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.
davidm:
I disagree with your analogy. The word “heresy,” like the words “blasphemy” and “apostasy,” has no meaning outside the field of religion. The fact that the church once controlled educational institutions is related to its historical role in government and society. Galileo was exonerated when the church recognized the need to revise its theology. Creationism is not rejected as heresy; it is rejected as science. I grew up within a religious tradition that found no contradiction between religion and evolutionary biology. It’s time for creationists to consider the possibility that their own theology may need to be revisited as well.
Mike –
I would disagree with this. We see these words used in politics all the time.
Mike Appleton wrote: “Creationism is not rejected as heresy; it is rejected as science.”
I grant you that heresy is religious jargon, but don’t let science off the hook over semantics. The result is basically the same. Elites vote on what they will allow to be taught and censorship is the end result.
Mike Appleton wrote: “It’s time for creationists to consider the possibility that their own theology may need to be revisited as well.”
You do not seem to accommodate the non-theologians who are creationists. Creationists like Ben Franklin or Thomas Jefferson had no theology to revisit. Why prohibit through the force of law free thinking men like these who construct and test theories outside of mainstream science?
Paul S,
No. They are basically one in the same.
I call into question the IQ level of all those in favor of captial punishment
In the quote above I call into question the mental acumen of the folks calling for the use of capital punishment in general.
I’m not questioning anything. I’m condemning the use of capital punishment across the board for cretins and non-cretins alike.
In the second quote I condemn the use of capital punishment for both low and high IQ prisoners slated for execution.
I’m against the use of all capital punishment.
Paul S,
I’m not questioning anything. I’m condemning the use of capital punishment across the board for cretins and non-cretins alike.
You are backing off this statement?
Here is Professor Sapolsky teaching hard science at one of his classrooms at Stanford.
His subject is the limbic system, something psychology students need to know.
Paul C. Schulte
Dredd – if Stanford is so hot it should be able to stop a kid from killing 6 people?
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What are you asking?
I call into question the IQ level of all those in favor of captial punishment.
personanonngrata – exactly what are you questioning, the original test, the artificial level they are set at?
Paul C. Schulte
Dredd – if that is an example of Stanford’s psychology, we are all in trouble. I would posit that be most virulent social sickness we have is liberalism/progressivism. However, I doubt if psychology is going to help with that when it cannot stop a young man from killing 6 people this last week.
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I contacted them about that.
They said they were waiting for a god, Alito, you, or “the religious sciences” to act first to stop all such violence and suffering magically.
That did not happen, you all failed, so they continue with un-magic science.
More hard work than it is fun, unlike Barbie, and Luddite imaginings of hypocrites like Alito (explained in the gobbled comment WordMess ate).
Dredd – if Stanford is so hot it should be able to stop a kid from killing 6 people?
WordMess gobbled up another comment of mine.
Please recover it, it did not have too many links or any other violation.
“Writing for Chief Justice Roberts and Associate Justices Scalia, and Thomas, Alito wrote”:
(Jonathan Turley quoting Alito’s dissent). Alito wrote and thinks with supreme hypocrisy.
The Supreme Court goes back and changes its opinions sometimes years after they opinion is released to the public:
(This Is Your Brain On Propaganda – 5).
Dredd, I recovered your comment.
Folks, Dredd’s comment is above at 6:17.
Paul C. Schulte
Dredd – Psychology Today is for people who know nothing about psychology. It is psychology lite.
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Justice Alito lite,
Why do you think it was quoted for you?
The number one psychology curriculum in American Universities is located at Stanford, according to estimates I linked to up-thread (Thanks JT for freeing it from WordMess).
The psychology department there teaches the students who will be future brain surgeons about the brain and how it works, in terms of, inter alia, physical circuity (neuroscience).
Using the most modern scientific of techniques in their laboratories, they have discovered capabilities in microbes to rewire the brains of mammals (The Germ Theory – of Government – 9). One of the purest of hard sciences, neuroscience, is taught in the psychology departments of universities.
Psychology is a, if not the, science that we need the most to cure the social sicknesses that bring us closer and closer to human extinction.
Dredd – if that is an example of Stanford’s psychology, we are all in trouble. I would posit that be most virulent social sickness we have is liberalism/progressivism. However, I doubt if psychology is going to help with that when it cannot stop a young man from killing 6 people this last week.
Anyone who doesn’t want to die and does not purposely fail an I.Q. test, shows by their actions they are too mentally incompetent to execute.
“This is exactly what the elites did in the days of Galileo.”
Yes, the religious elites found Galileo guilty of heresy and sentenced him to life imprisonment. Because of his age and poor health, he was allowed to serve his imprisonment under house arrest.
*****
This time, Galileo’s technical argument didn’t win the day. On June 22, 1633, the Church handed down the following order: “We pronounce, judge, and declare, that you, the said Galileo… have rendered yourself vehemently suspected by this Holy Office of heresy, that is, of having believed and held the doctrine (which is false and contrary to the Holy and Divine Scriptures) that the sun is the center of the world, and that it does not move from east to west, and that the earth does move, and is not the center of the world.”
http://www.history.com/this-day-in-history/galileo-is-convicted-of-heresy
Elaine M wrote: “Yes, the religious elites found Galileo guilty of heresy and sentenced him to life imprisonment.”
