Hall v. Florida: The Supreme Court Opts For Ethics Over Law

On a purely ethical basis, it is difficult to argue with the majority opinion in Hall v. Florida, where the U.S. Supreme Court ruled that executing a convicted killer whose IQ had been determined to be 71 was still cruel and unusual, and thus a violation of the 8th Amendment, despite Florida law’s cut-off for mental retardation being a score of 70. On the basis of law, however, the SCOTUS decision is hard to defend. Funny, I thought the job of the Supreme Court was to interpret laws.

“Intellectual disability is a condition, not a number…,” wrote Justice Kennedy for the 5-4 majority, in which he joined the so-called “liberal wing.”  “This is not to say that an IQ test score is unhelpful. It is of considerable significance, as the medical community recognizes. But in using these scores to assess a defendant’s eligibility for the death penalty, a State must afford these test scores the same studied skepticism that those who design and use the tests do, and understand that an IQ test score represents a range rather than a fixed number.”

The problem is that the whole concept of a “condition” like intellectual disability is a subjective one. The theater company for which I serve as artistic director is presenting the Abby Mann historical drama “Judgment at Nuremberg,” and one of the most troubling scenes involves a man, the son of a Communist, sterilized by the Nazis because he was “mentally defective,”  or perhaps because of his family’s political views. The Nazi test: make a sentence out of the words hare, hunter, and field. A witness for the prosecution, the man who was sterilized fails to answer the test on the stand, just as he failed when quizzed by the Nazis.

That seems like a pretty good test for mental disability to me, and at least as meaningful as an IQ test, which embodies the very essence of “inexact science.”  The point made in the play is that a man shouldn’t be sterilized because he can’t answer a simple word puzzle correctly, and similarly, Kennedy and the other four justices are making the argument that a man shouldn’t lose his life because he did just a little too well on an IQ test. I agree in both instances as a matter of ethics, but law demands cut-offs, by definition, because laws have to be clear and precise for both  potential violators to understand what the law demands and the triers of fact and law to be able to know when it has been violated.

The difference between grand theft and petty theft, the difference between the amount of drugs that lead to a misdemeanor or felony charge, the difference between a simple speeding ticket and reckless driving, the blood-alcohol readings that determine whether a dead pedestrian was the victim of an accident or vehicular homicide—any of these and many more ultimately come down to where a somewhat arbitrary line was drawn by the legislature. To say, as the Supreme Court seems to say in this case, that being strict about such crucial lines of legal demarcation is inherently cruel is the equivalent of saying that most regulations and criminal laws are unfair, and that the Supreme Court won’t allow that.

Of course, they have, do and will allow it; they just won’t allow it when the results involve executing someone. That’s not legal reasoning; that’s ethical reasoning.

The logic of Atkins v. Virginia, declaring it an 8th Amendment violation to execute murderers who are intellectually deficient,  never made much sense to me, legally or ethically. If a killer was so dumb that he didn’t know right from wrong, then he shouldn’t have been convicted in the first place. If he was so mentally-challenged that he couldn’t understand the nature of his punishment, how is that more cruel than executing someone who does understand? Not to impugn the integrity of Justice Stevens, who wrote the majority opinion in Atkins, but it was always clear to me that this was the ruling of jurists who mostly objected to the death penalty in general, and were looking for a way to limit it as much as possible. That too is an ethical, rather than a legal, position.

The unavoidable fact is that laws are always unfair, or appear to be, when a case falls just over or under a critical standard, and we tolerate this because the alternative is chaos and anarchy. Judges know that a single point could have determined whether they passed or flunked the bar exam—such is the profession, and such is life. The Supreme Court majority just feels that this basic, immutable principle of laws, rules, regulations and standards shouldn’t kill anyone, even someone found guilty of killing another with sufficient comprehension to warrant a conviction of first degree murder.

