Hall v. Florida: A Cauldron of Scientific Jurisprudence?
Freddie Lee Hall, a man whose mental capacity resembles that of a four year-old, who as a child was “constantly beaten because he was ‘slow’ or because he made simple mistakes,” and whose siblings say plainly there is something “very wrong” with him intellectually, was nearly executed in 2014. Hall’s execution would have been in full accordance with Florida state law and the Supreme Court’s 2002 prohibition on the execution of the intellectually disabled, because his IQ score was 71, 5 above Florida’s bright-line cutoff for intellectual disability. Hall’s case escalated to the U.S. Supreme Court, which ruled his death sentence unconstitutional, admonished the Florida legislature for its poor application of the 2002 Atkins v. Virginia ruling, and required that Hall be retried under the new standard. For Hall and others like him, the Supreme Court’s decision in Hall v. Florida is a major victory. It is also a major victory for the American Psychological Association (APA) and the psychiatric profession as a whole. These professionals had long insisted that Florida’s use of a strict IQ cutoff as the legal criterion for intellectual disability was both inconsistent with the standards of medical practice and morally reprehensible, given that proper diagnosis of intellectual disability is a literal lifesaver for defendants sentenced to death. The Supreme Court’s endorsement of the APA’s expertise should be celebrated, as it creates new advocacy opportunities for the rights of the mentally ill and disabled and greater flexibility in the classification of individuals whose conditions are best treated on a case-by-case basis.
This paper is organized into two sections: First, I examine how the Atkins ruling framed Hall’s road to the Supreme Court and the Hall ruling itself. I evaluate and defend the Hall ruling by addressing the most important arguments against it. Second, I discuss the implications of Hall, primarily through an assessment of the expanding role of the scientific establishment in the courtroom, and argue that modern scientific jurisprudence is an overall positive force.
“Evolving Standards of Decency”: The Historical Context of the Hall Ruling
The Supreme Court’s 2002 ruling in Atkins v. Virginia held that the execution of intellectually disabled persons is unconstitutional. Specifically, the Supreme Court found that under the nation’s “evolving standards of decency,” the death sentence is a cruel and unusual penalty when applied to intellectually disabled criminals. Defendant Atkins’ IQ was reported as 59, below 99.7% of the adult population; his mental age was described as between 9 and 12. Those of this level of intelligence may possess the ability to discern moral right and wrong, but often lack the inhibitions necessary to control their actions, so the death penalty was seen as of limited deterrent efficacy. Pursuant to Atkins, state courts were expected to revise their capital sentencing practices to exclude the intellectually disabled from death row. Although the Supreme Court offered recommendations to the states regarding the definition of “intellectual disability, discussion thereof in “Executing Retributivism: Panetti and the Future of the Eighth Amendment.” Panetti’s case has since been revived; discretion was ultimately left to state courts to determine their legal standard for disability.
Over the next several years, as more cases implicating intellectually disabled criminals rose to the level of state courts, state courts and legislatures began to construct their legal definitions of intellectual disability for the purposes of assessing the death penalty’s legitimacy. Most states followed the Supreme Court’s recommendation in Atkins, employing a bifurcated definition of disability which allowed a quantitative assessment of intellectual functioning (the IQ) as well as a qualitative assessment of adaptive functioning. Regarding quantitative intellectual functioning, the general consensus in the medical community is that an IQ of 70 or below is one potential indicator of at least mild mental disability. However, an IQ score alone does not warrant a diagnosis: intellectual disability is also characterized by sub-average adaptive functioning, a broad term which includes assessments of social functioning and impulsivity. This more subjective criterion, considered by most states’ new policies, proved central to many defenses of intellectual disability. But two states, Virginia and Florida, neglected adaptive functioning and admitted a strict IQ cutoff as the sole determiner of legal intellectual disability. Seven more states had ambiguous policies that, according to Justice Kennedy’s opinion in Hall v. Florida, could also have been interpreted to use a strict cutoff. The remaining 41 states allowed both IQ scores as well as evidence of adaptive functioning to be admitted, instated a higher IQ cutoff by taking into account standard error of measurement, or outright abolished the death penalty. No state made it easier to execute criminals with potential intellectual disability than Florida, which appears to have actively prevented the defense from presenting evidence of reduced adaptive functioning in cases like Hall’s and only allowed IQ test scores. So, in granting certiorari to the petitioner in Hall v. Florida, the Supreme Court chose to target the most restrictive “bright-line” policy on legal intellectual disability.
