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.