The Implications of Hall v Florida
John Weston Parry, J.D.
The United States Supreme Court’s ruling in Hall v Florida, No. 12-10882 (U.S. Sup. Ct. May 27, 2014)—which struck down Florida’s (and by reference nine other states’) inflexible standards for determining whether defendants have an intellectual disability that makes them ineligible for the death penalty—should be viewed as critically important, beyond the narrow holding itself. First, the 5-4 majority opinion reprioritizes the relative importance of the two major rationales used to justify the ban on executing persons with intellectual disabilities established in Atkins v. Virginia, 536 U.S. 304 (2002). This shift in emphasis substantially increases the possibility that in the future, defendants with other types of severe mental disorders may be constitutionally protected from being executed. Second, even if “contemporary values” change and a majority of Americans come to believe that executing persons with intellectual disabilities should be permitted, Hall has embraced a persuasive independent constitutional basis for upholding Atkins.
The Supreme Court’s Opinion
Freddie Lee Hall was convicted of murder in 1981, for which he received the death penalty. After the U.S. Supreme Court rendered its historic decision in Atkins, Hall challenged his sentence in state court based on evidence that he had an intellectual disability (which was then called mental retardation) that exempted him from execution. As part of his evidence, Hall submitted an IQ test, which indicated that he had a score of 71. Because Florida’s legal definition of intellectual disability requires a score of 70 or less, no other evidence about his condition was admissible; he was automatically deemed eligible for the death penalty that he had received at sentencing. The Florida Supreme Court upheld Hall’s sentence, determining that the requirement that he have an IQ score of 70 or less in order to be eligible for the execution ban met constitutional standards under Atkins.
In an opinion written by Justice Kennedy, a divided U.S. Supreme Court struck down the Florida law as interpreted. The majority was convinced that the Eighth Amendment’s requirement that government “respect the dignity of all persons” prohibited the execution of persons with intellectual disabilities. No “penological purpose” would be served in executing this particular group of defendants. In addition, due to their impairments, defendants with intellectual disabilities are at an increased risk of being executed wrongfully. Not only is there a greater likelihood that they will make false confessions, but often they are poor witnesses and unable to provide meaningful assistance to their lawyers.
Discussion of the Majority Opinion: What Was Missing?
What was conspicuously absent in the Court’s opinion was the rationale in Atkins that at the time appeared to be the main reason that Court had overturned a prior decision in Penry v. Lynaugh, 492 U.S. 302 (1989), which had upheld the execution of persons with mental retardation. As explained in Mental Disability, Violence, Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield, Oct. 2013) (excerpts in bold italics without references supplied),
The Atkins decision had two major intertwined rationales, which requires treating people with mental retardation differently than any other category of adult capital defendants… The first rationale was the one articulated by Kennedy in the majority opinion in Hall. This should have been sufficient to support the Atkins ruling.
Unfortunately it was not. A second—arguably even more decisive rationale—was needed to justify the Court’s overruling existing precedent. That rationale focused on a new national consensus [that] had evolved. This shift in attitudes made execution of persons with mental retardation morally offensive, which, under the Eighth Amendment… provided the necessary constitutional linchpin for overruling the prior decision…. As… necessary as… [this legal rationale] proved to be, it also reinforced and expanded a legal precedent that someday could have negative repercussions for persons with mental disabilities…[T]his particular rationale…has potential negative implications…for people with mental disabilities, whose lack of popularity has made them especially vulnerable to abuse and injustice by majority acclimation.
The “change in attitudes” rationale almost scuttled the majority decision in Hall. Four justices in their dissent embraced that part of the Atkins decision in challenging the majority’s reasoning and outcome. In Penry and Atkins it was Justice O’Connor who cast the deciding vote in each decision and changed her mind in the subsequent case. In Hall, as in a number of cases since O’Connor retired, Kennedy has been the justice who generally holds the balance of power in these types of criminally-oriented rights cases. Without his deciding vote, Justice Alito’s dissent probably would have been the majority opinion.
The dissent in Hall focused on the Eighth Amendment’s proscription that “whether a punishment is `cruel and unusual’ depends on currently prevailing social norms….” This was the basis for the prevailing rationale in Atkins. As the majority had explained in Penry, “the Court has long held that laws enacted by state legislatures provide the `clearest and most reliable objective evidence of contemporary values….” Thus, when the execution of persons with mental retardation (now called intellectual disabilities) was supported only in a minority of states, this reflected the necessary change in attitudes. “`[I]n a democratic society[,] legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people….”
Utilizing this interpretation as the primary basis by which Atkins had been decided, the dissent challenged the majority with the following argument:
While Atkins identified a consensus against the execution of the intellectually disabled…there was `serious disagreement’ among the States with respect to the best method for `determining which offenders are retarded.’ The Court therefore `le[ft] to the States the task of developing appropriate ways’ to identify these defendants…Atkins `did not provide definitive procedural or substantive guides for determining when a person’ is intellectually disabled.
