I am sitting in front of a stack of Supreme Court briefs, hundreds of pages of legal reasoning and case citations, filled with psychological standards and statistics, all arguing over something that is as much a matter of morality and medicine as it one of law. The question on the table, and the one to be argued Monday at the United States Supreme Court, is whether we are going to continue to execute "mentally retarded"* people in America 12 years after the highest court in the land declared that we could not.
I am sitting in front of a stack of papers, written by lawyers for judges, written by bright young men and women, who have rightly focused upon the duality of the issues presented in Hall v. Florida, the case the justices in Washington selected from many options to clarify the scope of their ruling in Atkins v. Virginia. That was the brave and ennobling 2002 decision authored by Justice John Paul Stevens (and joined, notably, by Justice Anthony Kennedy) that was supposed to prohibit one of the most odious aspects of capital punishment in America.
I am sitting in front of the language of the law, and I know that it will be this language that decides this case, but the truth is you don't need to be a lawyer or a legal analyst to understand what this dispute is all about. It's about Florida saying that its rigid test to determine which intellectually disabled people should be executed—a test that arrogantly refuses to acknowledge a standard error of measurement universally embraced by the scientific community—nonetheless deserves the respect of the people and the trust of the courts. It does not.
So this case may be about Freddie Lee Hall, the convicted murderer Florida wants to execute even though its courts concluded long ago that he "was mentally retarded his whole life." But in a symbolic way it's also about Marvin Wilson, the man Texas executed in August 2012 even though he sucked his thumb and could not tell the difference between left and right. And it's about Warren Lee Hill, the man Georgia wants to execute even though no mental health expert who has evaluated him now believes that he is anything other than intellectually disabled.
It's about every intellectually disabled man or woman who still faces execution in America today despite the mandate of Atkins. And it's about the gall of officials in states like Alabama, Kentucky, Virginia, and Idaho who argue that the justices should respect the "objective decision-making" of state officials in making determinations of "mental retardation" by ignoring the objective best-practices universally employed by the nation's leading clinicians. These states aren't just outliers in constitutional law—they are outliers in science and medicine, too.
The United States v. Florida
The first duality in Hall v. Florida is the tension Atkins tolerated between federal constitutional principles and state authority. The Eighth Amendment's prohibition against "cruel and unusual punishment," the Court declared in Atkins, precludes the execution of those whose intellectual disabilities "diminish their personal culpability," the ability to control impulses, and the ability to understand the nature of the punishment imposed upon them. But, in a fateful compromise, the justices permitted states to continue to develop "appropriate ways to enforce the constitutional restriction."
In Florida, this freedom means a statute that has been interpreted by the state supreme court to bar anyone who does not have an IQ test score of 70 or under from asserting that he or she is "mentally retarded" and thus protected from execution by Atkins. The statute, you should know, does not contain language to that effect. The bright-line test instead was imposed in 2007 by the Florida Supreme Court. The result is that an intellectually disabled person with an IQ rating within the clinical range of "retardation"—65-75—can still be executed.
A person, in other words, precisely like Freddie Lee Hall. When his cause came before the Florida courts, long after Atkins, a prosecutor answered the testimony of a psychologist who had testified on behalf of Hall: "Dr. Pritchard is reciting a clinician's approach to mental retardation, which I submit is not relevant to this proceeding. Because under the law, if an IQ is above 70, a person is not mentally retarded," no matter what the clinicians may say. In this way has Florida used the authority given to it in Atkins to disassociate medical diagnoses from medicine.
Lawmakers and judges love bright-line tests. You are either above or below, in or out, "retarded" or not. The problem with applying such a test to evaluations of intellectual disability is that the science of the mind cannot be reduced to a definitive mathematical equation. And, even if it could be, Florida's standard refuses to acknowledge any "standard error of measurement" in testing IQ scores. The test score counts to the exclusion of all other evidence of retardation, no matter how compelling that evidence may be.
In other words, Florida is so much more comfortable than psychologists about definitively determining "retardation" that its lawmakers and judges won't even contemplate possible inaccuracies in its standard. This means that if the justices don't stop Florida, the state will execute a man, Hall, who was described by the Florida Supreme Court many years ago as being "retarded all his life," whose teachers consistently described him as "mentally retarded," whose speech often is incomprehensible, whose physical functions are at a first grade level, and whose recent IQ test scores have consistently placed him within the range of 65-75, hovering at Florida's fatal line.
Florida v. Medicine
The first duality has spawned the second. Given the power by the Supreme Court in Atkins to develop ways to determine when convicted murderers are "mentally retarded," states like Florida argue that those determinations should be free from what officials call the "evolving and often contradictory clinical standards advanced by mental health organizations." The states, in other words, want to be bound neither by a national standard of what such intellectual disability is or by some federal rule. But how much deference does a law like this deserve when it is proudly based upon the opposite of the best practices it regulates?
"A fair review of Florida's standard demonstrates that it generally conforms to the clinical definitions and, by promoting administrability and accuracy, advances important state interests," state attorneys have told the justices. What Florida really is telling the court is that even if its test for "mental retardation" isn't perfect, even if it does not conform to best medical practices, even if would result in the execution of some mentally retarded inmates, even though it brooks no nod to standard errors of measurement, it's still constitutional under the breadth and width of Atkins.
