The U.S. Supreme Court has ruled in Hall v. Florida, an important (though little followed) case involving the standard for intellectual disability. Florida state law imposes a bright-line threshold test in cases of alleged incapacity. If the person has an IQ of 70 or above, the court will not consider such a disability claim. It is an approach that has been widely ridiculed by experts and now, in a 5-4 decision, Justice Anthony M. Kennedy has ruled that such a rule violated the Eighth Amendment and runs counter to recognized scientific standards. My Supreme Court class reviewed Hall and reached the same conclusion, though the vote was almost unanimous. The class voted 13-1 to reverse lower court. The class however got it wrong on the prediction. In a close 8-6 vote, the class predicted that the Supreme Court would affirm.
The case involves a particularly gruesome crime scene that makes it difficult for most people to have much sympathy for the culprits. On February 21, 1978, Freddie Lee Hall, and his accomplice, Mark Ruffin, kidnaped, beat, raped, and murdered Karol Hurst. Hurst was a pregnant, 21-year-old newlywed. The two men then drove to a convenience store to rob it but encountered Lonnie Coburn, a sheriff’s deputy who attempted to apprehend them was subsequently killed. Hall received the death penalty for both murders, but his sentence for the Coburn murder was later reduced on account of insufficient evidence of premeditation. Hall v. Florida, 403 So. 2d 1319 , 1321 (Fla. 1981) (per curiam).
At the time of the sentence, the Supreme Court had not yet ruled that the Eighth Amendment prohibits States from imposing the death penalty on persons with intellectual disability. See Penry v. Lynaugh, 492 U.S. 302 , 340 (1989). Indeed, Florida law did not even recognize intellectual disability as a statutory mitigating factor.
The opinion is an important return to the area of intellectual disability since the Court’s 2002 decision in Atkins v. Virginia. In that case, the Court ruled that executing the mentally retarded violates the Constitution’s prohibition against cruel and unusual punishment. However, the Court left it to states on defining intellectual disability. In addition to Florida, Virginia and Kentucky also use this type of threshold test.
The majority reaffirmed the bar on executing the intellectually disabled:
No legitimate penological purpose is served by executing a person with intellectual disability. Id., at 317 , 320 . To do so contravenes the Eighth Amendment , for to impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being. “[P]unishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution.” Kennedy v. Louisiana, 554 U.S. 407 , 420 (2008). Rehabilitation, it is evident, is not an applicable rationale for the death penalty. See Gregg v. Georgia, 428 U.S. 153 , 183 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). As for deterrence, those with intellectual disability are, by reason of their condition, likely unable to make the calculated judgments that are the premise for the deterrence rationale. They have a “diminished ability” to “process information, to learn from experience, to engage in logical reasoning, or to control impulses . . . [which] make[s] it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information.” Atkins, 536 U.S., at 320 . Retributive values are also ill-served by executing those with intellectual disability. The diminished capacity of the intellectually disabled lessens moral culpability and hence the retributive value of the punishment. See id., at 319 (“If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution”).
A further reason for not imposing the death penalty on a person who is intellectually disabled is to protect the integrity of the trial process. These persons face “a special risk of wrongful execution” because they are more likely to give false confessions, are often poor witnesses, and are less able to give meaningful assistance to their counsel. Id., at 320-321 . This is not to say that under current law persons with intellectual disability who “meet the law’s requirements for criminal responsibility” may not be tried and punished. Id., at 306 . They may not, however, receive the law’s most severe sentence. Id., at 318 .
Kennedy follows with a detailed discussion of the use (and the limits) of the IQ test:
The professionals who design, administer, and interpret IQ tests have agreed, for years now, that IQ test scores should be read not as a single fixed number but as a range. See D. Wechsler, The Measurement of Adult Intelligence 133 (3d ed. 1944) (reporting the range of error on an early IQ test). Each IQ test has a “standard error of measurement,” ibid., often referred to by the abbreviation “SEM.” A test’s SEM is a statistical fact, a reflection of the inherent imprecision of the test itself. See R. Furr & V. Bacharach, Psychometrics 118 (2d ed. 2014) (identifying the SEM as “one of the most important concepts in measurement theory”). An individual’s IQ test score on any given exam may fluctuate for a variety of reasons. These include the test-taker’s health; practice from earlier tests; the environment or location of the test; the examiner’s demeanor; the subjective judgment involved in scoring certain questions on the exam; and simple lucky guessing. See American Association on Intellectual and Developmental Disabilities, R. Schalock et al., User’s Guide To Accompany the 11th Edition of Intellectual Disability: [*9] Definition, Classification, and Systems of Supports 22 (2012) (hereinafter AAIDD Manual); A. Kaufman, IQ Testing 101, pp. 138-139 (2009).
