Much is being made of the recent Supreme Court decision in Hall v. Florida. That’s the death penalty case where the Court decided, by a 5-4 vote, that Florida’s rigid adherence to a specific IQ number (70) for those sentenced to death was unconstitutional. The decision has garnered a lot of attention, primarily from bloodhounds on the right who despair any court decision that denies execution for a convicted murderer. The ruling, however, is not all that earth-shaking when considered in the context of current attitudes about the death penalty.
The much more significant decision was issued in 2002, in Atkins v. Virginia. There, the Court held, again by a narrow 5-4 vote, that it is unconstitutional to execute the intellectually disabled. Doing so, the Court held, violates the Eighth Amendment prohibition against cruel and unusual punishment. In its Atkins opinion, the Court, per Justice John Paul Stevens, made the following statement: “No legitimate penological purpose is served by executing the intellectually disabled.”
The term “penological purpose” is intriguing, but in Hall, the Court did not provide any indication of how that term should be interpreted. The decision only clarified how a state can use the results from an IQ test to determine when a death-penalty-sentenced defendant is intellectually disabled. Florida had set an IQ score of 70 as the maximum to qualify for being intellectually disabled. The Court in Hall held that, since IQ scores only identify a range (plus or minus five points) of possible scores, setting a specific cut off of 70 was arbitrary and therefore unconstitutional.
Court observers always look for bright line rules in Supreme Court decisions, especially when they interpret constitutional provisions. And so, many are now asking if the new minimal IQ score needed to establish a level of intellectual ability sufficient to permit a constitutional execution is 76. That reasoning would be the logical interpretation of the Court’s opinion based on the plus or minus five IQ points that the Court identified as the proper way to interpret an IQ test. Thus the battle will go from one arbitrary number to another, with defense counsel continuing to argue that intellectual disability can exist even above that number, as most assuredly it can in real world terms.
All of this is, of course, a ruse, employed by all concerned to avoid the real issue, which is whether the death penalty should be deemed constitutional under any circumstances. Simply stated, the point should be focused on the punishment itself, not on who is receiving it.
Let’s consider the logic of the Court’s reasoning with respect to the Eighth Amendment’s “Cruel and Unusual Punishment” clause. The reasoning is that to execute someone who does not possess a minimal level of intellectual capacity is cruel and unusual punishment, while executing someone who has an IQ one point more than that minimal level of intellectual capacity is not.
Does that logic really work? Not on closer scrutiny.
As with most death penalty issues, nothing is as simple as those on one side or the other of the issue might want it to appear. Just consider how complicated the method of execution has become over the last one hundred years. Hanging is out. (Public hangings went away early in the last century.) So is the electric chair, although Tennessee has designs on reinstituting it. (Good luck with that plan.) Ditto the gas chamber and the firing squad. Why have all these tried and true methods of killing a person decisively and definitively been banned or fallen into such disfavor that they cannot be used?
The answer is that we’ve just become too civilized. Yes, we may still think that some heinous crimes justify the taking of the defendant’s life, but we want it done humanely. And none of the old methods pass the humane test. Even lethal injection, by which, presumably, a defendant is just put to sleep (permanently), is suffering from claims that specific drug formulations are not humane enough. And the recent botched execution in Oklahoma hasn’t exactly helped the cause of those who want to continue executing by that method.
The IQ test issue is fraught with the same kind of problem. Just as we want executions to be humane, we want them to be administered only to those who have a clear understanding of why they are being executed. In that regard, it has long been the law that insane defendants cannot be executed.
Insanity is one of the most misunderstood terms in criminal law. It has a legal definition that can be employed in three ways: to render a defendant not guilty (incapable of conceiving the criminal act); to forestall a defendant’s trial (incapable of understanding the criminal charges); or to avert imposition of a sentence (incapable of understanding the purpose of the punishment).
But how insanity is defined is a tough question. Is it defined by being unable to distinguish right from wrong, or by being unable to control the actions that are wrong, or by having a delusion of reality that causes the act, or by having an irresistible impulse to perform the act? And to what extent must the act be caused by a mental disease? All of these questions are the subject of multitudes of court opinions and legal arguments, all intended to impose some rational method of assigning guilt and punishment only to those who truly deserve it.
And so it is with intellectual capacity. The Supreme Court has declared definitively that intellectual incapacity can be a bar to execution. It has now further defined what that rule means by disallowing one IQ test score number as the way to identify defendants who are intellectually incapacitated.
The great likelihood is that states will continue to attempt to execute those whom a majority of the Court (and the country?) will deem it would be inhumane to execute.
Ultimately, the U.S. will join the civilized world in banning the death penalty entirely. Until then, decisions like Hall v. Florida will make the use of it more and more difficult.