The Supreme Court’s question in Hall v. Florida is whether a defendant whose IQ is technically above the cutoff can still be considered intellectually disabled for the purposes of preclusion from capital punishment, and, by extension, whether court policies like that in Florida which employ a strict IQ cutoff as the legal definition of disability are constitutional. The Supreme Court answers “no” to both questions.
Freddie Lee Hall was sentenced to the death penalty by a Florida trial court for the 1978 rape and murder of Karol Hurst and, later that night, the murder of sheriff’s deputy Lonnie Coburn. The facts of the case are not widely disputed, although the Florida Supreme Court ultimately reduced Hall’s sentence in the second murder due to insufficient evidence of premeditation—a moot concession, given the death penalty imposed for the rape and murder of Hurst. Hall’s lawyer sought to exonerate him from death row using the now-constitutional defense of intellectual disability. Under Florida law, Hall could only be classified as mentally disabled if his IQ tested below 70, the clinical consensus for disability, and he demonstrated deficient adaptive functioning. Hall’s IQ is generally reported as 71. However, the IQ test was administered to Hall nine times, with scores ranging between 60 and 80; the two scores below 70 were struck on a technicality.
Furthermore, the standard error of measurement (SEM) for the IQ test is ±5 points, a measure taken into account by many state policies, but not Florida’s. In spite of the intention of the legislators who drafted Florida’s statute against execution of the disabled, in practice, the court in Hall failed to acknowledge the SEM, or assumed incorrectly that multiple test results above 70 negated its relevance. For these reasons, the Supreme Court ruled Hall’s death sentence unconstitutional. Justice Kennedy summarizes,
Florida’s rule 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.
Thus, the Supreme Court’s ruling in Hall v. Florida expands on the Atkins injunction on capital punishment for the intellectually disabled by delineating the criteria trial courts must use in assessing intellectual disability. Both IQ score and evidence of adaptive functioning must be taken into account, in broader consistency with the medical community, and the IQ must be treated with a degree of subjectivity, as it is subject to statistical variance and administrative error.
One argument against the Hall ruling is that it threatens federalism. States currently have discretion in determining whether to practice capital punishment at all, a reflection of their differing penological philosophies. Atkins deliberately preserved the right of state courts and legislatures to design their own standards for assessment of intellectual disability, which advocates of judicial federalism would argue is a logical expansion on states’ right to determine the justness of the death penalty. However, this argument does not take into account the rights of disabled convicts, which are breached by the death penalty. The end purpose of federalism is to allow states to expand individual rights, not their own governmental powers. The decision in Hall explicitly refers to the constitutional right against cruel and unusual punishment, effectively admonishing Florida for creating a statute that infringed on the rights of the intellectually disabled. Thus the Hall ruling is not inconsistent with the federalist imperative, as although it confines the legal options of state governments, its effect is a net expansion of civil rights for individuals.
A second argument against Hall is advanced by Justice Alito in his dissenting opinion. It concerns the potential danger of allowing the Supreme Court to be influenced by the norms of the psychiatric profession, rather than legal standards or the norms of American society at large. Alito expresses concern that professional societies like the American Psychological Association (APA)—which, along with other similar organizations, filed a substantial amicus brief in favor of Hall—do not represent “the standards of American society as a whole.” This view is not unwarranted, as the psychiatric profession profits, in theory, from the assumption that the intellectually disabled need and deserve medical treatment rather than carceral incapacitation. However, Alito contradicts this point by citing similar professional associations later in his opinion. Furthermore, the dissenting opinion appears to assume that there is an opinion of “American society as a whole” regarding the metric for intellectual disability, which seems unlikely given that even experts have only recently appeared to arrive at a consensus regarding the diagnostic process. Most Americans are not exposed to intellectual disability on a daily basis and do not possess strong (or informed) opinions regarding its measurement. The amicus briefing, filed jointly by the APA, the Florida Psychological Association, the American Psychiatric Association, and the National Association of Social Workers represents a broad cross-section of those Americans who are occupationally familiar with intellectual disability. That these professional associations all support Hall and the court’s ruling should be taken as an acceptable indication of a social consensus against determining intellectual disability by an IQ criterion alone.
