The Dangerous Dance of Deference and Death (Update x2)

One of my complaints about journalists is that no matter how well they write, they aren’t inherently endowed with expertise on the subject of their reporting. The same goes for lawyers, and particularly judges, who sometimes confuse the majesty of their robes for subject matter expertise.

It’s not that we can’t become reasonably well-versed in a very narrow subject with some effort, but that we should never confuse ourselves with real experts. The Supreme Court heard argument in Hall v. Florida, the follow-up case to Atkins v. Virginia which held it unconstitutional to execute a mentally retarded person.

Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants.

The Court held that executing the mentally retarded violated the 8th Amendment’s prohibition on cruel and unusual punishment. It failed, however, to define what constituted mentally retarded, a clinical characterization that’s no longer used in favor of “intellectual disability.” In Florida, the rule was a strict cut-off based upon an IQ test score of 70 or above.  If the defendant scored 70, he could be executed.  It failed to account for the standard deviation or any other factors that might give nuance to the score, making for a very bright, but very dubious, line. From the New York Times:

As Monday’s argument progressed, it became clear that what divided the two groups of justices was more than the particular case. Their disagreement was a larger one about the role of scholarly and professional expertise in the resolution of legal disputes.

“We didn’t base our decision in Atkins upon a study of what the American Psychiatric Association and other medical associations considered to be mental retardation,” Justice Antonin Scalia said. “We based it on what was the general rule that states had adopted.”

What makes this position particularly ironic is a rule that very familiar to lawyers who practice in administrative law niches, but rarely mentioned by criminal defense lawyers: Chevron deference.  The Court will defer to the judgments of administrative bodies, such as the NLRB or the EEOC, because of its putative expertise in its niche.  Who is a Supreme Court justice to think he knows more about labor law than a member of the NLRB, right?

Yet, Nino’s statement dismisses the American Psychiatric Association and other medical associations as to what constitutes mental retardation.  Because, it’s not like they define it. Oh wait, they do.  The IQ tests upon which death relies are crafted by the medical community. The results of these tests are interpreted by the medial community.  The validity of these tests is as strong or weak as determined by the medical community, with a little help from their statistician friends who use words like standard deviation whenever calculating the statistical reliability of a standard test, because without it, the results mean squat.

But if a legislature of a fine state like Florida decides that it will make use of a test created for other purposes (remember that IQ tests don’t exist solely for the benefit of determining who has a sufficient intellectual disability to avoid execution, but for actual diagnostic purposes), use the score in a manner inconsistent with the way its creators meant it to be used, and put people to death because of it, what’s the problem?

After all, aren’t legislators fully qualified to decide the level of intelligence necessary to execute people? They must know what they’re doing, or no one would elect them.

Justice Anthony M. Kennedy noted that the court will hear a case on Wednesday involving economic theory.

“Do you think we defer to psychiatrists and psychologists any more or any less than we do to economists?” he asked Seth P. Waxman, a lawyer for the death row inmate in the case, Freddie L. Hall.

While Kennedy’s question raises the classic logical fallacy of false analogy, Waxman wasn’t taking the bait.

Mr. Waxman said the court should defer “much, much, much more” to the first group because, he said, the condition in question “can only be appropriately diagnosed by professionals.”

Three “muches” pretty much, much, much nails it. The determination of mental retardation (which, despite the political correctness that’s laid the phrase to waste, remains a more precise phrase to describe the issue) is a medical diagnosis, not a legal concept. The psychiatric profession created this test, defines this test, owns this test. It’s not for Florida, or the Supremes, to cherry pick the parts of the test that fit neatly into the law and ignore the rest.

Mr. Hall had generally scored slightly above 70 on I.Q. tests. If the standard error measurement was applied, Mr. Waxman said, the true result could be as many as five points lower. He added that a cutoff of 75 would be permissible.

The score of 70 isn’t sacred, per se, but it’s left to the psychiatrists to hash out its validity of whether it’s an accurate reflection of mental retardation, not to judges or legislators.  As with any standardized test, there is a standard deviation that must be taken into account, without which the score itself is meaningless.

So, Hall’s score could be 75 as well as 65?  True, putting aside other factors that are similarly subject to diagnosis. But so what?  The worst that could come of a nuanced understanding of the IQ test is a guy wouldn’t be executed?  To Florida, that’s unacceptable.

