The man could hardly read. Some say he didn’t really know which season followed another. In fact, you wonder whether he could read the nametag of the clerk he shot in a Daytona Beach convenience store in 1981 over the matter of 23 dollars and some pocket change. During an appeal 18 years later, a Florida judge heard a psych evaluation, ordered Intelligence Quotient tests, observed the man’s behavior, and promptly removed him from death row, having ruled him about as non compos as they come.
Then two IQ tests came back at 72 and 74, respectively, and in Florida the hard cutoff for legally extenuating mental retardation is 70 and below. The State Supreme Court reversed the lower court’s decision, and the man, Ted Herring, returned to death row.
But now Herring’s attorneys and Eighth Amendment enthusiasts can take solace in the recent SCOTUS ruling that invalidates Florida’s IQ-benchmark policy for inmates such as Herring and Freddie Lee Hall. In the majority decision, Justice Kennedy argues that the notion of an IQ “bright line” is empty, and that tests have a well-documented variation of more than one or two integers. Kennedy writes:
Florida seeks to execute a man because he scored a 71 instead of 70 on an I.Q. test.... Intellectual disability is a condition, not a number.... Courts must recognize, as does the medical community, that the IQ test is imprecise.... In using these scores to assess a defendant's eligibility for the death penalty, a state must afford these test scores that same studied skepticism that those who design and use the tests do, and understand that an IQ test score represents a range rather than a fixed number.
Almost parenthetically, Justice Stevens had mentioned 70 as a cutoff in his majority opinion for Atkins v. Virginia (2002), but the court in that case did not endorse a specific benchmark, preferring to leave the math to the states. Now that the states can no longer turn to quotas, it will become very hard for government to execute the mentally disabled. Some 20-plus inmates on death row will now have strong recourse to appeal on grounds of mental incompetency in the 10 states that actually use hairline differences in IQ to decide whether a man lives or dies.
This is not a fringe issue. In 1998, the Bureau of Justice Statistics estimated that there were 283,000 mentally ill inmates in the U.S.; the previous year, the Dallas Morning News reported that one third of America’s 602 death row inmates were mentally disabled.
Now that Europe has confiscated most of our reliable execution drugs, such a death is hardly quiet and anything but enviable.
The Death Penalty Information Center has a fascinating and deeply depressing chart of certifiable mental incompetents who have been sentenced to death between 1976 and the Atkins ruling; the lowest IQ on the DPIC’s chart is 55, if we discount Ricky Ray Rector by virtue of lobotomy in 1992. (Rector shot a cop before shooting himself; the lobotomy was to save his life.) The race-ratio on the chart is what you might expect, though markedly more skewed in the South. As Kennedy notes, Virginia, Alabama, Kentucky, Arizona, Delaware, Kansas, North Carolina, and Washington all have benchmarks similar to Florida’s. After the Sunshine State, Kentucky, Alabama, and Virginia are the most consistently ardent in applying an IQ cutoff and ignoring the standard five-point buffer for error. All of these states will be seeing a spike in appeals quite shortly.
Should we be chilled or gladdened that successful constraints on the death penalty, in recent memory, are uniformly based in technicalities? Probably a little of both. It is a right and good and joyous thing, always and everywhere, to be leery of government overreach. But to sublimate that leeriness into legislative will is an opium dream. Good luck these days selling people via moral persuasion—once more, it is bureaucracy and bookkeeping that constrain, further and further, a state’s right to execute its citizens. Major supply-side problems on the international market and common-sense rulings about IQ (“balls and strikes,” Chief Justice Roberts once liked to say) are commuting and slowing executions. I say we embrace the bureaucracy. Let’s hem the death penalty with so much red tape that it looks like a Christmas present. Let’s get Capone on income taxes.
The next step could be to resuscitate racial justice acts in several states—North Carolina comes immediately to mind—that have either failed in the legislature or been defanged after passage. We need to call out states with a clear dynastic record of judicial or prosecutorial bias, and to ask the attorneys general why they refuse to do right by inmates of color, especially inmates incarcerated before DNA evidence. We need to play the budgetary card and ask how much our lethal drugs cost taxpayers, how much a state is paying to keep its suppliers anonymous, and how much it’s paying, or rather wasting, in its fight to thwart racial justice legislation. We can also speak directly to critics of the “deadbeat baby-daddy” who find nothing unreasonable or inconsistent in lecturing the black community about absentee fathers while incarcerating and executing those fathers at terrifyingly disproportionate rates.
Throughout, we must remember the synapses we fried for 40 minutes in Oklahoma last month, as well as Justice Antonin Scalia’s remark in Callins v. Collins (1994): “How enviable a quiet death by lethal injection.” Now that Europe has confiscated our more reliable execution drugs, such a death is hardly quiet and anything but enviable. Mental retardation is no excuse for murder, but before we take a life we must weigh the extent to which it was consciously lived, whether this creature acknowledged life as a responsibility rather than a mere condition, whether he knew what he was doing—and just as important, whether our representatives know what they’re doing. As Florida’s Supreme Court likes to remind us, ignorance is no excuse in questions of life and death.