Statutory Rewrite Required: Definition of Intellectual Disability for Death Penalty

Are you a state legislator from Florida, Kentucky, Virginia, Alabama, Arizona, Delaware, Kansas, North Carolina, and Washington?  If so, keep reading.  Your legislature may need to rewrite its definition of intellectual disability as it applies to the death penalty. 

In Hall v. Florida the Supreme Court held 5-4 that if a capital defendant’s IQ falls within the standard error measurement (SEM) for intellectually disabled, the defendant must be allowed to present additional evidence of intellectual disability.  Hall may require the above 9 states to rewrite their death penalty statutes because they have strict IQ cutoff scores of 70.

In 2002 in Atkins v. Virginia the Supreme Court held the Eighth Amendment forbade the execution of persons with intellectual disabilities.  Florida’s death penalty statute defines intellectual disability as requiring “an IQ test score of 70 or less.”  Capital defendant Freddie Lee Hall’s lowest IQ score was 71.

The Supreme Court agreed with Hall that Florida’s rigid 70 or less IQ rule was unconstitutional.  While the Court noted that the medical community agrees that an IQ of 70 or less indicates intellectual disability: “Florida's rule disregards established medical practice in two interrelated ways. It takes an IQ score as final and conclusive evidence of a defendant's intellectual capacity, when experts in the field would consider other evidence. It also relies on a purportedly scientific measurement of the defendant's abilities, his IQ score, while refusing to recognize that the score is, on its own terms, imprecise.” 

Instead of using a rigid 70 or less IQ cutoff, states should take into account SEM, which is generally plus or minus 5 points.  So if a capital defendant’s IQ is 75 or less he or she may present additional evidence of intellectual disability.

Another factor in the Court’s reasoning in this case was that every state legislature which has defined intellectual disability since Atkins, except Virginia, has taken a position contrary to Florida’s. 

Two other states have strict IQ cutoffs like Florida (Kentucky and Virginia) and six other states may have bright-line cutoffs, depending on how courts interpret the statutes (Alabama, Arizona, Delaware, Kansas, North Carolina, and Washington).  Again, these nine states should reconsider their statutes defining intellectual disability for death penalty purposes in light of Hall.