Twelve years ago, in a case known as Atkins v. Virginia, the Supreme Court held that “death is not a suitable punishment for a mentally retarded criminal.” Yet the Atkins opinion also contains a loophole that renders it virtually meaningless in many cases — in the Court’s words “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.”
Given this leeway to design their own methods for screening inmates, several states executed inmates that almost certainly were intellectually disabled (the clinical term for what legal opinions still refer to as “mental retardation.”). Texas executed Marvin Wilson, a man with a “Full Scale I.Q. of 61” who “required repeated instruction for doing even simple things, such as cutting the grass” and who “seemed to have a difficult time dressing himself properly.” Georgia intends to execute Warren Lee Hill, who was determined to be intellectually disabled by seven different mental health professionals, but who is also unable to overcome a nearly impossible burden of proof imposed by Georgia law.
On Monday, the Supreme Court will hear oral arguments in Hall v. Florida, a case that could potentially undo these states’ ability to exploit the loophole in Atkins. At the very least, the Court’s decision in Hall will provide some window into whether the justices really meant it when they said that the death penalty is “not a suitable punishment” for the intellectually disabled.
According to Freddie Lee Hall’s attorneys, Hall’s elementary school teachers “repeatedly classified him as ‘mentally retarded,’” as did multiple psychiatrists and psychologists. Though an adult, Hall is “illiterate and cannot perform basic arithmetic.” When he tried to live independently, he “could not cook for himself or clean his own clothes and did not bathe regularly.” And he was completely unable to handle his own finances. “ He had difficulty holding a job, and when he did manage to receive a paycheck, he typically lost all his money by the next day — Hall is “[d]escribed as ‘gullible and easily influenced,’” and he “lost money gambling and by giving . . . money to anyone who paid attention to him.”
Hall, however, also took an IQ test where he scored a 71 — and Florida law follows a bright line rule forbidding a death row inmate from being classified as intellectual disabled if their IQ is just one point over 70. A different IQ test showed his score to be as low as 60, but Florida intends to move forward with executing Hall, regardless. If he had scored just one point lower on the test that showed his IQ to be 71, Hall would be allowed to live, but because he was just slightly over the line, Florida claims the right to kill him.
A major problem with this outcome is that Hall could have very well have scored below the magic number of 70 if he had taken an IQ test on a different day. The margin of error in the test used to evaluate Hall is five points — so Hall’s IQ could be as low as 66 under the test that deemed him to be just outside the range for an intellectual disability.
So the narrow question in Hall is whether a man can be executed based on something as arbitrary as where he fell within a wide margin of error on the particular day when his IQ was tested. But the case could also have much more sweeping impact as well. If the justices recognize that the Atkins loophole has enabled too many states to dodge that decision’s core holding — that the intellectually disabled shall not be executed — then Hall presents them with the perfect vehicle to close that loophole. At the very least, if gives them the opportunity to say that Florida’s rule — which could allow an intellectually disabled person to be executed based on little more than pure randomness — is a bridge too far.
Most likely, the question of whether the Court will close this loophole will come down to Justice Anthony Kennedy. Unlike his fellow conservatives, Kennedy has a fairly moderate record on the death penalty. He joined the majority opinion in Atkins and he wrote a similar opinion prohibiting the execution of child offenders. Kennedy, however, has also endorsed doubtful and even, on occasion, ridiculous theories of states rights.
Hall’s fate, in other words, will likely rest upon whether his case is heard by the Justice Kennedy who is cautious about the death penalty or the Justice Kennedy who is enthusiastic about states’ rights.