Reasonable, intelligent people can, and do, disagree about whether we as a society should execute murderers rather than lock them away for life. But everyone should be able to agree that the death penalty should be carried out fairly and according to the constitution. For example, since the landmark decision of Atkins v. Virginia, it has been unlawful to execute the mentally retarded, or to use today’s phraseology, the severely intellectually disabled.
A case argued in the US Supreme Court today, Hall v. Florida, highlighted the issued of how the states are defining the term mentally retarded. (Here is a good article about the case.) In Atkins, the Supreme Court left it to the states to devise statutes that defined and measured intellectual disability. Most states enacted legislation approving the use of well-known, valid IQ tests. The question is how to interpret those test scores. You see, these tests were never designed to yield a single score, but rather, a range of scores, accounting for a statistical measurement for error. All standardized testing works this way.
However, Florida courts have interpreted a bright-line cutoff of 70 for an IQ. Above 70, death eligible. Below 70, not death eligible. To explain, all the IQ tests are designed to have a mean of 100. So the so-called average person on the bell curve has an IQ of 100. Severe intellectual disability is defined as two standard deviations below average. (That means 95% of the population has a higher IQ than that.) The way all the relevant tests are designed, two standard deviations below the mean is a score of 70. But as the American Psychological Association, The American Association for Intellectual Development Disabilities, and the designers of the tests themselves will tell you, the tests were never intended to yield a sole, accurate score. They have a range of measurement error and require professional interpretation. Generally, an IQ of 70 really means the person’s IQ is between 65 and 75. That means you can be 95% confident, statistically speaking, that the person’s true IQ is within that range. Here is the AAIDD’s brief in Hall v. Florida, which explains the concept in detail. There are other interpretation issues as well, but the standard error of measurement is, well, standard.
So how can a state execute a person who “scores” a 71, but whose IQ could in fact be as low as 66? That is the question that the Justices heard arguments about today. This scotusblog post describes how the arguments went.
How does Delaware fit in? Our death penalty statute defines severe intellectual development disability as: intelligent quotient of 70 or below obtained by assessment with 1 or more of the standardized, individually administered general intelligence tests… In other words, we have a hard and fast cutoff of 70 baked right into our statute. If the Supreme Court’s holding in Hall v. Florida abolishes the hard cutoff score, the General Assembly will have to change our statute. They should change it anyway, because our statute as currently written clearly permits execution of individuals who are mentally retarded. No Delawarean should desire that result. The decision from the Supremes is expected in June or so.
Our nation’s death penalty laws have changed over time. We no longer execute the insane, those under 18, and the mentally retarded. These are positive steps, and the High Court’s guidance in Hall should continue down that path.
In Delaware, like everywhere else, the possible punishments for first degree murder are death or life imprisonment without hope of parole or release from jail at any time. So both punishments are death sentences in a way…either way, they die in jail. But if the State is going to execute someone, it has to be done right and according to the law. The ultimate punishment of execution by the State, if we are going to have it, should be reserved for the worst of the worst–and our law should ensure that the mentally retarded are excluded from that category.