HALL V. FLORIDA GOVERNMENT BY THE PEOPLE

HALL V. FLORIDA GOVERNMENT BY THE PEOPLE GARY DUNN INTRODUCTION For those who abhor the existence and implementation of capital punishment, 1 decision in Hall v. Florida 2 will undoubtedly become Excessive bail shall not be required, nor excessive fines imposed, 3 Naturally, the death penalty lends itself to analysis as possible cruel and unusual punishment. In Atkins v. Virginia, 4 the Supreme Court declared that it is unconstitutional, under the Eighth Amendment, to execute an intellectually disabled individual. However, it was left to the states to individually determine the legal threshold for intellectual disability. 5 In Hall, the Court 6 for those intellectually disabled facing capital punishment, thereby declaring it unconstitutional. 7 The requirement provided that an individual facing capital punishment must demonstrate an IQ score of seventy or below before being able to present any additional evidence of intellectual disability. 8 J.D. Candidate, University of Virginia School of Law, Class of 2018 1 Since 1976, there have been 1,446 executions in the United States. Executions by Year Since 1976, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/executions-year (last updated Feb. 1, 2017). 2 134 S. Ct. 1986, 2001 (2014). 3 U.S. CONST. amend. VIII. 4 536 U.S. 304, 321 (2002). 5 at 317. 6 See Fla. Stat. 921.137(1) (2013). 7 134 S. Ct. at 2001. 8 at 1992. 1

2 ST. JOHN S LAW REVIEW COMMENTARY I. CASE SUMMARY AND PROCEDURAL HISTORY The Petitioner, Freddie Lee Hall, along with an accomplice, Mark Ruffin, kidnapped, beat, raped, and murdered a pregnant, twenty-one-year-old newlywed. 9 Subsequently, Hall and Ruffin drove to a convenience store they planned to rob. Upon arriving at the convenience store, Hall and Ruffin killed Lonnie Coburn, a 10 Hall initially received the death penalty for both murders; however, the insufficient evidence of premeditation. 11 At the time Hall was first sentenced, the United States Supreme Court had not yet ruled that the Eighth Amendment bars states from imposing the death penalty on persons with intellectual disability. 12 Moreover, when Hall was first sentenced, Florida law did not consider intellectual disability as a statutory mitigating factor. 13 After the Court held that capital defendants must be allowed to proffer non-statutory mitigating evidence in death penalty proceedings, Hall was resentenced. 14 Hall provided a myriad of unchallenged evidence of intellectual disability including school records and testimony from a number of medical clinicians disabled. 15 Notwithstanding the testimony and evidence y, the jury voted to sentence Hall to death. 16 9 at 1990. 10 11 12 ; Penry v. Lynaugh, 492 U.S. 302, 305 The Eighth Amendment does not categorically prohibit the execution of mentally retarded capital murderers 13 Hall, 134 S. Ct. at 1990. (citing Penry, 492 U.S. at 340). 14 ; Hitchcock v. Dugger, Petitioner was sentenced to death in proceedings that did not comport with the requirement that the sentencer may neither refuse to consider nor be precluded from considering any 15 at 1990 91 (citing Hall v. Florida, 614 So. 2d 473, 480 (Fla. 1993) Hall, 614 So. 2d at 480 81. A number of medical clinicians testified that, in their professional opinion, Hall was mentally retarded and had levels of understanding typically observed with toddlers. Fur epeatedly whipped Hall with a belt, rope, or cord, beat him ten to fifteen times a week, and buried him in the sand up to his neck allegedly to strengthen his legs. 16 Hall, 134 S. Ct. at 1990.

2016] EXECUTION OF GOVERNMENT BY THE PEOPLE 3 recommendation, concluding that nothing in which the experts testified could explain how a psychotic, mentally-retarded, braindamaged, learning-disabled, speech-impaired person could conjure a plan in which a car was stolen and a convenience store was robbed. 17 The Florida Supreme Court affirmed the 18 In Atkins v. Virginia, the Supreme Court ruled that the Eighth Amendment prohibited the execution of persons with intellectual disability. 19 Hall subsequently filed a motion in 2004 and claimed that he was intellectually disabled and thus could not be executed. More than five years later, Florida held a 20 At the hearing, Hall presented an IQ score of seventy-one as evidence of intellectual disability. 21 The State of Florida argued that Hall could not be deemed intellectually disabled because Florida law 22 required that Hall demonstrate an IQ score of seventy or below before presenting any additional evidence of intellectual disability. The -point threshold was constitutional. 23 II. RATIONALE OF THE COURT The United States Supreme Court held that the State of below to qualify as intellectually disabled was unconstitutional. 24 an unacceptable risk that persons with intellectual disability will be executed. 25 Justice Anthony Kennedy, consisted of five main points intertwined with one another. First, the Court noted that the Eighth Amendment, which safeguards against cruel and unusual punishment, is not set in stone and instead may acquire new 17 at 1991. 18 19 Atkins v. Virginia, 536 U.S. 304, 321 (2002). 20 Hall, 134 S. Ct. at 1991 92. 21 at 1992. Hall had received nine IQ evaluations in forty years, with scores ranging from sixty to eighty, but the sentencing court excluded the two scores below seventy for evidentiary reasons, leaving only scores between seventy-one and eighty. 22 See Fla. Stat. 921.137(1) (2013). 23 Hall, 134 S. Ct. at 1992. 24 at 2001. 25

