WASHINGTON, May 30 (RIA Novosti), Lyudmila Chernova – Death penalty decisions based on individuals' IQ level should be allowed to be more flexible and must be a case-by-case state issue, experts on capital punishment said following a US Supreme Court ruling that Florida's intelligence test cutoff was too sharp.
In the case of Hall vs. Florida, the state sought to execute Freddie Lee Hall, accused of sexually assaulting and murdering a 21-year-old pregnant woman in 1978, because he scored a 71 instead of 70 on an IQ test, according to Justice Anthony M. Kennedy. The court majority saw it as too rigid a position. Florida lost the case in a 5-4 decision.
The direct effects of the Florida Supreme Court’s decision will not affect the states, as most of them were already faithfully following another case in which the court ruled that executing mentally weak individuals was unlawful. Most states have not attempted to erect a categorical non-scientific rule rejecting the standard error of measurement present in all IQ tests, said John Blume, a Cornell law professor and expert on the death penalty.
"A significant number of cases will not be affected. Nevertheless, Hall is an important case because the Court repudiated Florida’s attempt to circumvent Atkins through means rejected by the medical and scientific communities," Blume told RIA Novosti Thursday.
The question going forward was whether the court would act to limit other ways in which states deviate from the agreed upon clinical definition of intellectual disability, he said.
In an IQ test, the average score for an individual is 100. The intelligence is considered "normal" within a 15-point range, between 85 and 115, because of the variability within the test due to internal and external factors, including environment, race, economics, and the test itself. Intellectual disability is defined as two standard deviations below normal, or an IQ score below 70 – a point where no person can be executed.
Although divided, the Supreme Court ruled on Tuesday that Florida’s use of IQ tests as final evidence to determine death penalty eligibility was unconstitutional, as the statistical difference between an IQ score of 69 and 72 could not be scientifically or judicially proven.
Robert Blecker, professor of criminal law at New York Law School and the author of the recently published book "The Death of Punishment," believes there is a genuine consensus that below a certain threshold, a person, no matter how dangerous and predatory, cannot be sufficiently responsible so as to be sentenced to death.
"How to measure that disability that leaves a person punishable but not maximally – this diminished capacity, which carries with it diminished responsibility – remains controversial,” Blecker told RIA Novosti Thursday.
He also said defining, detecting, prosecuting and punishing crime remains an essential state and not primarily a national function.
“Each state has been left to decide for itself how to locate that threshold. I agree with the majority that a simple number doesn't do it, especially if it is within the range of a realistically possible error,” Blecker said, adding it wasn't clear what that number truly represented.
“Diminished capacity to (what)? Make plans, carry them out, appreciate the consequences to the victim and surviving family of killing? There's no consensus on what it is, nor how it's shown, nor who has the burden of persuasion to show it, nor even what the 'it' is,” he said.
Blecker said he agreed with the majority feeling that the Constitution commands a case by case not entirely numbers based approach.
“I am sympathetic to the dissent's insistence that it is for each state to decide for itself and the U.S. motto of 'E pluribus unum' – out of many one, it is best respected when we don't impose uniform standards on the basis of conclusions of professional associations which often have their own political agenda," he said.
Florida carried out seven executions last year and five so far this year, according to the Death Penalty Information Center (DPIC). The number of total death penalties carried out in the US has dropped from 295 in 1998 to 80 last year.