Obviously, or I would think obviously, this approach eliminates the possibility of ever executing anyone who can’t make that hare, hunter, field question, and maybe even those who can’t do the Sunday Times crossword puzzle. After all, if it’s unfair to execute a killer with an IQ of just one point more than the 70 cut-off, then the cut-off is now 71, and really, that guy drooling in his cell with the IQ of 72 shouldn’t die because he’s just a silly millimeter smarter. Pretty soon, Newt Gingrich is going to be immune from execution on the basis of his IQ test.

The majority of the Supreme Court rejected a core principle of all laws—at some point, you either fit the law or you don’t—because death seems like too harsh a consequence of having standards. The Court caused the problem by making the vague and subjective condition of “mentally retarded” a “Get Out of the Electric Chair Free Card,” and now forbids states to articulate a measurable standard for what that condition is, because it’s unfair.

Sure it’s unfair. All cut-offs are unfair, if you are the one on the bubble. That is, however, the nature of law, and it is strange to see the U.S. Supreme Court rejecting it….even if it is valid ethics.


Sources: Althouse, NBC

26 thoughts on “Hall v. Florida: The Supreme Court Opts For Ethics Over Law

  1. Yikes. Lots and lots of typos in that post…I think I got them all. I apologize (though I liked “bat exam”)…this is one of those days where I’m writing under several ProEthics deadlines, and jumping back and forth to the blog.

  2. With the Supreme Court increasingly taking decisions out of the hands of the people and/or their elected representatives (gay marriage, abortion, the death penalty – among other issues), aren’t they over-stepping their bounds in an unethical manner?

    • In an unethical manner? Overstepping? Absolutely not. You don’t have a direct democracy where a simple 51% vote can undo your constitution, and part of the job SCOTUS does is to keep people without the power to rule on things from doing so. So in the cases of gay marriage, abortion, or the death penalty, they are arguable keeping other people from overstepping.

      This case however…. I don’t know. Maybe this should have been an ethics quiz. I’m familiar with IQ tests, and a person that tests 125 today could test 128 the next day and 118 the day after that…. So a one point difference between the death penalty and life in prison based on the results of even an average of several tests seems arbitrary and cruel (which SCOTUS deemed to violate the 8th amendment). One could argue though, as Jack did, that the law needs to be arbitrary and cruel to function, and rejecting that leads to a slippery slope.

      My take is that the Florida 70 IQ point cut-off should be unconstitutional, amendment 14 states that: “No State shall make or enforce any law which shall abridge the privileges … of citizens … nor … deprive any person of life, liberty, or property, without due process of law; nor deny … the equal protection of the laws.” In this case, the State of Florida gave the benefit of not being sentenced to death upon mentally retarded people. But that’s not up to me.

      • And if Anthony Kennedy gets it wrong, how do the people hold him accountable?

        It is, as a practical matter, impossible to vote him out.

        • You can hardly blame Kennedy—as a libertarian, he probably thinks the state has no right to kill anyone. There were 4 other justices that were needed to make Kennedy, who is on the aberrational side, anything but the outlier that he is. You can’t vote a Justics out, but you can elect Presidents who won’t appoint embarrassments like Sotomayor, who judge on “empathy.” Yechhh.

  3. The hare, hunter and field test would be more difficult for someone who has English as a second language who has not yet learnt to distinguish between hare, here, hair and heir.

    When did the man measure 71 on his IQ test? Was it when he committed the crime (which would be the test relevant test to determine if he should be executed), later when he was tested to see if he should be executed, or was it when he was at school? IQ measurements of a person change over time.

    The examples you gave, i.e. grand theft, amount of drugs, speed and blood alcohol level can be measured with scientific accuracy, while the IQ test can never be scientifically accurate. Test him one day his IQ might measure 71, another day 67, then another 74.

    • English as a second language who has not yet learnt to distinguish between hare, here, hair and heir.
      Um…the test was administered in German. 😉

      Anyway, the dirtbag killer in question, Freddie Lee Hall, beat, raped and murdered a pregnant woman and killed a cop.
      I don’t care what his IQ is, if he was capable of committing that crime, he is capable of taking the punishment for it.

