Hall v. Florida: Court strikes down rigid IQ cutoff of 70 in death penalty cases, but many questions remain
Hall is the first time the Court has intervened to address one of the many voids left in the wake of Atkins: how must intellectual disability be defined in order to implement the protections afforded under the 8th amendment's prohibition against cruel and unusual punishment.In a 5-4 opinion, the United States Supreme Court found that states cannot impose a rigid IQ cutoff of 70 in determining if a person is intellectually disabled and thus ineligible for the death penalty. This opinion comes 12 years after the Court's pronouncement, in Atkins v. Virginia (2002), that it is unconstitutional to execute those with intellectual disability (previously referred to as “mental retardation”). The intervening years have been filled with widely divergent legislation and judicial rulemaking across the country concerning the definition of intellectual disability, as well as divergent approaches to the procedures to be used in determining if a capital defendant or death row inmate has intellectual disability. Hall is the first time the Court has intervened to address one of the many voids left in the wake of Atkins: how must intellectual disability be defined in order to implement the protections afforded under the 8th amendment's prohibition against cruel and unusual punishment.
At Hall's original trial (which occurred several years before Atkins), ample evidence of his intellectual disability and horrifically abusive upbringing was presented to the jury. Finding “substantial evidence in the record” that Hall was “mentally retarded his entire life,'' the trial court nonetheless sentenced Hall to death upon the jury's recommendation, commenting that questions remained about how a “psychotic, mentally-retarded, brain-damaged, learning-disabled, speech-impaired person could formulate a plan whereby a car was stolen and convenience store robbed.”
After the 2002 Atkins decision, Hall filed a motion on his claim of intellectual disability. In the state court hearing on Hall's intellectual disability claim, he presented evidence which included IQ scores on tests taken over the last 40 years, including one IQ test score of 71.
Florida's “Rigid Rule” Violates the 8th Amendment
In Atkins, the Supreme Court noted that the relevant psychological and medical communities defined intellectual disability as constituting three elements: (1) significantly subaverage intellectual functioning; (2) deficits in adaptive functioning, and (3) onset of these characteristics before age 18. At issue in Hall are elements (1) and (2). The Florida law is nearly identical to the language set out in Atkins. Thus, on its face, Florida's law could be viewed as consistent with the Court's Atkins decision. The Florida statute also states that subaverage intellectual functioning is “'performance that is two or more standard deviations” from the mean score on an IQ test. The mean score is 100 and one standard deviation is 15 points. Thus, two standard deviations are 30 points – or an IQ score of about 70. The Florida law is silent on whether standard errors of measurement should be taken in to account.
The Florida Supreme Court, however, has more narrowly interpreted the state law. It finds that when a person scores above 70 – regardless of the margin of error in testing – any further inquiry in to intellectual disability is foreclosed. Thus, a defendant like Hall – who exhibits a borderline IQ score (71) - will never have a court review the other substantial evidence of adaptive behavior deficits to determine if he may be executed under the 8th Amendment. “[T]his,” the U.S. Supreme Court concludes “is so even though the medical community accepts that all of this evidence can be probative of intellectual disability, including for individuals who have an IQ test score above 70.”
In Hall, the Supreme Court explains that this sort of IQ cutoff ignores “established medical practice” in two ways. First, medical professionals do not take an IQ score as the final arbiter of whether a person has intellectual disability. Instead, experts consider other evidence such as “past performance, environment, and upbringing.” Second, the Florida Courts' approach ignores that IQ scoring is imprecise and that an IQ score is not a fixed number, but a range that is based on a standard error of measurement. The Court's view is rather straightforward: “whether an intellectual disability exists once the [standard error of measurement] applies and the individual's score is 75 or below[,] the inquiry would consider factors indicating where a person had deficits in adaptive functioning.” The Court found that Florida's “rigid rule,” in which any further inquiry concerning a defendant's intellectual disability is foreclosed if the prisoner is deemed to have an IQ above 70, “creates an unacceptable risk that persons with intellectual disability will be executed, and this is unconstitutional.”