Justice Stephen G. Breyer suggested that the court could require an expert to explain statistics to the judge or jury deciding whether the inmate had an intellectual disability. “What is so terrible about doing it?” he asked.

Mr. Winsor responded that “what is so terrible about doing it is you would end up increasing the number of people who would be eligible for a mental retardation finding.”

“Florida has an interest in ensuring,” he said, “that the people who evade execution because of mental retardation are people who are, in fact, mentally retarded.”

After all, it would be a travesty of Florida justice if a defendant was put to death slowly in prison for the rest of his life rather than at the hand of the executioner.   And who better to decide whether someone is mentally retarded, “in fact,” than Florida legislators?

Update: An interesting point made by Doug Berman at Sentencing Law and Policy, questioning the propriety of hinging a constitutional right on such an imprecise measurement device as an IQ Test.  Bermans would look to the burden of proving under Atkins that the defendant is sufficiently intelligent to kill.

At Crime & Consequences, Kent  Scheidegger raises similar issues with the statistics, but concludes that when everything is fuzzy, just kill the guy anyway because, well, he deserved to be executed.

Update 2:  The Supreme Court held that Florida’s requirement is unconstitutional.

5 comments on “The Dangerous Dance of Deference and Death (Update x2)

  1. Patrick Maupin

    I’ve never fully understood the rationale behind using IQ in this manner, but then I’m slow. (Probably not slow enough to use it as a defense, though.)

  2. Mark Draughn

    Kent Scheidegger has (sigh) kind of a good point. It’s probably not how he’d put it, but I think what he’s basically saying is that if you’re going to make a decision by comparing a measurement to an arbitrary criterion, does it really matter how well you take the measurement? (Of course it would be a lot simpler if whoever set the IQ line at 70 had also specified how confident we have to be in the IQ measurement, but that might be too much to expect from people who can’t seem to give a clear definition of “reasonable” doubt…)

    None of that changes your point that someone’s I.Q. score may not be the appropriate measure to use when making this kind of decision. I wonder, if the State of Florida had said you couldn’t execute anyone with a cholesterol score below 170, would Scalia have been okay with that? And if not, could he explain why without referring to the field of psychology?

    1. SHG Post author

      That’s why I included Kent’s post in the update, as he’s not wrong in his argument about the merit of an external arbitrary criterion, even though his outcome goes where it always goes. But if the courts are going to rely on it, then they have to rely on all of it, not just the piece that’s easiest to apply.

  3. AlphaCentauri

    The hubris of talking about whether someone can be executed based on an overall IQ score is mind-boggling. “IQ” is not like the volume dial on a radio that is turned up to a particular level, with anything with the dial below a certain notch constituting “mental retardation.” The human brain has multiple different areas that conduct different neurological processes, and it has other areas that are packed full of fibers allowing those function centers to communicate. Damage to one area can cause devastating deficits in one area of function, little loss in others, and unpredictable effects in still others.

    Many people have been given IQ scores based on a multiple-choice written test in elementary school. Those tests are cheap to administer, but of limited use. A formal IQ test is a one-on-one session with a psychologist that covers multiple areas of functioning, both verbal and non-verbal. It is not only possible for the various subtests to have discordant results in a single person, you would actually expect discordant results in any case where there has been brain injury of any type. A score of 70 could actually be a score of 95, 90, 80, 45 and 35. Depending on whether that 35 is a verbal or nonverbal measure, your multiple choice test would have wildly different results.

    In particular, fetal alcohol syndrome is associated with poor impulse control. They may be able to perform adequately on a written test, but they just can’t manage to learn to control themselves when they are in interpersonal conflicts or when they see things that they want to have, no matter how many times they suffer negative consequences. The prisons are full of people like that.

    1. SHG Post author

      When the Supremes held that only mentally retarded people can’t be executed, the drew a line. It was better to have a line than nothing, as those states that wanted to execute would find a way to circumvent any fuzzy prohibition. Now, it’s a matter of giving the line remotely realistic meaning. If we wanted to get real, there would be no death penalty and they we wouldn’t need to worry about where the line should be drawn. But we’re not there yet.

Comments are closed.