“INTELLECTUAL DISABILITY IS A CONDITION,
NOT A NUMBER”1:
FLORIDA’S THRESHOLD REQUIREMENT FOR
INTELLECTUAL DISABILITY IN DEATHPENALTY CASES RULED UNCONSTITUTIONAL
In the landmark case, Atkins v. Virginia,2 the Supreme Court of
the United States held that executing a person with an intellectual
disability3 is cruel and unusual punishment that is prohibited by the
Eighth Amendment. 4 The Court considered current prevailing
standards to determine whether these executions were an excessive
form of punishment.5 Consistent with its previous determination that
“[t]he clearest and most reliable objective evidence of contemporary
values is the legislation enacted by the country’s legislatures,”6 the
Atkins Court found that “the large number of States prohibiting the
execution of mentally retarded persons . . . provides powerful
evidence that today our society views mentally retarded offenders as
categorically less culpable than the average criminal.”7 But because
the Court recognized that there is no definitive test to establish
intellectual disability, it left the task to the states to develop a
mechanism to enforce its ruling.8
In Hall v. Florida,9 the Court clarified its position, stating that
“Atkins did not give the States unfettered discretion to define the full
scope of the constitutional protection.” 10 A Florida statute, as
interpreted by state courts, required defendants facing death
sentences to establish that they scored 70 or below on an IQ test
before being allowed to introduce any additional evidence of
intellectual disability. 11 The Court held that Florida’s threshold
1. Hall v. Florida, 134 S. Ct. 1986, 2001 (2014).
2. 536 U.S. 304 (2002).
3. The Supreme Court of the United States has historically used the term
“mental retardation,” but opted for the term “intellectual disability” in Hall v.
Florida “to describe the identical phenomenon.” 134 S. Ct. 1986, 1990 (2014).
4. Atkins, 536 U.S. at 321.
5. Id. at 311.
6. Penry v. Lynaugh, 492 U.S. 302, 331 (1989).
7. Atkins, 536 U.S. at 316.
8. Id. at 317.
9. 134 S. Ct. 1986 (2014).
10. Id. at 1998.
11. Id. at 1994.
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requirement for establishing intellectual disability was
unconstitutional because it “creat[ed] an unacceptable risk that
persons with intellectual disability will be executed.” 12 The Court
reasoned that Florida’s rule was unreliable because defining
intellectual functioning strictly by an IQ score is contrary to the
practice of medical professionals,13 the laws of most states,14 and the
Court’s approach in Atkins.15
Freddie Lee Hall was convicted of murder and sentenced to death
long before Atkins was decided.16 After Atkins, he filed a motion to
vacate his sentence, arguing that his intellectual disability precluded
the state from executing him.17 Hall presented evidence in support of
his claim, including an IQ score of 71.18 The state court held that Hall
could not be found intellectually disabled because “Florida law
requires that, as a threshold matter, Hall show an IQ test score of 70
or below” to meet the definition.19 Because Hall failed to meet this
threshold, he was barred from introducing any other evidence
supporting his claim. 20 The Florida Supreme Court denied Hall’s
appeal, finding his death sentence constitutional. 21 The Supreme
Court of the United States granted certiorari to evaluate whether
Florida’s threshold requirement was unconstitutional.22
In Hall, the Court reiterated the rationale behind its decision in
Atkins, asserting that there is no legitimate penological purpose to
execute an intellectually disabled individual. 23 It also asserted that
this exemption from the death penalty maintains the integrity of the
trial process because the intellectually disabled are more likely to
falsely confess, are usually poor witnesses, and are less able to
provide meaningful assistance to their counsel.24
But the rationale in Hall differed from Atkins in one meaningful
way. Both decisions are deeply rooted in currently prevailing
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
Id. at 1990.
Id. at 1995–96.
Id. at 1996–98.
Id. at 1998–99.
Id. at 1990.
Id. at 1991–92.
Id. at 1992.
Hall v. State, 109 So. 3d 704, 707–08 (Fla. 2012).
Hall, 134 S. Ct. at 1992.
