Kokomo Tribune; Kokomo, Indiana

March 12, 2014

House of Burgess: Bright enough to be put down?

SCOTUS looking beyond IQ in capital cases.

By Rob Burgess
Tribune columnist

— How smart should some­one be before we, as a society, may legally execute them? What metric should be used to determine their intelligence?

Those and other uniformly disquieting questions were argued March 3 before the Supreme Court of the United States in the case of Hall v. Florida.

“[Freddie Lee Hall], 68, was convicted of murdering a pregnant woman, Karol Hurst, 21, in Florida in 1978,” reported Howard Koplowitz in the International Business Times on March 4. “He was sentenced to death for the murder. … Hall is challenging Florida state law that says inmates that score above 70 on an IQ test are eligible for the death penalty. While Hall says he has scored higher than that threshold, there are other measures to determine that he is mentally disabled.”

In 2002, a 6-3 SCOTUS decision, Atkins v. Virginia, found the death penalty necessarily violated the Eighth Amendment’s ban on “cruel and unusual punishment” when applied to the mentally handicapped. This was a landmark case, but by no means the answer to all questions on this form of retribution.

It established the general framework, but left the fine print for the states, including Florida, to sort out.

At trial, Daryl Renard Atkins was found to have an Intelligence Quotient of 59. Hall has tested in the 71 to 80 range. To give you a better idea of the average, around two-thirds of Americans test somewhere between 85 and 115. Obviously, such arbitrary markers are inherently flawed, especially when the result means the difference between life and death.

In December, the American Psychological Association filed an amicus brief with the SCOTUS in regard to the case, stating “the use of a fixed IQ score cutoff to assess intellectual functioning violates the professional consensus and clinical norms of mental health professions. APA further notes that IQ test scores used to diagnose limitations in intellectual functioning are subject to a standard error of measurement and the interpretation of IQ test scores must take the test’s reliability into account.”

It will likely be two to three months before we find out which direction the justices decided upon. Depending on their ultimate decision, the Hall case could seriously revise the Atkins decision and every state law on which it is based.

“You give somebody an IQ test, he scores a 71,” said Justice Elena Kagen to Florida Solicitor General Allen Winsor in court March 3. “Now, he might actually have an IQ of 71, or we know from the way these standard margins of error work, he might have an IQ of 69, and you won’t let him go to the adaptive behavior prong of the test and show that … he can’t function in society in the ways that Atkins seems to care about.”

From the questions being asked and statements being made from the bench, though, change looks likely.

“A majority of the Supreme Court seemed ready … to find that Florida has made it too hard to prove that a death row inmate is mentally retarded and thus ineligible for execution,” reported Robert Barnes in the Washington Post on March 3.

Using a single number to determine if someone should breathe their last or not is flat-out wrong. It doesn’t account for the so-called “range of confidence” that could swing IQ scores up or down by up to five points based on the particular day the test is given. There is no way this overly simplified method can account for every aspect of a prisoner’s mental capacity. It undermines the spirit of both Atkins and the Eighth Amendment.

Beyond the inherent inaccuracy, these doomed inmates may not even understand what’s happening to them or why. According to the Diagnostic and Statistical Manual of Mental Disorders, people who suffer from borderline intelligence functioning have significant trouble grasping abstract concepts.

Butchering such convicts extends beyond our modern understanding of the words “punishment” or “justice.” It slithers menacingly into the realm of cruel catharsis.

Rob Burgess, Tribune night editor, may be reached by calling 765-454-8577, via email at rob.burgess@kokomotribune.com or on Twitter at twitter.com/robaburg.