The difficulty in defining which death row inmates are so intellectually disabled they should not be executed is one more reason to stop imposing the death penalty. The U.S. Supreme Court on Tuesday prudently overturned a Florida law that says inmates with an IQ score above 70 cannot be considered intellectually disabled and avoid a death sentence. But the court gave little guidance to the Florida Legislature about how to better define when someone is so intellectually disabled that executing him would violate the U.S. Constitution's ban against cruel and unusual punishment. The likelihood that Florida legislators will set politics aside to craft a thoughtful response ranges between slim and none.
The Supreme Court's 5-4 opinion set aside Freddie Lee Hall's death sentence for raping and killing a 21-year-old pregnant woman in 1978. He also was sentenced to death for killing Hernando County sheriff's Deputy Lonnie Coburn the same day, but that sentence was later reduced to life in prison. Hall had been described as "mentally retarded" and "brain damaged" before he was convicted. The Supreme Court later ruled, in 2002, that executing the "mentally retarded" was cruel and unusual punishment and violated the U.S. Constitution, but it gave no clear guidance for defining who fell into that category other than mentioning an IQ score of 70. In response, Florida and several other states set that IQ score as a firm line, with anyone scoring above 70 on a test being unable to be considered intellectually disabled. Hall, whose lawyers argued for years that he was too intellectually disabled to be sentenced to death, scored between 60 and 80 on nine IQ tests, including a score of 71 before one key court hearing.
"Intellectual disability is a condition, not a number,'' Justice Anthony Kennedy wrote. "In using these scores to assess a defendant's eligibility for the death penalty, a state must afford these test scores the same studied skepticism that those who design and use the tests do, and understand that an IQ test score represents a range rather than a fixed number.''
That reasoning, of course, makes perfect sense to educators familiar with IQ tests. There is no reasonable rationale for the state to consider someone who scores 70 on an IQ test to be too intellectually disabled to execute but to have no problem sentencing someone to death with an IQ score a single point higher. Kennedy was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. But as Justice Samuel Alito wrote in a dissent joined by fellow conservative Justices Antonin Scalia and Clarence Thomas, and Chief Justice John Roberts Jr., the court ruling is "likely to result in confusion.'' Alito must have been thinking about the Florida Legislature, where support for the death penalty remains strong and there is little interest in the mental capacity of inmates convicted of unspeakable crimes.
Kennedy wrote that states should not rely on one factor as the deciding one in these cases and said states should consider an inmate's "adaptive functioning.''
"Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution,'' he said. "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 same criticism applies to the death penalty overall. Other states that are struggling to mix an effective lethal cocktail of drugs for executions are pondering a return to firing squads or the electric chair. In Florida, the deadly injections are working just fine at Florida State Prison, and Gov. Rick Scott is signing death warrants at a faster pace. That hardly reflects human decency in a civilized world.