      • Um… no.

        Petitioner, Daryl Renard Atkins, was convicted of abduction, armed robbery, and capital murder, and sentenced to death. At approximately midnight on August 16, 1996, Atkins and William Jones, armed with a semiautomatic handgun, abducted Eric Nesbitt, robbed him of the money on his person, drove him to an automated teller machine in his pickup truck where cameras recorded their withdrawal of additional cash, then took him to an isolated location where he was shot eight times and killed.

    • Wouldn’t the answer to the Nazi test be as simple as “I have been tasked with using hare, hunter and field in a sentence… Ok, that’s a sentence, I’m acquitted right?”

  4. I agree that if the Supreme Court decided that the man should not be executed because of his possible mental retardation as determined by a single score, that they were probably right. However, any psychologist worth his weight in salt would argue that a range of information needs to be considered. This would include his academic performance over time, his self help skills at home and in the community, the McNaughton defense (incapability of understanding the consequences of this actions) and his actions taken to plan and execute a murder. It’s hard to believe that expert witnesses weren’t called upon to evaluate the information collected by the prosecutor and defense attorneys.

  5. I actually had to think about whether or not to respond to this. Mental Retardation is defined as being two standard deviations below the mean, which is 100. A standard deviation is 15 points, so 70 would be the cutoff, but there is a thing called standard error of measure. If memory serves, that is plus or minus 3 points. So, saying his IQ was 71 is actually saying his IQ falls somewhere between 68 and 74. My guess would be that SCOTUS saw that in the definition and decided that there was a chance he actually fell below Florida’s cutoff and hence was not executable. Not necessarily saying I agree.

    • Which means that there is no clear line to determine what mental retardation is sufficient to make an execution cruel, since all other criteria are subjective. And the “hare test” won’t work, because anyone can pretend not to get it!

      • Catch-22: if someone fails the hare test when there is so much to be gained by failing it, that shows intelligence. It’s only a reliable test when the incentive is to pass it, as in the original instance. Ist “Hassenjaegerfeldfragung” sich, oder nicht?

        The M’Naghten Rule has been presented as, “would he still have done it if there had been a policeman right there?”

  6. If a killer was so dumb that he didn’t know right from wrong, then he shouldn’t have been convicted in the first place.

    I suspect a majority of Americans believe that mentally retarded people are incompetent to stand trial, and thus the death penalty is out of the question, because there should not be a conviction in the first place.

    • So what’s the alternative? We allow people we deem mentally retarded carte blanche? Or do we lock them all up proactively? Euthanize them? Think.

      We have basic standards that people in society need to conform to, and one of them is that we don’t kill them for the contents of their bank account.

  7. Okay. A few comments:

    1) I disagree with a blanket prohibition on the execution of people with intellectual disabilities. Simply put, I believe that many (most, really) can be fully-participating members of society… with all that this entails.

    This does not mean that I think that intellectual disability is irrelevant — just that I think that intellectual disability is not inherently a barrier to being criminal scum, especially at scores around the 70 level.

    This is actually reflected in the law (see the further relevant criteria), but needs to be mentioned.

    2) The Supreme Court decision references the problem with the cutoff fairly explicitly (see (b) in the decision).

    This “range” bit is a factor of what’s known as test-retest reliability. Intelligence tests are meant to estimate intelligence, and are inherently imprecise and uncertain. A test score of 71 means that he’s likely to score between 66 and 76 if tested again — and is actually pretty consistent with a “true” score at 70 or below.

    The cutoff, in other words, is based on deliberately misusing the test results.

    4) Test results also vary depending on the test. It would be simple enough to give him several more — and find at least one he scored below 70 on.

    5) The Florida cutoff in question ignored aspects of the Atkins decision (see (d)).

    6) There is no such thing as an “IQ test” in modern clinical practice. We abandoned the notion of “IQ” quite a while ago — and the last major test that used it was revised to abandon the concept in 2003.

    7) In part because of the above, I don’t agree with either the decision or the dissent here.

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