The SEM reflects the reality that an individual’s intellectual functioning cannot be reduced to a single numerical score. For purposes of most IQ tests, the SEM means that an individual’s score is best understood as a range of scores on either side of the recorded score. The SEM allows clinicians to calculate a range within which one may say an individual’s true IQ score lies. See APA Brief 23 (“SEM is a unit of measurement: 1 SEM equates to a confidence of 68% that the measured score falls within a given score range, while 2 SEM provides a 95% confidence level that the measured score is within a broader range”). A score of 71, for instance, is generally considered to reflect a range between 66 and 76 with 95% confidence and a range of 68.5 and 73.5 with a 68% confidence. See DSM-5, at 37 (“Individuals with intellectual disability have scores of approximately two standard deviations or more below the population mean, including a margin for measurement error (generally +5 points). . . . [T]his involves a score of 65-75 (70 ± 5)”); APA Brief 23 (“For example, the average SEM for the WAIS-IV is 2.16 IQ test points and the average SEM for the Stanford-Binet 5 is 2.30 IQ test points (test manuals report SEMs by different age groupings; these scores are similar, but not identical, often due to sampling error)”). Even when a person has taken multiple tests, each separate score must be assessed using the SEM, and the analysis of multiple IQ scores jointly is a complicated endeavor. See Schneider, Principles of Assessment of Aptitude and Achievement, in The Oxford Handbook of Child Psychological Assessment 286, 289-291, 318 (D. Saklofske, C. Reynolds, V. Schwean, eds. 2013). In addition, because the test itself may be flawed, or administered in a consistently flawed manner, multiple examinations may result in repeated similar scores, so that even a consistent score is not conclusive evidence of intellectual functioning.
Despite these professional explanations, Florida law used the test score as a fixed number, thus barring further consideration of other evidence bearing on the question of intellectual disability. For professionals to diagnose-and for the law then to determine-whether an intellectual disability exists once the SEM applies and the individual’s IQ score is 75 or below the inquiry would consider factors indicating whether the person had deficits in adaptive functioning. These include evidence of past performance, environment, and upbringing.
The decision obviously curtails the right of the states to set such standards, something that Justice Samuel A. Alito Jr., called a “sea change” in the court’s approach. What is interesting is that Alito takes a shot at the experts in this field in calling them elitist and calls for the law to follow the view of the common people on such questions: “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.” Of course, mental and intellectual disability is capable of objective testing and measurement. While it is hardly precise and not without controversy, the suggestion that we should reject the view of experts as “elitists” sounds like something you would hear on cable news from commentators like Sarah Palin.
Writing for Chief Justice Roberts and Associate Justices Scalia, and Thomas, Alito wrote:
First, because the views of professional associations often change, 7 tying Eighth Amendment law to these views will lead to instability and continue to fuel pro-tracted litigation. This danger is dramatically illustrated by the most recent publication of the APA, on which the Court relies. This publication fundamentally alters the first prong of the longstanding, two-pronged definition of intellectual disability that was embraced by Atkins and has been adopted by most States. In this new publication, the APA discards “significantly subaverage intellectual functioning” as an element of the intellectual-disability test. 8 Elevating the APA’s current views to constitutional significance therefore throws into question the basic approach that Atkins approved and that most of the States have followed.
It is also noteworthy that changes adopted by professional associations are sometimes rescinded. For example, in 1992 the AAIDD extended the baseline “intellectual functioning cutoff” from an “IQ of 70 or below” to a “score of approximately 70 to 75 or below.” AAIDD 11th ed. 10 (Table 1.3) (boldface deleted); see 2 Kaplan & Sadock’s Comprehensive Textbook of Psychiatry 3449 (B. Sadock, V. Sadock, & P. Ruiz eds., 9th ed. 2009) (hereinafter Kaplan & Sadock’s). That change “generated much controversy’; by 2000, “only 4 states used the 1992 AAIDD definition, with 44 states continuing to use the 1983 definition.” Ibid. And in the 2002 AAIDD, the baseline “IQ cut-off was changed” back to approximately “70 or less.” Ibid.
