What Is an Intellectual Disability in the Eyes of the Law?
Freddie Lee Hall and Warren Hill are both on death row in Florida and Georgia. Had they been convicted of their crimes in other states, they might not have received the death penalty. Both have been arguing against execution on the grounds that they are intellectually disabled.
What it means to be intellectually disabled is not entirely clear in a legal sense. When the Supreme Court ruled twelve years ago that criminals with mental disabilities could not be given the death penalty, it left it up to individual states to determine the criteria for what an intellectual disability is. This coming march, the Supreme Court will revisit its 2002 ruling.
The Death Penalty and Intellectual Disability
In its 6-3 decision in Atkins v. Virginia in 2002, Justice John Paul Stevens wrote that the court prohibited states from executing anyone with “mental retardation.” Clinicians define “mental retardation” (which is more often referred to now under the term “intellectual disability”) as meaning that a person has “substantial limitations” in intellectual functions such as reasoning or problem-solving; limitations in their adaptive behavior or “street smarts” and evidence of having such a disability before the age of 18.
Being intellectually disabled can also mean having difficulties in communication, social skills and daily living skills (whether in handling money or taking care of one’s hygiene) and otherwise being unable to take care of oneself. Those with such disabilities like my severely autistic son may commit acts without a full understanding of the consequences.
Since 2002, at least 98 people have had their death sentence changed after proving that they had an intellectual disability. Prior to the Atkins decision, at least 44 people who had intellectual disabilities were executed, according to the Death Penalty Information Center.
Should States Determine What Constitutes an Intellectual Disability?
As Brian Kammer, executive director of the Georgia Resource Center, which provides free legal services for death row inmates, says, when the Supreme Court left the determination of mental disability to the states, it gave them “a lot of leeway to do mischief with the definition of intellectual disability.”
For instance, Texas’ criterion for being intellectually disabled is based on an “anecdotal seven-part test” that is drawn not from clinical and other research but from the depiction of the fictional character, Lennie, in John Steinbeck’s novel “Of Mice and Men.” Under these standards, a number of prisoners (more than a few of whom scored significantly below 70 on IQ tests) have been executed. One of these men, Marvin Wilson, was convicted of murder in 1994 and executed last year in Texas, even though tests found that his IQ ranged from 61 to 79. Texas did not dispute Wilson’s claim of mental retardation but “simply refused to accept him as retarded enough to be exempted from execution,” as a New York Times editorial said.
In Florida, Freddie Lee Hall has been on death row for more than 30 years for the 1978 murder of Karol Hurst. In 1999, the Florida Supreme Court stated that “there is no doubt that the defendant has serious mental difficulties, is probably somewhat retarded, and certainly has learning difficulties and a speech impediment.” Hall scored in the mid-70s on IQ tests but was not seen as “retarded enough”; in Florida, having an IQ over 70 means that a person is “eligible for execution regardless of intellectual function or adaptive behavior.” After the 2002 Atkins decision, Hall challenged his death sentence, arguing that Florida’s criteria for an intellectual disability “amounts to unconstitutional punishment.”
In Georgia, death row inmate Warren Hill has been fighting execution based on substantial evidence that he has an intellectual disability. But in Georgia alone of the 50 states, defendants must prove that they have an intellectual disability “beyond a reasonable doubt,” the highest standard of proof in the criminal justice system. Hill was found to be mentally retarded in 2002 according to a lesser standard, based on a “preponderance of the evidence” or “more likely than not.” Nonetheless, the Georgia Attorney General’s Office says Hill has failed to prove that he has intellectual disabilities.
Georgia’s state legislature is considering lowering its standard for what an intellectual disability is when it next meets. Its criteria, and those used in Florida and Texas, show why it is time for the Supreme Court to revisit cases like Wilson’s and even establish a definition for intellectual disability. “It’s our hope that the court will clarify that states must use the clinical definition for intellectual disability…not only for current cases but for future cases, too,” as Margaret Nygren, executive director and CEO of the American Association of Intellectual and Developmental Disabilities, comments.
Rather than relying on arbitrary and, in some cases, outdated criteria, and execute those with intellectual disabilities, states must follow a definition determined by clinicians and advocates. The execution of individuals like Wilson is more than grounds to end the use of the death penalty, period.
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