If Yogi Berra wrote about Supreme Court decisions, I know what his reaction to Hall v. Florida would be: He’d say it’s like déjà vu all over again.
On Tuesday, the Court, in a five-to-four decision, revisited the topic of executing the intellectually disabled. Justice Kennedy wrote the majority opinion, and even though it is a typically tepid piece of Kennedy-esque writing, the holding itself will be perceived as a strong rebuke to Florida. But when an ostensible rebuke comes too late to matter, is it really still a rebuke? Or is it more apt to view it as mere posturing? I’ll come back to that question later. First, a little background.
More than a decade ago, the Supreme Court ruled that the cruel and unusual punishments clause of the Eighth Amendment prohibits the states from executing the mentally retarded. That decision, Atkins v. Virginia, endorsed the definition of mental retardation employed by the American Association on Mental Retardation (AAMR), as well as the American Psychiatric Association (APA). The definition has two major elements: first, significantly subaverage intellectual functioning, which is measured by an IQ test; and second, limitations in adaptive functioning (otherwise known as living skills, like getting and keeping a job, balancing a checkbook, making and keeping friends, cooking one’s dinner, and so on). In addition, the onset of these limitations must occur prior to the age of 18.
Several important developments have taken place since Atkins was decided in 2002. The AAMR is now known as the American Association on Intellectual and Developmental Disabilities (AAIDD), and the particular limitation addressed in Atkins is now known as intellectual disability. What has not changed are the criteria for identifying this condition—a condition that makes someone ineligible for execution.
In Hall, the Court strongly reiterated the rationale that underlies Atkins as well as numerous other death penalty cases. The Eighth Amendment embodies society’s evolving standards of decency; its precise content can therefore change over time. Atkins stressed (and Hall repeats) that the states cannot execute people where the execution would serve no legitimate penological purpose. The Court has recognized that the only two legitimate justifications for the death penalty are deterrence of others and retribution, and neither justification is satisfied when the state puts to death an intellectually disabled offender. Such an individual simply lacks the moral culpability that is necessary for the State to be permitted to carry out an execution.
Following the decision in Atkins, several states took steps to undermine it. I’ll get to Texas in a moment, but let’s begin with Florida: Florida enacted a law that required that a capital defendant seeking to avoid execution on the basis of Atkins to first establish that he has an IQ of 70 or below, and the Florida Supreme Court then interpreted this law to be an inflexible requirement.
This rule departed from the AAIDD and APA definition in two critical respects: First, IQ scores, just like the GPS application on your smart phone, have an inherent measuring error. It is well-established that IQ scoring has a standard error of measurement (or SEM), and that standard error is five points. Consequently, the intellectual functioning identified by an IQ test is in the range of intellectual disability if it falls between 65 and 75.
Second, deficits in adaptive functioning are as important to the clinical definition as intellectual functioning, yet the Florida statute (at least as it was interpreted by the Florida Supreme Court) made those limitations entirely irrelevant if a defendant had an IQ score of 71. As the APA put it in a brief it filed with the Court on Hall’s behalf: “Relevant clinical authorities all agree that an individual with an IQ score above 70 may properly be diagnosed with intellectual disability if significant limitations in adaptive functioning also exist.”
Hall is rhetorically strongest when it suggests that, in the realm of scientific concepts, the professionals, and not the politicians, are the authorities. Legislators or judges in Tallahassee (or Austin, for that matter) do not get to ignore the SEM just because it might get in the way of executions.
The problem here is that even though a stranger to death penalty law might be tempted to read the holding in Hall as a rebuke to Florida and as a resounding endorsement of the important principle first articulated in Atkins, the same regime the Court rebuked is a regime the Court has repeatedly countenanced. And it isn’t the first time this has happened.
This Court has a pattern of articulating a principle, then stepping back and allowing lower courts to gut it. And, at least in the context of capital punishment, this pattern stretches all the way back to the beginning of the modern death penalty era.
For example, in Lockett v. Ohio, decided in 1978, the Supreme Court held that defendants facing execution were guaranteed the right to put mitigating evidence before the jury, and have the jury take that mitigating evidence into account in deciding whether death was the appropriate punishment. When the Court upheld the Texas death penalty law two years earlier, it indicated it believed the Texas law satisfied this criterion.
It turned out the Court was wrong; Texas didn’t allow juries to give effect to mitigating evidence after all. But the Court did not actually get around to saying so until 1989, in a case called Penry v. Lynaugh. In Penry, the Court finally realized the Texas statute did not satisfy the Constitution, and it told Texas to fix it.
Texas eventually did fix it, but in the meantime, literally hundreds of people had arrived on death row before the fix was made. Many of them went back to state or federal court and said they deserved new trials because, as the Supreme Court had recognized in Penry, their previous trials were unconstitutional. But the lower courts—like the Florida legislature—were more concerned about enabling executions than adhering to the rule of law. So they interpreted the Court’s decision in such a way that hardly anybody not himself named Penry could prevail.
And this went on for year after year after year. Eventually, in a trilogy of decisions, the Supreme Court slapped down both the Texas Court of Criminal Appeals and the U.S. Court of Appeals for the Fifth Circuit, holding that the lower courts’ interpretation of Penry had no basis in what the Supreme Court had actually said or decided. But those decisions came 15 years after the lower courts had set out on their journey of evisceration. Scores of Texas inmates whose rights under Penry had been abridged were already dead.
Hall fits precisely this pattern. The Court decided Atkins in 2002. The Florida legislature and then the Florida Supreme Court set out to undermine it. The same thing happened in Texas. In 2004, just two years after Atkins was decided, the Texas Court of Criminal Appeals (the highest criminal court in the state) decided a case involving a death row inmate named Jose Briseno. Even though the Supreme Court held that the Constitution categorically forbids the execution of those with an intellectual disability, the Texas court ruled that, in its judgment, some people with intellectual disability are nonetheless eligible for execution. As a result, numerous inmates with IQ scores at or below the 70 threshold have been executed.
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.
To be sure, Hall will give fresh ammunition to lawyers in all death penalty jurisdictions where the principle identified in Atkins has been chiseled away or even ignored. The problem is, most of their clients have long since been buried.
Dow, who represents death row inmates, is the Cullen Professor at the University of Houston Law Center and the Visiting Professor of History at Rice. His most recent book is Things I’ve Learned From Dying.