The Court's Emphatic Ban on Executing the Intellectually Disabled

A divided court doubled down on its 2002 Atkins decision, ruling that Florida can't kill Freddie Lee Hall just because his IQ has sometimes passed an arbitrary mark.

By the narrowest of margins, the U.S. Supreme Court Monday spared for now the life of Freddie Lee Hall, a convicted murderer in Florida who had sought succor under the shadow of Atkins v. Virginia, the Court’s 2002 decision that purported to outlaw the execution of the intellectually disabled in America. To understand why the Court’s ruling in Hall v. Florida is just, it’s instructive to review just how hard Florida has tried to execute Hall over the decades.

The plaintiff came to death row in 1978 after killing a pregnant woman and a deputy sheriff. Before Atkins, the Florida Supreme Court had declared that Hall had been significantly “mentally retarded” his whole life but that he still was eligible for the death penalty because there was no constitutional rule precluding such executions. Then, in Atkins, the Supreme Court by a vote of 6-3 recognized just such a rule, declaring that the execution of the intellectually disabled was a violation of the Eighth Amendment. So Florida promptly changed its tune and declared that Hall was not mentally disabled enough after all.

Under the state’s post-Atkins standard, overwhelming evidence that Hall is functionally illiterate, is unable to understand adult conversation or activities, and was developmentally disabled as a child was irrelevant to determining whether he fell under the Atkins exception. This was so in Florida because his IQ-test scores hovered between 60 and 80, often above the arbitrary cutoff of 70 that the state had adopted. To make matters more definitive, at least from the state’s perspective, officials refused to account for any standard error of measurement embraced by the scientific community.

In this way Florida—and states like Georgia and Texas, too—flouted the Atkins rule by rendering its mandate almost unrecognizable. Can’t lawfully execute the mentally disabled? No problem, they concluded, we’ll just change the definition of disability. That will be much harder to do after Tuesday’s ruling. By a 5-4 vote, with Justice Anthony Kennedy again the swing vote, the Court has refined and broadened Atkins’s scope. Florida’s onerous rule “disregards established medical practices,” Kennedy wrote for the majority, and those practices require courts to consider the sort of evidence Florida refused to consider in Hall’s case. Will it be enough to spare his life for good? Stay tuned.

It is significant—fitting, even—that Kennedy, the great defender of states’ rights, would come down so squarely against the state’s interest here. It ought to signal how far afield the Florida Supreme Court went to endorse Hall's execution. It is also significant that the Court’s majority shored Atkins up not in clinical terms but by devoting significant space in its opinion to a description, in the plainest and most wrenching terms, of the scope of Hall’s cognitive disabilities and the impact they have had upon his life.

Hall could not assist in his own defense, for example, because his lawyer found him to have a "mental … level much lower than his age" at best comparable to the lawyer’s 4-year-old daughter.” Another attorney from another case came forward years ago to testify that he “couldn’t really understand anything [Hall] said” because of his disability. Kennedy noted that Hall’s “siblings testified that there was something ‘very wrong’ with him as a child,” which probably helps explain, in the words of Hall’s sentencing judge, why he was raised “under the most horrible family circumstances imaginable.”

This evidence was before Florida officials for years, was ignored by those officials even after Atkins, and now is part of a Supreme Court majority opinion which declares it not just relevant but perhaps dispositive to the outcome of the case. The Court thus has forced state officials and lower-court judges to back away from the dry formalism they have relied upon to execute the cognitively disabled. Florida’s IQ-test rule, Kennedy concluded

disregards established medical practice in two interrelated ways. It takes an IQ score as final and conclusive evidence of a defendant’s intellectual capacity, when experts in the field would consider other evidence. It also relies on a purportedly scientific measurement of the defendant’s abilities, his IQ score, while refusing to recognize that the score is, on its own terms, imprecise.

More than that, though, Hall signals to officials in other states that the Court meant what it said in Atkins. “If the States were to have complete autonomy to define intellectual disability as they wished, the Court’s decision in Atkins could become a nullity, and the Eight Amendment’s protection of human dignity would not become a reality.” Kennedy wrote. “This Court thus reads Atkins to provide substantial guidance on the definition of intellectual disability.” This clarification comes too late for Marvin Wilson, a severely mentally disabled man Texas killed two years ago. But it comes just in time, perhaps, for men like Hall and Warren Lee Hill in Georgia.

The dissent in Hall v. Florida, written by Justice Samuel Alito, is also striking. It is nearly as long as the majority opinion and it presents an argument that Justice Antonin Scalia would surely have ridiculed had he not signed onto it. Florida is free to continue to execute mentally disabled people even though the Supreme Court has prohibited the practice, the dissenters suggest, because when it comes to recognizing and defining cognitive disabilities among death-row inmates the American people in their infinite wisdom know better than “a small professional elite” who have devoted their professional lives to the study of intellectual disability.

Florida’s bright-line test is “sensible,” Alito and company conclude, because “it comports with the longstanding belief that IQ tests are the best measure of intellectual functioning.” Besides, the dissenters argue, “Florida’s system already accounts for the risk of testing error by allowing the introduction of multiple test scores.” But of course that’s beside the point. The point the doctors have made, and the majority has adopted, is that these tests don’t tell the full story of a person’s cognitive disability, whether you conduct one or 100 of them.

The dissent is full of statistical analysis but the gist of it is simple. The old Florida rule was going to result in the execution of more convicted murderers in borderline case of intellectual disability—and the dissenters are comfortable with the reasonable risk that the mentally disabled may be put to death. The new rule, on the other hand, will result in fewer executions, because the nation’s medical community will have more input into the diagnoses of mental disability—and the dissenters are uncomfortable with what they consider the “sea change” such professional interaction will entail.

Perhaps the most illustrative line in the dissent is near its end. “Florida’s approach “promotes consistency in the application of the death penalty and confidence that it is not being administered haphazardly,” Alito wrote—in the case of a man who cannot speak intelligibly or read proficiently, with the bearing of a 4-year-old, who once, before Atkins, was declared "mentally retarded" by the Florida Supreme Court. An approach that “promotes consistency in the application of the death penalty” would incorporate all it could to ensure the most accurate result, and that is precisely what the dissenting justices eschew in the name of “administration.”

But Hall v. Florida is a ruling about science and medicine as much as it is about law and logic, and it is welcome news at a time when there is great partisan conflict between law on one hand and science on the other. Kennedy and his colleagues have filled the void left by Atkins with the information and evidence and knowledge and even perhaps the wisdom the nation’s best medical minds can bear upon the topic. Doctors will now have a larger say in who lives and who dies in these states, and why shouldn’t they? Because prosecutors or judges know better? Because a state or a society benefits from killing a person whose mental capabilities preclude him from fully understanding why?

“The Constitution means nothing if states may avoid enforcing it by adopting definitions and limitations that exclude from protection the very people who are supposed to be covered by its provisions,” Yale Law School lecturer and death-penalty expert Stephen Bright told me Tuesday. That’s precisely what Florida did to Hall in the wake of the Atkins ruling, and it is precisely what the Court has just declared can no longer be done. That four justices on the Court would consider this an exceptional proposition says more about them than it does about Hall or any of the other mentally disabled men facing execution today.

The point of the Eighth Amendment is not to make things convenient for executioners. It is not to embrace a life-or-death policy or practice that accepts a reasonable error rate in the name of finality or judicial economy. The point of the Eighth Amendment is to ensure that citizens who are not supposed to be executed are not executed. This surely is what Kennedy meant when he wrote that Florida’s law “contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world.” That world is a little more civilized today thanks to Hall v. Florida.