Alito additionally claims that Hall did not individually meet the legal standard of mental disability suggested in Atkins, which requires defendants to demonstrate significant deficiencies in intellectual and adaptive functioning with onset before age 18. A very literal reading of the prosecution’s narrative would show that this is true. As intellectual (but not adaptive) functioning can be assessed by the IQ test, Hall, with an IQ of 71, lies above one criterion for legal intellectual disability, as measured by one metric. However, the latest Diagnostic and Statistical Manual of Mental Disorders (DSM-V) states that “IQ test scores are approximations of conceptual functioning [a subcategory of intellectual functioning] but may be insufficient to assess reasoning in real-life situations and mastery of practical tasks.” Although the IQ is a metric of intellectual functioning, it is certainly not the only metric, as I explain below. Hall’s clear deficiencies in adaptive functioning as well as the subjective testimony presented regarding his abusive parents warrant a further assessment of the extent of his intellectual disability, and the Supreme Court is rightfully wary of Florida’s bright-line cutoff.
Psychological Science in the Courtroom: The Impact of Hall
On its face, Hall v. Florida requires a few basic changes to state policies that employed strict IQ cutoffs rather than the APA’s more rigorous and subjective diagnostic criteria in assessing intellectual disability. Although these changes will likely decrease the likelihood of borderline disabled defendants like Hall being executed, they revive discussion about allowing the scientific community and professional societies to inform Supreme Court jurisprudence. That Hall permits and encourages their growing influence in the courtroom is its most significant impact.
The most immediate and obvious impact of this case is delivered in its syllabus: Florida, along with the other states that employ IQ cutoffs without regard for adaptive functioning or SEM, will have to change its policies. In theory, this reform would be unnecessary if the states had taken a more conservative interpretation of the Atkins ruling and followed its recommendations in 2002. Instead, they effectively waited for the Supreme Court’s Hall, which enhances and encodes the Atkins recommendations. Under Hall, the IQ threshold for intellectual disability is in fact 70 points, but an evaluation of an individual’s disability must also take into account the SEM, specified in Hall as ±5 points,27 effectively creating a new IQ cutoff at 75 points. If used in isolation, this standard would be subject to many of the same issues as the strict IQ cutoff of 70. So, it is essential that state courts recognize that Hall also requires a consideration of subjective and anecdotal evidence of both intellectual and adaptive functioning.
A plausible misreading of Hall would see only the adjusted threshold of IQ 75,29 and assume it is an accurate representation of the difference between intellectual disability and ability. This assumption is false. First, the new threshold of IQ 75 is simply a more conservative version of the already-arbitrary cutoff of 70. Simon Whitaker, an expert on the quantification of intellectual functioning at the University of Huddersfield, notes in our interview30 that 70 is a consensus arrived at by the psychology community only because “it’s a nice round number: divisible by ten, two standard deviations below average, but it does not say anything about the individual.” Additionally, other psychological disorders are not subject to the same disputes over quantification; schizophrenia and depression, for example, are generally diagnosed at the clinician’s discretion based on subjective criteria. A purely subjective assessment of intellectual disability is already preferred by many psychologists for purposes other than exoneration from death row, such as placement in special education programs. Hall creates more room for this subjective assessment than Florida and Virginia had previously allowed. The future use of subjective diagnostic criteria in the courtroom depends on state courts correctly interpreting and implementing these aspects of the Hall verdict, rather than adopting an IQ 75 cutoff.
The importance of treating IQ scores more warily in the future is also underscored by the fact that the SEM of ±5 points assumed by the Supreme Court is itself misleadingly narrow. Under ideal testing conditions, and assuming that the same IQ test is used, an individual tested twice will score within 5 points 95% of the time. However, ideal testing conditions rarely exist in the circumstances surrounding a death penalty case. Prosecuting and defense attorneys each will hire psychologists to evaluate the defendant, and an educated psychologist knows how to administer an IQ test to produce a lower or higher score: At the lower extreme, the WAIS IQ test produces scores consistently higher than the WISC by about ten points—highly problematic given that these two tests are considered the “gold standards” of IQ testing. Also, psychologists can opt to correct for statistical phenomena such as the floor effect and practice effects to produce a lower score, and may choose whether or not to emphasize to the test subject that they should “try their hardest.” A defense psychologist and prosecution psychologist each employing all of these test optimization practices in their most aggressive forms could present IQ scores differing by as many as 30 points—that is, the IQ difference between an “intellectually disabled” person and the average American. The confidence interval of ±5 points given by the Supreme Court applies only to the purpose for which the IQ test is most reliable: comparisons among people of roughly average intelligence whose score is not a life-or-death matter. Fortunately, the Hall ruling offers guidelines beyond and before the IQ cutoff of 75, so in future cases involving the intellectually disabled, an IQ score of 76 is not necessarily a death sentence in the way 71 nearly was for Hall.
