On 21 February 1978, Freddie Hall and his accomplice, kidnapped, raped and murdered a young woman, and in a separate incident, killed a sheriff’s deputy. Hall’s siblings, teachers, and the Florida sentencing judge acknowledged that he was raised under horrific family circumstances. As a child, he was beaten between ten to fifteen times a week.
There is substantial evidence that Hall suffers from a severe intellectual disability, and it is clear that he was unable to contribute effectively to his own defence. However, this evidence was not considered enough to mitigate the capital offence. In Hall v. State, the Florida Supreme Court upheld his death sentence, holding that because his IQ was identified at 71, he was above a strict threshold of 70, as established in Cherry v. State.
Previously, the U.S. Supreme Court in Atkins v. Virginia had used diagnostic standards to formulate a three pronged test for identifying intellectual disability for capital proceedings – (a) significant subaverage intellectual functioning (established through an IQ test); (b) deficits in adaptive functioning (the inability to learn basic skills and adjust behaviour to changing circumstances); and, (c) onset of defects during the developmental period (e.g. before 18 years of age).
The Florida statute acknowledges the diagnostic flexibility for Atkins proceedings, but the Florida Supreme Court interpreted the statute narrowly, at variance with the American Psychiatric Associations’ (APA) Diagnostic and Statistical Manual, which provides that, “A person with an IQ score above 70 may have such severe adaptive behaviour problems…that the person’s accrual functioning is comparable to that of individuals with a lower IQ score.” The APA amicus curiae brief stated, “the 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.”
In Hall v. Florida, decided by the US Supreme Court on 27 May, 2014, Justice Kennedy held, in a 5-4 majority, that the Florida Supreme Court ruling disregards established medical practice as it takes the IQ score as final and conclusive evidence of a defendant’s intellectual capacity. Furthermore, while experts say that IQ should be taken within a “standard error of measurement,” the Florida Supreme Court used the test score as a fixed number, thus denying the imprecise nature of diagnosis.
Justice Alito dissented, joined by Chief Justice Roberts, and Justices Scalia and Thomas, stating that “what counts are our society’s standards – which is to say, the standards of the American people – not the standards of professional associations, which at best represent the views of a small professional elite.”
However, Justice Alito provided no specific guidance to demonstrate how “American society” is better equipped than the “small professional elite” to determine complex cognitive evaluations. He further inadequately opined that “the Court implicitly calls upon the Judiciary either to follow every new change in the thinking of these professional organizations or to judge the validity of each new change.”
The judicial system will always have to grapple with the ethical and scientific questions posed by advances in medicine. The courts can most appropriately do this after and not before new medical techniques, diagnosis and treatment, are identified.
Justice Kennedy did not base his decision upon diagnostic standards. He used evaluative criteria to inform the adjudication of what is considered appropriate protection of human dignity under the Eighth Amendment’s prohibition against, “cruel and unusual punishments.” He held, “Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world.”
It is not insignificant that he shifts the focus from the “Nation” to the “world.” It reflects the evolving international discourse that the death penalty is a violation of human dignity, most specifically advanced by the European Union and the Council of Europe, and it is consistent with the denunciation of the death penalty for persons suffering from intellectual disabilities in R.S. v. Trinidad and Tobago.
The furtherance of dignity and decency is our global, cosmopolitan, call. If the dissenters had had their way, simply put, it would have made it easier for states to execute people with intellectual disabilities. Justice Kennedy’s judgment is a victory for human rights and the evolution of science and medicine.
The problem with Atkins v. Virginia is that the Supreme Court abdicated responsibility for saying what constituted IDD and whether this was an in limine issue or a sentencing issue. The rationale for doing this is obliquely referred to in the opinion for the Court and is founded on Justice Brandeis’s concept of the States as the “laboratories of democracy”. The result is that similarly situated defendants can be treated differently. One might be forgiven for thinking that, when applying national constitutional protections, a person with IDD should be ineligible for execution whichever state he may reside within.
Probably the greatest injustice is the failure of most states to treat IDD as an in limine issue. If the issue is to be decided by a jury, then usually this is done during the sentencing phase of trial. The jurors in such a case will constitute a Witherspoon jury and will have heard a shedload of evidence relating to the facts of the homicide.
A Witherspoon jury (Witherspoon v. Illinois, 391 U.S. 510 (1968)) has been selected for its willingness in appropriate cases to pass a death sentence upon the defendant. The characteristics of such juries have been researched and as early as 1971 such juries were shown to be more likely to convict a defendant than non-Witherspoon juries (see George Jurow, New Data on the Effect of a “Death Qualified” Jury on the Guilt Determination Process, 84 Harv. L. Rev. 567 (1971)) and generally be more deferential to prosecution evidence. To ask such an authoritarian jury to determine whether a defendant suffers from IDD after it has convicted him and after it has heard often gruesome details of the homicide is not conducive to a dispassionate appraisal of the defendant’s cognitive abilities. There is evidence that many juries, far from seeing IDD as a mitigating factor, are likely to view it as an aggravating feature of the crime. This is particularly so in Texas where juries do not making a simple weighing of aggravating features against mitigating features but rather are asked whether the defendant would commit criminal acts of violence that would constitute a “continuing threat to society”. Many Texan juries are all too willing to believe that a person with IDD is likely to commit such acts again.
