Freddie Hall, convicted of murder, scored slightly above 70 in an IQ test.
Freddie Hall, convicted of murder, scored slightly above 70 in an IQ test.

WASHINGTON — A majority of the Supreme Court seemed skeptical on Monday regarding how Florida decides who is eligible to be spared the death penalty on account of intellectual disabilities.

The state uses an IQ of 70 as a rigid cutoff, and several justices suggested that it should take account of a standard margin of error or consider additional factors.

Other justices seemed inclined to allow Florida and other states to decide for themselves how to determine who is “mentally retarded” and so ineligible for execution under the court’s 2002 decision in Atkins v. Virginia.

That decision gave states substantial discretion and only general guidance. It said a finding of intellectual disability requires proof of three things: “subaverage intellectual functioning,” meaning low IQ scores; a lack of fundamental social and practical skills; and the presence of both conditions before age 18.


In that decision, the court said IQ scores under “approximately 70” typically indicate intellectual disability.

As Monday’s argument progressed, it became clear that what divided the two groups of justices was more than the particular case. Their disagreement was a larger one about the role of scholarly and professional expertise in the resolution of legal disputes.

“We didn’t base our decision in Atkins upon a study of what the American Psychiatric Association and other medical associations considered to be mental retardation,” Justice Antonin Scalia said. “We based it on what was the general rule that states had adopted.”

Justice Anthony M. Kennedy noted that the court will hear a case on Wednesday involving economic theory.

“Do you think we defer to psychiatrists and psychologists any more or any less than we do to economists?” he asked Seth P. Waxman, a lawyer for the death row inmate in the case, Freddie L. Hall.

Waxman said the court should defer much more to the first group, because he said the condition in question “can only be appropriately diagnosed by professionals.”


The problem with Florida’s rigid cutoff, Waxman said, was that it did not take into account standard measures of error. That was, he said, not a matter of differences in professional opinion. “It is simply a statistical fact,” he said.

Hall had generally scored slightly above 70 on IQ tests. Applying the standard error measurement, Waxman said, it was possible that the true result was as many as 5 points lower. He added that a cutoff of 75 would be permissible.

Allen Winsor, Florida’s solicitor general, said his state’s approach was “a reasonable legislative judgment,” one he said was followed in eight states.

But Kennedy said the approach amounted to declining “to follow the standards that are set by the people that designed and administer and interpret the tests.”

Justice Stephen G. Breyer suggested that the court could require an expert to explain statistics to the judge or jury deciding whether the inmate had an intellectual disability. “What is so terrible about doing it?” he asked. Winsor responded that “you would end up increasing the number of people who would be eligible for a mental retardation finding.”

“Florida has an interest in ensuring,” he said, “that the people who evade execution because of mental retardation are people who are, in fact, mentally retarded.”

Kennedy and Justice Elena Kagan said the effect of Florida’s approach is to stop consideration of the other two factors in the analysis suggested in the Atkins decision.


The case at issue Monday arose from the 1978 murder of Karol Hurst, who was 21 and seven months pregnant when Hall and an accomplice forced her into her car in a supermarket parking lot. She was found in a wooded area, where she had been beaten, sexually assaulted, and shot.

Hall was convicted of murdering Hurst and sentenced to death.

Breyer, who has long been concerned with the constitutionality of keeping inmates on death row indefinitely, noted that Hall has been on death row “for over 35 years.” The justice has not attracted many allies on that particular critique of the US capital justice system, but on Monday, Kennedy seemed to join him.

“The last 10 people Florida has executed have spent an average of 24.9 years on death row,” Kennedy said. “Do you think that that is consistent with the purposes of the death penalty and is it consistent with sound administration of the justice system?”

In another matter Monday, the Supreme Court agreed to decide whether prison officials in Arkansas may prohibit inmates from growing beards in accordance with their religious beliefs.

The policy was challenged by Gregory H. Holt, who is serving a life sentence for burglary and domestic battery. Holt said his Muslim faith required him to grow a beard.