Richard Wolf

USA TODAY

Life-or-death case focuses on Florida prisoner

State stands by rigid IQ test as determinant

Justices in 2002 barred executions for %22retarded%22

WASHINGTON — For more than half of his 68 years, Freddie Lee Hall has been awaiting execution in Florida for the brutal murder of a 21-year-old pregnant woman.

But for "his entire life," according to a court that re-sentenced him to death in 1991, Hall has been mentally retarded.

On Monday, the Supreme Court will consider whether that diagnosis is accurate enough to spare Hall's life — or if Florida is correct in determining that he is smart enough to die for his crime.

On a human level, the decision will have limited impact. No one in Hall's precise situation has been executed in the 12 years since the high court prohibited the death penalty for people with "mental retardation," now called intellectual disabilities. Only four other death row residents in Florida and Alabama face similar predicaments.

But the court's ruling could have broad repercussions in the future by spelling out exactly what the justices meant in 2002 when — at least according to Florida and its allies — it prohibited executing the mentally retarded without defining who is and who isn't.

Thirty-two states permit the death penalty. The number of executions peaked at 98 in 1999 but dropped to 39 by last year, according to the Death Penalty Information Center. From 1984 to 2001, 44 people with mental retardation were executed.

"Everybody understands that the stakes are very high here," says Sean Jordan, an attorney representing nine other states that argue Florida's determination is the right one.

Hall represents a generation of inmates sentenced to die before a consensus emerged among many states and the federal government that intellectual disability should be taken into consideration. In scientific terms, their diagnoses haven't changed. But in the eyes of the law, they've been given new life.

Since the Supreme Court's ruling in 2002, several hundred claims of mental retardation have been filed by prisoners on death row, representing about 7% of all cases, according to John Blume, a Cornell University law professor. Slightly more than 100 sentences have been reduced as a result, a 28% success rate.

The opposite fate may come true for Hall and a handful of others in the four states that impose a strict numerical cutoff for IQ tests without taking into consideration what's called the "standard error of measurement." That includes Alabama, Virginia and Kentucky; several other state statutes are open to interpretation.

The Supreme Court's landmark 6-3 decision in Atkins v. Virginia exempted people with mental retardation from execution. The court cited their "diminished capacities" to understand and process information, communicate, learn from mistakes and experiences, engage in logical reasoning, control impulses and understand the reactions of others.

Three of the court's current justices — Anthony Kennedy, Ruth Bader Ginsburg and Stephen Breyer — were in the majority in that decision. Justices Antonin Scalia and Clarence Thomas dissented. Chief Justice John Roberts and Justices Samuel Alito, Sonia Sotomayor and Elena Kagan are new to the court.

'A POSTER CHILD FOR MENTAL RETARDATION'

The court set a three-prong test that includes intellectual functioning, adaptive behavior and age of onset; proving mental retardation requires passing all three tests. But while Florida and other states say the specific definitions were left up to the them, mental health and intellectual disability groups say the definition was linked to their clinical determinations.

The difference comes down to numbers. Florida sets a maximum IQ of 70, which is two standard deviations from the average of 100. The professional groups say that must include room for error, defined as plus or minus 5 points. Therefore, they say, a person with an IQ of 75 still can be intellectually disabled.

Hall scored above and below that range, from 60 to 80, but mostly in the low 70s. Still, the Florida Supreme Court refused to set aside his death sentence in December 2012 — with two vocal dissents.

"If the bar against executing the mentally retarded is to mean anything, Freddie Lee Hall cannot be executed," said Judge James Perry. Hall, he said, "is a poster child for mental retardation claims."

That's largely because six experts who tested and evaluated Hall over the years agreed that he qualified as mentally retarded, regardless of his varying IQ test scores. Hall's attorney, Seth Waxman, makes that point in his brief.

"The Florida Supreme Court has redefined mental retardation so that it means something different — and narrower — than this court's decision contemplated," he says. "The predictable consequence of Florida's rule is that persons with mental retardation will be executed. Without this court's intervention, that will happen here."

Ronald Tabak, a lawyer who specializes in death penalty cases, says Florida "is virtually unique in cutting off consideration of all but one factor, an unadjusted IQ score, if it is above an arbitrarily set number." Prisoners elsewhere with higher scores have won mental retardation claims, he says, or never faced the death penalty.

James Ellis, the lawyer for several developmental disabilities groups, calls the protected error range of 71 to 75 a "degree of professionally required modesty." States can exercise leeway in procedural matters, he says. "What they can't do is change the definition."

FLORIDA: THE CRIME JUSTIFIES THE PENALTY

Florida and its allied states contend the Atkins decision left the definition to the states, which have not reached a consensus. One reason for that, the state says, is that diagnostic criteria used by mental health and disability groups are "vague, constantly evolving, and sometimes contradictory."

"Florida's standard resulted in the correct outcome in this case," says the brief filed by Attorney General Pamela Jo Bondi. "Hall's conduct in his crimes and extensive evidence from the record of his appeals refutes his claims of intellectual and adaptive deficits."

Florida isn't alone in its effort. While some states — notably Mississippi and Oklahoma — use an IQ test score of 75, several others use stricter criteria than Hall's side recommends. Jordan says about half the states with death penalty statutes vary from the norm.

Georgia is a different story entirely. The state requires that prisoners prove their intellectual disabilities beyond a reasonable doubt, a standard that has blocked Warren Lee Hill's efforts to get off death row. Only a challenge to the state's lethal injection secrecy law has blocked his execution.

"Atkins did not outsource to mental health organizations the development of substantive criteria, consistent with the Eighth Amendment, for determining mental retardation," Jordan says in his brief for nine states led by Arizona. Such a standard, he says, would deny "finality and closure for the victims' families."