Again, many District Attorneys, through ignorance or design, confuse trial juries by conflating IDD with insanity – this can be seen in the nature of their questioning of defence experts where their questions focus upon issues which are properly relevant to an assessment of M’Naghten insanity (a mental disorder) rather than IDD (a cognitive deficit).
Since its decision in Atkins the Court has shown little inclination until now to oversee the way in which the States have implemented its mandate. It is difficult to know whether this is a proper concern with the States Rights and values of federalism or whether it reflects deep divisions within the court (most death penalty decisions are 5-4 ones) and an unwillingness to make its vague command (you may not execute the mentally retarded) more explicit.
Julian, thank you for your detailed reply. I completely agree. Justice Stevens in the Atkins majority focused upon setting the diagnostic framework that would comply with the Eighth Amendment, and he left the states to determine what fits into the framework. He gave flexibility to the states to engage with the professional bodies (American Psychiatric Association and the (now named) American Association on Intellectual and Developmental Disabilities), in an expression of the “states as laboratories of democracy.” Although, the states may be “laboratories,” Hall v. Florida demonstrates that not all “experiments” are constitutional. There is still an adjudicative role to determine that diagnosis reflects what is considered to be humane, and promotes dignity and decency.
As to the critique on whether this is a pre-trial (in limine) issue – you have ‘hit the nail on the dead!’ Firstly, if in limine were effectively used by defence counsel, it may be found to be appropriate for the intellectually disabled (depending upon the variations of capital aggravating and mitigating circumstances within different states), to be tried in non-capital proceedings with a possible prison term. Secondly, if in limine proceedings were effectively used, this would enable the trial judge to give clearer directions on what evidence can and cannot be included for the jury, so as to not prejudice the outcome. Thirdly, a more effective access to, and use of, healthcare professions (both psychologists and psychiatrists) is necessary to determine the extent to which the person charged can participate and contribute to the criminal proceedings. It may be deemed appropriate for the person suffering from a severe intellectual disability to not be tried in the courts, but be treated in hospital.
Two final observations. The U.S. Supreme Court in Hall v. Florida, was confined to the narrow issue of the Florida Supreme Court’s stringent use of the IQ test to determine sentence. In holding that Florida violated the Eighth Amendment, Justice Kennedy and the majority, did demonstrate a concern for how states impose punishment on the intellectually disabled. It was Justice Alito and the minority that wanted to leave Florida alone to execute those who fall above the IQ 70 threshold as a singular classification.
Secondly, and this speaks to the in limine issue generally, the more defence counsel utilise the American Bar Association’s, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (2003), the greater the chance that those facing the death penalty will receive a fair trial http://www.americanbar.org/content/dam/aba/migrated/2011_build/death_penalty_representation/2003guidelines.authcheckdam.pdf
An excellent post that highlights another, significant controversy between science and law.
We have to be careful to be appropriately critical of a decision whose practical outcome is attractive to the writer (Hall is not executed) but which is based on a class of evidence which judges struggle to handle correctly (psychiatrists and psychologists assess Hall’s intellectual functioning).
This is most obvious where a complex diagnostic assessment is delivered in a simplistic form (IQ = 71). The US Supreme Court was surely right to correct the Florida court’s crude acceptance that a difference between 70 and 71 represented so real and significant a difference that the appropriate sentence for rape and murder could reliably be based on it alone. A cursory study of the poor scientific foundation for IQ measurement should be enough to convince someone with no particular education in psychology and no principled commitment for or against the death penalty that Hall v Florida is a correct and necessary decision, if only because a single-point difference in IQ scoring is, at best, scientifically unreliable and may be invalid.
However, it does not follow that this decision, any more than Atkins v Virginia, gives a sound foundation for good decisions by state courts in the future.
It fails (as judges so often fail) to recognize the fact that those who devise diagnostic systems and those who make diagnostic judgments in individual cases are sophisticated people who are perfectly aware of the political and legal consequences of their conclusions. It is naive, at best, to treat APA manuals, new professional associations or IQ testing instruments as scientifically neutral, politically value-free tools.
Psychology is a human activity and. as such, an ideological battle ground. Judges, in all jurisdictions, need to exercise critical awareness of this fact when making use of the outputs of science to determine legal penalties.