Freddie Hall is the longest serving of the 397 inmates currently on Florida’s death row. He does not dispute that he committed the horrific crime for which he was sentenced to death in 1978—beating, raping and shooting a 21-year-old woman. And he no longer is pursuing any claims concerning the fairness of his trial. Hall’s sole claim is that he is mentally disabled and thus ineligible for execution. As evidence, he points to his many IQ test scores, the opinions of several clinicians and his poor functioning as both a child and adult.
At issue in the case of Florida v. Hall, argued last month, is whether this is enough. The Supreme Court has only weighed in on this branch of Eighth Amendment jurisprudence on two occasions. In 1989, the Court held in Penry v. Lynaugh that the Eighth Amendment prohibition on “cruel and unusual” punishment did not prohibit the execution of the mentally disabled. Just thirteen years later, in 2002, the Court doubled back on this on this decision in Atkins v. Virginia, holding that the practice had become so “unusual” and disfavored that it no longer was constitutional.
Though the command of the Court was clear enough—under no circumstances can a mentally disabled inmate be executed—the Court provided almost no guidance on how to actually determine whether someone is mentally disabled. The states have accordingly stepped into the breach and developed a host of different standards and methods. Some use multifactor tests that involve a number of different prongs, such as IQ, intellectual functioning and social history; others rely more heavily on IQ scores alone.
Under Florida’s current approach, an inmate must satisfy three separate criteria with clear and convincing evidence to prove that he or she is mentally disabled:
(1) “significantly subaverage general intellectual functioning”;
(2) “existing concurrently with deficits in adaptive behavior”; and
(3) “manifested during the period from conception to 18.”
Though the second, and perhaps the third, criteria leave some room for discretion and interpretation, the Florida Supreme Court has interpreted the first prong as imposing a strict IQ score cutoff. Under Florida law, any inmate who cannot prove by clear and convincing evidence that his or her IQ score is lower than 70 is eligible to be executed and cannot satisfy the first prong; in legal parlance, this is what is often referred to as a “bright-line rule.”
For Freddy Hall, this bright-line may prove fatal. At a December 2009 hearing held to determine whether he was mentally disabled or not, he presented evidence of past IQ test scores of 71, 76, 79, 80, 73, 72 and 69. Labeling the lone score below 70 as an “aberration,” the court rejected his claim because of his inability to demonstrate that his IQ is less than 70.
Before the Court, Hall is arguing that this strict cutoff does not accord with accepted clinical standards. In particular, Hall argues that Florida’s approach is constitutionally deficient because it fails to account for the standard error of measurement that informs any statistically imprecise tool such as an IQ test—and thus does not comport with the best practices of the American Psychiatric Association and the American Association on Intellectual and Developmental Disabilities. Using this approach, IQ scores are estimated within 95 percent confidence intervals, which usually have a spread of 8 to 10 points. For Hall, this would mean that most of his IQ tests resulted in estimates with a lower bound under the cutoff of 70.
Florida has raised a number of objections to Hall’s proposed methodological changes. To begin with, Florida argues that the accepted clinical practice with regards to determining mental disability is unsettled and constantly evolving. Therefore, there is simply no “accepted” standard for it to adopt. Florida also insists that its approach does comport with accepted clinical practice, as everyone agrees that 70 is the generally accepted cutoff. In this respect, Florida argues that incorporating the standard error of measurement would effectively raise this cutoff from 70 to 75—unnecessarily expanding the number of inmates ineligible for execution. It also notes that its approach allows for a series of IQ tests to be administered, as Hall’s case demonstrates, which should eliminate any statistical aberrations.
From a broader perspective, Florida contends that it is simply inappropriate to defer to the private medical community for a constitutional judgment of such importance. If such a delegation of authority were made to clinicians, Florida argues it would create perverse incentives. After all, Florida’s goal is to prevent eligible death row inmates from evading execution, while many in the psychiatric community may seek just the opposite.
At oral argument, Justices Scalia and Alito seemed to support Florida’s assertion that the medical community should not be allowed to determine constitutional standards. At least five other justices, however, appeared to side with Hall. Justice Kennedy, often the swing vote in death penalty decisions, was particularly vocal and repeatedly questioned whether Florida was sincerely trying to determine if inmates are mentally disabled, or simply using an arbitrary cutoff to game the system. With Kennedy’s support, Hall is likely to prevail, although it is not necessarily clear that he will be deemed mentally disabled under the new standard formulated by the Court.
Interestingly enough, Justice Kennedy also peppered Florida’s lawyers with questions about why inmates such as Hall have such lengthy stays on death row; the last ten inmates executed by Florida had been on death row for an average of nearly twenty-five years at the time of their respective executions. Justice Scalia, as he has often done in the past, defended Florida by asserting that the Court itself, and the elaborate procedural mechanisms it has created in the death penalty context, are ultimately to blame. Though collateral to the case, this exchange neatly demonstrates that larger issues are always simmering below the surface when the Court confronts the death penalty. A sweeping decision in Hall may well foreshadow a further narrowing of those eligible for execution in the future.
David Friedman and Thomas Fu are the managing editors of the Stanford Law Review. Contact them at [email protected] and [email protected].