Justices Asked to Define 'Mentally Retarded' in Death Cases
"That rigid IQ test score cutoff is flatly inconsistent with the universally accepted clinical definition of mental retardation and with basic statistical principles," which require that scores be interpreted in light of the standard error of measurement, Pinkard, Hall's counsel, argues.
For Hall, consideration of the standard error of measurement is the difference between life and death. During his trial and subsequent litigation before the Atkins decision, state courts found that Hall had been "mentally retarded his entire life." In 2009, when he pressed his Atkins claim, the reviewing court noted expert testimony that Hall's IQ tests showed scores of 73 and 71, and that earlier test scores were above 70, according to the state's brief.
Under Florida law, Hall failed to make the cut. On appeal, the Florida Supreme Court reaffirmed its interpretation that "a firm cutoff of 70 or below" on an IQ test was required to meet the first prong of the law's definition.
Pinkard contends, however, that "in diagnosing mental retardation, clinicians must take into account a given IQ test's standard error of measurement. That is necessary because no IQ test is a perfect measure of intellectual ability." And although Florida is one of only a handful of states imposing a bright-line cutoff of 70, he said, courts in a number of states have yet to interpret their definitions of "subaverage intellectual functioning" and whether their laws permit consideration of the standard error measurement.
James Ellis of the University of New Mexico School of Law successfully argued Atkins and has filed an amicus brief supporting Hall on behalf of a number of national mental health and disability organizations.
"All of the focus here is on what did the court mean in Atkins when it said it was leaving to the states in the first instance to devise implementation of the decision," Ellis said. "The states' argument is that Atkins gives us substantial latitude. We say there is latitude, but they have to conform to the basic clinical definition of intellectual disability."
But "the medical definition of mental retardation is constantly evolving, and this area of the law prioritizes stability," Florida's Winsor writes. "When it comes to diagnostic criteria for mental retardation, the only constant is change. In light of the 'flux and disagreement,' the risks of constitutionalizing changing clinical criteria are obvious."
And besides, he adds, a 70 IQ "has long been viewed as an appropriate upper limit for mental retardation." Hall's argument, in effect, would impose an IQ threshold of 75, "which no State used at the time of Atkins, and which would greatly expand the population covered under Atkins."
Kent Scheidegger of the Criminal Justice Legal Foundation, which filed an amicus brief supporting Florida, called "worrisome" the possibility that the justices, in taking Hall's case, first would get into the "nitty gritty" of defining mental retardation and, second, would micromanage its application case by case, much as the court did after reinstating capital punishment.
"This is not a good way to make law," he said.