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United States Supreme Court to review Florida's bright-line IQ test to determine mental retardation in capital cases.

The United States Supreme Court has granted a capital prisoner's Petition for Writ of Certiorari to determine whether Florida's scheme utilizing a bright-line IQ score of 70 for identifying defendants with mental retardation in capital cases violates Atkins v. Virginia. Hall v. Florida, No. 12-10882,--S. Ct.--, 2013 WL 3153535(mem) (Oct. 21, 2013). In Atkins v. Virginia, 536 U.S. 304 (2002), the Supreme Court held that the execution of defendants with mental retardation violates the Eighth Amendment prohibition against cruel and unusual punishment. In a per curiam opinion, the Florida Supreme Court determined that the defendant could not meet the first prong of the mental retardation standard establishing a maximum IQ score of 70 and upheld his death sentence. Hall v. Florida, 109 So. Ed 704 (Fla. 2012). Should the Supreme Court overturn Florida's scheme, the decision could impact mental retardation determinations in the states that still employ the death penalty, especially the twelve states, including Virginia, that have either a statutory or case law bright-line rule that does not apply the standard error measurement.

Freddie Lee Hall was convicted in 1981 for the 1978 murder of a man he kidnapped while robbing a convenience store. Upon fleeing the scene of the robbery, Hall stole a car and kidnapped his victim, and then drove approximately 18 miles to a wooded area where he killed him. Hall appealed his conviction, which was upheld, and filed numerous post-conviction petitions through the years, all of which were eventually denied.

In 1988, Hall again challenged his death sentence, arguing based on a then recently decided United States Supreme Court decision holding that all mitigating factors, and not just statutory mitigation, must be considered by the judge and jury. The Florida Supreme Court granted Hall's petition in 1989 and remanded his case to the trial court for a new sentencing proceeding. During his resentencing hearing, the trial court found Hall to be mentally retarded as a mitigating factor but gave it "unquantifiable" weight, finding aggravating factors that outweighed the mental retardation factor, and again sentenced him to death. The Florida Supreme Court upheld this decision in 1993. Hall again pursued post-conviction relief which the Florida Supreme Court denied, finding that the trial court did not err in finding him competent to proceed at the resentencing, but writing "while there is no doubt that [Hall] has serious mental difficulties, is probably somewhat retarded, and certainly has learning difficulties and a speech impediment, the Court finds that [Hall] was competent at the resentencing hearings." Hall v. State, 742 So.2d 225,229 (Fla. 1999).

In 2002, the United States Supreme Court decided Atkins, holding that imposition of the death penalty for defendants with mental retardation violates the Eighth Amendment prohibition against cruel and unusual punishment. The Supreme Court, however, left it to the States to determine how to measure mental retardation. Following this decision, Hall filed a motion to vacate his sentence, arguing among other things, that the issue of his mental retardation could not be re-litigated because he had already been found mentally retarded at his mitigation resentencing hearing. The trial court denied this motion, and at the 2-day evidentiary hearing in December 2009, testimony was presented concerning Hall's behavior and functioning as a child, including his problems with reading, writing and caring for himself. One expert testified that Hall's IQ using the Wechsler Adult Intelligence Scale Revised was 73, and that a prior result given by another psychologist on the same test was 80. Another expert testified that Hall scored a 71 on the Wechsler Adult Intelligence Scale Third Edition (WAIS-III). Hall also sought to introduce a report completed by a then-deceased expert reflecting a score of 69, which the court refused to admit into evidence. The trial court then refused to vacate Hall's sentence because he could not meet the first prong of the mental retardation standard--an IQ of 70 or below.

Florida statute [section] 921.137(1), adopted in 2001 prior to the Atkins decision, but after Hall' s mitigation resentencing hearing, defines mental retardation as "significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18." It defines "significantly subaverage general intellectual functioning" as "performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the Agency for Persons with Disabilities." Two standard deviations of 15 points each from the mean of 100 is an IQ score of 70.

