Academic journal article The William and Mary Bill of Rights Journal

Scientizing Culpability: The Implications of Hall V. Florida and the Possibility of a "Scientific Stare Decisis"

Academic journal article The William and Mary Bill of Rights Journal

Scientizing Culpability: The Implications of Hall V. Florida and the Possibility of a "Scientific Stare Decisis"

Article excerpt

INTRODUCTION..................................................415

I. The Radical Move in Hall ...................................417

II. The Implications of Hall-A Scientific Stare Decisis? ..........424

Conclusion ...................................................428

Introduction

When Atkins v. Virginia1 held that execution of people with intellectual disabilities violates the Eighth Amendment's prohibition on cruel and unusual punishment, it left the definition of intellectual disability up to the states.* 1 2 Twelve years later, however, the Court stated, in Hall v. Florida,3 4 that "clinical definitions of intellectual disability ... were a fundamental premise of AtkinsHall went on to hold that operationalizing intellectual disability in the death penalty context requires incorporation of professional views about threshold IQ scores and standard errors of measurement, and also appeared to mandate that states adopt clinical standards related to the adaptive functioning component of the diagnosis.5 While Hall cautioned that "the views of medical experts ... do not dictate the Court's decision,"6 it also stated that these views "inform[ ] our determination whether there is a consensus that instructs how to decide the specific issue presented here."7

As the dissent in Hall pointed out, in defining intellectual disability for death penalty purposes the maj ority in essence equated "evolving standards of decency"- which is the test for determining the scope of the Eighth Amendment8-with "the evolving standards ofprofessional societies, most notably the American Psychiatric Association (APA)."9 At the time Hall was decided, only twelve out of the thirty-one death penalty states clearly required consideration of the standard error of measurement (SEM) in assessing whether an individual met the IQ threshold for intellectual disability, with the result that at least nine states set that threshold at 70.10 Y et, the Hall majority adopted a± 5 point SEM requirement-effectively making a score of 75 the IQ threshold* 11-because the APA and similar organizations had done so.12 Additionally, although virtually every state's definition of intellectual disability requires consideration of adaptive functioning,13 many do not define that term the way the APA does,14 a divergence which, after Hall, is apparently unconstitutional. In other words, rather than assessing the consensus of society as measured through legislation and normative analysis, as Eighth Amendment jurisprudence has traditionally required, the majority "scientized" the definition of intellectual disability for capital punishment purposes.15

This Essay briefly explores the implications of this move, which is unprecedented not just in the death penalty setting but within criminal culpability doctrine generally. It concludes that, in the specific context of measuring intellectual disability in death penalty cases, the Court's equation of clinical and legal definitions is justifiable. More controversially, it suggests that the law ought to consider scientizing other criminal culpability concepts, and proposes the notion of scientific stare decisis-the principle that groups that are scientifically alike should be treated similarly for culpability purposes-as a means of implementing that idea. At the same time, the Article identifies the pitfalls of scientization and suggests it should only occur through an iterative process of dialogue between the legal system and scientists.

I. The Radical Move in Hall

In criminal cases, the courts have generally eschewed linking key assessments to scientific concepts. Rather, as the Supreme Court stated in Kansas v. Hendricks,16 "we have traditionally left to legislators the task of defining terms of a medical nature that have legal significance."17 Hendricks also emphasized that "[l]egal definitions" in criminal and quasi-criminal matters "need not mirror those advanced by the medical profession,"18 and cited in support the APA's Diagnostic and Statistical Manual (DSM), which similarly stated that a "clinical diagnosis" does not establish "whether an individual meets a specific legal standard (e. …

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