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War of the Whales


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Has the Supreme Court Finally Found Its Way or Will the Mania Continue?

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Posted on May 28, 2014

By Bill Blum

  From left, Supreme Court Justices Clarence Thomas, Stephen Breyer and Samuel Alito. AP/Evan Vucci

Has the Supreme Court suddenly found the middle of the road on civil liberties as it heads down the home stretch of the current term? That’s the big question in the aftermath of two high-profile decisions released this week. The first, Hall v. Florida, reverses the death sentence imposed on a 68-year-old mentally disabled man. The second, Wood v. Moss, dismisses a lawsuit that had been brought by anti-Bush demonstrators against Secret Service agents on technical grounds, while recognizing the fundamental right to protest.

Taken together, the decisions could be interpreted to mean that the court isn’t really the extreme right-wing juggernaut some observers, including me, have made it out to be. Or they could be interpreted to mean something quite different—that with an occasional detour, whimper and exception, the court remains committed to a judicial counterrevolution that began in 2000 with Bush v. Gore, handing the presidency to the Republicans; continued in 2008 with District of Columbia v. Heller, establishing an individual right to gun ownership under the Second Amendment; and accelerated in 2010 and earlier this session with the Citizens United and McCutcheon decisions, expanding the fiction of corporate personhood and overturning decades of carefully crafted campaign finance law. 

Before answering the question for yourself, consider the specifics of the latest opinions.

Hall v. Florida

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Freddie Lee Hall was convicted of murdering a pregnant housewife and a deputy sheriff in 1978, both gruesome acts for which he was sentenced to death. In 1992, however, at one of Hall’s many post-conviction hearings, a Florida trial judge found that Hall had been “mentally retarded all his life.” Still, the judge upheld Hall’s sentence.

Twenty years later, in 2012, after an unusually lengthy series of appeals and writs, the Florida Supreme Court also upheld Hall’s death judgment even though, as a dissenting member of the court noted, Hall had an IQ that measured as low as 60 and suffered from organic brain damage and chronic psychosis as well as having the short-term memory of a first-grader. He also endured a speech impediment and learning difficulties. Among other forms of abuse and torture suffered at the hands of his mother, other relatives and neighbors, Hall was tied up in a burlap sack as a youngster and swung over an open fire, suspended by his hands from a ceiling beam, beaten while naked, made to lie still for hours underneath a bed and repeatedly deprived of food.

The Florida Supreme Court deemed Hall mentally fit for lethal injection, as during the course of his protracted incarceration he had registered scores of 80, 73 and 71 on Wechsler WAIS IQ tests administered at the direction of prison authorities. Under Florida law, any death row inmate scoring above 70 cannot be considered disabled.

In taking up Hall’s case, the Supreme Court agreed to decide whether Florida’s IQ test for defining mental disability ran afoul of the tribunal’s 2002 holding in Atkins v. Virginia. Writing for a 6-3 majority, then-Justice John Paul Stevens ruled in Atkins that evolving standards of decency and an emerging national consensus precluded the execution of inmates deemed “mentally retarded,” the term then widely used before it was cleaned up, sanitized and replaced with the label “disabled” by mental health organizations.

Stevens also reasoned that executing the mentally disabled would do little to advance two of the primary justifications for capital punishment—retribution for and deterrence of capital crimes—as severe mental deficits operated to diminish a defendant’s culpability and made it less likely that disabled defendants would understand and appreciate the possibility of execution as a penalty and, as a result, control their conduct based upon that understanding.

On a practical level, the court in Atkins elaborated that a finding of mental disability required proof of three conditions: (1) sub-average intelligence, most commonly measured by IQ tests, (2) lack of fundamental adaptive social and practical life skills, and (3) the onset of such deficiencies before the age of 18. But—and this is where Freddie Lee Hall re-entered the constitutional picture—the court left it up to the states to implement specific definitions of mental disability.

Florida was one of 10 states in the post-Atkins era (the others are Arkansas, Delaware, Idaho, Kentucky, Maryland, North Carolina, Tennessee, Virginia and Washington) that used IQ scores of 70 or below as a bright line cutoff for establishing disability. The remaining states authorizing capital punishment generally embraced the approach of the American Psychiatric Association, which instructs that disability should be assessed not only with a range of standardized tests that take into consideration what examiners call standard errors of measurement to account for the imprecision of test results, but with clinical evaluations of everyday behavior such as language usage, social judgment and personal care.


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