Analysis
If a state, trying to make it simple to decide who can be given a death sentence, opts for a choice that looks arbitrary, it is likely to have a difficult time in a Supreme Court that worries about the chances of error. That was demonstrated anew on Monday, when Florida found itself in deep Eighth Amendment trouble with a rule that anyone with an IQ above 70 can be executed if convicted of murder.
A quite definite majority of the Justices — perhaps, notably, including Justice Anthony M. Kennedy — left little doubt that Florida and six other states will not be allowed to maintain an automatic test-score-based cutoff for those who could qualify as mentally retarded and thus can escape the death penalty.
Kennedy’s role is central because he has most often led the Court in narrowing the category of those eligible to be executed, to take account of reduced capacity to be held responsible for their criminal behavior. He was among the most active in questioning Florida’s approach to mental retardation among those on death row. And, on Monday, he added in some strongly implied criticism of a system that allows some inmates to remain on death row for decades — an issue that is not directly involved in the new case of Hall v. Florida.
Justice Antonin Scalia expended considerable effort to buttress Florida’s basic argument that the scientific community cannot be trusted to make the rules for eligibility for capital punishment, but except for some supportive hints from Justice Samuel A. Alito, Jr., this seemed to be a largely forlorn endeavor.
Most of the other Justices joined in the pursuit of an Eighth Amendment rule that would assure that the mental retardation inquiry was sophisticated and nuanced, so that the risk of error was taken fully into account. While such a rule might not definitely hand over the details to the judgment of scientists and doctors, it apparently would not tolerate an approach designed simply to assure that fewer death-row inmates get off with a claim of mental disability. That appeared to be Florida’s main objective.
Justice Kennedy waited to get involved in the argument until Washington attorney Seth P. Waxman, representing Florida inmate Freddie Lee Hall, was about halfway through his argument. The Justice then began exploring whether the Court should defer to “the psychiatric profession” and why it should pay attention to psychiatric theories any more than it does to economic theories, when it must make a legal judgment.
Waxman answered that what the Court was dealing with in this case was a question of a “clinical condition,” and how best to determine whether that condition existed. It cannot be done, he contended, just by using a raw IQ test score, without allowing for the inevitable chance of error in all such testing.
Kennedy held off for the rest of Waxman’s argument, having raised some doubt about whether he was comfortable with turning the Eighth Amendment inquiry into one to be left to the scientists.
But, when Florida’s state solicitor general Allen Winsor went to the lectern, Kennedy quickly rejoined the questioning, and promptly suggested that Florida was arbitrarily refusing to take account of the standard error in IQ testing, which the Justices said had been acknowledged by “people who design and administer” IQ tests.
Soon, Justice Elena Kagan reminded Winsor that, throughout its death penalty jurisprudence, the Court has always allowed those facing that potential sentence to make the best case they could to try to avoid it, and yet Florida had adopted a flat rule that cut off the plea for anyone who had measured above 70 on an IQ test. Some of those, she suggested, may actually be mentally retarded — and thus entitled to the protection the Supreme Court had previously given to those in that category.
Kennedy, apparently not satisfied with Winsor’s responses, commented that Justice Kagan had asked a “very important question,” and commented that the Florida rule prevents courts from gaining “a better understanding” of the mental condition of an individual on death row because it short-circuits a full inquiry.
Several times after that, Kennedy, sounding genuinely puzzled, wondered whether Florida really did stop the inquiry into mental retardation once a death-row inmate had an IQ above 70. But Winsor kept reaffirming the hard-and-fast cutoff for inmates who measured higher than that.
Late in the argument, Kennedy brought up something that he and his clerks must have turned up in preparing for this case. The last ten people Florida had executed, Kennedy said, had been on death row for an average of 24.9 years. He wondered if that was consistent with the Constitution and with the orderly administration of a death-sentencing scheme. Winsor seemed caught off-guard, saying only that he thought this was consistent with death penalty law.
Justice Scalia intervened to try to help out Winsor, noting that most of the delays for people on death row had resulted from the complexity that the Supreme Court itself had caused in the process.
Justice Kagan used a final thrust against Florida’s scheme by asking, simply, why Florida would have adopted its flat IQ rule. Florida, Winsor said, had an interest in making sure that people do not evade execution by claiming mental retardation, and the challenge being made by Hall had the prospect of doubling the number who could do so successfully.
Kennedy’s skepticism was entirely shared by Justices Kagan, Stephen G. Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor. Chief Justice John G. Roberts, Jr., played only a minor role in the hearing. Justice Clarence Thomas, as is his custom, remained silent.
[Note: Although the preferred clinical term for the condition at issue in this case is “intellectual disability,” and earlier posts on the case on this blog use that term, both the lawyers and the Justices used the term “mental retardation” at today’s oral argument. For that reason, this post uses the latter term as well.]
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