HUMAN RIGHTS IMPLICATIONS OF THE SCOTUS DECISIONS IN THE 2014 TERMWCL CENTER FOR HUMAN RIGHTS AND

HUMANITARIAN LAWJULY 17 , 2014

Hall v. Florida (USSCt 5-27-14)

Prof. Robert DinersteinWCL

The Decision

5-4 decision (Kennedy, J., with Breyer, Ginsburg, Kagan & Sotomayor, JJ.); (Alito, J., with Roberts, CJ, and Scalia & Thomas, JJ., dissenting)

Reverse judgment of the Florida Supreme Court that interpreted Florida statute to preclude consideration of a defendant’s intellectual disability if his IQ score was above 70.

This “rigid rule. . . creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.” (Slip Op. at 1).

The Decision, con’t.

Florida and other states must take account of the Standard Error of Measurement (SEM) in determining the meaning of IQ test scores as part of the intellectual functioning component of determining intellectual disability.

Must take into account professional judgments about meaning of IQ scores as underlying legislative policies and informing Court’s view of Cruel & Unusual Punishment Clause of the 8th A.

The Significance

Extension of Atkins v. Virginia, US S Ct case from 2002 that banned the death penalty for people with intellectual disabilities (mental retardation) under the 8th A.

Atkins left open to the States implementation of the ban.Hall establishes limits/guidelines on that delegation of

authority.Role of professional standards and interpretationsUnderstanding of intellectual disabilityDoes it portend extension of death penalty ban to other

groups of defendants (e.g., people with severe mental disorders)?

Is death penalty ban on the basis of disability consistent with the CRPD? With a rights-based view of disability law?

Death Penalty in Human Rights

Growing consensus toward abolition or requiring moves toward it (including moratoria)

Factual Background

Facts of Hall’s crime [murder, kidnapping, rape; second murder], upbringing [beatings]

IQ test score history [9 tests, scores 60-80; scores under 70 excluded]

Lower-court decisions: sentencing court view: “Nothing of which the experts testified could explain how a psychotic, mentally-retarded, brain-damaged, learning-disabled, speech-impaired person could formulate a plan whereby a car was stolen and a convenience store was robbed.” (Slip op. at 4)

Factual background, con’t.

Note: FL statute itself did not establish bright-line cut-off but FL Sup Ct treated it as such (Slip op. at 9)

Once IQ was not below 70, court would not inquire into adaptive functioning, other key part of the ID definition.

Rationale of Atkins

State legislative activityWhy death penalty is inappropriate for people

with intellectual disabilities Nature of the condition: diminished capacity to

understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses and to understand the reaction of others.

Inconsistency with traditional criminal justice goals: retribution (moral culpability less), deterrence (lesser ability to make calculated judgments)

Risk of error greater: false confessions, poor witnesses, demeanor, less able to assist counsel

Atkins, con’t.

What it didn’t hold: that defendants with ID cannot be prosecuted, convicted, sentenced (including to life without parole)

International law connection [FN. 21 vs. Rehnquist & Scalia dissents]

Implementation issues

The problems with Florida’s rule

Disregards “established medical (sic) practice” by: 1. Taking IQ score as final and conclusive

evidence of intellectual capacity when experts would consider other evidence; and

2. Relies on a purportedly scientific measurement of defendant’s abilities—his IQ score—while refusing to recognize that the score itself is on its own terms imprecise.

Standard of Error Measurement (SEM)

SEM reflects inherent variability in psychometric measure (test score). Factors of variability include: Variations in test performance Examiner’s behavior Cooperation of test taker, and Other personal and environmental factors.

SEM, con’t.

“SEM, which varies by test, subgroup, and age group, is used to quantify this variability and provide a stated statistical confidence interval within which the person’s true score falls.” AAIDD, Intellectual Disability: Definition, Classification, and Systems of Support 36 (11th ed. 2011)

SEM for IQ of 71: 1 SEM provides a 68% level of confidence that the true score is between 68.5 and 73.5; 2 SEM provides a 95% level of confidence the true score is between 66 and 76.

SEM, con’t.

What it means: any IQ score, properly understood, is a range of scores. (Think also LSAT or SAT scores.) To establish a bright-line cut-off, as Florida has done, is to define IQ in a manner that is inconsistent with how professionals define the concept and can result in execution of people who, in fact, have an intellectual disability.

States’ Incorporation of SEM

Court’s math: 41 would states would not conclude that an IQ score of 70 automatically makes one eligible for the death penalty (Slip op. at 14)

Every state to have considered the cut-off issue after Atkins, except VA, has taken a position contrary to FL’s.

Fealty toward Atkins

Although Atkins deferred to the states re developing ways to enforce the constitutional restriction, the Court “did not give the States unfettered discretion to define the full scope of constitutional protection.” Slip op., at 17.

Atkins recognized clinical definition of ID (including SEM) and states’ general reliance on it.

Court’s Independent View

Slip op. 19-22: again, the role of professional expertise and standards. Informs, though does not determine, legal standard

Conclusion:“The death penalty is the gravest sentence our society may

impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution. Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world. The States are laboratories for experimentation, but those experiments may not deny human dignity the Constitution protects.” (Slip op. at 22).

Justice Alito’s Dissent

Court inappropriately departs from Atkins based on views of private professional associations.

“Uniform national rule” is ill-conceived, inconsistent with 8th A. jurisprudence and likely to sow confusion.

Psychiatry vs. psychology (which APA?)

Justice Alito’s Dissent, con’t.

Disputes the mathIn the absence of methodological consensus

among the states, there is no basis to conclude Florida’s interpretation violates society’s standards of decency.

Disputes the Court’s interpretation of SEM

Dissent, con’t.

What’s wrong with reliance on professional association views: Views change Courts will have to follow each change or assess its

validity Which professional associations are entitled to

deference? Purpose of definition varies based on context—

criminal justice different from eligibility for services

Questions of Terminology

Adopting the term “intellectual disability” in lieu of “mental retardation” (Slip op. at 2)

“Intellectual disability is a condition not a number” (Slip op. at 21)

But. . . “suffering from” ID terminologyModels of disability: social model (CRPD) vs.

medical model: 23 references in majority opinion to medical

community, medical diagnosis, psychiatry

Is exclusion from death penalty on the basis of disability consistent with the

CRPD?

Insanity defense and other disability-based exclusions from responsibility

Relationship to legal capacityCan disability ever be relevant? Is it relevant in

the death penalty context for people with intellectual disabilities?

Does it matter what reasons are given for the exclusion—e.g., reasons “inherent” to the condition vs. those that are constructed (level of representation, concerns re false confessions, etc.)

Other groups?

Defendants with severe mental disorders

Conclusion

Human rights implications: reduce number of executions

Consistency of Hall with international lawRole of human rights norms—whose standard

of decency is it?Further steps—ban for other groups? Ban

altogether? [See CA decision reported in today’s papers—banning DP in all cases because of delays, etc.]