It’s An All Or Nothing Proposition

The Supreme Court’s 5-4 opinion in Hall v. Florida contained those words I long to see: Alito, J., dissenting.  There is no better assurance that the right decision was reached.  The case involved Florida’s rule establishing an absolute cutoff for execution under Atkins v. Virginia of IQ of 70 or below.

While Atkins held it unconstitutional to execute a mentally retarded person, it neglected to define the phrase. Florida fixed it at a specific number, refusing to consider the margin of error, because the words “standard deviation” mean something different to lawyers.  Justice Kennedy, writing for the majority:

Florida’s rule disregards established medical practice in two interrelated ways. It takes an IQ score as final and conclusive evidence of a defendant’s intellectual capacity, when experts in the field would consider other evidence.  It also relies on a purportedly scientific measurement of the defendant’s abilities, his IQ score, while refusing to recognize that the score is, on its own terms, imprecise….

It is the Court’s duty to interpret the Constitution, but it need not do so in isolation. The legal determination of intellectual disability is distinct from a medical diagnosis, but it is informed by the medical community’s diagnostic framework.  Atkins itself points to the diagnostic criteria employed by psychiatric professionals. And the professional community’s teachings are of particular help in this case, where no alternative definition of intellectual disability is presented and where this Court and the States have placed substantial reliance on the expertise of the medical profession….

This explanation opened the door to Justice Alito’s dissent, which raised a very interesting question:

The Court’s approach in this case marks a new and most unwise turn in our Eighth Amendment case law. In Atkins and other cases, the Court held that the prohibition of cruel and unusual punishment embodies the “evolving standards of decency that mark the progress of a maturingsociety,” and the Court explained that “those evolving standards should be informed by objective factors to the maximum possible extent.”

In these prior cases, when the Court referred to the evolving standards of a maturing “society,” the Court meant the standards of American society as a whole. Now, however, the Court strikes down a state law based on the evolving standards of professional societies, most notably the American Psychiatric Association (APA).

See the problem?  On the one side, the majority appears to defer its judgment under the Eighth Amendment to a professional group, the deference problem that appeared from oral argument in this case.  On the other side, the dissent appears to suggest that it can hop into the driver’s seat of a spaceship created by scientists and engineers and fly it to the moon without reading the instructions.  After all, they’re tasked with being the pilot.

The dissent has a point, that the APA is not a proxy for society or the Court in determining who should be executed.  What of competing groups?  What if the APA changes its definitions?  What if they decide to redefine IQ as one’s feelings about one’s intelligence? This isn’t nearly as far-fetched as it sounds with the APA.

By relying on the APA’s statistical definitions using medically accepted tests, has the Supreme Court not abdicated its responsibility to society by shifting the burden elsewhere?

The problem stems from the majority’s rationale, which sought to adopt the medically-accepted definitions, not because of an abdication of duty but because it was medically and statistically sound.  While this is true, it exposes a soft underbelly to Justice Alito. Sam can’t resist a soft underbelly.

But taking Justice Alito’s point further, the merit of the majority’s ruling becomes clear:

Today, the Court overrules the latter holding based largely on the positions adopted by private professional associations. In taking this step, the Court sharply departs from the framework prescribed in prior Eighth Amendment cases and adopts a uniform national rule that is both conceptually unsound and likely to result in confusion.

In addition, the Court “pinpointed that the clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.”

The case addressed a rule created by the Florida legislature, that an IQ of 70 was the cut off. No wiggles, standard dev aside. Above 70, you fry, end of discussion.  As Alito says, “the legislation enacted by country’s legislatures” is the “most reliable objective evidence of contemporary values.”  Fair enough.

It was thus the choice of the Florida legislature to eschew an Atkins definition that was grounded in something other than an IQ test. It’s not that I have the slightest clue what a better, or even marginally reasonable, definition might be, as the entire concept of intellectual disability is a medical, not legal, one.  Sometimes, the rhetoric fails us. Bummer.

But Florida picked the IQ test as its measure, thus making it the “most reliability objective evidence of contemporary values.”  The majority of the Supreme Court didn’t do that. Florida did. So if Sam has a problem with it, blame Florida. Heck, everyone else does.

