rhetorically strongest when it suggests that, in the realm of scientific concepts, the professionals, and not the politicians, are the authorities. Legislators or judges in Tallahassee (or Austin, for that matter) do not get to ignore the SEM just because it might get in the way of executions.
The Los Angeles Times Opinion LA blog posts, "The Supreme Court made the right call in Florida death penalty case," by Scott Martelle.
By failing to take into account the standard error of measurement, Florida’s law not only contradicts the test’s own design but also bars an essential part of a sentencing court’s inquiry into adaptive functioning. Freddie Lee Hall may or may not be intellectually disabled, but the law requires that he have the opportunity to present evidence of his intellectual disability, including deficits in adaptive functioning over his lifetime.
“The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution. Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world. The States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects.”
Now if we could only get the court to recognize that state executions also deny that basic dignity.
The National Law Journal reports, "Justices Reject Florida's IQ Test for Death Penalty," by Marcia Coyle.
The court’s ruling in Hall v. Florida divided the justices, 5-4, along ideological lines. The closely watched decision marked the first time the justices have offered guidance to the states in this area since their landmark 2002 ruling in Atkins v. Virginia barring execution of the intellectually disabled.
Kentucky and Virginia have fixed-score cutoffs identical to Florida’s. Arizona, Delaware, Kansas, North Carolina and Washington, Kennedy said, have statutes that could be interpreted to provide a bright-line cutoff leading to the same result.
“The direct impact is only on Florida and those handful of states that have adopted this rigid and arbitrary rule,” said James Ellis of the University of New Mexico School of Law, who argued and won the 2002 decision.
“But, more broadly, the way in which the majority opinion makes clear that in making Atkins decisions courts have to be open to a wider range of evidence about whether this person has intellectual disability, including evidence about impaired functioning, may have implications in states beyond the handful who are clearly out of compliance today,” he said.
"A Divided High Court Strikes Down IQ Rules In Fla. Death Penalty," is by Nina Totenberg for NPR. There is audio at the link.
In Florida, Gov. Rick Scott was not ready to concede defeat. "Capital punishment is something that's a solemn duty that I have, and I take it very seriously," he said. "But I'll review that case when I see it."
Scott's comments, however, seemed little more than an attempt to save face. "Obviously, Florida is going to have to change," says Cornell Law School professor John Blume — as will Virginia, Kentucky and Alabama.
Blume, who heads a project at Cornell that monitors death penalty statistics nationwide, notes stark differences in results between states like Florida that have a fixed statistical cutoff for IQ versus those that allow a range to account for the margin of error. In states that set a fixed cutoff, the success rate for avoiding the death penalty on the basis of intellectual disability is less than 5 percent, versus 28 percent in states that account for the margin of error.
Additional coverage includes:
National Journal posts, "The Supreme Court Just Dealt Another Blow to the Death Penalty," by Dustin Volz.
"High court limits death penalty in cases of intellectual disability," by David G. Savage for the Los Angeles Times.
"US supreme court bars Florida from using IQ score cutoff for executions," by Dan Roberts at the Guardian.
"Supreme Court: IQ score alone can't decide who faces execution in Florida," by Warren Richey of the Christian Science Monitor.
"Justices strike down Florida's IQ rule for executions," by Bill Mears at CNN.
Earlier coverage of Hall v. Florida begins at the link.