Earlier this week, the U.S. Supreme Court ruled in Hall v. Florida that Florida’s rigid IQ test score cutoff to determine whether a defendant is intellectually disabled, and therefore ineligible for the death penalty, violates the Eighth Amendment. TCP President Ginny Sloan observed that, “The Court’s decision addresses a truly significant concern in the application of the death penalty, but other concerns related to executing those with intellectual disability remain.”
For more than a decade, many states, including Florida, Kentucky, and Virginia, have sought ways to avoid giving effect to the Court’s decision in Atkins v. Virginia, which stated unequivocally that the Eighth Amendment of the Constitution prohibits the execution of those with intellectual disabilities (previously termed “mental retardation”). In Florida, this meant barring a defendant from introducing any further evidence of intellectual disability if he or she scored higher than 70 on an IQ test. As Justice Kennedy noted in his majority opinion in Hall, Florida’s use of IQ scores flies in the face of how medical and psychological professionals use these tests as a factor in determining intellectual disability. It is widely accepted that the interpretation of IQ tests must take into account their inherent standard error of measurement. Kennedy noted, “The professionals who design, administer, and interpret IQ tests have agreed, for years now, that IQ test scores should be read not as a single fixed number but as a range.”
TCP filed an amicus curiae brief on behalf of former judges and law enforcement professionals in support of Hall, arguing that Florida’s approach to defining intellectual disability is inconsistent with U.S. Supreme Court precedent and undermines respect for the criminal justice system. TCP has also recently issued a comprehensive report on the death penalty, Irreversible Error, which describes the numerous ways, beyond a rigid IQ standard, that states seek to subvert the Atkins decision.
Among its findings, the report concludes that, in too many states, the burden of proof to establish intellectual disability is unduly high. Colorado, Delaware and Florida require defendants to prove the issue of intellectual disability by “clear and convincing evidence.” Georgia has an even higher, “beyond a reasonable doubt” standard that has proven incredibly difficult to meet. In addition, most states with the death penalty require that defendants provide evidence that their intellectual disability manifested before they turned 18. In too many cases, this information is unavailable because school records have been lost, testing was never performed for a variety of reasons, or the defendant was not labeled with an intellectual disability diagnosis either to avoid stigma or because his or her school was concerned about over-representation for data-reporting purposes.
Another longstanding concern is that the decision for determining intellectual disability is vested solely in an untrained jury whose members are often given insufficient instructions for how to evaluate claims of intellectual disability and thus discount evidence that would lead them to conclude that the defendant has an intellectual disability. In light of these difficulties, Irreversible Error recommends that states adopt a bifurcated approach to determining intellectual disability, recommending a pretrial hearing in which the judge can evaluate a claim that intellectual disability makes the defendant ineligible for the death penalty. In those cases in which a judge does not find intellectual disability, the defendant may raise the claim before the jury during the sentencing phase.
After the Hall decision, there is much more for states and, if necessary, the Court to do to prevent the continued, unconstitutional execution of those with intellectual disabilities. Fortunately, the Court recognizes that “Atkins did not give the States unfettered discretion to define the full scope of the constitutional protection.” States, therefore, should take a critical look at their procedures for determining intellectual disability to ensure that those who, as the Supreme Court says, “have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others,” and thus diminished “personal culpability” are not unjustly sentenced to death. If states fail to undertake this work, the Court must step in quickly. The fairness of our criminal justice system cannot tolerate another 12 years passing before this constitutional prohibition is given real meaning.