But having selected a definition based upon a medically-defined measure, the Florida legislature can’t cherry pick the measure and ignore the rest of the science related to it.  While “society” may have embraced the words “intelligence quotient” within its lexicon of vagaries, it carries meaning within the scheme of determining average intelligence.  The Florida lege can’t have it both ways.

Frankly, I’m no more comfortable than Justice Alito in leaving a determination of life and death in the hands of a bunch of psychiatrists.  They’re nuts.  And more importantly, they’re authoritative nuts, meaning that it’s pretty darned hard to argue with an objective test, even if we take the standard deviation into account (and do so properly, Sam).

And yet, what alternative did the majority have?  Florida picked its line in the sand, and that’s the law before the Supremes.  There is no meaning, no validity, no utility, to using the IQ of 70 without the margin of error.  The number 70 may appear pretty darned easy to apply to grocery clerks, but then what Florida was really doing was taking the APA’s medically-based decision-making authority and handing it over to the grocery clerks to decide.  And they stamped their feet, yelling, “70, 70, 70,” because numbers are easy even if the 70 meant nothing without its context.

The majority gave Florida what it wanted, a way to use its law, its IQ of 70, with the proviso that it do so using the whole of the concept rather than only that piece that grocery clerks find easy to apply.  Really, Alito still kinda won the case, even if he is the author of the dissent. But then, it’s just so nice to see “Alito, J., dissenting.”


15 thoughts on “It’s An All Or Nothing Proposition

  1. Lane Thibodeaux

    An individual clinically diagnosed as intellectually disabled (ID) in California is clinically ID in Florida, Georgia and Texas. The clinical definition is not dependent on where the diagnosis is made. Under the “Alito standard” a clinically ID defendant in California would likely be ineligible for the death penalty, but the same defendant committing the same crime could be eligible for the death penalty in Florida. The locality of the crime committed ought not determine eligibility for the DP.


    1. SHG Post author

      As long as we have a federalist system, states get to make their own laws subject to constitutional limitations. There is nothing that precludes a state from coming up with its own way to meet the requirements of Atkins. But if they use an objective criterion, then they have to use it correctly. We’re all better off for that.

  2. Patrick

    Perhaps the answer to the deference problem is that in the case of an organization like the APA, or the AMA for that matter, a certain amount of deference is acceptable given that doctors are the only profession with ethical obligations as stringent as lawyers. While ethical obligations don’t necessarily concern organizations, it may be that judges can safely use APA/AMA opinions as a starting point or as a very large factor (and maybe the opinions of the leading national medical organizations qualify as objective factors referred to by Alito). Of course, judges cannot wholly abdicate their responsibilities by deferring, but it strikes me as less of a concern when the deferee has its own high ethical standard (as opposed to an administrative arm of the government, to which courts regularly defer). Who knows, maybe soon we’ll get lucky and the “evolving standards of a maturing society” will mean no more death penalty. I’d like to read that Alito dissent.

    1. SHG Post author

      Does the ABA decide the law? Would you want it to? Yet the AMA/APA should decide medicine? I think you may be giving professional organizations a bit more credit than they deserve, ethics notwistanding.

      As for Alito’s dissent, click the link on the case name and knock yourself out. It’s like magic.

      1. Patrick

        Apologies for the ambiguity. I meant the future dissent that I imagined in the previous sentence. Poor writing on my part.

        No, I don’t want the ABA to decide the law, but states regularly take ABA model rules and model statutes into account when drafting their own. And legislators and judges are at least as qualified to draft and interpret law as the ABA. The same level of parity does not exist between judges and professional medical organizations. Of course the APA shouldn’t decide medicine unilaterally, or the law for that matter, but where an issue is wholly outside the expertise of the Court there is good reason to look to the experts of that field, especially when those experts are subject to similarly high ethical standards.

        1. SHG Post author

          Your last sentence says a mouthful. But then, it could well be argued that the APA/AMA are the bureaucrats of the profession, not the experts. You know, the guys who like to join stuff and have titles? So expertise is good (even though experts sometimes disagree, and sometimes later decide they were totally wrong before), but expertise and a professional association are not necessarily coterminous.

