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February 6, 2014

"Justices Asked to Define 'Mentally Retarded' in Death Cases"

The title of this post is the headline of this new article by Marcia Coyle in The National Law Journal previewing the biggest SCOTUS capital case of the current Term. Oral argument in the case is less than a month away, and here is how this article begins to set the table in a very interesting and important procedural Eighth Amendment case:

Freddie Lee Hall sits on Florida's death row for the 1978 abduction and murder of a 21-year-old woman who was seven months pregnant. He should not be executed because, he claims, he is "mentally retarded."

Twelve years after the U.S. Supreme Court held in Atkins v. Virginia that execution of mentally retarded persons violates the Eighth Amendment, the justices will use Hall's case to examine how states determine who is "intellectually disabled" (now the preferred term for mentally retarded) and whether Florida's test is too narrow.  The court will hear arguments in Hall v. Florida on March 3.

Florida and its supporters want the court to hold fast to its language in Atkins giving states "the task of developing appropriate ways to enforce the constitutional restriction."

"This case turns on whether Atkins truly left any determination to the states or whether, as Hall contends, states are constitutionally bound to vague, constantly evolving — and sometimes contradictory — diagnostic criteria established by organizations committed to expanding Atkins’s reach," Florida solicitor general Allen Winsor wrote.

Most states have developed appropriate standards, according to death penalty scholars and some national psychological and disability organizations.  However, they and Hall argue the justices need to tell Florida and some other states that their tests ignore generally accepted clinical definitions of mental retardation.

Nothing in Atkins "authorizes the states to narrow the substantive scope of the constitutional right itself by defining mental retardation in a way that excludes defendants who qualify for a diagnosis of mental retardation under accepted clinical standards," said Hall's counsel, Eric Pinkard of the Capital Collateral Regional Counsel in Tampa.  "Yet that is precisely what Florida has done here."

February 6, 2014 at 09:14 AM | Permalink


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For you PC practitioners, MR is now like the N word, not allowed in polite company.

The association has changed its name to reflect this. I would find offense in their name as well. The really correct term is no longer even Intellectual Disability, but Otherwise Abled.


Official Professional Definitions:


So, I apologize to the lawyer profession for my term of art, lawyer dumbass. From now on, I will be using the more polite, "lawyer otherwise abled person" characterization.


Posted by: Supremacy Claus | Feb 6, 2014 10:00:16 AM

Just finished reading all the briefs. (BTW is the SG filing an amicus?)

Absolutely no doubt in my mind that the Court (aka Justice Kennedy) will hold the Florida IQ cutoff test unconstitutional under Atkins.

Give some states a finger (as Kennedy's deference to federalism did in Atkins) and they will take an arm. Florida simply has gone to far in narrowing the class of convicted murderers who can be deemed MR/ID.

The Court should hold that the issue of whether or not the murderer is MR/ID depends upon an evaluation of all three prongs of the well-accepted clinical definition -- deficient intellectual functioning, deficient adoptive functioning, and onset of both before age 18. IQ test results, including testimony about any range of error, are certainly admissible. But there is a clear national consensus among the experts in this field that they are not, in isolation, the answer to whether or not the murderer is MR/ID.

5-4 opinion rejecting Florida's attempt to narrow the definition of MR/ID.

Posted by: pvine | Feb 6, 2014 12:44:29 PM


You may be correct about Kennedy. But I think such a result is anti-democratic. No longer will the determination of what is or is not constitutional lie with the judicial system but with a panel of self-selected experts. Other than appearance, there is no difference in such a resolution and an actual court of experts. Even Daubert doesn't go that far, insisting that the judge at least be the gatekeeper. If Hall wins the judge merely becomes a rubber stamp.

If the judicial system is to have any genuine power that power must be more than simply turning to a scientific expert and saying, in effect, "whatever he says." You know, I keep hearing about how judges hate MM because it usurps their power to match the punishment to the crime in an individual case. Yet many of the people who make that argument seem all to willing to let the APA, the NSF, and various other professional bodies usurp that same power without comment. How ODD that is! Congress, the representative of the people, is the devil but the professional guilds produce truth, justice, and the American way.

Posted by: Daniel | Feb 6, 2014 1:38:13 PM


I don't believe the issue of whether or not a murderer is MR/ID becomes a "whatever he says" rubber stamp determination.

The trier-of-fact will be presented with prosecution and defense witnesses, including dueling "experts" and the results of IQ tests. Based upon the credibility of that evidence, the jury will decide if the three prongs of the long-standing, well-accepted, MR/ID standard has been met.

This procedure seems more democratic than Florida's attempt to short-circuit the process by allowing a judge to conclude, solely upon IQ testing (which everyone concedes is subject to some degree of error), that a murderer is not MR/ID.

I am trying to remain completely objective. And I am not someone who believes that the DP is never appropriate. But Florida's myopically limiting this important (to the State and the murderer) question to the results of IQ tests seems to me to be too arbitrary and too likely to result in the execution of a murderer who is truly MR/ID to withstand scrutiny by the Court/Kennedy.

Posted by: pvine | Feb 6, 2014 2:06:13 PM

For those interested, some briefs are linked here:


Posted by: Joe | Feb 6, 2014 4:10:22 PM


MR is a social idea not a number from nature. So Atkins was in the drug business at age 9. His function was far higher than that of the Justices at that age. The IQ was designed to predict education performance, which it does well. Other uses such as measurement of culpability have no validity.

Posted by: Supremacy Claus | Feb 7, 2014 1:57:44 PM

Atkins represents a misuse of IQ. Such use does not meet Daubert standards, in violation of fed rules of evidence 702 and 703.

Posted by: Supremacy Claus | Feb 7, 2014 2:12:12 PM

Hopefully we will see which way Kennedy leans at the oral arguments.
I have followed this case for over 30 years and it is interesting why the Court chose this one over the numerous ones it has denied cert over the past 10 plus years.

Hall was resentenced due to Hitchcock error and the trial judge noted a degree of mental retardation as a mitigating factor and this was upheld by the Florida Supreme Court. Then Atkins was decided and Hall was denied relief under the Florida Standard/Cherry. I knew several years ago this case would "stand out" to SCOTUS. Justice Pariente wrote an excellent concurrence on the FSC opinion below.

Posted by: DaveP | Feb 9, 2014 10:27:01 AM

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