Twenty years later, in 2012, after an unusually lengthy series of appeals and writs, the Florida Supreme Court also upheld Hall’s death judgment even though, as a dissenting member of the court noted, Hall had an IQ that measured as low as 60 and suffered from organic brain damage and chronic psychosis as well as having the short-term memory of a first-grader. He also endured a speech impediment and learning difficulties. Among other forms of abuse and torture suffered at the hands of his mother, other relatives and neighbors, Hall was tied up in a burlap sack as a youngster and swung over an open fire, suspended by his hands from a ceiling beam, beaten while naked, made to lie still for hours underneath a bed and repeatedly deprived of food.
The Florida Supreme Court deemed Hall mentally fit for lethal injection, as during the course of his protracted incarceration he had registered scores of 80, 73 and 71 on Wechsler WAIS IQ tests administered at the direction of prison authorities. Under Florida law, any death row inmate scoring above 70 cannot be considered disabled.
In taking up Hall’s case, the Supreme Court agreed to decide whether Florida’s IQ test for defining mental disability ran afoul of the tribunal’s 2002 holding in Atkins v. Virginia. Writing for a 6-3 majority, then-Justice John Paul Stevens ruled in Atkins that evolving standards of decency and an emerging national consensus precluded the execution of inmates deemed “mentally retarded,” the term then widely used before it was cleaned up, sanitized and replaced with the label “disabled” by mental health organizations.
On a practical level, the court in Atkins elaborated that a finding of mental disability required proof of three conditions: (1) sub-average intelligence, most commonly measured by IQ tests, (2) lack of fundamental adaptive social and practical life skills, and (3) the onset of such deficiencies before the age of 18. But—and this is where Freddie Lee Hall re-entered the constitutional picture—the court left it up to the states to implement specific definitions of mental disability.
Florida was one of 10 states in the post-Atkins era (the others are Arkansas, Delaware, Idaho, Kentucky, Maryland, North Carolina, Tennessee, Virginia and Washington) that used IQ scores of 70 or below as a bright line cutoff for establishing disability. The remaining states authorizing capital punishment generally embraced the approach of the American Psychiatric Association, which instructs that disability should be assessed not only with a range of standardized tests that take into consideration what examiners call standard errors of measurement to account for the imprecision of test results, but with clinical evaluations of everyday behavior such as language usage, social judgment and personal care.
Source: Truthdig, Bill Blum, May 28, 2014. Mr. Blum is a former judge and death penalty defense attorney. He is the author of three legal thrillers published by Penguin/Putnam (“Prejudicial Error,” “The Last Appeal” and “The Face of Justice”) and is a contributing writer for California Lawyer magazine.
Other articles by Bill Blum on Death Penalty News include: "Dzhokhar Tsarnaev and the Future of the Death Penalty on Trial", February 4, 2014; "Death for the Disabled: Should We Kill Freddie Lee Hall?", October 26, 2013.
Other articles by Bill Blum on Death Penalty News include: "Dzhokhar Tsarnaev and the Future of the Death Penalty on Trial", February 4, 2014; "Death for the Disabled: Should We Kill Freddie Lee Hall?", October 26, 2013.
Alito's Statistics Lesson Misses the Mark in Death-Penalty Dissent, Experts Say
First, there was Justice Antonin Scalia's mistaken account of a prior environmental ruling he wrote. Then there was Justice Elena Kagan's confusion over where Jews first settled in America.
And now, according to several statistics experts, it appears that Justice Samuel Alito could use some fact-checking too.
Justice Alito's forceful dissent in Tuesday's death penalty ruling contains what statistician experts say are at least 2 mistakes - 1 of them having significant bearing on the argument that he and 3 other colleagues who joined him leveled against the majority.
Both apparent errors have to do with statistical tools for measuring the accuracy of an IQ test, a central issue in a ruling that gave intellectually disabled defendants greater protection from the death penalty.
A spokesperson for the Supreme Court declined to comment.
In his dissent, Justice Alito scolded the majority for what he claimed were "factual mistakes" about how to apply a standard error of measurement, or SEM, to IQ test scores.