On appeal, Hall argued, among other things, that IQ should be read as a range of scores from 67 to 75 and that Florida's adoption of a firm cutoff of 70 or below misapplies Atkins and fails to reflect an understanding of IQ testing. He argued that the appropriate standard should also include the standard error measurement (SEM). Relying on its precedent interpreting the statute, the Florida Supreme Court stated that the Florida statute does not use the word "approximate," nor does it reference the standard error measurement. Based on the plain meaning of the statute, the Court held that the legislature established a bright-line IQ standard of 70 from which it could not deviate. It further found that Atkins did not mandate a specific IQ score or range of scores. Because Hall could not meet the first standard of an IQ of 70 or below, the Court held that the trial court did not err in refusing to admit evidence establishing deficits in Hall's adaptive behavior that manifested before age 18.

The Court also found the trial court did not err in refusing to admit the report of the deceased psychologist reflecting an IQ of 69 because the underlying data supporting the report were not available and subject to challenge by the State. The Court also rejected Hall's argument that Florida was precluded from challenging his mental retardation because the trial court had previously found him to be mentally retarded during the previous resentencing hearing on mitigation The Court found that the mitigation hearing occurred prior to the enactment of the Florida statute defining mental retardation and the current definition controlled, and that mental retardation as a mitigating factor and mental retardation under Atkins were discrete legal issues.

Three justices concurred in the per curiam opinion and one justice concurred separately in the result, also finding a strict cutoff IQ of 70 based upon a plain reading of the statute. The concurring justice focused his opinion, however, on the lack of issue preclusion from the mitigation hearing. He stated that even though the trial court at the mitigation hearing found Hall to be mentally retarded, it expressed concerns throughout the hearing that Hall's experts were exaggerating his inabilities. The justice also noted that Hall's crime reflected more deliberation and planning than would be expected from a typical defendant with mental retardation.

The majority of the Florida Supreme Court did not address the constitutionality of Florida's statutory scheme. Two dissenting justices did, however. One justice wrote that the trial court had found that Hall had been mentally retarded his entire life but ironically his execution was being permitted solely by the Legislature's after-enacted and inflexible definition of mental retardation. He noted that Atkins did not prescribe any bright-line cutoff, although it stated that "mild" mental retardation is typically used to describe someone with an IQ level in the range of 50 to 70. Because of the difficulty in determining which offenders are in fact mentally retarded, the Supreme Court left it to the States to develop "appropriate" ways to enforce the constitutional restriction on execution of sentences. This justice would have found therefore that imposition of a bright-line IQ cutoff was not "appropriate" when there was ample evidence of mental retardation from an early age.

The second dissenting justice wrote that imposing the death sentence on a prisoner who had been found mentally retarded even though he could not establish an IQ of below 70 would produce an absurd result. He went on to recite the record evidence reflecting Hall's mental retardation, including testimony of an IQ of 60, his organic brain damage, chronic psychosis, speech impediment and learning disability. The justice wrote that Hall is functionally illiterate and has the short-term memory of a first grader. He indicated that the evidence also suggested that Hall was suffering from a mental and emotional disturbance, and to some extent may have been unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

The justice also wrote that the record reflected Hall suffered tremendous physical abuse and torture as a child. He was the sixteenth of seventeen children and was tortured by his mother. She tied him in a "croaker" sack, swinging it over a fire and beat him; buried him in the sand up to his neck to strengthen his legs; tied his hands to a rope attached to a ceiling beam and beat him while naked; locked him in a smokehouse for extended periods; and held a gun on him and his siblings while poking them with sticks. The justice went on to write that the Supreme Court articulated in Atkins that those with disabilities in areas of reasoning, judgment and control of their impulses do not act with the same level of moral culpability that characterizes the most serious criminal conduct and in the interest of justice, he would have vacated the sentence.

The Supreme Court should hear this case during its January term and its decision may provide more guidance to the States in implementation of the death penalty for defendants alleging mental retardation. Florida is not unique in its use of a bright-line IQ score of 70, but there is no clear consensus among the States on this issue. Ten states among those that still impose the death penalty, including Virginia under Va. Code [section] 19.2-264.3:1 .I(A), have a statutory bright-line rule and do not apply the standard error measurement. Two additional states, Alabama and Kansas, apply a bright-line rule through court decision. Sixteen states apply the standard error measurement, including ten states without a bright-line cutoff. The application of the standard error measurement to IQ scores in the remaining four states is unclear.
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Title Annotation:Recently Decided and Pending Cases
Publication:Developments in Mental Health Law
Date:Nov 1, 2013
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