When A Low IQ Can Save Your Life, Ctd

Florida can no longer use a single IQ test to determine whether or not a convict is “intellectually disabled” and thus ineligible for the death penalty:

[Yesterday’s SCOTUS ruling in Hall v. Florida] impacts borderline cases where a defendant’s IQ score falls within the test’s margin of error, making it harder to impose the death penalty in those situations. It’s the first time the Supreme Court has expanded on a landmark 2002 decision that excluded mentally disabled people from capital punishment. It may also ultimately save the life of Freddie Lee Hall, who has spent over 35 years on death row after being convicted of a 1978 murder.

Until now, Florida and other states have adhered to policies that establish a strict cutoff, based around IQ scores, in determining eligibility for the death penalty. In Florida’s instance, the state previously said any inmate with a score higher than 70 could be put to death. But during arguments, Hall’s lawyers insisted there’s plenty of evidence showing him to be mentally disabled — despite IQ scores that put him above the crucial 70 mark. Joined by mental health organizations, they also argued that Hall’s tests didn’t factor in the inherent five-point margin of error built into IQ assessments. That extra wiggle room would give inmates (including Hall) the chance to continue arguing their case of mental instability.

Justice Kennedy wrote for the five-justice majority. Serwer situates the ruling in the context of his past opinions:

Kennedy is the author of several key decisions narrowing the death penalty. In the 2005 case Roper v. Simmons, Kennedy wrote the opinion barring capital punishment for people who commit crimes as minors. In 2007, Kennedy wrote the opinion in Kennedy v. Louisiana, holding that applying the death penalty in rape cases violated the Eighth Amendment.

“This case continues a long line of Kennedy opinions establishing boundaries on the death penalty,” said Adam Winkler, a law professor at UCLA School of Law.“While he often prefers states rights to federal power, he is foremost a believer in the Constitution’s limits on all government power to deny people basic dignity. Dignity is a principle he’s referred to repeatedly, in both the gay rights and death penalty contexts.”

But such limiting cases irk Noah Feldman:

The trouble is, each time the Supreme Court limits the death penalty, it offers an implicit justification for preserving it in most cases. The decision in this case accepts the argument that it’s inhumane to execute people who don’t fully comprehend what they’ve done or why they’re being punished. In so doing, it implies that a murderer who does comprehend his crimes deserves to die.

The court presumably also allied itself with statistical rationality. But as Justice Samuel Alito points out in his dissent, some IQ tests have a standard error lower than 5. Of course, the very definition of “standard” error depends the level of confidence we want to have. Some common confidence intervals are 68 percent, 90 percent and 95 percent — but strictly speaking, these are all based on consensus. While it’s true that the error can be standardized, a standardization isn’t “a statistical fact,” as Kennedy puts it. It’s a statistical convention.

“To understand why the Court’s ruling in Hall v. Florida is just,” Andrew Cohen states, “it’s instructive to review just how hard Florida has tried to execute Hall over the decades”:

The plaintiff came to death row in 1978 after killing a pregnant woman and a deputy sheriff. Before Atkins [v. Virginia], the Florida Supreme Court had declared that Hall had been significantly “mentally retarded” his whole life but that he still was eligible for the death penalty because there was no constitutional rule precluding such executions. Then, in Atkins, the Supreme Court by a vote of 6-3 recognized just such a rule, declaring that the execution of the intellectually disabled was a violation of the Eighth Amendment. So Florida promptly changed its tune and declared that Hall was not mentally disabled enough after all.

Under the state’s post-Atkins standard, overwhelming evidence that Hall is functionally illiterate, is unable to understand adult conversation or activities, and was developmentally disabled as a child was irrelevant to determining whether he fell under the Atkins exception. This was so in Florida because his IQ-test scores hovered between 60 and 80, often above the arbitrary cutoff of 70 that the state had adopted. To make matters more definitive, at least from the state’s perspective, officials refused to account for any standard error of measurement embraced by the scientific community.

In this way Florida—and states like Georgia and Texas, too—flouted the Atkins rule by rendering its mandate almost unrecognizable. Can’t lawfully execute the mentally disabled? No problem, they concluded, we’ll just change the definition of disability. That will be much harder to do after Tuesday’s ruling.

David Dow dismisses the ruling as too little, too late:

When the Supreme Court has a dozen or more opportunities to uphold the rule of law but doesn’t, when it has a dozen or more cases where it could remind the lower courts that it, and not they, are the final interpreters of the Constitution but doesn’t, the fact that it finally gets around to acting in a case like Hall doesn’t really mean very much. Florida got away with lawlessness for years. Texas is still getting away with it. A Court that acts only when its actions will have virtually no impact is a lackey, not a leader.

Emily Bazelon tackles the dissent, penned by Alito, in which the court’s conservatives “see themselves as sticking up for state legislators in the face of the encroaching power the majority is giving to scientists”:

“The Court’s approach in this case marks a new and most unwise turn in our Eighth Amendment case law,” [Alito] 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. … 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.

Recent Dish on the subject here.