Moreover, Florida in its briefs uses proof of the consistent advancements in the diagnoses and treatment of the intellectually disabled against Hall. They do so by calling this progress "change" and proclaiming that their law justifiably guards against the chaos such change brings. "The clinical definition of mental retardation—like the attendant labels—is in constant flux," they argue, and this is a bad thing since certainty and finality are vital in any capital regime. "If the Eighth Amendment required courts to apply consensus clinical definitions, the law would change every time the definitions did," Florida contends.
Left unsaid in Florida's briefs is the notion that its lawmakers stand ready to continually update the state's definition of "mental retardation" to ensure the accuracy of its diagnoses in cases involving condemned prisoners. Instead, ironically proving Hall's point that states cannot be trusted to implement Atkins, the Florida brief brims with with hostility toward the medical and psychological community. "There is evidence suggesting," Florida wants the justices to know, "that these organizations—and the diagnostic guides they produce—are not immune from political considerations."
Perhaps the most cynical component to Florida's defense of its standard (a component that existed when Texas executed Wilson and that exists today as Georgia tries to execute Warren Lee Hill) is the reliance officials claim to place on the structure of the law. It is there, they write, they came by it fairly, it will be implemented in a neutral manner, it is reasonable and contains appropriate procedural safeguards. But they write these things about a man the Florida Supreme Court once declared to be "mentally retarded his whole life."
The story of the execution of the "mentally retarded" in America since Atkins, the story of Marvin Wilson, for example, is simple: rather than abide by the spirit of that ruling, rather than look for ways to implement it to spare from execution prisoners in borderline cases, states like Florida have gone in the opposite direction. They have embraced new ways to ensure that prisoners in borderline cases are executed anyway. That's why and how Freddie Lee Hall all of a sudden—poof!—became un-mentally retarded in the eyes of Florida law.
Judges make law. In this case the law intersects with medicine. The Supreme Court should tether its decision in Hall not just to the compelling moral logic of Atkins but to the common-sense logic inherent in the idea that intellectual disability within any human being cannot be measured by a bright-line test that brooks no "error of measurement" science has long embraced. The justices must not defer to the states here but they should defer, or at least be guided by, the consensus of the medical community.
I have followed these cases for the past 12 years. I have seen state attorneys contort their arguments to evade Atkins—indeed, that's precisely what Florida is doing here, saying that a ruling that prohibits the execution of the "mentally retarded" doesn't prohibit the execution of a "mentally retarded" man. I have read enough state briefs that say, in effect: "This man isn't mentally retarded enough to evade execution and, anyway, all doubts about his disability should be resolved in favor of the state." What ought to end this immoral practice, once and for all, is the following conclusion, from the American Psychological Association's friend-of-the-court brief in Hall:
Florida’s use of a fixed IQ score cutoff to identify defendants with intellectual disabilities goes against the unanimous professional consensus by treating intellectual and adaptive functioning as sequential and disjunctive inquiries. In the present case, for example, the Supreme Court of Florida explained that because “the failure to establish any one element” of intellectual disability will “end the inquiry,” it was proper for the lower court to limit Hall’s introduction of evidence of his adaptive functioning “after he failed to establish the requisite IQ” of 70 or below. Hall, 109 So. 3d at 710. That holding conflicts with the generally accepted professional standard for diagnosis.
Contrary to the Florida court’s determination, 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. As the DSM-5 explains, “IQ test scores are approximations of conceptual functioning but may be insufficient to assess reasoning in real-life situations and mastery of practical tasks.” DSM-5 at 37. “For example, a person with an IQ score above 70 may have such severe adaptive behavior problems in social judgment, social understanding, and other areas of adaptive functioning that the person’s actual functioning is comparable to that of individuals with a lower IQ score.”
Thus, the decision to “end the inquiry” and preclude any evidence of limitations in adaptive functioning when a capital defendant scores above 70 on a standardized IQ test is the opposite of what is required by clinically accepted diagnostic methods. Instead, a thorough evaluation of adaptive functioning is crucial in that situation, because limitations in adaptive functioning among individuals with IQ scores in this range are what allow qualified professionals to make a clinically valid diagnosis of intellectual disability.
If the Supreme Court meant what it said in Atkins, the justices must loudly declare that the execution of the mentally retarded in America will not be tolerated, either as a nod to states' rights or for any other hoary justification. The Court must say that states must do more not to justify their preconceived desire to execute convicted murderers but rather to acknowledge that in matters of the human mind there never can be the sort of precision that can justify a bright-line test administered by bureaucrats. Atkins must be reinforced, not abandoned.
The majority opinion in this case almost certainly will be written by Justice Kennedy, an ardent supporter of states rights, who supported Atkins and who has since supported other important expansions of the protections afforded by the Eighth Amendment. But a decision that buttresses Atkins necessarily will a be a decision that diminishes the ability of states to gin up more excuses and tests that lead to the execution of the intellectually disabled. For better or worse, this duality inside this justice will determine the fate of Freddie Lee Hall.
* While now outdated in common usage and considered offensive by many, the phrase "mental retardation" is a legal term of art still employed by the courts. I use it here only for ease of reference
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