Justices Asked to Define 'Mentally Retarded' in Death Cases

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Death row, San Quentin
Death row, San Quentin

Freddie Lee Hall sits on Florida's death row for the 1978 abduction and murder of a 21-year-old woman who was seven months pregnant. He should not be executed because, he claims, he is "mentally retarded."

Twelve years after the U.S. Supreme Court held in Atkins v. Virginia that execution of mentally retarded persons violates the Eighth Amendment, the justices will use Hall's case to examine how states determine who is "intellectually disabled" (now the preferred term for mentally retarded) and whether Florida's test is too narrow. The court will hear arguments in Hall v. Florida on March 3.

Florida and its supporters want the court to hold fast to its language in Atkins giving states "the task of developing appropriate ways to enforce the constitutional restriction."

"This case turns on whether Atkins truly left any determination to the states or whether, as Hall contends, states are constitutionally bound to vague, constantly evolving—and sometimes contradictory—diagnostic criteria established by organizations committed to expanding Atkins’s reach," Florida solicitor general Allen Winsor wrote.

Most states have developed appropriate standards, according to death penalty scholars and some national psychological and disability organizations. However, they and Hall argue the justices need to tell Florida and some other states that their tests ignore generally accepted clinical definitions of mental retardation.

Nothing in Atkins "authorizes the states to narrow the substantive scope of the constitutional right itself by defining mental retardation in a way that excludes defendants who qualify for a diagnosis of mental retardation under accepted clinical standards," said Hall's counsel, Eric Pinkard of the Capital Collateral Regional Counsel in Tampa. "Yet that is precisely what Florida has done here."

Defining a disability

Florida, ironically, was one of the states to which the Supreme Court looked in finding a national consensus against capital punishment of intellectually disabled persons. In 2001, a year before the Atkins decision, Florida enacted a law prohibiting their execution.

The state's test generally tracked the three elements that the Supreme Court suggested in Atkins. The justices said that "clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18."

Florida's law requires clear and convincing proof of "significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18." The statute defines that as "performance that is two or more standard deviations from the mean score on a standardized intelligence test."

On its face, Hall and his amicus supporters say, the Florida standard is consistent with the clinical definition of mental retardation which, accounting for standard error of measurement, would provide for IQ scores in the range of 70 to 75. The problem, however, is that the Florida Supreme Court has interpreted the state test as requiring an IQ of 70 or below, they contend, with no consideration of the standard error of measurement.

"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."

Evolving definition?

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.

The justices could take a narrow path simply by ruling that there is no bright-line cutoff, said John Blume of Cornell University Law School's Death Penalty Project.

"The problem is going in the other direction here,"  Blumesaid. "If the justices tell Florida, ‘OK, you can change the definition of what it means to be a person with an intellectual disability,’ that’s going to invite mischief. What's the next thing—a state can say, ‘We want to change it to 65 or below'? Agreeing with Florida could only encourage states to deviate even more markedly. I don’t see the upside of the court creating those kinds of incentives."

Contact Marcia Coyle at mcoyle@alm.com.

What's being said

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    Sounds as though the three elements are describing the majority male populace.

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