June 18, 2014
Not long after Oklahoma’s botched execution made news across the world, the U.S. Supreme Court decided Hall v. Florida — a case questioning whether Florida’s strict IQ cutoff requirement met the Court’s standard against executing those with intellectual disabilities. While it is important not to let the current heightened attention surrounding capital punishment elevate the Court’s decision to more than what it is, Hall does provide practitioners a little clarity into the Court’s current thinking around the death penalty.
Since the U.S. Supreme Court brought back the death penalty in Gregg v. Georgia in 1976, the Court and legal professionals have been struggling with the larger implications of what it means to allow the death penalty as a means of punishment. At the time of Gregg, the Supreme Court found the death penalty constitutional because it served the purposes of deterrence and retribution. The recent case of Hall v. Florida attempts to further clarify the limits the Court imposes on the modern death penalty. In making this seemingly straightforward clarification, practitioners can examine the decision-making process of the majority – both by what they say and don’t say – to get some idea into the murky thoughts of the Court.
On first read, Hall v. Florida is very much a clarification of Atkins v. Virginia, the 2002 case that found it unconstitutional to execute those with intellectual disabilities (called mentally retardation at the time). In Atkins, the Court ruled that those with intellectual disabilities were not eligible for the death penalty because they lacked the mental ability to fully understand the consequences of their actions and thus the death penalty did not deter them from committing heinous crime. Making those with intellectual disabilities eligible for the death penalty did not serve either of the two constitutional reasons for this punishment. In Atkins, the Court did not establish an agreed definition of intellectual disability, leaving it up to the states to determine.
Since Atkins, state legislatures have adopted capital punishment laws that comply in a variety of different ways. Florida, like Kentucky and Virginia, adopted a strict test in which those with an IQ score above 70 would be deemed eligible for the death penalty while those below would not. Justice Kennedy, writing for the majority, found that the medical professionals using the IQ test understand it to have an error rate. These medical professionals factor in the error rate to view the resulting IQ number not as an absolute IQ but as the range a person’s IQ can fall into. Justice Kennedy found Florida’s capital punishment statue unconstitutional because it did not factor in this error rate, causing potentially inaccurate assessments of intellectual ability.
In the majority decision, there is something for both sides of the debate to love and hate. For death penalty abolitionists, Hall made eligibility for the death penalty more narrowly defined, and leaving death penalty proponents to say that the Court is slowly getting rid of the death penalty. But this would be a hasty assessment because while fewer people will be eligible for the death penalty moving forward, the decision clarified who can be executed, thus re-affirming the use of the death penalty. The majority does not elaborate on what conditions are needed for abolition, nor do they write about whether or not they foresee a time when the evolving standard of decency in this country does not include the death penalty. Without such signals from the Court, one wonders if there are five Justices who would vote to abolish the death penalty.