To see that the Hall ruling is legitimate, it must be understood that the court has not simply or blindly replaced the IQ cutoff of 70 with one of 75. First, Kennedy’s opinion specifies that other measures of intellectual functioning than the IQ must be taken into account: An IQ of 76 or above does not in all cases preclude a legal diagnosis of intellectual disability, even when adaptive functioning is deficient. Additionally, deficient adaptive functioning itself takes on an expanded role in Hall, an important advancement in states like Florida that neglected to allow defendants to demonstrate adaptive capability if intellectual ability had already been “established” by an IQ score. Adaptive functioning is harder to quantify, but is perhaps more relevant than intellectual functioning to criminology. Those with poor adaptive functioning often exhibit poor moral judgment and impulse control, and are highly impressionable. Their naivety can lead them to comply with others in criminal actions. For this reason, Whitaker champions a legal evaluation of intellectual disability which focuses not on whether the defendant is or is not disabled relative to the general population, but whether the defendant’s deficiencies in cognitive and adaptive functioning precipitated his or her actions at the time of the offense. If lower sentencing courts can properly interpret the Supreme Court’s ruling by weighing these subjective factors before the IQ, then the Hall verdict is a step in the right direction as far as the psychological community is concerned.
A broader, and potentially more concerning, impact of the Hall ruling is that it expands the role and power of the scientific establishment in the courtroom. In the past, the Supreme Court has upheld “scientific” principles that led to severe intrusions on human and civil rights. Mindful of this history, in Atkins and other recent cases “the justices have disparaged the reliability of psychiatric diagnoses” and invoked federalism as a means of avoiding a Supreme Court-level designation of diagnostic criteria. Hall is a notable exception to the court’s usual wariness of scientific research, and I argue that if its precedent is followed correctly, it need not sound any alarms about scientific overreach.
The precedent set in Hall that has the potential to inform modern scientific jurisprudence is the doctrine of “scientific stare decisis.” Under scientific stare decisis, a term coined by Christopher Slobogin of Vanderbilt University Law School, groups that are scientifically alike receive equal legal treatment. In Hall, Hall is held to be scientifically similar to Atkins based on the diagnostic criteria for intellectual disability. Slobogin argues that a similar assessment of other mental health diagnoses could be admitted in the Supreme Court under Hall’s precedent and create clearer guidelines to aid in the exoneration of schizophrenics. Going further, scientific stare decisis may allow psychologists to show that an adult offender with poor impulse control similar to that of an intellectually disabled person, for example,46 is scientifically similar to a juvenile defendant, and should be subject to the same exemptions accorded thereto. These are positive developments that would be welcomed by the medical community. Beyond them, however, a series of escalating scientific stare decisis rulings could become a problem: if scientific judgment is given the power to declare groups or individuals legally equivalent, many legal or moral problems could unfold that echo the eugenics era. However, I argue that concerns about scientific stare decisis as justifying future intrusions on civil or human rights constitute a slippery slope argument of no empirical certainty.
Should the issue arise, preventing scientific stare decisis from becoming a harmful force is relatively simple. The blur between beneficial and destructive applications of scientific stare decisis is resolved by examining whether a given policy expands or breaches civil rights. The Hall ruling (and others like it that restrict executions) is framed as an expansion of the eighth amendment right against cruel and unusual punishment. Hall creates specific but open-ended criteria in order to maximize opportunities for defendants to demonstrate intellectual disability and avoid execution, where previously the defense of intellectual disability was available only to those who could test below 70 on an IQ test (in Florida). Slobogin’s definition of scientific stare decisis as a special type of equal protection clause for scientifically similar individuals is wisely-chosen wording: it excludes the application of scientific authority in the courtroom in a way that is destructive to civil rights. Discriminatory or destructive applications of scientific stare decisis are not insured by the Hall ruling.
The impact of Hall v. Florida will by and large be positive. The Supreme Court’s ruling expands the ability of intellectually disabled defendants on death row to demonstrate their condition and earn the preclusion from execution accorded to them in Atkins v. Virginia. By striking down Florida’s bright-line cutoff, the court demonstrates an evolving readiness to criticize poor applications of scientific practice, a trend that suggests a growing deference to the scientific community as a whole in cases where scientific knowledge can be used to expand civil rights and prevent injustice. For this reason, Hall is major victory in the cauldron of modern scientific jurisprudence: it shows how scientific legal defense both protects and advances the rights of America’s most vulnerable defendants.
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