Marcia Coyle explains today’s Supreme Court arguments on IQ and the death penalty

BY Marcia Coyle  March 3, 2014 at 8:06 PM EDT

Supreme CourtTwelve years ago, the U.S. Supreme Court, in a 6-3 decision, held that the execution of mentally retarded persons violated the Constitution. On Monday when the rest of the federal government enjoyed a snow day, the justices returned to this area of the law to examine how one state determines who is “intellectually disabled” and exempt from the death penalty.

In the last 12 years, the term “mental retardation” has fallen into disfavor with the psychological and social welfare community. Instead, “intellectual disability” is the preferred term, and the justices in oral arguments on Monday, for the most part, adopted the current phrase.

However, after those arguments, it seemed unlikely that a majority would adopt the state of Florida’s approach to deciding who is intellectually disabled for purposes of a death sentence.

Freddie Lee Hall, on Florida’s death row for the 1978 abduction, rape and murder of a 21-year-old woman who was seven months pregnant, has challenged Florida’s rule that intellectually disability is proved by an IQ of 70 or below. That inflexible cutoff, he contends, violates the justices’ 2002 decision in Atkins v. Virginia because it fails to include the standard error of measurement (plus or minus five points), a range that clinicians say is necessary to counter the inherent imprecision in IQ tests.

Those five points mean life or death for Hall who, although considered “mentally retarded his entire life” by state courts, has scored above 70 on a number of IQ tests.

In their 2002 decision, the justices did not define “mental retardation” and left the implementation of their ruling to the states. But the justices did suggest the definition had three elements, saying that “clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18.”

Hall’s attorney, Seth Waxman, a former solicitor general in the Clinton Administration, argued that if a state is going to rely on IQ test scores to demonstrate mental disability, it cannot ignore measurement error in those scores. “That is a feature, a statistical feature of the test instrument itself,” he said.

But Justice Antonin Scalia, who dissented in Atkins, said that the court 12 years ago did not look to the American Psychiatric Association or other medical groups for the answer to what degree of intellectual disability exempted someone from the death penalty. “We looked to what the states did,” he said, adding that a number of them had adopted the IQ score of 70 at the time.

Waxman countered that the court pointed out in Atkins that this is a clinical condition that can only be diagnosed properly by professionals. The justices, he said, should pay considerable deference to those professionals’ use of the standard error of measurement.

Florida’s solicitor general, Allen Winsor, argued that the medical criteria used by those professionals was constantly changing or evolving and because of that, should not be “constitutionalized.” Justice Scalia had earlier picked up on that argument, noting that the American Psychiatric Association once said homosexuality was a mental disability “and now says it’s perfectly normal. They change their minds.”

But Winsor faced his most skeptical questioning from the court’s more liberal justices. Justice Stephen Breyer asked “what’s so terrible” about allowing a defendant to produce an expert to testify that the IQ score was subject to error—testimony that the prosecution could counter with its own experts. And Justice Elena Kagan said the 70 cutoff seemed inconsistent with the court’s death penalty decisions which require individualized consideration of a defendant’s eligibility for that sentence. It “stops that in its tracks,” she added, and prevents a defendant from getting to the two other elements that the court suggested in Atkins: limits on adaptive skills and onset before age 18.

Winsor argued that adopting Hall’s approach would “double the number of people eligible for exemption” from the death penalty and that would be “inconsistent” with Florida’s purposes of the death penalty.

Death penalty scholars and mental health groups say most states have developed appropriate standards for determining intellectual disability in the death penalty context. But Florida and seven other states, they say, have imposed a hard IQ cutoff that does not comport with current views.

Winsor told the court that those other states are Alabama, Idaho, Kansas, Kentucky, North Carolina, and Virginia, and Maryland, which has repealed the death penalty.

The justices are expected to issue a decision by the end of June.