Second, the Court’s approach 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. Here, for example, the Court tacitly makes the judgment that the diagnostic criteria for intellectual disability that prevailed at the time when Atkins was decided are no longer legitimate. The publications that Atkins cited differ markedly from more recent editions now endorsed by the Court. See 536 U.S., at 308 , n. 3.
Third, the Court’s approach requires the Judiciary to determine which professional organizations are entitled to special deference. And what if professional organizations disagree? The Court provides no guidance for deciding which organizations’ views should govern.
Fourth, the Court binds Eighth Amendment law to definitions of intellectual disability that are promulgated for use in making a variety of decisions that are quite different from the decision whether the imposition of a death sentence in a particular case would serve a valid penological end. In a death-penalty case, intellectual functioning is important because of its correlation with the ability to understand the gravity of the crime and the purpose of the penalty, as well as the ability to resist a momentary impulse or the influence of others. See id., at 318 , 320. By contrast, in determining eligibility [*21] for social services, adaptive functioning may be much more important. Cf. DSM-IV-TR, at xxxvii (clinical “considerations” may not be “relevant to legal judgments” that turn on “individual responsibility”); DSM-5, at 20 (similar). Practical problems like these call for legislative judgments, not judicial resolution.
In our class, we discussed the need to get beyond the anger and disgust over the crime committed by Hall to focus on this question of the standard for intellectual disability. In the end, the class was virtually unanimous that the test applied by Florida was arbitrary and would deny the use of the defense to some defendants who were clearly disabled. While it is true that this is a difficult question, the Florida law was not viewed as a close question. By barring the ability of the defendant to submit evidence of disability because he received a 71 seemed entirely without medical or logical basis. As Kennedy notes, “Intellectual disability is a condition, not a number.”
Kennedy was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
JT:
“In our class, we discussed the need to get beyond the anger and disgust over the crime committed by Hall to focus on this question of the standard for intellectual disability.”
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That presumption about punishment for heinous crimes raises some interesting questions:
Are there any crimes so heinous that society may legitimately separate itself permanently from the perpetrator regardless of any mitigating factors the perpetrator may posit in his defense? If not, why so?
May a society use the disruptive nature of heinous crimes as a reason for imposing the most severe punishment allowed by law on a strict liability basis? Take attempting a nuclear attack on an American city as an example.
Are anger and disgust — if held by a majority of the populace — bona fide considerations in assessing any punishment or must jurors act as dispassionate automatons in deciding the fates of those anti-social enough to commit heinous crimes?
Has there ever been a society which divorced itself from the human impact of a crime (and its resulting emotional response) to dispassionately apply a sentence for a heinous crime? If not, can we be expected to do better and if yes, why so?
Paul C. Schulte
“Dredd – when universities don’t accept it as a science, psychology is not a science. And if it is a science, how is it that homosexuality was a mental illness and now is not? Narcissism was a mental illness and now is not?”
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Paul:
I don’t know of any university that doesn’t consider psychology as a bone fide academic discipline. I’m not sure why the rubric of “science” matters so long as it’s a legitimate field of study that sheds light on the human condition and on a human’s capacity to perceive and understand. As such, the law has the duty to use it in assessing the competency of a criminal defendant who stands to face the maximum punishment allowed.
At to your interesting examples that seek to suggest that because a discipline is wrong about a particular fact that it studies, then it is somehow no longer a bona field of study, you might want to consult, inter alia, Copernicus in the field of astrophysics or Pasteur in the filed of microbiology. Both men proved the prevailing view of the world in their disciplines was wrong but no one would suggest that work in these fields is unworthy of respect just because a consensus got a wrong answer.
Just because a particular discipline doesn’t have all the answers doesn’t mean it has none of them.
Mespo – just because it is a discipline does not make it a science. Music is a discipline, but not a science. When a university allows it to be used for your science requirement, then it is a science. It makes no difference which schools have departments. The thought pattern is the same. Psychology is slightly more than 100 years old which is one the reasons it is changing all the time. And that is why Alito and the minority is right not to trust it.