Being “religious” had nothing to do with it. I hope you understand that the Church at that time was intimately connected with science. The Church established the universities and paid the salaries of all scientists, including Galileo. The Church literally paid for both Galileo’s education and career. His grave today lies in a church in Florence, the Basilica of Santa Croce. I saw it there myself just months ago.
Science eventually divorced itself from the Church, and government took over the role of paying scientists. The elites in authority today might not be religious, but they operate by the same motivation as the elites of Galileo’s time. It is a case of power corrupts. Now they vote to declare Creationist theories heresy and the laws are crafted to censor the teaching of these theories in public education. Scientists who embrace such theories are ostracized from publication and fired from their jobs, just like Galileo was. The players change, the terminology changes, but the effects are the same.
davidm:
De revolutionibus orbium coelestium (On the Revolutions of the Celestial Spheres), was published just before Copernicus’ death but his proof dates at least twenty years before that. Maybe you mean its acceptance took time beyond his death. That’s likely true. The crowd now that believes the Genesis fairy tale are the successors in intellect to the ones who wouldn’t believe Copernicus then.
mespo – at worst Genesis is mythology, not a fairy tale. Need to get your terminology right. 😉
mespo wrote: “The crowd now that believes the Genesis fairy tale are the successors in intellect to the ones who wouldn’t believe Copernicus then.”
I don’t know about the Genesis fairy tale, but science fails when authorities get involved to determine what is the right science. That’s what happened with Copernicus and Galileo. The Ptolemaic theory provided rather accurate mathematical predictions so the authorities saw no good reason to change their understanding of the facts. Today, science enjoys a good deal of respectability and is entangled deeply with government, so the elites in authority vote for what constitutes good science. This is exactly what the elites did in the days of Galileo. They voted about what constituted good science, and Galileo and Copernicus were voted out of favor. Today we know that the science authorities back then were wrong on certain major points. In regards to scientific theories of Intelligent Design today, it may take a very long time, but hopefully future generations will see past all the voting and be more open to consider all the new data being discovered. After all, facts are facts, regardless of the voting, and the power of censorship cannot restrain the advancement of knowledge forever.
This case also seems to clarify, by negative implication, where and when a death penalty would be appropriate.
Consider the logic for awarding punitive damages in fraud cases and compare it to the deterrent and retributive value for permitting the death penalty.
WALKER v. SHELDON 10 N.Y.2d 401 (1961)
“Exemplary damages are more likely to serve their desired purpose of deterring similar conduct in a fraud case, such as that before us, than in any other area of tort. One who acts out of anger or hate, for instance, in committing assault or libel, is not likely to be deterred by the fear of punitive damages. On the other hand, those who deliberately and cooly engage in a far-flung fraudulent scheme, systematically conducted for profit, are very much more likely to pause and consider the consequences if they have to pay more than the actual loss suffered by an individual plaintiff. … It stands to reason that the chances of deterring him are materially increased by subjecting him to the payment of punitive damages.”
Just as punishing those with an intellectual disability serves no deterrent or retributive purpose, reserving the death penalty for those who who “deliberately and cooly engage [in a scheme that results in the death of another]”, makes far more sense than executing all those who kill “out of anger or hate.”
The death penalty should be reserved as the ultimate third rail and focused on those who are in a position to use fraud and deceit leading to the deaths of others.
Seems to me that if we had such laws in place at the beginning of this century, the idea of defrauding the country into war or outing a CIA agents would have been far less appealing to the would-be wrong-doers and those they asked to do their bidding.
Stephen King has a plan for turning low IQs into high performance IQs.
Chuck S or Mark E, etc.,
My last comment was cleansed yet did not get through the psychologically troubled WordMess.
The first one had too many links, so I deleted all but one link and reposted it.
Please retrieve.
I have released your comment below.
Here is a ranking for 2013 on Universities with a psychology curriculum:
(US News & World Report). Are you listening Justice Alito?
What Charlton S. Stanley, PhD, ABPP said too.
What Mark E (mespo727272) said.
Columbia University has a strong psychology curriculum:
(Columbia University Psychology Department, emphasis added). Paul S. should have taken those psychology classes.
Paul,
Narcissistic Personality Disorder is still there. Definitions have become a bit more precise and detailed in the DSM5 since the publication of the DSM-IV. That is the result of ongoing research. Did you know that at one time, Dr. Charles Krauthammer was one of the country’s leading experts on bipolar disorder? His research is dated now, but he would be one of the first to tell you that’s the way it’s supposed to be. DSM5 information at the link. PDF warning, may load slow.
http://www.psi.uba.ar/academica/carrerasdegrado/psicologia/sitios_catedras/practicas_profesionales/820_clinica_tr_personalidad_psicosis/material/dsm.pdf
There are a lot of things in medicine, psychology, physical sciences and law that were accepted at one time or another, but as the science got better and more awareness of what is just, those things changed.