Hall, 109 So. 3d at 711.
Hall, 134 S. Ct. at 1993, 2001.
Id. at 1992.
Id. at 1993.
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HALL V. FLORIDA
3
standards and well-established norms.25 The Atkins Court described
the currently prevailing standard in terms of the national legislative
trend, recognizing that the definition of intellectual disability in most
states is synonymous with the clinical definition. 26 But the Hall
majority more explicitly leaned on the clinical definition in setting
the standard, yielding to the expertise of medical professionals to
guide its decision.27 This is a praiseworthy approach because, as the
Court acknowledges, “[s]ociety relies upon medical and professional
expertise to define and explain how to diagnose the mental condition
at issue.”28 So it makes logical sense for those same experts to inform
the Court’s and the legislatures’ understanding of their diagnostic
framework.
The Hall Court evaluated Florida’s threshold requirement in light
of the prevailing medical definition of intellectual disability, which is
based on three criteria: (1) significantly sub-average intellectual
functioning, (2) deficits in adaptive functioning, and (3) onset of
these deficits during the developmental period.29 The Court focused
primarily on the first two criteria. 30 Florida’s statute defines
intellectual disability as “significantly sub-average general
intellectual functioning existing concurrently with deficits in adaptive
behavior and manifested during the period from conception to age
18.” 31 Significantly sub-average general intellectual functioning is
defined as “performance that is two or more standard deviations32
from the mean score on a standardized intelligence test,”33 calculated
to be an IQ score of about 70.34 The Court noted that this definition
25. See id. at 1993–96; Atkins v. Virginia, 536 U.S. 304, 311–12 (2002).
26. See Atkins, 536 U.S. at 312, 317 n.22.
27. See Hall, 134 S. Ct. at 1993–96, 2001 (reiterating throughout the opinion
that an evaluation of currently prevailing standards would be incomplete without
examining the professional standard).
28. Id. at 1993.
29. Id. at 1994.
30. Id.
31. FLA. STAT. ANN. § 921.137(1) (Westlaw 2014).
32. Standard deviation refers to how scores are dispersed in a population. Hall,
134 S. Ct. at 1994.
33. FLA. STAT. ANN. § 921.137(1) (Westlaw 2014).
34. Hall, 134 S. Ct. at 1994.
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is, on its face, consistent with the prevailing medical standard and
does not violate Atkins.35
But the Florida Supreme Court narrowly interpreted the statute. A
defendant must show significantly sub-average intellectual
functioning, by an IQ score of 70 or below, before a court can
consider the remaining factors.36 So any individual with an IQ score
above 70 cannot show intellectual disability and is barred from
introducing any other evidence of disability (such as evidence
intended to demonstrate deficits in adaptive functioning).37 In finding
the state court’s interpretation of the statute unconstitutional, the
Court rationalized that the Florida rule is at odds with established
medical practice for two reasons. 38 First, the Florida rule defines
intellectual disability solely on the basis of IQ score, while medical
practitioners would examine other factors.39 And second, the Florida
rule fails to recognize that an IQ test is an imprecise measure of an
individual’s abilities.40
Professionals who design, administer, and analyze IQ tests
interpret the test scores as a range—not as a single fixed number.41
Each IQ test has a standard error of measurement (SEM), reflecting
that such tests are inherently imprecise. 42 The SEM acknowledges
that various factors may alter an individual’s IQ score. So it would be
inaccurate to define an individual’s intellectual capacity in terms of a
single number.43 The SEM allows an individual’s score to be more
accurately conveyed as a range of scores on either side of the
recorded result, allowing a practitioner to compute a more accurate
spectrum within which a person’s IQ score truly lies.44
Inconsistently with this widely accepted standard, Florida
determines intellectual capacity based on a fixed number,
disregarding both the SEM and other factors that tend to establish
35. Id. It is noteworthy to mention that the Atkins Court seemingly gave this
same Florida statute a nod of approval, but this was before the Florida Supreme
Court interpreted the law to mandate a cutoff score of 70. Id. at 1999.