Paul Schulte, I see psychology as a mixture of both science and art. Don’t you find Pavlov’s classical conditioning and Skinner’s work with operant conditioning and his infamous Skinner boxes to have a distinctive science aura to them. They have well defined questions subject to testing and probably could be classified easily under biology instead of psychology. In contrast, many other areas of psychology are more difficult to define.
david – if you consider animal trainers scientists than yes, behavioral psychologists are scientists. Pavlov and Skinner are animal trainers.
mespo wrote: “you might want to consult, inter alia, Copernicus in the field of astrophysics or Pasteur in the filed of microbiology. Both men proved the prevailing view of the world in their disciplines was wrong…”
You might consider this a nitpick, but Copernicus never really proved the prevailing view wrong, at least not in his lifetime. Copernicus as well as Galileo 100 years later were treated in science the same way that creationists are treated today. Nevertheless, I agree with your overall sentiment that no discipline of study deserves disrespect just because it got some things wrong. Amending viewpoints is part of the advancement of every discipline of study. Nobody is perfect in knowledge. Nobody.
Bill has something here, “It depends on what the word “is”, is”.
It is my understanding that the recommended course is to apply a range of parameters, including IQ, into determining if someone understood that his actions were wrong.
A bright line IQ limit would invite suspects to purposely do poorly on an IQ test, although there are supposed to be safeguards to detect cheaters. There are myriad different mental illnesses and disabilities that could affect someone’s ability to tell right from wrong. Would it not be possible for someone brilliant at math to nevertheless have suffered a brain injury that prevents him from being able to tell right from wrong? Or have a an injury, tumor, or undeveloped impulse control center?
Paul C. Schulte
Dredd – when universities don’t accept it as a science, psychology is not a science. And if it is a science, how is it that homosexuality was a mental illness and now is not? Narcissism was a mental illness and now is not?
BTW, I do not agree with Jonathan on many things, probably 1 out of 5. And what does Sarah Palin have to do with anything?
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When what universities don’t accept psychology as a science? (Alito University, Pat Robersts University, Liberty University?)
Here is an article that discusses the illogical reasoning of Alitoids and Palinoids on this subject.
It takes a look at the general categories of opinions objecting to calling psychology a science:
(Psychology Today, “Under the Influence”). It then points out that these are flawed generalities missing the bulk of the realities of psychology.
Dredd – Psychology Today is for people who know nothing about psychology. It is psychology lite.
I also quoted JT who said Alito [and by extension you] sounded like Sarah Palin.
Paul C. Schulte
Dredd – psychology is not a science, it is mostly art. My university did NOT allow you to take psychology to satisfy your science requirement.
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Dredd – Refute what I said or what Alito said …
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You already refuted what you said by making a fundamentally erroneous statement that psychology is not science in contradiction of Western dictionaries I quoted.
We have Justice Alito’s opinion and your less official opinion, both religious in flavor.
Neither opinion is valid in terms of fact.
Dredd – when universities don’t accept it as a science, psychology is not a science. And if it is a science, how is it that homosexuality was a mental illness and now is not? Narcissism was a mental illness and now is not?
BTW, I do not agree with Jonathan on many things, probably 1 out of 5. And what does Sarah Palin have to do with anything?
Dredd – Refute what I said or what Alito said.
“Of course, mental and intellectual disability is capable of objective testing and measurement. While it is hardly precise and not without controversy, the suggestion that we should reject the view of experts as “elitists” sounds like something you would hear on cable news from commentators like Sarah Palin.” – JT
Exactly.
Psychology is a science (“psychology … 1. the science of the mind or of mental states and processes”).
There are innumerable cases where various psychology hypotheses and theories make predictions that are then validated by observation.
Paul C. Schulte
I agree with Alito 100%. You cannot depend on the APA for any consistency, therefore you cannot use them to set a standard for judgment.
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Bull.
Dredd – psychology is not a science, it is mostly art. My university did NOT allow you to take psychology to satisfy your science requirement.
You are either a human being, responsible for crimes that receive the death penalty. You are aware of your actions and deserve to forfeit your life. If you are below any recognized IQ level and cannot be considered a human being with full capabilities then you must be put down. Why keep these animals alive? There are those among us who are challenged with IQs below the average. They deserve a break as long as they are no threat to society.
