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Supreme Court Considers Role Of IQ In Intellectual Disability

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In oral arguments Monday, the U.S. Supreme Court took up the issue of whether states can establish a hard-and-fast IQ score to determine if a person has intellectual disability. (Shutterstock)

In oral arguments Monday, the U.S. Supreme Court took up the issue of whether states can establish a hard-and-fast IQ score to determine if a person has intellectual disability. (Shutterstock)

WASHINGTON — Florida’s death penalty came under fire from a key Supreme Court justice Monday, as a divided court confronted the role of low IQ scores in exempting convicted murderers from execution.

Justice Anthony Kennedy, the court’s frequent swing vote, joined more liberal justices in questioning Florida’s rigid IQ score threshold for determining intellectual disability. Kennedy’s positioning hinted at the possibility that the court, probably on a close vote, might strike down the strict IQ rule used by Florida, Idaho, Kentucky and several other states with the death penalty.

More broadly, Kennedy raised doubts about Florida’s administration of the death penalty and the long delays that have ensued. His implicit criticism went beyond Monday’s case, and hinted at other capital punishment debates to come.

“The last 10 people Florida has executed have spent an average of 24.9 years on death row,” Kennedy reminded Florida Solicitor General Allen Winsor. “Do you think that is consistent with the purposes of the death penalty, and is it consistent with sound administration of the justice system?”

Pressed several times, Winsor noted that Florida lawmakers had addressed “a number of issues” Kennedy raised with passage of legislation last year. Many prison inmates have since challenged the state’s Timely Justice Act, which is now before the Florida Supreme Court.

Freddie Lee Hall, the 68-year-old convicted murderer whose case was before the U.S. Supreme Court on Monday, has been on the state’s death row since 1978. He and an accomplice were convicted of murdering a 21-year-old pregnant woman and a Hernando County deputy sheriff.

“He is the one who seized the young woman, who pushed her into a car, who drove the car with his accomplice following in another car and who killed her, and … killed a policeman, too, later,” Justice Antonin Scalia recounted, suggesting that Hall’s actions showed some level of mental competence.

Hall didn’t raise the mental retardation issue for the first 10 years of his imprisonment. After he did, Kennedy noted pointedly, five years passed before the state conducted the hearing designed to assess his intellectual capacity.

The Supreme Court has previously decided, in a 2002 case called Atkins v. Virginia, that the execution of those with mental retardation, now known as intellectual disability, violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The court left the definition up to individual states.

Florida imposes a three-part test, which starts with a rigid requirement that the inmate score 70 or below on the IQ test. If the inmate scores below the cutoff number, the state also will assess for “deficits in adaptive behavior” and an onset before the age of 18.

“Florida has an interest in ensuring that the people who evade execution because of mental retardation are, in fact, mentally retarded,” Winsor said.

Hall and his allies counter that Florida errs by not taking into account the standard 5-point margin of error, which means someone who scores a 75 might actually have a testable IQ of 70.

“If a state conditions the opportunity to demonstrate mental retardation on obtained IQ test scores, it cannot ignore the measurement error that is inherent in those scores, that is a statistical feature of the test instrument itself,” Hall’s attorney, former Solicitor General Seth Waxman, told the court.

Kennedy joined Justices Sonia Sotomayor, Stephen Breyer, Ruth Bader Ginsburg and, in particular, Elena Kagan in raising questions about Florida’s rigid IQ testing cutoff.

“Your rule prevents us getting a better understanding of whether that IQ score is accurate or not,” Kennedy told Winsor.

Kagan added that “we know from the way these standard margins of error work” that an inmate who scores a 71 might actually “have an IQ of 69.” Hall has registered IQ scores from the low 70s to as high as 80.

Scalia was most vociferous in his apparent support for Florida’s rigid rule, arguing that courts should defer to a state’s legislative judgment rather than look to evolving standards set by groups such as the American Psychiatric Association.

“This APA is the same organization that once said homosexuality was a mental disability and now says it’s perfectly normal,” Scalia said. “They change their minds.”

Cornell Law School Professor John H. Blume, a death penalty expert, said in an email interview that only “around 10″ death row inmates with borderline IQ scores stand to benefit immediately if the Supreme Court sides with Hall in the case heard Monday.

Justice Clarence Thomas, as is his habit, was the only one of the nine justices not to speak or ask questions during the hourlong argument. A decision is expected by the end of June.

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Comments (6 Responses)

  1. vmgillen says:

    I am astounded that Scalia questions the APA! Normally, conservative justices defer to “professionals” – consider Buck v. Bell and involuntary sterilization, or Youngberg v. Romeo (Pennhurst), While I normally question anything out of the APA, I respectfully submit the the Supreme Court has made errors; Plessy v. Ferguson comes to mind.

  2. Soprano says:

    Groups such as the APA “change their minds” based on data. That is the difference between science and ideology.

  3. Rea Howarth says:

    Justice Scalia’s remarks about the APA’s evolving standards reveal a remarkable incapacity for intellectual growth. Scientific knowledge about the origins of homosexuality has grown in the years since the APA first classified homosexuality as a disorder. It’s original finding was based upon the facts as they were known at the time. As science grows, so does the APA. One cannot say that about Justice Scalia.

  4. John Heskett says:

    Mr. Kennedy and his colleagues have it right. There is a standard error of measurement that must be considered. Application of a firm requirement that the IQ must be 70 or less fails to adopt the professional standards of the DSM in determining if an intellectual disability exists.

  5. John says:

    I repeatedly fail to understand how someone as allegedly intelligent as Justice Scaliathomas can voicethink such statements. Not that these convicts don’t need to pay a price for their acts, but ceding authority to the Florida legislature in a case like this makes a mockery of the Supreme Court’s role in our justice system.

  6. Frank says:

    Florida did not make the determination that the IQ score of 70 indicates a person has an Intellectual Disability. Neither did the American Psychiatric Association. Cognitive tests or IQ tests are developed by Psychologists not Psychiatrists. When making a diagnosis of Intellectual Disability you have to use testing as well as an interview to determine the person’s adaptive skills, especially if the person scores at the cutoff of 70. For instance, if a person scores an IQ of 70 but the reading, writing, and math skills are the same as the average student, chances are that the person doesn’t have an Intellectual Disability even though they scored in the Intellectual Disability range. That’s how you work with the margin of error. Individuals with an IQ score of 65 to70 are considered High Functioning. They can handle money, drive a car and cook their own meals. But in performing those tasks it becomes obvious to the average person that that individual is having some problems in completing the tasks, especially if there is an unexpected change. For instance a person with an Intellectual Disability may drive his/ her car 15 miles, each way, daily to get to and from work without any problems. One day there is a simple detour to get around a street being fixed. The person becomes confused and lost. Even when catching public transportation, they have to be taught the route to take. They have a difficult time figuring out how to get from point A to B. without assistance.

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