Simply put, the SEM refers to the margin of error used to quantify the level of certainty for any single IQ test. Because IQ measures are imprecise, we can't be absolutely certain that any one given test is accurate. The SEM, then, is our best guess of the probability that a person's test results match their true IQ. The more confident we are in the reliability of a score, the lower the SEM.
Based on criteria used by medical professionals, the majority in its ruling assumed that IQ tests have a ± 5-point margin of error. In doing so, the court held that a defendant must be allowed to introduce additional evidence when their IQ scores are as high as 75.
In his dissent, Justice Alito argued that the 5-point standard is arbitrarily high, noting that it's double the ± 2.16 margin of error for the most recent IQ test administered to Freddie Lee Hall, the convicted double-murderer who brought the challenge against Florida's 70 IQ cutoff.
Such a standard, Justice Alito said, underestimates the accuracy of the tests, leading to an overly cautious standard for assessing if a defendant is too mentally disabled to be eligible for the death penalty.
"To blindly import a 5-point margin of error when we know as a matter of fact that the relevant SEM is 2.16 amounts to requiring consideration of more than 2 SEMs - an approach that finds no support in Atkins [v. Virginia] or anywhere else," he wrote.
Problem is, Justice "Alito was comparing apples and oranges in that instance," Dr. Marc J. Tasse, a former president of the American Association on Intellectual and Developmental Disabilities, told Law Blog.
The 5-point standard adopted by the majority is a margin of error based on a 95% confidence level. That means if someone scores a 70, there's a 95% probability that the defendant's true score is anywhere between 65 and 75.
The 2.16 margin of error that Justice Alito references corresponds to a 68% confidence level. Again, that means that there's a 68% probability that Mr. Hall's true score is within 2.16 points higher or lower than his obtained IQ score.
Reaching a 95% confidence level with respect to Mr. Hall would require doubling his margin of error to roughly 4.3 points, which is a lot closer to the 5-point range that Justice Alito criticized.
That brings us to the 2nd, smaller apparent mistake in his opinion. Justice Alito repeatedly refers to "the 66% confidence interval." That figure should be 68%, which is the widely accepted probability value for analyzing uncertainty in a person's score, according to experts.
Justice Alito's 66% figure comes from a court brief that repeats what appears to be a misprint in a recent edition of the AAIDD's intellectual disability manual.
"I'm 99.99% sure that the 66% was a simple misprint," AAIDD President Dr. James R. Thompson told Law Blog by email.
Both of Justice Alito's apparent errors were brought to Law Blog's attention by Kevin McGrew, an IQ expert who is a visiting professor in educational psychology at the University of Minnesota and who worked with the American Psychological Association on a brief it filed with the court in the case.
Source: Wall Street Journal, May 29, 2014
Supreme Court: An IQ Point or 2 Shouldn't Determine Who Lives and Who Dies
IQ tests are intrinsically imprecise. On one, Freddie Lee Hall scored 71. On other tests, he's gotten various scores between 60 and 75.
The problem for Mr. Hall is that until today, scoring over 70 on even one IQ test gave Florida the green light to execute him. That one time score of 71 put Mr. Hall just over the line in the sand drawn by the state's legislature, after the 2002 Supreme Court decision finding that it violates the Eighth Amendment to kill people who are mentally disabled.
No one seems to dispute what the Florida Supreme Court wrote 15 years ago, that "there is no doubt that [Mr. Hall] has serious mental difficulties, is probably somewhat retarded, and certainly has learning difficulties and a speech impediment."
And that's exactly the point - even if someone meets the other criteria for mental disability, Florida was clinging to an unscientific and outmoded cut-off number of 70 and using this erroneous indicator to draw a line between those killed and those sent to prison for life.
This has happened often, not just to Mr. Hall.
One group of scholars determined that half of the defendants who lost mental disability challenges to their death sentences in Florida had lost because of the strict 70 IQ cut-off score. And a large minority of states also adopted schemes under which the difference of one or two IQ points demarcated who could be killed and who could not.
