In Atkins v. Virginia, the Supreme Court held that executions of persons with intellectual disabilities violate the Eighth Amendment’s ban on cruel and unusual punishment. Earlier this week, the Supreme Court decided Hall v. Florida, in which the petitioner challenged a Florida statute requiring defendants in death penalty case to show an IQ test score of 70 or below before being permitted to submit additional intellectual disability evidence. In an opinion by Justice Anthony Kennedy, the Court rejected Florida’s bright-line requirement of 70 as unconstitutional because it creates an unacceptable risk that persons with intellectual disabilities will be wrongfully executed.  Instead, according to the Hall majority opinion, intellectual incapacity should be conceptualized as a “condition, not a number.”

Hall’s requirement that state courts make a holistic and searching inquiry into who qualifies as intellectually disabled, rather than merely relying on a single number,  will likely have the consequence of leading more states to rely on race and ethnicity in interpreting a defendant’s intellectual capabilities. Some states are already doing this. In Hernandez v. Stephens, — F.3d — (5th Cir. 2013), the Fifth Circuit held that Atkins permits a state court to find that a defendant is not intellectually disabled, notwithstanding IQ scores in the disabled range, if that score is brought up to the bottom of the non-disabled range when “scaled to Mexican norms.” An amicus brief filed on behalf of a group of scholars* in support of a Supreme Court petition for certiorari in Hernandez notes that this prosecutorial practice of using race to figure out whether a defendant qualifies as intellectually disabled under Atkins is relatively common: Atkins “opens the door to measuring minority defendants differently. Many critics, including psychologists, believe that standard methods of assessing mental retardation include potential racial bias. To correct for that bias, common tests for mental retardation urge measuring subjects against their ‘cultural group.’  Prosecutors and courts nationally have seized that opening to justify applying different standards to minority defendants who claim, under Atkins , that they cannot be sentenced to death. That is what happened here. The government’s star witness argued that Mr. Hernandez’s poor functioning was consistent with his “cultural group,” defined as people with poor achievement, drug use, poverty, and criminal behavior.”

Elsewhere, a Florida defendant’s low IQ scores could be discounted because “IQ tests tend to underestimate particularly the intelligence of African-Americans.” Hodges v. State, 55 So.3d 515, 525 (Fla. 2010) (affirming finding that the defendant was not mentally retarded). In Tennessee, an expert witness testified that “I.Q. tests have historically been biased against minorities. . . . [I]f you have an African-American who tests in the seventies, the clinician must be very cautious . . . .” Black v. State , No. M2004-01345-CCA-R3-PD, 2005 WL 2662577, at *7-8, 14 (Tenn. Crim. App. Oct. 19, 2005) (affirming finding that the defendant was not mentally retarded). And in Alabama, another expert told a court “My opinion would be that his intellectual function may be slightly higher than that. Sometimes individuals of African-American background don’t score quite as high on formal testing.” Brown v. State , 982 So.2d 565, 604 (Ala. Crim. App. 2006). See also Scholars’ Brief at 14-16 for additional examples.

In other contexts, liberals and progressives have enthusiastically embraced claims that standardized tests of intelligence are culturally biased against minorities. If the tests are biased against minorities anyway, the argument generally goes, then affirmative action is a necessary counterweight to the tests’ inherent bias.  Here, ambitious prosecutors have seized on an argument that helps minority students in the education context and used it instead to kill minority defendants in the capital sentencing context.  The result is — to understate the point — chilling. This case alas illustrates that dividing up people by race, even in ways that seem benign, often has invidious results.

The Scholars’ Brief argues that the use of race in interpreting I.Q. scores for capital sentencing purposes ought to be subject to strict scrutiny — scrutiny which this racial classification probably cannot survive. Unfortunately, the Supreme Court declined to grant certiorari in Hernandez, meaning that its result stands. Hall‘s reaffirmation of the vitality of Atkins and rejection of bright-line rules for determining intellectual disability unfortunately makes it likely that another case similar to Hernandez will eventually emerge. I hope the Supreme Court grants certiorari then. I am not an expert on the death penalty or the Eighth Amendment, so I can’t say whether I think the Court should continue to follow Atkins then. But if Atkins remains the law of the land, I hope the Court makes clear that strict scrutiny applies.

Erin Blondel, the author of the Scholars’ Brief, and Ernie Young also did a podcast for the Federalist Society in which they discussed these issues.

*The signatories to this scholars’ brief include my husband, Ilya Somin, of George Mason University School of Law; Gail Heriot, for whom I work at the U.S. Commission on Civil Rights; Ernest Young of Duke Law School; and Nita Farahany of Duke Law School.