New York Times

Oral Arguments in Flerida Capital Punishment Case: What Will Count as Mental Retardation?

March 4, 2014

by Adam Liptak

WASHINGTON — A majority of the Supreme Court seemed skeptical on Monday of how Florida decides who is eligible to be spared the death penalty on account of intellectual disabilities. The state uses an I.Q. of 70 as a rigid cutoff, and several justices suggested that it should take account of a standard margin of error or consider additional factors.

Other justices seemed inclined to allow Florida and other states to decide for themselves how to determine who is “mentally retarded” and so ineligible for execution under the court’s 2002 decision in Atkins v. Virginia.

As Monday’s argument progressed, it became clear that what divided the two groups of justices was more than the particular case. Their disagreement was a larger one about the role of scholarly and professional expertise in the resolution of legal disputes.

“We didn’t base our decision in Atkins upon a study of what the American Psychiatric Association and other medical associations considered to be mental retardation,” Justice Antonin Scalia said. “We based it on what was the general rule that states had adopted.”

Justice Anthony M. Kennedy noted that the court will hear a case on Wednesday involving economic theory.

“Do you think we defer to psychiatrists and psychologists any more or any less than we do to economists?” he asked Seth P. Waxman, a lawyer for the death row inmate in the case, Freddie L. Hall.

Mr. Waxman said the court should defer “much, much, much more” to the first group because, he said, the condition in question “can only be appropriately diagnosed by professionals.”

The problem with Florida’s rigid cutoff, Mr. Waxman said, is that it does not take into account standard measures of error. That is, he said, not a matter of differences in professional opinion. “It is simply a statistical fact,” he said.

Mr. Hall had generally scored slightly above 70 on I.Q. tests. If the standard error measurement was applied, Mr. Waxman said, the true result could be as many as five points lower. He added that a cutoff of 75 would be permissible.

Allen Winsor, Florida’s solicitor general, said his state’s approach was “a reasonable legislative judgment,” one he said was followed in eight states.

But Justice Kennedy said the approach amounted to declining “to follow the standards that are set by the people that designed and administer and interpret the tests.”

Justice Stephen G. Breyer suggested that the court could require an expert to explain statistics to the judge or jury deciding whether the inmate had an intellectual disability. “What is so terrible about doing it?” he asked.

Mr. Winsor responded that “what is so terrible about doing it is you would end up increasing the number of people who would be eligible for a mental retardation finding.”

“Florida has an interest in ensuring,” he said, “that the people who evade execution because of mental retardation are people who are, in fact, mentally retarded.”

Justice Kennedy and Justice Elena Kagan said the effect of Florida’s approach is to stop consideration of the other two factors in the analysis suggested in the Atkins decision.

The case at issue Monday, Hall v. Florida, No. 12-10882, arose from the 1978 murder of Karol Hurst, who was 21 and seven months pregnant when Mr. Hall and an accomplice forced her into her car in a supermarket parking lot. She was found in a wooded area, where she had been beaten, sexually assaulted and shot.

Mr. Hall was convicted of murdering Ms. Hurst and sentenced to death.

Justice Breyer, who has long been concerned with the constitutionality of keeping inmates on death row indefinitely, noted that Mr. Hall had been on death row “for over 35 years.” The justice has not attracted many allies on that particular critique of the American capital justice system, but on Monday Justice Kennedy seemed to join him.

“The last 10 people Florida has executed have spent an average of 24.9 years on death row,” Justice Kennedy said. “Do you think that that is consistent with the purposes of the death penalty, and is it consistent with sound administration of the justice system?”

Justice Scalia said the inquiry was misdirected. “General Winsor,” he said, “maybe you should ask us that question, inasmuch as most of the delay has been because of rules that we have imposed.”