4 ST. JOHN S LAW REVIEW COMMENTARY 26 Second, the Court provided that the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons regardless of the heinous crime committed. 27 Finally, the Court noted, under Atkins, that the Eighth Amendment prohibits the death penalty for the intellectually disabled. 28 stat established medical practice in two pivotal ways. First, the Florida statute takes an IQ score as final and dispositive relevant medical organizations, such as the American Psychological Association, would consider additional evidence. 29 Second, the Court stated that the Florida statute ignores established medical practice by failing to acknowledge the imprecise nature and potential for errors in IQ testing when utilizing a strict seventy-point cutoff. 30 Additionally, the Court inherent in IQ testing. 31 The third main Hall was that the Court underscored the rejection of a strict seventypoint cutoff in the vast majority of states when ascertaining an specifically prohibit a strict seventy-point cutoff and those states that no longer implement the death penalty, the Court concluded penalty. 32 Hall Atkins. The Court addressed the -point statutory cutoff and conceded that Atkins deferred to the states in shaping the legal standards for determining intellectual 26 See id. at 1992 (citing Trop v. Dulles, 356 U.S. 86, 101 (1958)). 27 (citing Roper v. Simmons, 543 U.S. 551, 572 (2005)). 28 29 at 1995. 30 31 at 1998. 32 at 1997.

2016] EXECUTION OF GOVERNMENT BY THE PEOPLE 5 disability. However, the Court also held that such discretion under Atkins is not unencumbered. 33 The Court also noted that Atkins cited two clinical definitions of intellectual disability, both of which, by their express terms, rejected a strict IQ score cutoff at seventy. 34 Correspondingly, the Court noted that in Atkins it own conclusions, conformed to the clinical definitions of intellectual disability. 35 proffer additional evidence of intellectual disability. 36 While Court highlighted that IQ scores are approximations, and thus, intellectual disability is a condition and not a number. 37 III. DISSENTING OPINION Justice Antonin Scalia, Justice Clarence Thomas, and Chief Justice John Roberts, Justice Alito disputed the majority the dissent challenged the alleged national consensus the majority posited as not face execution. The dissent explicated that among the deathpenalty states, ten, including Florida, did not require that the taken into account, twelve considered the SEM, and nine had not taken a conclusive position on the issue. The other nineteen states did not implement the death penalty at all. 38 Se the consensus of professional organizations would likely result in confusion and prolific litigation. 39 As a prime example, the dissent referred to how in 1992, the American Association on Intellectu 33 at 1998. 34 at 1999. 35 36 at 2000. 37 at 2001. 38 at 2004 (Alito, J., dissenting). 39 at 2006.

6 ST. JOHN S LAW REVIEW COMMENTARY 40 This demonstrated, the dissent argued, that the consensus of the scientific community is often fickle. The opinions of professional organizations can disagree with one another and the majority opinion provided no basis to distinguish one professional 41 holding that the State of Florida treated a single IQ score of seventy or below as dispositive evidence of intellectual disability under Atkins. Quite limit on the number of IQ scores that a defendant may introduce. 42 In fact, Hall consistently scored above seventy on multiple IQ tests. 43 Therefore, since Atkins gave the states discretion in how to measure intellectual disability under the law, the dissent concluded that the State of Florida multiple IQ scores did not treat a single score as dispositive and was covered under the discretion provided by Atkins. Fourth, the dissent noted that under Atkins, for an individual to be qualified as intellectually disabled, both subaverage intellectual functioning and significant limitations in adaptive skills must be established. 44 However, the dissent contended that the majority opinion allowed Hall to present additional evidence of adaptive deficits, given his IQ score, which did not - average intellectual functioning. 45 Fifth, the dissent engaged in a weighty analysis of the summation, the dissent argued that the United States Supreme Court unjustifiably assumes a blanket SEM for all IQ testing. 46 Furthermore, the dissent contended that the Court misread the professional authorities it cited that establish a cutoff of seventyfive points on an IQ test constituting intellectual disability. 47 Simply put, the dissent asserted that the majority opinion mistook these authorities as stating that a seventy-five-point IQ 40 41 42 at 2007. 43 44 at 2008. 45 46 at 2010. 47 at 2011.

