Justices Weigh IQ Tests’ Role in Death-Penalty Cases

By Mark Walsh — March 03, 2014 4 min read
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Intelligence testing came under scrutiny in the U.S. Supreme Court on Monday, not purely in the educational context, but in the unusual role it plays in some states in the imposition of the death penalty—or not.

The justices heard the appeal of Freddie Lee Hall, who has been on Florida’s death row since 1978 for the murder of a 21-year-old pregnant woman.

Hall, 68, has been considered “mentally retarded” by his family, teachers, and advocates throughout his life, and a court found him so at one point. In theory, he stood to benefit when the Supreme Court ruled in 2002, in Atkins v. Virginia, that the Eighth Amendment prohibits the execution of those with mental retardation.

The court held that the “diminished capacities” of people with mental retardation to process information, to learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others undermined the traditional justifications for the death penalty.

But the high court’s decision left much for the states to interpret. Florida adopted an IQ test score cutoff of 70 for someone to be considered mentally retarded, and the state’s highest court has interpreted state law as barring the consideration of a margin of error, known in the testing field as standard error of measurement, or SEM.

Hall has had scores on various IQ tests over the years ranging from a high of 80 to a low of 71.

In proceedings both before and after Atkins, lawyers for Hall reached back to his school years, when teachers classified him as “mentally retarded” and in need of a “special teacher,” which he never received. Hall was socially promoted for several years before he dropped out of high school.

Hall’s teachers noted that his “mental maturity is far below his chronological age,” that he was “extra slow in comprehension” and “slow in all of his work,” his lawyers argued in a Supreme Court brief.

The reliance on school records to try to establish Hall’s status was a use predicted at the time of the Atkins decision. In a 2002 story for Education Week, reporter Lisa Fine Goldstein reported that “criminal-defense lawyers now say that student special education records documenting the mental retardation diagnosis of defendants will prove to be key in such cases,” as would “testimony from teachers or from school psychologists.”

Hall’s effort to establish a claim of mental retardation under Atkins largely began and ended with his established IQ scores. A Florida court disregarded evidence that Hall had met other prongs for the clinical diagnosis of retardation and upheld his death sentence.

During the oral arguments in Hall v. Florida (Case No. 12-10882), the discussion ranged from standard deviations and measurement errors to composite scores and the uses of intelligence testing for remediation and even programs for the gifted.

Seth P. Waxman, Hall’s lawyer, argued that standard error of measurement would mean his client’s IQ scores fall within the definition of mental retardation, and he that should not be subject to execution.

“In this case, there were six experts who fully examined Mr. Hall” or supervised such an exam, Waxman said. “They were cognizant of the IQ test scores that he had received. And each one of them opined without hesitation that he had mental retardation, functional mental retardation.”

He noted that Florida uses IQ tests and the existence of mental retardation for such services as “educational remediation and vocational rehabilitation,” and the state uses standard errors of measurement in those instances.

In the death-penalty context, Waxman said, “If a state conditions the opportunity to demonstrate mental retardation on obtained IQ test scores, it cannot ignore the measurement error that is inherent in those scores that is a statistical feature of the test instrument itself.”

Allen Winsor, the solicitor general of Florida, argued that Hall’s teachers were not qualified to make a diagnosis of mental retardation, and that Hall was not administered an IQ test until he was 23.

Winsor told the justices that because Hall cannot meet the first prong of the modern diagnosis criteria for intellectual disability—the cutoff score for general intellectual functioning—the other two prongs do not matter. Those prongs are onset of the disability before age 18 and “adaptive functioning,” such as the ability to engage in logical reasoning and to learn from experience.

“All we’re stopping is the consideration of the other prongs when it’s clear that the first prong can’t be satisfied,” Winsor said.

“Florida has an interest in ensuring that the people who evade execution because of mental retardation are people who are, in fact, mentally retarded,” Winsor said. “And if we apply the rule that [Hall] has suggested, it would double the number of people who are eligible for the exemption.”

Justice Samuel A. Alito Jr. asked Winsor whether the same principle would apply if a school set a strict cutoff score, say 130, for entry to a gifted education program, even when such a system excluded students within the standard error of measurement just below 130. “Would there be something wrong with their doing that?” Alito said.

Yes, said Winsor, “The decisionmaker who’s relying on an IQ test score, to take your example about someone in a school, they can set that as high or low as they want to, because they might want to be overinclusive, they might want to be particularly restrictive,” he said.

But the death-row context under Atkins is an “adversarial process,” Winsor said. “We have a burden of proof, a clear and convincing evidence burden of proof that’s not shared in the clinical setting.”

A decision in the case is expected by June.

A version of this news article first appeared in The School Law Blog.