Hall v. Florida (USSCt 5-27-14)
Prof. Robert Dinerstein
WCL
HUMAN RIGHTS IMPLICATIONS OF THE
SCOTUS DECISIONS IN THE 2014 TERM
WCL CENTER FOR HUMAN RIGHTS AND
HUMANITARIAN LAW
JULY 17, 2014
The Decision
 5-4 decision (Kennedy, J., with Breyer, Ginsburg,
Kagan & Sotomayor, JJ.); (Alito, J., with Roberts, CJ,
and Scalia & Thomas, JJ., dissenting)
 Reverse judgment of the Florida Supreme Court that
interpreted Florida statute to preclude consideration
of a defendant’s intellectual disability if his IQ score
was above 70.
 This “rigid rule. . . creates an unacceptable risk that
persons with intellectual disability will be executed,
and thus is unconstitutional.” (Slip Op. at 1).
The Decision, con’t.
 Florida and other states must take account of the
Standard Error of Measurement (SEM) in
determining the meaning of IQ test scores as part of
the intellectual functioning component of
determining intellectual disability.
 Must take into account professional judgments about
meaning of IQ scores as underlying legislative
policies and informing Court’s view of Cruel &
Unusual Punishment Clause of the 8th A.
The Significance
 Extension of Atkins v. Virginia, US S Ct case from 2002 that
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banned the death penalty for people with intellectual
disabilities (mental retardation) under the 8th A.
Atkins left open to the States implementation of the ban.
Hall establishes limits/guidelines on that delegation of
authority.
Role of professional standards and interpretations
Understanding of intellectual disability
Does it portend extension of death penalty ban to other
groups of defendants (e.g., people with severe mental
disorders)?
Is death penalty ban on the basis of disability consistent with
the CRPD? With a rights-based view of disability law?
Death Penalty in Human Rights
 Growing consensus toward abolition or requiring
moves toward it (including moratoria)
Factual Background
 Facts of Hall’s crime [murder, kidnapping, rape;
second murder], upbringing [beatings]
 IQ test score history [9 tests, scores 60-80; scores
under 70 excluded]
 Lower-court decisions: sentencing court view:
“Nothing of which the experts testified could explain
how a psychotic, mentally-retarded, brain-damaged,
learning-disabled, speech-impaired person could
formulate a plan whereby a car was stolen and a
convenience store was robbed.” (Slip op. at 4)
Factual background, con’t.
 Note: FL statute itself did not establish bright-line
cut-off but FL Sup Ct treated it as such (Slip op. at 9)
 Once IQ was not below 70, court would not inquire
into adaptive functioning, other key part of the ID
definition.
Rationale of Atkins
 State legislative activity
 Why death penalty is inappropriate for people with
intellectual disabilities
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Nature of the condition: diminished capacity to
understand and process information, to communicate, to
abstract from mistakes and learn from experience, to engage in
logical reasoning, to control impulses and to understand the
reaction of others.
Inconsistency with traditional criminal justice goals:
retribution (moral culpability less), deterrence (lesser ability to
make calculated judgments)
Risk of error greater: false confessions, poor witnesses,
demeanor, less able to assist counsel
Atkins, con’t.
 What it didn’t hold: that defendants with ID cannot
be prosecuted, convicted, sentenced (including to life
without parole)
 International law connection [FN. 21 vs. Rehnquist &
Scalia dissents]
 Implementation issues
The problems with Florida’s rule
 Disregards “established medical (sic) practice” by:
 1. Taking IQ score as final and conclusive evidence of
intellectual capacity when experts would consider other
evidence; and
 2. Relies on a purportedly scientific measurement of
defendant’s abilities—his IQ score—while refusing to recognize
that the score itself is on its own terms imprecise.
Standard of Error Measurement (SEM)
 SEM reflects inherent variability in psychometric
measure (test score). Factors of variability include:
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Variations in test performance
Examiner’s behavior
Cooperation of test taker, and
Other personal and environmental factors.