  3. GEJC

    The beauty of the majority opinion is that it doesn’t allow states to define away rights to which it is antagonistic. Alito’s bellyaching aside, Florida and Kentucky have essentially said, “okay, we won’t execute ID individuals, which we’ll now define as someone missing a brain stem.” It’s analogous to the states post-Roper defining a minor as someone under ten. It bears no relationship to the nature of the protection and defeats the purpose of the ruling/right. The biggest flaw in Alito’s (and Scalia’s in other dissents) logic stems from attempting to defer to a state action when addressing an Amendment(s) that is aimed at reining in state/government conduct. It’s tantamount to telling them they can’t do something unless they decide to do it and renders the Eighth Amendment meaningless.

    At the end of the day, adaptive functioning is the best method for addressing the specific concerns the Court raised in Atkins. The Court has an interest in not simply issuing edicts as it was accused of in Atkins and here, but also ensuring that those rights it recognizes are enforced in a way that reflects actual reality and not the bizarro universe in which states like Florida want to live.

      1. John Burgess

        Not to be tendentious, but isn’t this going to come down to the expert witness for the defense claiming that the defendant falls below the line while the prosecution’s expert witnesses are claiming that he’s above the line? In fact, there isn’t really a line, there’s a smudge. Judges are not going to be any better informed by where, in that hazy smudge, dueling expert witnesses seek to place a point. And it’s back to the Appeals Courts ad infinitum.

        As for the wisdom of the APA, it wasn’t until 1973 that they decided that homosexuality wasn’t a mental disorder and took it out of the seventh printing of the DSM-II in 1974. Not only is the line a blur, but it’s a moving blur. State’s don’t like moving targets any more than other non-hunters.

  4. Charlesmorrison

    This isn’t the first time the high court has tied a constitutional right to the medical community’s prevailing definition of a specific term. Think Blackmun’s opinion.

    On the one hand, that opinion has held up over time. On the other hand, the right is under constant attack by legislatures, especially as medical advancements happen naturally over time. So, your admonition that the shrinks could change their opinion, even dramatically, is very real. And where does that leave courts long term?

    I suspect the high court knows it is settling in for a protracted rodeo given the right at issue is inextricably tied to what medical professionals define it as.

    1. SHG Post author

      An interesting juxtaposition, given that it was more a bio-medical opinion filtered through Blackmun. There are some similarities and differences, as this was far more a nuts and bolts usage, but it’s a good point.

  5. John Barleycorn

    It’s – An – All – Or – Nothing – Proposition?

    Even if you can think instinctively in more than three dimensions (on a good day) and have reasonable common anticipating, as well as foresight that rings true…

    Samuel as your litmus Bitch is weak (all knowing unknowing on my part intended).
    You really have to give up the grind, now and then. [think about the torture of not thinking]

    Yes fuck your special K.

    I hope you do know, you would be given mandatory leave if you were a member of several other guilds. Not because you are necessarily dangerous or caviler. But just because! Not a money thing either.
    Anyway, I was rather pleased to see you roll with an anti-climatic anticipation and folly within this post.

    But, Let me be more direct.

    Your guild-ed and unguild-ed readers may not, but you do see instinctively in more than three dimensions.

    Fuck anticipation of Judgeship (isthatafuckingword?).

    Rest more,” retire”, and bring on the “rambling” when you write.
    Just joking.

    Oh yeah…you should be wise enough to sniff it out or you are just a kindly fucking ass. But if you fail to see the mortality yield perspective yet….I suggest you consider it.

    Fuck more gentlemanly towards Nebraska but more nuance may find the rebar up your ass just right, as well as more plugged drain pipe figuring as how the sloughs never completely run dry and the pheasants are always a pleasure to see.

    So…anyway, concise and all, have some cogent via the topic of your post “Hollywood” style.
    70 is the entry fee? (there is a nursery rhyme…)

    Weekend is coming up and if movie night is feeing retro…may you and your readers have a another look.

    There is always more going more going on than any court room can define.

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