Hall and the States
The Hall opinion is fairly explicit on the impact the decision will have on death penalty jurisdictions. States like Kentucky and Virginia – which have by statute imposed IQ cutoffs for purposes of determining intellectual disability – violate the Court's holding in Hall. Other states which have imposed similar IQ cutoffs through judicial opinions, like Alabama, must also now permit additional evidence of intellectual disability before determining if a person may be eligible for the death penalty. Other states, such as Delaware and North Carolina, “have statutes which could be interpreted to provide a bright-line cutoff leading to the same result that Florida mandates in its cases,” however, these state laws may not necessarily be interpreted in such a manner in a given case.
Numerous organizations and entities filed amicus briefs in Hall, most notably the American Psychological Association, whose brief was cited extensively (and favorably) by the majority (and cited almost as extensively, but not favorably, by the dissent, which stated that the “Court's reliance on the views of professional associations will  also lead to serious practical problems,” among other concerns).
The final conclusion found in Hall appears to echo those concerns laid out by the brief of American Bar Association and the brief of former judges and law enforcement organized by The Constitution Project. Atkins cannot be circumvented by states' use of an overly restrictive definition of intellectual disability that does not comport with the clinical understanding of the condition: “If the States were to have complete autonomy to define intellectual disability as they wished, the Court's decision in Atkins could be a nullity and the Eighth Amendment's protection of human dignity would not become a reality. This Court thus reads Atkins to provide substantial guidance on the definition of intellectual disability.” The mandate is clear: states cannot use an IQ score above 70 as the sole basis to foreclose consideration that a person facing capital charges or the death penalty should not be executed.
A unique component of the majority's analysis in Hall is the Court's reliance on a national consensus of states which do not mandate a strict IQ score cutoff at 70. The Court notes that, at most, only nine states use a strict cutoff of 70 while in 41 states (including those that have repealed the death penalty entirely) “a person in Hall's position – an individual with an IQ score of 71 – would not be deemed automatically eligible for the death penalty.” Consistent with its precedent on the Eighth Amendment, the Court also examined the direction of change in states' approaches to defining intellectual disability. Since Atkins, most states have passed legislation allowing a defendant to produce additional evidence of intellectual disability beyond an IQ score. Thus, the direction of change indicates that Florida's practice violates society's standards of decency.
This should serve as a warning call to jurisdictions which continue to engage in practices and procedures which serve to undercut the Atkins holding. National reports, notably a new report on the death penalty by The Constitution Project and the comprehensive state assessments on the death penalty organized under the auspices of the American Bar Association, have raised concerns about the numerous definitional and procedural obstacles imposed by states in determining whether a capital defendant or death row inmate has intellectual disability. As commentators have pointed out, while Hall addresses one of the chief concerns – a bright-line IQ cutoff – other problems remain. These include unfair and inappropriate burdens of proof, courts' rejection of other indicia of intellectual disability in accord with the scientific understanding of the condition, judges' and jurors' misunderstanding of intellectual disability, and states requiring documentation that intellectual disability manifested before age 18.
One need only look at the case of Georgia death row inmate Warren Hill in order to see the serious problems that persist, despite Hall. Every single psychologist to have examined Hill – including the state's own experts who originally testified that Hill did not have intellectual disability—have now affirmed that they believe that Hill does have intellectual disability and thus is ineligible for the death penalty under Atkins. The courts, however, have found that Hill - even in light of clinical unanimity on his diagnosis - has not proved his intellectual disability beyond a reasonable doubt and that he can, therefore, be executed by the State of Georgia. The U.S. Supreme Court has not intervened. In light of Hall's reliance on a national consensus concerning IQ cutoffs, this rationale must logically be extended to address the many other outlier procedures and practices found in various death penalty jurisdictions.