36. Hall v. State, 109 So. 3d 704, 710 (2012).
37. Hall, 134 S. Ct. at 1994–95.
38. Id. at 1995.
39. Id.
40. Id.
41. Id.
42. Id.
43. Id.
44. Id.
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HALL V. FLORIDA
5
intellectual disability.45 The imprecise nature of IQ tests, combined
with Florida’s divergent standard, supports the Court’s decision to
clarify the Atkins holding; states do not have unfettered control to
define intellectual disability. It also supports the Court’s
determination that the prevailing medical standard is largely
controlling.
Although the Court does give great weight to the prevailing
medical standard, it does not depart entirely from the conservative
approach it adopted in Atkins.46 The Hall Court confirmed that its
holding reflects the nationwide legislative standard. It noted that most
states’ statutes consider the SEM, and thus the unavoidable
imprecision of IQ scores, when evaluating intellectual disability. 47
But Hall also clearly indicates the Court’s willingness to adopt a
more multi-disciplinary approach to evaluating constitutionality. In
fact, the Court recognized that its “duty [is] to interpret the
Constitution, but it need not do so in isolation.”48 The Atkins Court
was much more subtle, referring to the medical community’s
diagnostic framework by simply noting that most states’ statutory
definitions conform to the clinical definition.49 But in Hall, the Court
essentially directed states to define intellectual disability consistently
with the prevailing standards of the medical community.50
The dissent criticizes the majority’s revolutionary approach.
Justice Alito’s dissent found the Florida rule constitutional.51 But he
appeared more disgruntled by the majority’s reliance on “the
standards of professional associations, which at best represent the
views of a small professional elite,”52 than with the holding itself. In
particular, Justice Alito noted that previously, “when the Court
referred to 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
45. Id. at 1996.
46. Atkins v. Virginia, 536 U.S. 304, 311–312 (2002).
47. Hall, 134 S. Ct. at 1996.
48. Id. at 2000.
49. Atkins, 536 U.S. at 317 n.22.
50. Hall, 134 S. Ct. at 2001 (“Florida’s rule is in direct opposition to the views
of those who design, administer, and interpret the IQ test. By failing to take into
account the standard error of measurement, Florida’s law not only contradicts the
test’s own design but also bars an essential part of a sentencing court’s inquiry into
adaptive functioning.”).
51. Id. at 2007 (Alito, J., dissenting).
52. Id. at 2005.
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professional societies.” 53 Justice Alito conceded that under the
Court’s precedent, cruel and unusual punishment is defined by
currently prevailing societal norms. But he was adamant that, as
stated in Atkins, the onus is on the states to develop appropriate
mechanisms to enforce the intellectual-disability exemption.54
Justice Alito contended that the Florida rule contravenes neither
Atkins nor prevailing societal norms. 55 Further, he found that the
majority had to expand its interpretation of prevailing societal norms
to justify its holding; the only support for the Court’s conclusion
comes from the views of medical professional organizations. 56
Clearly, the conflict between the majority and the dissent is more
about the analytical method applied than the conclusion reached.
But the majority’s approach is correct. “The death penalty is the
gravest sentence our society may impose.” 57 So defendants faced
with capital punishment must be afforded the opportunity to prove
that the Constitution prohibits their execution.58 Capital-punishment
sentencing is literally a matter of life or death; it is only fitting that
states adopt a well-informed standard enabling them to protect
defendants’ constitutional rights.
The Court did not specify how its holding must be enforced nor
did it comment on whether Hall should be exempted from the death
penalty on the basis of intellectual disability. As the majority
explicitly noted, Florida’s intellectual-disability-exemption statute
complies with Atkins on its face but not as interpreted by the Florida
Supreme Court.59 So this decision will not require Florida to modify
its statute—simply the manner in which it implements the exemption.
Importantly, the Court seemed to indicate that, while the existing
Florida threshold is unconstitutional, a cut-off score that takes into
consideration the SEM may pass muster. 60 The Court emphasized
53. Id. at 2002.
54. Id. at 2002–03.
55. Id. at 2003.
56. Id. at 2005 (“Perhaps because it recognizes the weakness of its arguments
about a true national consensus, the Court places heavy reliance on the views . . . of
professional organizations, but the Court attempts to downplay the degree to which
its decision is dependent upon the views of these private groups.”).
