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 Disabilitiescomments.

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.

Photo from Thinkstock


Jim Ven
Jim Ven1 years ago

thanks for the article.

Jaime A.
Jaime Alves4 years ago


Robert H.
Robert Hamm4 years ago

What kills me is I sit here and read all these responses that say KILL THEM. Stop calling yourselves Christians. First of all Jesus said YOUR job is to LOVE…….its MY Job to judge. Dont confuse who has which job. yes I did paraphrase that but it is what he preached.

YOU are responders here are horribly as unqulaified to decide someone’s capabilities as I am. Just because someone can plan a crime does NOT mean they are sane. it doesnt mean they arent handicapped. Our main problem here is we have a “get even”mentality. its not about getting even its doing what’s right that counts. Killing people for being mentally ill makes US insane. You worry and obsess about the handful of people that may be gaming the system but worry NOTHING about the KILLING of someone who isnt guilty or is so handicapped they cant make rational decisions.

if you are going to claim Christianity then figure out what Jesus actually preached instead of thios bullshit you call justice. What you call justice sane people call vengance.

Janis K.
Janis K4 years ago


Koty Lapid
Koty Lapid4 years ago

Thank you for sharing it!

Michael H.
Mike H4 years ago

Thanks for posting this

Michael A.
Michael A4 years ago


Roxana Saez
Roxana Saez4 years ago

Disturbing that they have not come up with a standard procedure to determine this based on latest expert research. Texas is a prime example of how this should not be left in state hands. TYFS

Christine Stewart

If someone commits a serious violent crime, then I don't care what their IQ says- if they have enough mental capacity to plan and commit a crime, they should be able to do the time.

Elizabeth F.
Elizabeth F4 years ago