An IQ test score is usually not a life or death matter, but in a pending capital case from Florida it may very well be.
The Supreme Court of Florida ruled last October that only people with IQs of 70 or below can be mentally retarded, and that convicted murderer Ted Herring, who got slightly higher scores, must stay on death row. In 2002s
Atkins v. Virginia, the Supreme Court banned the execution of retarded people, but left ambiguity about the definition of that condition.
In a petition for certiorari in
Herring v. Florida, counsel of record John Hamilton argues that Floridas rule runs counter both to clinical standards and
Atkins. He asks the Court to require that IQ scores used to help determine whether a person is retarded include a five-point margin of error. The American Psychiatric Association and many states already use this principle, under which a person with a score of 75 could have the disability.
Common sense about the nature of human error suggests that no single number on a test can measure intellectual functioning with absolute pinpoint accuracy, Hamilton, a partner at Foley & Lardner, wrote in the petition.
Attorneys at Foley, in Florida, and at Shearman & Sterling in New York, have worked pro bono on this case for about 30 years. A Florida court sentenced Herring to death in 1982 following his conviction for killing a convenience store clerk in Daytona Beach.
After
Atkins established that executing a mentally retarded person was a cruel and unusual punishment, Herring moved to vacate his death sentence. A trial court found by clear and convincing evidence that the client was mentally retarded and could not be killed. In vacating that ruling last year, the Florida high court reasoned that
Atkins gives states the power to determine who is mentally retarded.
Hamilton argues that, though
Atkins lets states formulate appropriate procedures for implementing its holding, it endorses the definitions set forth by the American Psychiatric Association and the American Association on Intellectual and Developmental Disabilities.
Atkins, he wrote, is not a license for lower courts to redefine the diagnostic criteria for a condition that trained clinicians have been diagnosing and treating for decades in an accepted way.
The two organizations that
Atkins cited require that a person meet three criteria to be intellectually disabled, which is the term now commonly used in place of mental retardation. These include significant deficits in intellectual and adaptive functioning that occur before age 18.
A person meets the first prong if his IQ is less than approximately 70. But both organizations recognize what is known as a five-point standard error of measurement, or SEM, for these tests, meaning that someone who scores 75 and has severe adaptive problems could be mentally retarded.
Herring got 72 and 74 on IQ tests, and expert witnesses in the evidentiary hearing found that he had clear adaptive deficits from an early age.
Hamilton argues that by ignoring the SEM, Florida disregards a feature that all valid IQ testing employs to ensure reliability in scoring. The states strict cutoff of 70 also can prevent courts from analyzing the other diagnostic factors that clinicians use, he wrote in the petition, which he filed in March.
Mental retardation is really not a legal determination, Hamilton said. Its a clinical determination.
Most death-penalty states use the SEM in diagnosing intellectual disability, but a few do not.
Since
Atkins, states also have disagreed on other issues regarding the definition of mental retardation.These include what standards of proof to use and whether the determination should be made in the sentencing phase of trial or earlier, said Richard Dieter, executive director of the Death Penalty Information Center.
The Court has offered little clarification on
Atkins, so there is still uncertainty about what rules states should follow, Dieter said.
It hasnt been a bright line, he said. Its been a fuzzy line, and that can result in people with mental retardation getting executed.
Attorneys from Foley and Shearman also filed a petition for a writ of mandamus to the Court in April. It argues that the U.S. Court of Appeals for the 11th Circuit abused its discretion when it rejected a habeas corpus claim that Herring had sought.
Jamie Schuman is a freelance writer and third-year student at The George Washington University Law School.
