Hello readers, and happy “Spring Forward”! This week I’d like to discuss a case that deals with some very sensitive issues — namely, intellectual disabilities (known more commonly by the offensive term “mental retardation”) and the death penalty. I would like to say up front that I struggle with the concept of the death penalty and I am not an expert in this area of judicial debate. As such, this week’s column will be less of “my take” on a Supreme Court case and more of a purely informational report. Please understand that it is not my intent to offend or upset any of my readership, and if I have misspoken or used incorrect language, please contact me and let me know how I can better discuss these topics. [Note: legal opinions still use the term “mental retardation,” but when not directly quoting from these opinions, I will use the term “intellectual disabilities.”]
Last Monday, March 3, the Supreme Court heard the oral argument for a case that ThinkProgress called “The Biggest Death Penalty Case In Nearly A Decade.” Hall v. Florida seeks to answer the question of “whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia,” a case from twelve years ago in which the Supreme Court decided that “death is not a suitable punishment for a mentally retarded criminal.” Hall v. Florida was brought on behalf of Freddie Lee Hall, an inmate in Florida who has been on death row since 1978 for the murder of Karol Hurst, a “pregnant twenty-one-year-old housewife” who “disappeared from a grocery store parking lot in Leesburg, Florida” and was found dead a day later in another county (from SCOTUSblog). Hall was convicted twice, and “has repeatedly attempted to avoid execution by claiming mental incapacity.” He did test positively for intellectual disabilities, at one time showing “an IQ test score of sixty,” but “the state court would rule later in his case that a more recent test showed a score of seventy-one.”
With an IQ of 71, Hall was then unable to argue for an intellectual disability that would protect him from the death penalty under the Atkins decision. Again, in Atkins, the Supreme Court ruled that the death penalty could not be applied to any individual with intellectual disabilities; however, “the Florida Supreme Court interpreted an existing state law defining mental retardation to mean that the individual’s IQ score had to be seventy or below” a year after Atkins was decided (from SCOTUSblog). With Hall’s score of 71, he was unable to escape the death penalty under the Florida statute, despite the holding in Atkins that should have protected him. So why was Florida able to create such a law and sentence Hall to death?
As ThinkProgress explains, “the Atkins opinion also contains a loophole that renders it virtually meaningless in many cases.” When Atkins was decided in 2002, Justice John Paul Stevens wrote the decision for the 6-3 majority and held that executions of intellectually disabled persons are considered “‘cruel and unusual punishments’ prohibited by the Eighth Amendment” (from Oyez). However, he also wrote, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences” (from the Atkins decision itself) following the precedent set by Ford v. Wainwright, a 1986 case that addressed the death penalty for “the insane.” Stevens’ approach, clearly grounded in federalism, gave to the States the power to decide how to quantify intellectual disabilities, thereby enabling the Florida Supreme Court to uphold the law now up for review in Hall v. Florida.
In the oral argument on March 3, there seemed to be “little doubt that Florida and six other states will not be allowed to maintain an automatic test-score-based cutoff for those who could qualify as mentally retarded and thus can escape the death penalty” (from SCOTUSblog). Justices Scalia and Alito, both notable defenders of states’ rights, supported Florida in its argument that “the scientific community cannot be trusted to make the rules for eligibility for capital punishment,” but “most of the other justices joined in the pursuit of an Eighth Amendment rule that would assure that the mental retardation inquiry was sophisticated and nuanced.”
It is important to note that “Florida is one of only five states that have set an inflexible line for determining intellectual disability in capital cases” (from NPR). The other states are Alabama, Idaho, Kentucky and Virginia, and “only two claims of mental retardation have been successful in those states since 2002, according to a Cornell University study.” That translates to a successful challenge rate of roughly two percent in those five states, “compared to a twenty-eight percent success rate in the other forty-five states.” These low numbers are part of why the stakes in Hall v. Florida are so high — whatever the Court decides, its holding will affect intellectually disabled people in more than just the Sunshine State.
Justice Kagan was especially vocal in her criticism of Florida’s law, challenging Florida’s solicitor general, Allen Winsor, by stating that “throughout its death penalty jurisprudence, the Court has always allowed those facing that potential sentence to make the best case they could to try to avoid it, and yet Florida had adopted a flat rule that cut off the plea for anyone who had measured above 70 on an IQ test” (from SCOTUSblog). She then continued by suggesting that some individuals testing over 70 in an IQ test might still be intellectually disabled, “and thus entitled to the protection the Supreme Court had previously given to those in that category.”
Interestingly, it seemed that Justice Kennedy agreed with Kagan, asking Florida the not-so-simple question of “why Florida would have adopted its flat IQ rule.” Kennedy is a supporter of states’ rights, but he also “has been the current court’s most ardent defender of Eighth Amendment rights” (from the Wall Street Journal), having ruled with the majority in Atkins alongside Justices Stevens, O’Connor, Souter, Ginsburg and Breyer. He continued to pressure Solicitor General Winsor with the following question: “The last 10 people Florida has executed have spent an average of 24.9 years on death row. Is that consistent with the purposes the death penalty is designed to serve, and is it consistent with an orderly administration of justice?” If Justice Kennedy joins Justices Ginsburg, Breyer, Sotomayor and Kagan, Florida’s law will be struck down. I wonder, though, whether the decision in Hall v. Florida will address the Atkins loophole, and, if so, whether it will create a uniform precedent for each state to follow. We’ll see when the Court releases its decision in June.