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.