The Supreme Court held more than a decade ago that “death is not a suitable punishment for a mentally retarded criminal,” yet many states have evaded this decision, largely because the Court also left “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Given this freedom to determine how to implement a constitutional requirement, many states erected barriers to proving that a particular inmate is intellectually disabled that all but ensured the inmate’s execution.
A case the Supreme Court agreed to hear Monday morning, however, could fix this problem.
The ostensible issue in Hall v. Florida concerns whether a mathematical accident can provide sufficient justification to execute an inmate. The Florida Supreme Court held that a person only meets the legal definition of “mental retardation” if they have an IQ of 70 or less, and an IQ test administered to death row inmate Freddie Lee Hall determined that he has an IQ of 71. This one point, according to the Florida justices, is sufficient reason to kill Hall.
The problem with this holding is that IQ tests have a margin of error — the margin of error in the test used to evaluate Hall is five points — so there’s no guarantee that Hall actually falls above the 70 IQ threshold. (indeed, there’s some evidence in the case record indicating that his IQ may be as low as 60). At the very least, there is something profoundly arbitrary about saying that a man can be killed because he happens to take a test that produces a result near the high end of a margin of error.
So Hall will determine whether such arbitrariness is allowed in death penalty cases, but there’s a much larger question implicit in this determination. If the Supreme Court second-guesses Florida’s decision to use a largely arbitrary process to determine who is or is not intellectually disabled, then that’s a significant blow to it’s prior holding that the states should “develop appropriate ways” to implement the ban on executing such inmates. Indeed, Hall could potentially close this loophole entirely, finally ensuring that states cannot evade the ban on killing intellectually disabled inmates.
The vote to keep an eye on in this case is Justice Anthony Kennedy. Though Kennedy does not deserve his reputation as a moderate, the death penalty is an outlier area where Kennedy tends to vote with the Court’s liberal bloc. Balancing out his fairly moderate views on the death penalty, however, is a willingness to sign onto state’s rights arguments that have little basis in constitutional text.
The question when the Supreme Court considers the Hall case is whether anti-death penalty Kennedy shows up, or state’s rights Kennedy. If the former takes the bench, then an eleven year-old decision protecting the intellectually disabled from executions may finally become fully enforced.