HUMAN RIGHTS IMPLICATIONS OF THE SCOTUS DECISIONS IN THE 2014 TERM WCL CENTER FOR HUMAN RIGHTS AND HUMANITARIAN LAW JULY 17, 2014 Hall v. Florida (USSCt ) Prof. Robert Dinerstein WCL

The Decision 5-4 decision (Kennedy, J., with Breyer, Ginsburg, Kagan & Sotomayor, JJ.); (Alito, J., with Roberts, CJ, and Scalia & Thomas, JJ., dissenting) Reverse judgment of the Florida Supreme Court that interpreted Florida statute to preclude consideration of a defendant’s intellectual disability if his IQ score was above 70. This “rigid rule... creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.” (Slip Op. at 1).

The Decision, con’t. Florida and other states must take account of the Standard Error of Measurement (SEM) in determining the meaning of IQ test scores as part of the intellectual functioning component of determining intellectual disability. Must take into account professional judgments about meaning of IQ scores as underlying legislative policies and informing Court’s view of Cruel & Unusual Punishment Clause of the 8 th A.

The Significance Extension of Atkins v. Virginia, US S Ct case from 2002 that banned the death penalty for people with intellectual disabilities (mental retardation) under the 8 th A. Atkins left open to the States implementation of the ban. Hall establishes limits/guidelines on that delegation of authority. Role of professional standards and interpretations Understanding of intellectual disability Does it portend extension of death penalty ban to other groups of defendants (e.g., people with severe mental disorders)? Is death penalty ban on the basis of disability consistent with the CRPD? With a rights-based view of disability law?

Death Penalty in Human Rights Growing consensus toward abolition or requiring moves toward it (including moratoria)

Factual Background Facts of Hall’s crime [murder, kidnapping, rape; second murder], upbringing [beatings] IQ test score history [9 tests, scores 60-80; scores under 70 excluded] Lower-court decisions: sentencing court view: “Nothing of which the experts testified could explain how a psychotic, mentally-retarded, brain-damaged, learning-disabled, speech-impaired person could formulate a plan whereby a car was stolen and a convenience store was robbed.” (Slip op. at 4)

Factual background, con’t. Note: FL statute itself did not establish bright-line cut-off but FL Sup Ct treated it as such (Slip op. at 9) Once IQ was not below 70, court would not inquire into adaptive functioning, other key part of the ID definition.

Rationale of Atkins State legislative activity Why death penalty is inappropriate for people with intellectual disabilities  Nature of the condition: diminished capacity to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses and to understand the reaction of others.  Inconsistency with traditional criminal justice goals: retribution (moral culpability less), deterrence (lesser ability to make calculated judgments)  Risk of error greater: false confessions, poor witnesses, demeanor, less able to assist counsel

Atkins, con’t. What it didn’t hold: that defendants with ID cannot be prosecuted, convicted, sentenced (including to life without parole) International law connection [FN. 21 vs. Rehnquist & Scalia dissents] Implementation issues

The problems with Florida’s rule Disregards “established medical (sic) practice” by:  1.Taking IQ score as final and conclusive evidence of intellectual capacity when experts would consider other evidence; and  2.Relies on a purportedly scientific measurement of defendant’s abilities—his IQ score—while refusing to recognize that the score itself is on its own terms imprecise.

Standard of Error Measurement (SEM) SEM reflects inherent variability in psychometric measure (test score). Factors of variability include:  Variations in test performance  Examiner’s behavior  Cooperation of test taker, and  Other personal and environmental factors.

SEM, con’t. “SEM, which varies by test, subgroup, and age group, is used to quantify this variability and provide a stated statistical confidence interval within which the person’s true score falls.” AAIDD, Intellectual Disability: Definition, Classification, and Systems of Support 36 (11 th ed. 2011) SEM for IQ of 71: 1 SEM provides a 68% level of confidence that the true score is between 68.5 and 73.5; 2 SEM provides a 95% level of confidence the true score is between 66 and 76.

SEM, con’t. What it means: any IQ score, properly understood, is a range of scores. (Think also LSAT or SAT scores.) To establish a bright-line cut-off, as Florida has done, is to define IQ in a manner that is inconsistent with how professionals define the concept and can result in execution of people who, in fact, have an intellectual disability.

States’ Incorporation of SEM Court’s math: 41 would states would not conclude that an IQ score of 70 automatically makes one eligible for the death penalty (Slip op. at 14) Every state to have considered the cut-off issue after Atkins, except VA, has taken a position contrary to FL’s.

Fealty toward Atkins Although Atkins deferred to the states re developing ways to enforce the constitutional restriction, the Court “did not give the States unfettered discretion to define the full scope of constitutional protection.” Slip op., at 17. Atkins recognized clinical definition of ID (including SEM) and states’ general reliance on it.

Court’s Independent View Slip op : again, the role of professional expertise and standards. Informs, though does not determine, legal standard Conclusion: “The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution. Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world. The States are laboratories for experimentation, but those experiments may not deny human dignity the Constitution protects.” (Slip op. at 22).

Justice Alito’s Dissent Court inappropriately departs from Atkins based on views of private professional associations. “Uniform national rule” is ill-conceived, inconsistent with 8 th A. jurisprudence and likely to sow confusion. Psychiatry vs. psychology (which APA?)

Justice Alito’s Dissent, con’t. Disputes the math In the absence of methodological consensus among the states, there is no basis to conclude Florida’s interpretation violates society’s standards of decency. Disputes the Court’s interpretation of SEM

Dissent, con’t. What’s wrong with reliance on professional association views:  Views change  Courts will have to follow each change or assess its validity  Which professional associations are entitled to deference?  Purpose of definition varies based on context—criminal justice different from eligibility for services

Questions of Terminology Adopting the term “intellectual disability” in lieu of “mental retardation” (Slip op. at 2) “Intellectual disability is a condition not a number” (Slip op. at 21) But... “suffering from” ID terminology Models of disability: social model (CRPD) vs. medical model:  23 references in majority opinion to medical community, medical diagnosis, psychiatry

Is exclusion from death penalty on the basis of disability consistent with the CRPD? Insanity defense and other disability-based exclusions from responsibility Relationship to legal capacity Can disability ever be relevant? Is it relevant in the death penalty context for people with intellectual disabilities? Does it matter what reasons are given for the exclusion—e.g., reasons “inherent” to the condition vs. those that are constructed (level of representation, concerns re false confessions, etc.)

Other groups? Defendants with severe mental disorders

Conclusion Human rights implications: reduce number of executions Consistency of Hall with international law Role of human rights norms—whose standard of decency is it? Further steps—ban for other groups? Ban altogether? [See CA decision reported in today’s papers— banning DP in all cases because of delays, etc.]