Now these states have to change their dubious and dangerous ways of determining mental disability, thanks to yesterday's Supreme Court decision favoring science over arbitrariness.
The strict IQ cut-off rests on the fiction that a score, whether it is 70 or 71, is the precise value of the person's intellectual functioning. Psychiatrists and mental health professionals are crystal clear: an IQ score is an approximation, and because of a host of factors that score must be understood within a standard error of measurement, most commonly understood as a range of plus and minus five points. In other words, we can be relatively confident that a defendant whose IQ score is reported as 71 has a true IQ between 66 and 76, not that his or her score was exactly 71.
The professional community of psychiatrists is unanimous that a strict 70 IQ cut-off score will erroneously exclude individuals who qualify as intellectually disabled. Given this "inherent imprecision," in the words of Justice Anthony Kennedy, it is no longer constitutional to use the IQ cut-off method to determine who will live and who will die. In rejecting Florida's cut-off score of 70, the Court stressed repeatedly the importance of consistency with the definitions of intellectual disability adopted and understood by the "medical community" and "medical experts."
In the battle between expediency and science, this is a clear win for science.
While the Supreme Court's ruling today comes too late for the unknown number of intellectually disabled death row inmates who already have been executed under strict cut-off schemes, it takes a large step towards ensuring that the death penalty is not used against people with intellectual disabilities, in Florida and beyond.
Source: ACLU, May 29, 2014
Surprise! SCOTUS Protects the Intellectually Disabled from Death Penalty
On Tuesday, The Supreme Court condemned as unconstitutional a Florida law that weakened protections against sentencing intellectually disabled people to death. The law sought to limiting evidence of intellectual disability to a fixed number on an IQ test.
The Court's ruling in Hall v. Florida was delivered by Justice Kennedy. Justices Breyer, Ginsburg, Sotomayor and Kagen joined in the ruling that struck down a law which attempted to "draw bright lines on IQ test results."
Florida's Supreme Court interpreted the law in question to mean that any death row inmate with an IQ above 70 is not intellectually disabled and "cannot present evidence that he or she should not be executed."
That rigid and arbitrary standard was the central issue in this case because it precludes sentencing courts from considering "even substantial and weighty evidence of intellectual disability as measured and made manifest by the defendant's failure or inability to adapt to his social and cultural environment, including medical histories, behavioral records, school tests and reports and testimony regarding past behavior and family circumstances."
In short, the Florida court's ruling made a snap shot assessment more important than formal assessments over the course of an inmate's life time. Moreover, the snap shot assessment was flawed and imprecise.
First, as the SCOTUS ruling pointed out, professionals who design, administer and interpret IQ tests have, for several years, agreed that the results should be read as a range, not as a fixed number. This is because IQ tests have a "standard error of measurement" aka SEM, which are a statistical reality. They really are an imprecise measure of intellectual ability or disability.
This ruling is an important constitutional and human rights victory against efforts to broaden eligibility for the death penalty to include people who are intellectually disabled.
In this case, Hall had substantial and unchallenged evidence beginning in childhood that he is intellectually disabled - proving the inherent flaw in defining intellectual disabilities based on an arbitrary number.
As the court noted, there are important reasons that people with intellectual disabilities should not be subjected to the death penalty. First of all, people with intellectual disabilities are more likely to be wrongfully convicted. They are unable or have a limited ability to aid in their own defense. Also, people with intellectual disabilities are more prone to offer false confessions and tend to be poor witnesses.
The Florida Supreme Court's rigid criteria for designation of intellectual disability means an increased probability of wrongful convictions and with it, wrongful executions.
Even if those weren't issues, as the court notes:
"The diminished capacity of the intellectually disabled lessens moral culpability and hence the retributive value of the punishment."
As it stands, the United States has the dubious distinction of having one of the highest rates of killing its own citizens in the world. This is particularly disturbing considering that, according to studies, 4% of people sentenced to death in the United States are innocent.
The last thing we need is to expand "eligibility" for the death penalty to include intellectually disable people based on a precise and fixed score on an imprecise test.
Source: politicususa.com, May 29, 201