Supreme Court Decides: What is 'Cruel and Unusual Punishment'?

In the 2002 case Atkins v. Virginia, the Supreme Court ruled that executing the mentally impaired violated the Eight Amendment's prohibition on "cruel and unusual punishments." Atkins, however, did not define what constituted mental impairment, which gave states a potentially easy way of evading the opinion. If left alone to determine their own standards, states that didn't want to comply with the Court's ruling could simply make it enormously difficult or impossible for those sentenced to death to prove that the were mentally impaired.  In an important ruling Tuesday, the Supreme Court refused to allow the states unlimited discretion to determine whether defendants had the mental capacity to be legally executed, restoring some teeth to Atkins.

In his opinion in Hall v. Florida, Justice Kennedy, joined by the Court's four Democratic nominees, began by reaffirming the rationale of the Court in Atkins. First, "[n]o legitimate penological purpose is served by executing a person with intellectual disability." Mental impairment (the term that the Court's majority explicitly chose to use instead of the anachronistic "mental retardation") also affects the due process of law: the mentally disabled "face 'a special risk of wrongful execution' because they are more likely to give false confessions, are often poor witnesses, and are less able to give meaningful assistance to their counsel." Atkins's logic was sound then and remains sound. But without requiring the states to comply with real standards, the decision would also be meaningless.

Tuesday's case concerned the death sentence given to Freddie Lee Hall. Hall is almost certainly guilty of heinous crimes: with an accomplice, he raped and killed a pregnant woman and then killed a sheriff's deputy who attempted to apprehend him. There is also, however, substantial evidence that Hall has a serious mental disability.  His teachers identified him as "mentally retarded," something that was also recognized by his mother (who repeatedly beat him severely in response.)  A lawyer who represented Hall in an earlier case said that he could not understand the proceedings and compared Hall's mental capacity to a four-year-old's. Mental testing done on Hall over the years showed him with an IQ between 60 and 80.  If Atkins doesn't apply to Hall, in other words, it's unclear who it could apply to.

Under Florida law as currently interpreted, however, to even present a claim of mental impairment a defendant must show an IQ of 70 or under. Because the two lowest scores on IQ tests were excluded by the courts, Hall's lowest remaining score was 71. This forbade him from even challenging the state's finding that he was not mentally impaired, and his death sentence was upheld by the Florida courts. Hall's lawyers challenged Florida's rigid threshold requirement as a violation of the Atkins standard.  

The Supreme Court overruled the ruling of the state courts. As Kennedy's opinion notes, the 70 IQ figure in the Florida statute is not itself entirely arbitrary. In IQ of 70 represents a score two standard deviations below the mean IQ of 100, a reasonable starting point in assessing mental capacity.  But IQ tests are not precise measures; a rigid formula that declares someone with an IQ of 70 to be mentally impaired but someone with an IQ of 71 to not be mentally impaired is making distinctions that the tests are not accurate enough to support.  The statute does not on its face require state officials to ignore the potential for imprecise measurements, but the Florida courts have interpreted the 70 IQ threshold as a rigid cutoff point.  

This, the Court holds, they cannot do. To forbid someone whose tested IQ is within the range the state's own threshold once the margin of measurement error is taken into account from even presenting further evidence of mental impairment cannot be permissible under Atkins.  "Florida’s rule," the Court explains, "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." To use IQ tests as bright-line cutoff points is to misunderstand their nature and valid purposes.

The fact that someone as clearly mentally impaired as Hall had his death sentence upheld by the Florida courts is a grim illustration that using the IQ number as a rigid cutoff creates an enormous risk of false negatives in Florida's tests for mental impairment. For a court that takes Atkins at all seriously, this should be an easy case.

Justice Alito's dissent, speaking for the Court's four most conservative members, responds to this clear logic with an essentially tautological defense of Florida's system. There is not a clear consensus among states that a rigid, bright-line IQ rule is invalid, Alito asserts, and "in the absence of such a consensus, we have no basis for holding that Florida’s method contravenes our society’s standards of decency." Alito's characterization is, in its own terms, defensible. But while the Court has in my view but too much emphasis on the consensus of state governments in its Eighth Amendment jurisprudence, it has never claimed that the current consensus or lack thereof is the only criterion relevant to Eighth Amendment cases. Executing the mentally impaired, for reasons eloquently explained by the majority, inherently conflicts with the individual dignity and fairness required by the Eighth and Fourteenth Amendments. By creating an unacceptably high risk of executing a mentally disabled individual, Florida's standards violate the Eighth Amendment, and this would be true whether one state used them or fifty did.

The dissent's response on this more important point has nothing to offer but the hostility to scientific expertise that is becoming increasingly ascendant in the contemporary Republican Party.  "Under our modern Eighth Amendment cases," charges Alito, "what counts are our society’s standards—which is to say, the standards of the American people—not the standards of professional associations, which at best represent the views of a small professional elite."  But Florida cannot have it both ways; it cannot rely on the IQ test as a scientifically valid way to evaluate mental impairment and then ignore scientific evidence about what the IQ test means.  

Giving the Florida essentially unlimited discretion to determine who is mentally impaired would render Atkins a dead letter. This, of course, is the outcome desired by the dissenters, but it's not  an outcome consistent with the Eighth Amendment. The Court's opinion today is a welcome step in the right direction that signals to the states that Atkins should actually be taken seriously.

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