The Supreme Court ruled 12 years ago that it is unconstitutional for a state to execute a person who is “mentally retarded” (a term that has since gone out of date). But that wasn’t enough to put an end to the practice. States were left to determine for themselves who is too intellectually disabled to put to death, and the Florida courts, for example, have insisted on using a flat IQ score that scientists said made no sense. Today the Supreme Court told these states to stop using their unscientific standard, making it a bit harder for them to execute people with marginal IQs.
It’s a small but meaningful step—the kind of attempt to civilize the death penalty, rather than abolish it, which has become a hallmark of the court’s center. Justice Anthony Kennedy embodies that position in Tuesday’s 5–4 decision. He’s hardly being wild-eyed. Quite the opposite—he’s improving on capital punishment in the name of maintaining it. Yet in dissent, the court’s hard-line conservatives sound incensed. Led by Justice Samuel Alito, they see themselves as sticking up for state legislators in the face of the encroaching power the majority is giving to scientists—in particular the American Psychiatric Association.
In 1978, Freddie Lee Hall and a second man, Mack Ruffin, kidnapped, beat, raped, and murdered Karol Hurst when she was 21 and pregnant. Then they drove off to rob a convenience store and, in the parking lot, killed a sheriff’s deputy who tried to arrest them. At sentencing, the jury heard about Hall’s terrible childhood. His mother beat him regularly for being “slow.” The jury sentenced Hall to death anyway. The judge found “substantial evidence” to support the finding that Hall “has been mentally retarded his entire life.” But the judge said he thought the defense experts were “guilty of some professional overkill” because their description of Hall’s disabilities didn’t track with how he had supposedly planned to rob the convenience store. (Never mind the involvement of Ruffin, who is in prison for life.) The judge also said Hall’s intellectual state “cannot be used to justify, excuse, or extenuate [his] moral culpability.”
Seven years after the Supreme Court clearly said the opposite (in the 2002 6–3 decision, by former Justice John Paul Stevens, in Atkins v. Virginia), the Florida courts held a hearing about Hall’s IQ score. He’d been tested nine times over 40 years. His scores ranged from 60 to 80. The court didn’t count the two lowest, leaving seven scores starting at 71. The Florida cutoff for “mental retardation” is 70 or below. So in the Florida courts, Hall lost his bid to escape execution by a single IQ point.
Here’s the problem: Experts on mental disability agree that the IQ test has a standard error of measurement of plus or minus 5 points. Florida’s cutoff doesn’t take this into account. At argument, Hall’s lawyer, Seth Waxman, said the state could use 75 as a cutoff, but not 70. From the point of view of a medical expert who studies or conducts IQ tests, this makes sense. By setting the cutoff at 70, Justice Kennedy writes, quoting the brief submitted in the case by the American Psychiatric Association, Florida “goes against the unanimous professional consensus.” Kennedy also notes that “Neither Florida nor its amici”—groups submitting briefs as friends of the court—“point to a single medical professional who supports this cutoff.” Also “the DSM-5 repudiates it.”
As Kennedy further explains, “the flaws in Florida’s law are the result of the inherent error in IQ tests themselves. An IQ score is an approximation, not a final and infallible assessment of intellectual functioning.” He also puts it this way: “Intellectual disability is a condition, not a number.” Florida’s statute actually recognizes this reality, by also defining intellectual disability in terms of how a person functions. But the state Supreme Court has interpreted the law as treating the cutoff of 70 as final, once you score above it, that’s that. And so there is a group of defendants, like Hall, for whom “sentencing courts cannot consider even substantial and weighty evidence of intellectual disability as measured and made manifest by the defendant’s failure or inability to adapt to his social and cultural environment, including medical histories, behavioral records, school tests and reports, and testimony regarding past behavior and family circumstances.” In other words, Freddie Hall’s sad and wretched past didn’t matter in the way that it should have. Kennedy says that when a defendant’s IQ falls within the margin of error for intellectual disability, he or she must be able to present other evidence about problems adapting.
This is, or should be, an easy case. There is a solid medical consensus. The Supreme Court paid heed to it. The court isn’t bowing down before psychiatrists or ascribing great enlightenment to them that they don’t have. But on this particular, relatively clear-cut question of measurement, Kennedy writes, “it is proper to consult the medical community’s opinions.”
This is anathema to Justice Alito, to a degree that seems misplaced. “The Court’s approach in this case marks a new and most unwise turn in our Eighth Amendment case law,” he writes in dissent, joined by Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas: Why? The Eighth Amendment forbids cruel and unusual punishment. The court reviews old practices through the lens of “evolving standards of decency.” Often that means counting states—if only a few states retain a challenged practice, then it’s time to let it go. But in this case, Alito says, the Kennedy majority deferred entirely to the experts. “In these prior cases, when the Court referred to the evolving standards of a maturing ‘society,’ the Court meant the standards of American society as a whole,” Alito writes. “Now, however, the Court strikes down a state law based on the evolving standards of professional societies, most notably the American Psychiatric Association (APA).” Pages later, he doubles down with this populist framing: “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.”
Oh, those dreaded elites, otherwise known as scientists who know what they are talking about. In fact, Justice Kennedy also does the standard state headcount. He says that Virginia and Kentucky clearly have the same rule as Florida, and he acknowledges that seven other states could have the same problem, though it’s not clear whether their courts would interpret their rules as strict IQ-score cutoffs. Kennedy weighs those nine against the 41 states that either have no death penalty law or a different way of measuring intellectual disability.
Alito counts differently. Crucially, for purposes of this analysis, he counts only the states that still impose the death penalty, so the denominator is 31, not 50. Of those states, Alito counts 10 states including Florida that use the low cutoff (he adds Idaho to Kennedy’s count). He counts 12 that use a range of IQ measurement, as the experts support. And he says that nine states have taken no position. “In light of all this,” Alito concludes “the resolution of this case should be straightforward: Just as there was no methodological consensus among the States at the time of Atkins, there is no such consensus today.”
By instead giving weight to the views of psychiatrist groups, Alito predicts, the court is inviting a confusing mess that will force the judiciary “either to follow every new change in the thinking of these professional organizations or to judge the validity of each new change.” Well, no, that’s not what Justice Kennedy’s opinion says. But what’s wrong with recognizing that science matters for deciding the boundaries of cruel and unusual punishment? We are talking only about an IQ cutoff of 75 vs. 70, and whether to execute people at the margin of profound intellectual disability. Alito sees a looming threat to state legislatures and courts. But what he wants to safeguard is their power to execute people whose terrible crimes should be weighed against their limited mental capacity. Does the state really have to put them to death to do justice?