The death penalty and incarceration are there for more than one reason: deterrent, retribution, punishment, etc. A low IQ should not be an issue. Eliminate the killers, do it in a humane manner (a bullet to the back of the head is the most humane manner), and make sure the accused is guilty. The rest is just personal stuff translated through the mumbo jumbo of the law.
IQ Study: Congress Filled With Morons
CAMBRIDGE, MA – A groundbreaking study has determined that 83% of the members of Congress are certified morons!
The Kennedy School of Government did a longitudinal study over the last 30 years that looked at the average IQ of members of Congress – the Senate & House of Representatives.
The study found that, despite the many advanced degrees from prestigious universities, and despite the fact that many in Congress are millionaires, the average IQ of U.S. Representatives is 101.
The average IQ of U.S. Senators, is surprisingly, even lower at 98.
“We spent one hour a month with each member of Congress over the last thirty years. We gave them a number of IQ tests – including math problems, verbal problems and analytic reasoning problems.
The results were consistent year-in-year out. Members of Congress are morons,” said Professor Thomas Turley of Harvard.
So what is a moron? A moron is a person whose IQ is less than 100 on a consistent basis. The lowest IQs were typically the leaders of the two-parties.
In response to the study, Senator Harry Reid said, “Is that bacon?”
John Boehner said, “We will not back down and we will not give an inch and we will kill the cows when they come home. Hand me a tissue.”
What’s shocking is that it was 5-4. How could anyone want such a hard-line rule to be used in any justice system?
And from what you have written, Alito seems like a dangerous sociopath.
Dan – Alito’s problem is that the Court has created a moveable feast for deciding who is and who is not eligible for the death penalty. As usual, the majority has not given a lot of guidance to lower courts on who to trust when making a decision or how to make a decision, so they will be fumbling in the dark. And then, just when that court thinks they have it right, the APA will change its mind again. That does not make Alito a sociopath, that makes him a pragmatist.
Conservatives want equal protection under the law for alligators…..Now that’s an interesting view..
As Kennedy notes, “Intellectual disability is a condition, not a number.” That reminded me of the Justice Potter Stewart analysis: – who famously said in his 1964 Order that he could not use words to describe pornography but “I know it when I see it.” – See more at:
http://www.ecommercetimes.com/story/71402.html#sthash.MudfzZ81.dpuf
As is the case with the Court’s right, it’s either black or white and nothing in between. The Court’s left sees things in shades of gray and Kennedy seems to sway gray occasionally.
Bottom line is anything that limits the death penalty is sound judgment and good law.
I agree with Alito 100%. You cannot depend on the APA for any consistency, therefore you cannot use them to set a standard for judgment.
Davidm, please read what you’ve written. You are effectively equating a human being to an alligator. What SCOTUS has written is that a state can not rely on the IQ test, exclusively. Personally, I think anyone who supports the death penalty should have their “head examined.”
Marco wrote: “Davidm, please read what you’ve written. You are effectively equating a human being to an alligator.”
No, you missed my point. The very low IQ of the alligator will not save him. We have no qualms about killing the gator because the gator shows it will cause harm, and that is all we need to know to conclude that it deserves death. The same happens in other countries where lions roam. Once a lion has killed a human, it is hunted and killed. The ability of the lion to understand his crime has nothing to do with it. We kill it because it shows itself harmful to members of society.
I don’t see what the intelligence of the murderer has to do with it. In this case, the guy scored a 71, so under Florida law, he can be held accountable. The murderer complains to the high court that if only he had scored a 69, he would have been spared his punishment. It’s not fair. The high court says you are right. The State cannot hold you responsible. They are building a house of cards. This is troubling.
I can’t help but wonder if the Justices watched Sling Blade and were moved by the innocence with which a human with an IQ below 70 could murder someone.
When it comes to unfair harsh punishments, Justice Kennedy tends to side with the liberal wing. This is another blow to the death penalty.
Reblogged this on McBlog.
I find this decision very troubling. If an alligator kills someone’s dog, we kill it without any notion of giving the alligator an IQ test to make sure our punishment is not cruel and unusual. Now the high court establishes this idea of an intellectual standard to be held accountable for harm, but it restricts the ability of the State to determine what that standard is. The waters will only get muddier as the legal profession continues to wander off the path of Natural Law Theory. I envision serial killers with an IQ of 71 easily being able to skirt the laws of this positivist court.