Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia.
Lower court opinion: Hall v. State, 109 So.3d 704 (Fla. 2012)
Atkins v. Virginia, 536 U.S. 304 (2002), held that it is unconstitutional under the Eighth Amendment to execute a person who is found to be mentally retarded. Atkins noted that since Penry v. Lynaugh, 492 U.S. 302 (1989), where the Court rejected the same constitutional claim, there had been a trend among the states of legislating to prohibit execution of mentally retarded offenders. (When Atkins was issued, 18 states had adopted such a prohibition.) The Court concluded this showed a “national consensus” that the practice is impermissible. 536 U.S. at 313-16. But if that trend showed a “consensus” against the practice, it also evidenced a diversity of opinion on the crucial point of determining which offenders are mentally retarded. As the Court noted, the states’ various statutory definitions of mental retardation were “not identical, but generally conform to the clinical definitions….” 536 U.S. at 317 n.22. Beyond reciting the broad outline of the clinical definitions–significantly “subaverage intellectual functioning” along with “significant limitations in adaptive skills such as communication, self-care, and self-direction that become manifest before age 18”–the Court left it to the states to implement and further define the appropriate standard. 536 U.S. at 317-18.
Florida’s statute was created before Atkins but it cites the basic clinical definition. In further elucidating the clinical definition, however, the statute provides that “significantly subaverage intellectual functioning” is determined using an IQ cutoff score–in particular, a score on a standard IQ test that is “two or more standard deviations from the mean score….” Fla. Stat. § 921.137(1). Under this definition the test used for Hall, the defendant in this case, had a cutoff of 70. Hall tested variously at 80, 73 and 71, but never below 70. So, the state courts held, his execution is not barred by Atkins as implemented by Florida. As to Hall’s argument that IQ should be measured in a range because of the standard error of measurement, the Florida Supreme Court held that approach was barred by the statutory language. 109 So.3d at 707-09.
The concurring opinion in Hall observes that other states have a simple bright line cut-off like Florida’s, though that approach is not accepted by a majority of states because some also account for the standard error measurement. 109 So.3d at 714-15. Moreover, some states create a presumptive cut-off score that is rebuttable, and others reject a bright-line approach altogether, finding the approach inconsistent with the clinical approach. (Interested readers can find a recent summary of these various approaches in Natalie Cheung, Defining Intellectual Disability and Establishing a Standard of Proof: Suggestions for a National Model Standard, 23 Health Matrix: Journal of Law-Medicine 317 (2013).) Obviously, these disparate approaches mean a person considered mentally retarded in one state could be executed in another. And even apart from the measurement errors in standard IQ tests, applying a bright-line cut-off score will be arbitrary in some cases, as intellectual functioning is only part of the clinical definition, and a score above the cut-off won’t even allow consideration of the person’s adaptive behavior. Thus, it may be that the Court will use this case to impose specific standards to assure more consistent application of the Atkins holding across the country.
Because this is a capital case, the decision will directly affect federal practitioners only if they are defending death penalty cases. It has no direct bearing on Wisconsin law. Nonetheless, Atkins has at least been a springboard for arguments about the Eighth Amendment’s ban on cruel and unusual punishment in non-capital cases, even if those arguments haven’t succeeded in obtaining relief. See, e.g., State v. Ninham, 2011 WI 33, ¶¶46, 51, 333 Wis. 2d 335, 797 N.W.2d 451. It stands to reason, then, that the Court’s decision in this case could also have some bearing, good or bad, on sentencing litigation under state law.