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October 2013


How to Become a Bounty Hunter

Supreme Court to Decide Who Gets to Define “Mentally Retarded” for Purposes of the Death Penalty

By Ross Parker
The cut-off IQ for the death penalty in Florida is 70 or less. Freddie Lee Hall scored a 71. He has been on death row for 35 years.

Hall was convicted of killing a pregnant woman and a deputy sheriff and, following the jury’s recommendation, the trial judge sentenced him to death. For 25 years he sat in his death row cell while his lawyers filed various appeals, all without success. Then the U. S. Supreme Court handed down Atkins v. Virginia in 2002, a 6-3 decision which held that the evolving standards of decency under the 8th Amendment prohibition against cruel and unusual punishment barred the execution of mentally retarded defendants. The case, however, left to the states the details of determining who was mentally retarded.

(Medical professionals rarely use the “retarded” term any more, preferring “intellectually disabled.” Since the cases and statutes continue to use the former term, I will too for the sake of clarity.)

The reasoning of Atkins was that the mentally retarded do not act with the same level of moral culpability because they lack the reasoning, judgment, and impulse control of normal adults. Although they still deserve sanctions for their crimes, executing them would not further the retribution and deterrence rationales which justify the ultimate penalty.

There were, perhaps, two subtexts in Atkins. First, the case was one more step in the growing public consensus in America that the application of the death penalty should either be eliminated or severely limited. It was one more chip in the capital punishment edifice that is incrementally crumbling.

Atkins was an important case in this evolution. Not only did it exempt another class of persons from the death penalty, but it recognized the development of a public consensus as a basis for doing so. The Court surveyed state legislatures and found 18 which had banned the practice. Add that number to the 13 which had at that time abolished the death penalty altogether, plus several others that had done so de facto and a trend became a consensus. Additionally the opinion included a provocative footnote suggesting a growing broader consensus against capital punishment. This the dissent vehemently decried, with Justice Scalia remarking that “seldom has an opinion of this Court rested so obviously on the personal views of its members.”

I wrote two columns earlier this year that in my view the death penalty was slowly dying and that outside of a small handful of states it has already become an anachronism. Full disclosure then and now, my personal view is that the death penalty in the 21st Century is morally wrong in a civilized society; that it can be freakishly wanton in its selection of people to execute; that its no-recourse finality strains the entire criminal justice system; that it provides precious little or no deterrence to craven impulsive murderers; and that there continues to be a possibility of a botched and inhumane administration of the instrument of death.

Most Americans, however, are increasingly concluding for entirely practical reasons that the application of the death penalty is simply too expensive, the appellate delays too laborious and uncertain, and the ultimate result too fraught with the intrusion of outside factors like race, poverty, unavailability of lethal drugs and the like.

More than any subjective factor of morality, the future of the death penalty is being determined by the growing sentiment that we simply cannot afford it. Even though a majority of Americans probably continue to believe that capital punishment is justified for the mass murderers we hear about on the news with disturbing regularity, they are no longer willing to pay the increasing price. Just as likely, pragmatic considerations in an era of economic insecurity affect those moral and practical decisions on whether as a society we need capital punishment.

The other point implied in Atkins is that the criminal justice system cannot guarantee a fair, reliable, and consistent result in capital cases involving an accused whose mental abilities are seriously subpar. Their limited ability to communicate and contribute to their own defense compromises even an effective defense counsel’s job. The result is that, either they plead to a non-capital sentence without a full consideration of their defenses, or they disproportionately face the one penalty which, if wrong, is unforgiving. Death.

Atkins seems to assume in its dictum that states will use the diagnostic criteria of the American Psychiatric Association. Most of the ones which at least nominally still have capital punishment do so. Juries, legislatures, judges, and governors have on quite a few occasions either rejected or overruled the death penalty for mentally retarded defendants.

However a few states have taken advantage of the Court’s lack of definition by so limiting its operation that some clinically mentally retarded defendants nevertheless receive a death verdict that is upheld on appeal. Texas, the death penalty capitol of America, is, of course, one of these states.

In Texas juries can disregard uncontroverted mental health expert opinion and decide that the defendant’s behavior in planning and executing the crime show that he was not retarded. Consequently, defendants with IQs in the 50s and 60s have had their death verdicts upheld.

A 2010 study by Marcus Boccaccini et al. published in the Law and Psychology Review showed that jurors are inclined to find adequate intellectual functioning much more readily that experts, even when diagnostic tests demonstrate that the defendant is retarded. Texas juries have few limitations in their discretion.

Georgia in one respect goes even further than Texas by requiring a defendant to raise the mitigation defense and then sustain the burden of proving beyond a reasonable doubt that he is mentally retarded.

The Florida statute used in Hall defines mentally retarded as two or more standard deviations from the mean standard intelligence test. In other words an IQ of 70 or lower. This “bright line” definition makes the advisory jury’s job easier, but it fails to take into account the multifaceted analysis of diagnosis performed by mental health professionals. Several other states use the same definition.

The Supreme Court has granted certiorari in Hall to review the case this term. The defense lawyers are probably working on the Petitioner’s Brief already. The state will respond that Atkins intended to leave the definition to the states and that Florida’s statute was adequate in any event to adhere to the Court’s decision. The Supreme Court will probably set oral argument for this spring and could decide the case before its usual June recess.

It may be a close decision even thought the Court’s trend has been to follow the national sentiment to further limit the death penalty. Three of the six-member majority have left the Court (O’Connor, Stevens and Souter). One dissenter (Rehnquist) has left. The replacement Justices (Roberts, Alito, Sotomayor and Kagan) could well be evenly split on the question. That leaves a potential 5-4 split to reverse the decision in Hall and remand it for a hearing to consider factors bearing on his disability in addition to the IQ tests.

The problem in Florida on this question is not the use of the IQ 70 bright line. That seems not unreasonable in this context. It is the exclusive use of the diagnostic test score which is the defect in the process.

Can we have a person deemed too disabled in one state but fit for execution in another? On the other hand, a person’s fate is already determined by the state where he chooses to commit a capital crime.

In addition to affecting the future of capital punishment in one of the few states still employing it, the Hall case presents an interesting example of the pros and cons for appellate courts to use general versus “bright line” rules to enforce the effectiveness of its decisions. An example of clearly defined directives is Miranda v. Arizona. Atkins was an example of the Court employing a broadly worded rule which allowed discretion on the part of law enforcement, judges and juries. Both have their merits and drawbacks in particular contexts.

Whatever the result in Hall, the momentum to reduce the efficacy of the death penalty is, in my opinion, irreversible.


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