Saturday, March 15, 2014

The Cautionary Instruction: U.S. Supreme Court examines bright-line mental disability rule

Matthew T. Mangino
Pittsburgh Post-Gazette/Ipso Facto
March 14, 2014
In 2002, the U.S. Supreme Court ruled that executing a mentally disabled (formerly referred to as mentally retarded) person violated the Eighth Amendment's ban against cruel and unusual punishment. In a case known as Atkins v. Virginia, the Supreme Court held that “death is not a suitable punishment for a mentally retarded criminal.”
The Atkins opinion also contains a loophole that renders it virtually meaningless in many cases—in the Court’s words “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.”
Given this leeway to design their own methods for screening inmates, several states executed inmates that almost certainly were mentally disabled. Texas executed Marvin Wilson, a man with a “Full Scale I.Q. of 61″ who “required repeated instruction for doing even simple things, such as cutting the grass” and who “seemed to have a difficult time dressing himself properly.”
On Florida’s death row, the state says having an IQ higher than 70 categorically means an inmate is not mentally disabled and may be executed. In Hall v. Florida, 12-10882, recently argued before the U.S. Supreme Court 68-year-old Freddie Lee Hall is challenging the state's use of a rigid IQ cutoff to determine mental disability.
Florida is one of only five states that have set a bright-line rule for determining mental disability in capital cases. The others are Alabama, Kentucky, Virginia and Idaho, and the results there have been stark. Only two claims of mental disability have been successful in those states since 2002, according to a Cornell University study. That's about two percent, compared to a 28 percent success rate in the other 45 states.
In a brief asking the high court to hear the case, Hall's attorney, Eric Pinkard, noted that lower courts originally placed Hall’s IQ at 60. He argued that the state cannot set a "bright line" for measuring something even the IQ tests' inventors say is a moving target.
"We allow people to make their best case about why they're not eligible for the death penalty," Justice Elena Kagan said during the recent argument. "And essentially what your cutoff does is, it stops that in its tracks, as to a person who may or may not even have a true IQ of over 70, let alone it stops people in their tracks who may be mentally retarded."
"Could the state say somebody who is mentally retarded enough—so mentally retarded as not to be responsible and not to be subject to the death penalty certainly could not have pulled all of this [crime] off?" Justice Antonin Scalia said referring to Hall. "This is not a person who is that significantly mentally retarded."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at and follow Matt on Twitter @MatthewTMangino. His book The Executioner's Toll, 2010 is due out this summer.
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