57. Id. at 2001 (majority opinion).
58. Id.
59. Id. at 1994. Moreover, the Court notes that, in its “independent judgment,
the Florida Statute, as interpreted by its courts, is unconstitutional.” Id. at 2000
(emphasis added).
60. Id. at 1996.
2014]
HALL V. FLORIDA
7
that an IQ score is a range, not a number, but appeared willing to
accept that the range within which an individual’s IQ score is lodged
may be dispositive of the individual’s intellectual capacity. 61 If
adopted, such a rule would likely be upheld under Hall because it
reflects both the national legislative trend and the medical
community’s definition of intellectual disability.
Even if Florida concedes that Hall’s IQ establishes that he is of
sub-average intellectual functioning, it may still find that he does not
suffer deficits in adaptive functioning and therefore is not
intellectually disabled for purposes of the death-penalty exemption.
Considered as part of a range, Hall’s IQ score is within the range of
scores indicating a deficit in intellectual functioning.62 So the Florida
court must permit him to introduce other evidence of his intellectual
disability: “Freddie Lee Hall may or may not be intellectually
disabled, but the law requires that he have the opportunity to present
evidence of his intellectual disability, including deficits in adaptive
functioning over his lifetime.”63 But this does not necessarily mean
that his death sentence will be vacated. Hall does not state how much
weight courts should give to each factor tending to prove intellectual
disability. It only states that a defendant’s IQ score should be
examined as part of a range and not in isolation of the other factors.64
Hall signifies another victorious battle in the war the nation
seems to be waging against capital punishment. Over the past decade,
the Supreme Court of the United States has gradually constricted the
constitutionally permissible use of the death penalty. Under the
Eighth Amendment, the Court has exempted certain groups from
execution—first the intellectually disabled, then juveniles who were
under the age of 18 when they committed a capital offense.65 But
these exemptions cannot be examined in a vacuum. The Atkins Court
made clear that the individual states instigated this trend, and they
have continued to express their aversion to the death penalty.66 As
noted in Hall, “Since Atkins, five States have abolished the death
61. See id.
62. Id. at 1995.
63. Id. at 2001.
64. Id.
65. Jean Mattimoe, The Death Penalty and the Mentally Ill: A Selected and
Annotated Bibliography, 5 THE CRIT: CRITICAL STUD. J. 1, 2 (2012); see also Atkins
v. Virginia, 536 U.S. 304, 321 (2002); Roper v. Simmons, 543 U.S. 551, 578
(2005).
66. See Atkins, 536 U.S. at 314–16 (discussing the states that have enacted
legislation prohibiting the execution of the intellectually disabled).
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penalty through legislation . . . the New York Court of Appeals
invalidated New York’s death penalty . . . [and] at least five [states]
have passed legislation allowing defendants to introduce additional
evidence of intellectual disability even when their IQ scores are
above 70.”67
Death-penalty exemptions imposed by state legislatures “reflect a
much larger social and professional consensus.”68 This consensus is
evidence of the decades-old, nationwide movement to limit the death
penalty and is inexplicably intertwined with the Court’s holding. Hall
will likely prove to be especially notable because its social
implications are just as remarkable as its legal ones.
SUMAYYA SALEH
CONTRIBUTIONS MADE BY PROFESSOR BRENDAN BEERY
67. Hall, 134 S. Ct. at 1997.
68. Atkins, 536 U.S. at 316 n.21. A diverse group of organizations, such as the
American Bar Association, the American Psychiatric Association, and Amnesty
International, actively campaign against the death penalty, particularly with respect
to vulnerable populations. Id.; Mattimoe, supra note 65, at 3; AMNESTY
INTERNATIONAL, USA: THE EXECUTION OF MENTALLY ILL OFFENDERS (2006),
http://www.amnesty.org/en/library/info/AMR51/003/2006/en.