Hall v. Florida: Florida's IQ Cutoff Creates Unacceptable Risk of Eighth Amendment Violations

JURIST Guest Columnist Paul M. Smith of Jenner & Block discusses the recent oral arguments in Hall v. Florida...

In 2002, the US Supreme Court held in Atkins v. Virginia that the prohibition on cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution forbids the execution of criminal defendants with "mental retardation" (now usually referred to as "intellectual disability").

But rather than set out an exact process for determining whether an offender has intellectual disability, the court in Atkins decided to "leave to the [s]tates the task of developing appropriate ways to enforce the constitutional restriction." The court noted, however, that existing state statutes already prohibiting the execution of such defendants "generally conform[ed] to the clinical definitions" of intellectual disability, which require "significantly subaverage intellectual functioning" and "significant limitations in adaptive functioning" that occur before age eighteen.

The question presented in Hall v. Florida, which was argued before the US Supreme Court on March 3,2014, is whether Florida's method of identifying defendants with intellectual disability does not "enforce the constitutional restriction" guaranteed by Atkins, but instead violates the Eighth Amendment by allowing the execution of offenders who are in fact disabled.

On its face, Florida's statute defining intellectual disability appears to conform to the clinical definitions discussed in Atkins: it requires a defendant to establish (1) significantly subaverage general intellectual functioning that (2) exists concurrently with deficits in adaptive behavior and (3) occurred before age 18. But Florida's Supreme Court has held that a defendant cannot show significantly subaverage general intellectual functioning unless he scores 70 or below on a standardized IQ test. In other words, if a defendant scores 71 or above, the Florida courts may not consider any other evidence of intellectual disability (no matter how compelling) and the defendant is eligible for execution as a matter of law.

The problem with this approach is that IQ tests are not perfect—like all standardized tests, they have a margin of error. To account for that margin of error, the creators of IQ tests calculate what is called a "standard error of measurement" or "SEM" for the test. The SEM in turn allows the test creators to calculate a "confidence interval" for the test score. The confidence interval for commonly used IQ tests is plus or minus five points. In practice, this means that the most that can be inferred from a score of 71 is the ability to state with 95% confidence that the individual's true IQ is somewhere between 66 and 76.

The consequence of this for Hall is that even if it is acceptable under Atkins to define "significantly subaverage general intellectual functioning" as an IQ of 70 or below, a defendant's score on an IQ test does not reveal his true IQ. When the SEM is considered, a defendant who scores up to 75 could have a true IQ of 70 or below. Hall is therefore asking the court to hold that if Florida decides to use IQ test scores as a proxy for intellectual functioning, it must account for the SEM and allow defendants with scores up to 75 to present further evidence of intellectual disability.

Hall's position is supported by the professional organizations of psychiatrists and psychologists that established the clinical definitions of intellectual disability cited in Atkins. There is universal agreement among those organizations that an individual who scores up to 75 on an IQ test may be diagnosed with intellectual disability if there is sufficient evidence that the individual also has significant limitations in adaptive functioning (a term referring to life skills such as communication, self-care, and social skills), and the onset of the disability occurred before age 18. According to this professional consensus, the way to obtain a valid diagnosis when an individual scores from 71 to 75 on an IQ test is not to prohibit further inquiry, as Florida mandates, but to thoroughly evaluate the other evidence.

Florida does not dispute that IQ tests are imperfect, that the creators of IQ tests intended the scores to be considered with the standard error of measurement, or that the clinical definitions of intellectual disability allow for the diagnosis of individuals who score above 70 on an IQ test. At oral argument, Florida's Solicitor General Allen Winsor conceded that "true IQ is something that is incapable of being measured" by standardized tests.

Instead, Florida has taken the position that regardless of that professional consensus, it is entitled under Atkins to establish its own legal definition of intellectual disability with the express purpose of minimizing the number of offenders who fall under the Eighth Amendment's protection.

Florida's brief (PDF) opens by challenging the notion that "Florida's definition of mental retardation" should "yield to medical or clinical criteria." During oral argument, the Justices repeatedly reminded Winsor that the only consequence of adopting Hall's approach would be to require Florida courts to consider additional evidence of intellectual and adaptive functioning before deciding whether a defendant met the definition of intellectual disability. When Justice Breyer bluntly asked "what is so terrible" about allowing consideration of the other factors, Florida's Solicitor General responded: "What is so terrible about doing it is you would end up increasing the proportion of people, the number of people who would be eligible for a mental retardation finding." Later, Winsor stated that an increase in the number of defendants diagnosed with intellectual disability would be "inconsistent with Florida's purposes of the death penalty."

Florida's position should be unacceptable to the court. The court held in Atkins that the recognized justifications for the death penalty—retribution and deterrence—do not apply to offenders with intellectual disability, because their "cognitive and behavioral impairments" both make those offenders "less morally culpable" and "make 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." In other words, if a defendant is intellectually disabled, Florida has no constitutional interest in pursuing his execution. Allowing Florida's stated desire to maximize capital punishment to influence how it decides who is protected by Atkins would completely distort this holding.

Instead, a state's procedures for enforcing the Eighth Amendment must conform to the court's "narrowing jurisprudence," which the court recognized in Atkins "seeks to ensure that only the most deserving of execution are put to death." Florida's procedure falls far short of this standard. By truncating the inquiry into a defendant's Atkins claim based solely on an IQ score within the margin of error, Florida creates an unacceptable risk that offenders with intellectual disability will be executed in violation of the Eighth Amendment. The court should use this opportunity to clarify its holding in Atkins and ensure that the protections of the Eighth Amendment are meaningful nationwide.

Paul M. Smith is a partner in Jenner & Block's Washington, DC office, where he chairs the firm's Appellate & Supreme Court Practice. Mr. Smith has argued fifteen Supreme Court cases, including Harris v. Quinn (2014) (First Amendment and union dues), Brown v. EMA (First Amendment and violent video games), and Lawrence v. Texas, the landmark gay rights case. Mr. Smith graduated from Amherst College and Yale Law School and clerked for Supreme Court Justice Lewis F. Powell Jr. He is a member of the ABA House of Delegates. He is also a member of, and former Chair of, the Board of the American Constitution Society and a former Co-Chair of Lambda Legal. In 2010, the National Law Journal named him one of the 40 Most Influential Lawyers of the Past Decade. That same year, he received the Thurgood Marshall Award from the ABA Section of Individual Rights and Responsibilities for work promoting civil rights and civil liberties . In 2012 he received the D.C. Bar's own Thurgood Marshall Award. In 2013 he received the Servant of Justice Award at the annual dinner of the Legal Aid Society of D.C.

Suggested citation: Paul M. Smith, Hall v. Florida: Florida's IQ Cutoff Creates Unacceptable Risk of Eighth Amendment Violations, JURIST - Sidebar, April 2, 2014, http://jurist.org/sidebar/2014/04/paul-smith-hall-death-penalty.php.


This article was prepared for publication by Alexandra Cabonor, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org

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