Intellectually disabled but on death row: The troubling case of Freddie Hall

Shortly after his birth in 1945, Freddie Hall’s family knew that something was different about him. And later, he was slow to learn, to walk and to talk, and it was challenging for his family to understand his speech. He was raised under difficult circumstances in an impoverished and abusive home, the 16th of 17 children, and showed early signs of serious intellectual and developmental delays.

Hall’s elementary school teachers also noticed his problems with learning and recommended a special education teacher, as shown in school records dating from the 1950s. His fourth-grade, sixth-grade, seventh-grade and eighth-grade teachers all wrote that he was “mentally retarded.” There is no indication that Hall ever received the special educational support that his teachers recommended. After being “socially promoted” through school, Hall dropped out in the 11th grade.

As an adult, Hall is illiterate and cannot perform basic math. Clinicians who have conducted psychological evaluations of him have said that his functioning is comparable to that of a first-grader.

Tragically for all concerned, Hall was involved in the murders of two people. He is now on death row in Florida. His intellectual disability — once classified as mental retardation — affected his ability to work with defense attorneys. In sworn affidavits, two attorneys relayed how much Hall’s diminished capacities limited their ability to communicate with him. One attorney wrote that he was unable to understand anything Hall said.

In 1991, a Florida trial court found that Hall had been “mentally retarded his entire life.” In 2002, in its Atkins vs. Virginia decision, the U.S. Supreme Court prohibited the execution of people with what was then called mental retardation.

So how is it possible that someone with Hall’s lifelong history of intellectual disability could still be sitting on death row?

The answer is Florida’s unusual and non-scientific standard for determining intellectual disability in capital cases. On March 3, the constitutionality of Florida’s standard, which runs counter to the universally accepted clinical practice for making a determination of intellectual disability, will be at issue when the Supreme Court hears Hall’s case.

Florida’s statute is actually consistent with the clinical definitions of intellectual disability on which Atkins relied. The statute prohibits the execution of a person who has significantly sub-average intellectual functioning and concurrent deficits in adaptive functioning, both of which must be manifested before age 18. Similar criteria have been applied by clinicians to diagnose intellectual disability for more than half a century.

But the Florida Supreme Court went astray in 2007, when it held that in order for an individual in a capital case to prove that he or she has intellectual disability, he or she must first establish an IQ test score of 70 or below.

Florida’s rigid cutoff of an IQ test score of 70 conflicts with the accepted clinical practice that IQ test scores must be interpreted by taking into account the standard error of measurement inherent in all such tests. No IQ test is without measurement error. That means that any IQ test score is best understood as falling within a range, rather than a single exact score. Accepted clinical practice tells us, for example, that an IQ score of 70 indicates that the person’s “true” IQ score is most likely between 65 and 75.

Hall has been diagnosed with intellectual disability by multiple psychiatrists and psychologists. His IQ test scores on the “gold standard” Wechsler Adult Intelligence Scale cluster in the 65-75 range. The American Assn. on Intellectual and Developmental Disabilities (formerly known as the American Assn. on Mental Retardation) and the American Psychiatric Assn. recognize that range of intellectual functioning as consistent with intellectual disability.

However, Florida has chosen to deny Hall the right to present the considerable — some would say incontrovertible — evidence of his intellectual disability because Hall has obtained IQ scores slightly above 70. The Florida Supreme Court’s 2007 ruling means that the state refuses to consider the ample evidence of Hall’s lifelong disability in making a determination of whether he is legally eligible for execution.

That’s not only wrong but also unscientific, and a breach of Hall’s constitutional protection as mandated by the Supreme Court in Atkins vs. Virginia. Though Atkins leaves discretion to the states regarding how to enforce the prohibition on executing defendants with intellectual disability, that ruling does not allow the states to create their own criteria for defining intellectual disability that are not in keeping with the professional consensus.

The Florida standard for assessing intellectual disability in death penalty cases — shared by, at most, four states — is clinically and scientifically unjustified. Unless reversed by the Supreme Court, it will result in people with intellectual disability being executed, contrary to the protections provided in Atkins.

Marc J. Tassé, a professor of psychology and psychiatry and the director of the Ohio State University Nisonger Center, is a past president of the American Assn. on Intellectual and Developmental Disabilities.