Continuing Issues: Determining Intellectual Disability After Atkins

In its 2002 decision in Atkins v. Virginia, the U.S. Supreme Court ruled that individuals with intellectual disability (then called “mental retardation”) are constitutionally barred from receiving the death penalty. The decision “le[ft] to the State[s] the task of developing appropriate ways to enforce the constitutional restriction,” resulting in various standards for determining intellectual disability across the states. Some states sought to circumvent that ruling by adopting narrow definitions of intellectual disability that permitted execution of some people who met the clinical criteria for intellectual disability that were uniformly followed in the medical community.

Unlike almost all other states, Florida rigidly required an IQ of 70 or below to demonstrate intellectual disability, with no allowance for the test’s margin of error. Prior to Atkins, a Florida court determined that Freddie Hall, a death-row petitioner who was first diagnosed with intellectual disability in elementary school, “has been mentally retarded his entire life.” After Atkins was decided, the Florida courts rejected his claim of intellectual disability on the grounds that his IQ had been measured above 70 on tests of intellectual disability.

Texas also adopted an unscientific standard of determining intellectual disability that was inconsistent with accepted medical standards. The Texas Court of Criminal Appeals (TCCA) adopted a set of lay stereotypes known as the “Briseño factors” (named after the Texas court decision that announced them) to determine whether a defendant in a capital case had deficits in adaptive functioning that would qualify him or her for a finding of intellectual disability. The Texas courts applied these seven factors—including such things as whether lay people who knew the defendant thought he or she was intellectually disabled and whether the defendant could hide facts or lie effectively—to deny relief under Atkins to individuals who met the clinical definitions of intellectual disability accepted in the medical community. In the case of Texas death-row prisoner Bobby Moore, the TCCA used the Briseño factors to overturn a trial court determination that Moore was intellectually disabled.

A 2014 law review article reported wide variations among states in exempting defendants with intellectual disability from the death penalty. Professor John Blume of Cornell Law School, along with three co-authors, analyzed claims filed under Atkins. Overall, from 2002 through 2013, only about 7.7% (371) of death row inmates or capital defendants have raised claims of intellectual disability. The total “success” rate for such claims was 55%. In North Carolina, the success rate was 82%, and in Mississippi 57%. However, in Georgia, the success rate for those claiming this disability was only 11%, and in Florida, the success rate was zero. The authors found that states that significantly deviated from accepted clinical methods for determining intellectual disability, such as Florida, Alabama, Georgia, and Texas, had the lowest success rates. (J. Blume, et al., “A Tale of Two (And Possibly Three) Atkins: Intellectual Disability and Capital Punishment Twelve Years After the Supreme Court’s Creation of a Categorical Bar,” 23 William & Mary Bill of Rights Journal 393 (2014)).

The Supreme Court’s Rulings in Hall v. Florida and Moore v. Texas

On March 3, 2014, the U.S. Supreme Court heard arguments in Hall v. Florida, a case addressing the strict standard for intellectual disability that Florida used to determine if inmates are exempt from execution. On May 27, 2014 the U.S. Supreme Court held (5-4) in Hall v. Florida that since IQ scores contain a margin of error states must generally consider other factors in determining intellectual disability as an exemption from the death penalty. As Justice Kennedy wrote for the majority, “Intellectual disability is a condition, not a number.”

However, Justice Kennedy and the concurring Justices went further in describing the importance of the Eighth Amendment, the risks of the death penalty, and our responsibility as a leader in the civilized world:

The Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be. This is to affirm that the Nation’s constant, unyielding purpose must be to transmit the Constitution so that its precepts and guarantees retain their meaning and force.

And later concluding:

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 the basic dignity the Constitu­tion protects.

On June 6, 2016, the Supreme Court agreed to hear Bobby James Moore’s case. On March 28, 2017, it unanimously struck down Texas’s use of the Briseño factors, calling them an unscientific “invention” of the TCCA that was “untied to any acknowledged source” and that lacked support from “any authority, medical or judicial.” Justice Ruth Bader Ginsburg, writing for the five-justice majority (for other reasons, three justices dissented on granting Moore relief), reiterated, “States’ discretion … is not unfettered.” “[A] court’s intellectual disability determination,” she wrote must be “informed by the medical community’s diagnostic framework.” The TCCA refused to grant relief on remand, and the Supreme Court again reversed.

These Decisions Raise Questions About Other States’ Intellectual Disability Standards

Georgia: The Case of Warren Hill

In Georgia, capital defendants are required to prove “mental retardation” beyond a reasonable doubt. It is the only state in the country that sets such a high burden of proof for such claims.

Warren Hill had a strong claim of intellectual disability. A state judge found that Hill was intellectually disabled, but under a lower legal threshhold than is required in the statute. In 2003, the Georgia Supreme Court reversed the judge’s ruling in a 4-3 vote, holding that Hill’s lawyers had failed to clear the threshold of “beyond a reasonable doubt.” The U.S. Court of Appeals for the Eleventh Circuit upheld the Georgia Supreme Court. Writing for the majority, Judge Frank Hull said federal law “mandates that this federal court leave the Georgia Supreme Court decision alone — even if we believe it incorrect or unwise.” The U.S. Supreme Court declined to intervene. Former President Jimmy Carter and his wife, Rosalynn, were among those requesting a commutation to life in prison.

Warren Hill was executed in Georgia on January 27, 2015, despite unanimous agreement by state mental health experts that he was intellectually disabled. For more about his case, see The Case of Warren Hill.