SEM, con’t.
 “SEM, which varies by test, subgroup, and age group,
is used to quantify this variability and provide a
stated statistical confidence interval within which the
person’s true score falls.” AAIDD, Intellectual
Disability: Definition, Classification, and Systems of
Support 36 (11th ed. 2011)
 SEM for IQ of 71: 1 SEM provides a 68% level of
confidence that the true score is between 68.5 and
73.5; 2 SEM provides a 95% level of confidence the
true score is between 66 and 76.
SEM, con’t.
 What it means: any IQ score, properly understood, is
a range of scores. (Think also LSAT or SAT scores.)
To establish a bright-line cut-off, as Florida has
done, is to define IQ in a manner that is inconsistent
with how professionals define the concept and can
result in execution of people who, in fact, have an
intellectual disability.
States’ Incorporation of SEM
 Court’s math: 41 would states would not conclude
that an IQ score of 70 automatically makes one
eligible for the death penalty (Slip op. at 14)
 Every state to have considered the cut-off issue after
Atkins, except VA, has taken a position contrary to
FL’s.
Fealty toward Atkins
 Although Atkins deferred to the states re developing
ways to enforce the constitutional restriction, the
Court “did not give the States unfettered discretion
to define the full scope of constitutional protection.”
Slip op., at 17.
 Atkins recognized clinical definition of ID (including
SEM) and states’ general reliance on it.
Court’s Independent View
 Slip op. 19-22: again, the role of professional expertise and
standards. Informs, though does not determine, legal
standard
Conclusion:
 “The death penalty is the gravest sentence our society may
impose. Persons facing that most severe sanction must have a
fair opportunity to show that the Constitution prohibits their
execution. Florida’s law contravenes our Nation’s
commitment to dignity and its duty to teach human decency
as the mark of a civilized world. The States are laboratories for
experimentation, but those experiments may not deny human
dignity the Constitution protects.” (Slip op. at 22).
Justice Alito’s Dissent
 Court inappropriately departs from Atkins based on
views of private professional associations.
 “Uniform national rule” is ill-conceived, inconsistent
with 8th A. jurisprudence and likely to sow confusion.
 Psychiatry vs. psychology (which APA?)
Justice Alito’s Dissent, con’t.
 Disputes the math
 In the absence of methodological consensus among
the states, there is no basis to conclude Florida’s
interpretation violates society’s standards of
decency.
 Disputes the Court’s interpretation of SEM
Dissent, con’t.
 What’s wrong with reliance on professional
association views:
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Views change
Courts will have to follow each change or assess its validity
Which professional associations are entitled to deference?
Purpose of definition varies based on context—criminal justice
different from eligibility for services
Questions of Terminology
 Adopting the term “intellectual disability” in lieu of
“mental retardation” (Slip op. at 2)
 “Intellectual disability is a condition not a number”
(Slip op. at 21)
 But. . . “suffering from” ID terminology
 Models of disability: social model (CRPD) vs.
medical model:
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23 references in majority opinion to medical community,
medical diagnosis, psychiatry
Is exclusion from death penalty on the basis of
disability consistent with the CRPD?
 Insanity defense and other disability-based
exclusions from responsibility
 Relationship to legal capacity
 Can disability ever be relevant? Is it relevant in the
death penalty context for people with intellectual
disabilities?
 Does it matter what reasons are given for the
exclusion—e.g., reasons “inherent” to the condition
vs. those that are constructed (level of
representation, concerns re false confessions, etc.)
Other groups?
 Defendants with severe mental disorders
Conclusion
 Human rights implications: reduce number of
executions
 Consistency of Hall with international law
 Role of human rights norms—whose standard of
decency is it?
 Further steps—ban for other groups? Ban altogether?
[See CA decision reported in today’s papers—
banning DP in all cases because of delays, etc.]