2016] EXECUTION OF GOVERNMENT BY THE PEOPLE 7 score should be an approximate cutoff score in all cases measuring intellectual disability, whereas these authorities merely indicated seventy-five points as a cutoff for a certain margin of error. In other words, the dissent concluded each IQ test has its own SEM. Thus, a difference of five points from an IQ score of seventy, either above or below, will not always be the appropriate SEM. 48 As the deep- IV. TRANSITION 49 Hall exemplifies a vivid message of requirements for those attempting to demonstrate intellectual disability in hope of avoiding capital punishment. This nation of legislation, which constitutes sheer judicial activism by the Court. In reaching this holding, the Court bestowed undeserving weight to the arbitrary and evolving consensus of a multitude of psychological organizations, an unrepresentative ideological intellectual elite because such alleged unanimity represents the legislative preferences of government by the people. There exists a threean erroneous decision at its very core. V. ANALYSIS A. Any National Restriction of the Death Penalty Under the Eighth Amendment Violates the Fixed Meaning Canon of Statutory Interpretation It is imperative to expound upon the vital points of Justice United States Supreme Court in Hall. However, even the dissenting opinion falls short in illuminating the most significant in Hall and in Atkins is that both cases convey the message that decided by a panel of unelected Justices. This, in turn, means the people execute no legislative power, preference, or desire in the decision-making process. Such usurpation goes against the 48 49 John Adams, NOVANGLUS ESSAYS, No. 7.

8 ST. JOHN S LAW REVIEW COMMENTARY heritage. It is deeply ingrained in our nat of legal thinkers that laws should be interpreted based upon the meaning of their words at the time of enactment, 50 hence, the term fixed-meaning canon. More narrowly, with respect to capital punishment, the prohibition of cruel and unusual punishment under the Eighth Amendment was never viewed as a categorical prohibition of the death penalty for certain crimes. 51 Therefore, under the fixed-meaning canon, both Hall and Atkins are egregious misnomers that wrongfully assume authority that belongs to the states. Under the evolving standards of decency model implemented in Hall, the definition of the death penalty is left at the uncontrolled, unelected, and unchecked discretion of the Court under a system of alleged checks and balances and separation of powers. Given the precedent that Hall established, expanding upon Atkins, there is simply no recourse preventing the Court on any given occasion from redefining the death penalty under the Eighth Amendment while disregarding any state legislation. This is true despite the fact that the words enactment. 52 The textualist problem is even further magnified when the flimsy nature and circumlocution of the scientific consensus is examined. Such a consensus is what the Court utilized as a replacement to the originalist allowance of the death penalty under the Eighth Amendment. By relying so heavily on the 50 See United States v. Rabinowitz, 339 U.S. 56, 70 (1950) (Frankfurter, J., ience of those who see also; FREDERICK SCHAUER, THINKING LIKE A LAWYER 35 as rules are important in law will take us a long way toward understanding law NTON FRIEDRICH JUSTUS THIBAUT, AN INTRODUCTION TO THE STUDY OF JURISPRUDENCE 45 (Na changed in different times, that meaning is to be preferred which was common when the law, in which the word is fou OHN LOCKE, An Essay Concerning Human Understanding 133 (Jonathan Bennett ed. 2012) (1801)... the speaker: [no one] can... apply them as marks... to anything else but the ideas that [the speaker] hath... 51 See Woodson v. North Carolina, 428 U.S. 280, 289 (1976) (Stewart, J., uniformly followed the common-law practice of making death the exclusive and 52 See id.

2016] EXECUTION OF GOVERNMENT BY THE PEOPLE 9 opinions of medical organizations such as the American Psychological Association, the Court made the body of law regulating the death penalty even less stable. As the dissent in Hall noted, the consensus of medical organizations can be erratic and short-lived. For example, between 1992 and 2002, the AAIDD altered the baseline intellectual functioning cutoff back and forth between a set IQ score of seventy or below to a score approximately between seventy or seventy-five or below multiple times. 53 As the dissent noted: What is a state to do when the fluctuate somewhat frequently? Such implications have strong potential for absolute absurdity and incoherence. The problem of instability for future implementation of the death penalty is exacerbated even further when one considers how the Court misapplied the clinical definition of intellectual disability in Hall. 54 The dissent demonstrated that the longstanding and historic views of professional organizations are that for an individual to be classified as intellectually disabled, the individual must suffer from both sub-average intellectual functioning and deficits in adaptive behavior. 55 In the majority opinion, however, the Court seemed to suggest that if a defendant did not meet the IQ requirement, for example by failing to establish the sub-average intellectual functioning prong, to establish intellectual disability, the defendant must still be allowed to present additional evidence of adaptive behavior deficits. 56 Yet, such evidence could not remedy the lack of demonstrating sub-average intellectual functioning. Therefore, both prongs of intellectual disability would not automatically be established under the 53 Hall, 134 S. Ct. at 2006 (Alito, J., dissenting). 54 at 2008. 55 56 at 1995 96, 2001 (ma Florida uses the test score as a fixed number, thus barring further consideration of other relevant evidence, e.g., deficits in adaptive functioning, including evidence of past performance, environment, and

