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.