The majority opinion in Hall relied in part on the medical, psychological, and disability expertise of those who prepare the standards and guidelines by which intellectual disabilities are determined, nationally. This evidence had been presented by the leading professional organizations representing those disciplines, including the American Psychiatric Association and the American Association on Intellectual and Developmental Disabilities. It was clear using those accepted standards and guidelines that the use of an IQ score alone, much less one that was as low as Florida’s, did not comport with either the best evidence or best practices. Equally important to intellectual function in the definition of intellectual disability is the individual’s adaptive behavior, which cannot measured by an IQ score. Alito, however, as a matter of legal precedent, was able to counter such powerful medical, psychological, and disability evidence with this argument:
In… prior cases, when the Court referred to the evolving standards of a maturing `society,’ the Court meant the standards of American society as a whole. Now, however the Court strikes down a state law based on the evolving standards of professional societies…This approach cannot be reconciled with the framework prescribed by our Eighth Amendment cases.
Discussion of the Decision’s Implications
Alito and his fellow dissenters presented a strong legal argument that is convincing, unless you embrace the other major rationale that was used to support Atkins and was the primary rationale for the majority opinion in Hall. “Respect for the dignity of all persons” is a cornerstone of the Eighth Amendment, along with the prohibition against “cruel and unusual punishment.” Prohibiting executions of individuals, who have demonstrated that they have a “special risk of wrongful execution,” serves the fundamental interest of protecting the integrity of the trial process.
The narrow holding in Hall would make it a decision that, as the New York Times accurately observed, “may spare some inmates on death row” in nine states, including Alabama, Arizona, Delaware, Florida, Kansas, Kentucky, North Carolina, Virginia and Washington (L. Alvarez & J. Schwartz, May 28, 2014). The Courts change in emphasis, however, which embraces “respect for dignity,” fundamentally transforms the death penalty landscape for persons with any type of mental condition or disorder that makes them a “special risk [for] wrongful execution.” Those risks, as described by the majority opinions in Hall and Atkins, include: a tendency to make false or inaccurate confessions; an inability to perform ably as a witness; and an inability to “meaningful[ly]” assist counsel. Yet, there are many other substantial risks that capital defendants with mental disabilities share.
Many of the arguments for expanding the right not to be executed, from only persons with intellectual disabilities narrowly defined, to anyone with a mental impairment that seriously affects their abilities to be tried fairly, are articulated in Mental Disability, Violence, Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield, Oct. 2013). Brief excerpts without references follow below in bold italics, along with other observations based on the book.
The most important reason that defendants with mental disabilities cannot obtain a fair trial by a jury or judge in a death penalty case is the future dangerousness standard that is used to decide whether executions are justified, coupled with the societal stereotype that persons with mental disabilities are inherently dangerous. As John Blume’s research has shown, [courts often—and arguably almost always—rely on future dangerousness to justify the death penalty, and this reliance can be either de facto or dejure. Unfortunately, how these assessments are made, particularly for persons with mental disabilities, remains a travesty of justice.
Assessments by state-retained experts have proven to be unreliable, generally failing to meet even the lowest standard of proof—a preponderance of the evidence—much less the most rigorous beyond a reasonable doubt standard…that our Constitution demands for criminal convictions, but not…for sentencing. In death penalty cases, the critical factor is what the jury believes, which has turned this … into an evidentiary free-for-all that is worse when inherently faulty predictions of dangerousness of or assumptions about dangerousness are relied upon to execute persons with mental disabilities….As Michael Perlin’s work has revealed, [s]tudies substantiate [that] `there is no question that the death penalty is disproportionately imposed in cases involving defendants with mental disabilities.’”
The second factor that makes the death penalty unfair with regard to persons with mental disabilities is what Michael Perlin has called “sanism,” which is bias, prejudice, and stigma that is analogous to racism. His book Mental Disability and the Death Penalty (Rowman & Littlefield 2013) and my book demonstrate convincingly that mental disability plays a much more significant role in contributing to the death penalty verdicts than in preventing them…. Defendants with mental illnesses, below normal intelligence, and other cognitive deficiencies, who are not protected by… Atkins… is particularly vulnerable to being executed. There are at least four reasons why this bias occurs.
To begin with, many, if not most, persons with serious mental disabilities are more likely to confess or be convinced to confess…. Such confessions often are false… [or] inaccurate, misleading, or overly damning….Also many interrogators deliberately use a suspect’s mental impairments to facilitate a confession…. In addition, most jurisdictions have narrowed, or all but repealed, the statutes that used to allow defendants… to pursue diminished culpability defenses…. Furthermore, mental impairments are much more likely to be used as an aggravating factor … than as a mitigating factor that would reduce their culpability. Finally, most capital defendants lack the means to hire their own mental health experts to help their lawyers prepare mental status defenses and mitigation strategies, and to testify at trial.
Thus, for these and other reasons, in 2006 the American Bar Association, the American Psychiatric Association, the American Psychological Association, and the National Alliance of the Mentally Ill jointly recommended that defendants with certain severe mental disorders—in addition to mental retardation—should not be executed. Nevertheless, not a single jurisdiction has passed legislation to require such an exemption….This lack of concern for persons with mental disabilities extends throughout our legal system.
As a result of how people with mental disabilities are treated with regard to the death penalty specifically, but more importantly in our criminal justice and civil detention and monitoring systems as a whole, I argue that persons diagnosed with mental disorders, conditions, or aberrations—or officially labeled as such—who are deemed by state or federal governments to be dangerous (or harmful), make up an insular minority, which should be recognized as a suspect classification under our Constitution.