10 ST. JOHN S LAW REVIEW COMMENTARY B. The Court Misapplied Atkins and Usurped the State of After elucidating the textualist and originalist evidence that the death penalty is not the Eighth Amendment, one must contemplate what justification the Court gave for applying the evolving standards of decency model in Hall central to the tity of discretion allocated to the states in Atkins intellectual disability. 57 The majority conceded, somewhat reluctantly, that the states do play a critical role in advancing protections and providing the Court with information on how to 58 Therefore, central to the discretion under Atkins so egregiously by implementing the seventy-point IQ cutoff that it warranted the Court overturning measurement of discretion provided to the states in Atkins, there would be no basis to hold that the State of Florida overstepped its constitutional boundaries in Hall. It is, in fact, arguable that the Atkins decision itself is an act of judicial activism given the above textualist analysis. The majority affirmed that, notwithstanding any established national own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth 59 Surprisingly, however, the Court made several statements in Atkins, somewhat contradictorily, that strongly imply that Hall right to determine how to measure intellectual disability. For example, Atkins recognized that the most reliable, clearest, and objective evidence of contemporary values is the legislation 57 efine 58 T]he States play a critical role in advancing protections and providing the Court with information that contributes to an understanding of how intellectual 59 Atkins v. Virginia, 536 U.S. 304, 312 (2002) (citing Coker v. Georgia, 433 U.S. 584, 597 (1977)).

2016] EXECUTION OF GOVERNMENT BY THE PEOPLE 11 60 Atkins then took the discretion to develop appropriate ways to enforce the constitutional restriction upon their execution of sentences. 61 Moreover, nowhere in the Atkins decision did the Court vocalize opinions of medical or social science organizations. Relatedly, while the Court in Atkins did acknowledge that the State of generally conforms to the clinical definitions of organizations such as the American Psychological Association, 62 there is no requirement that the statutory and clinical definitions be indistinguishable. Finally, it is remarkable that immediately after Atkins bequeathed discretion to the states in measuring an no further clarification, limitation, or narrowing language was iterated to lessen the instead proceeded to its subsequent component of reasoning. 63 C. The State of Florida Implemented Several Precautions in Its Statute To Avoid Treating a Single IQ Test Score as the established medical practice is that the statute did not take into account the imprecise nature of IQ testing and hence treated a single score as dispositive evidence as to whether a person is intellectually disabled. 64 However, such a caricature of the Florida statute overlooks the abundant precautions the state took intellectual disability. Interestingly, even Hall himself dubbed 65 Most importantly, however, as the dissent noted, the State of Florida imposes no limit as to how many IQ tests a defendant 60 61 e State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentenc Ford v. Wainwright, 477 U.S. 399, 416 17 (1986)) (internal quotation marks omitted)). 62 63 64 Hall v. Florida, 134 S. Ct. 1986, 2001 (2014). 65

12 ST. JOHN S LAW REVIEW COMMENTARY may take, which are then averaged together for a specific score. 66 If Hall thought there was a statistical error, he could have taken additional tests to obtain an average score of one point higher. 67 However, Hall repeatedly scored above seventy on various IQ tests. 68 Finally, as the dissent also emphasized, until its most recent publication, the American Psychological Association measured the severity of intellectual disability solely by IQ scores. 69 Thus, when taking the previous opinion of the American precaution of allowing a defendant to introduce multiple IQ scores, it is apparent that a single IQ score was not treated as dispositive evi disability. CONCLUSION our capacity for self-government or whether we abandon the American Revolution and confess that a little intellectual elite in a far-distant capital can plan our lives for us better than we can 70 Hall exemplifies the wisdom behind what President Reagan stated in 1964. It may be tempting to the right to implement the only punishment that can legally take a life. Yet, we must remember what is truly at stake when such a usurpation occurs. Such a caricature of the Hall decision may the words government. We should exercise every possible means through legislation to avoid allowing the Court unfettered discretion that Hall has enabled. Whether one morally believes or disbelieves in the death penalty is a red herring. It is allowing the people to decide that will truly preserve state sovereignty from an arbitrary evolving myriad of professional organizations comprising Pres 66 67 68 69 at 2008. 70 Ronald Reagan, President of the United States of America, A Time for Choosing, Los Angeles (Oct. 27, 1964).