The U.S. Supreme Court is hearing arguments about the strict use of IQ scores in determining whether some people convicted of capital crimes should be exempt from the death penalty because of an intellectual disability.

In 2002 the court decided that executing persons with intellectual disabilities, designated as mental retardation at the time, violated the Constitution’s prohibition on cruel and unusual punishment. The current case, brought on behalf of a Florida death row prisoner, challenges that state’s strict use of an IQ score of 70 as a cutoff for determining who can be executed and who cannot, and calls into question similar practices in some other states like Idaho and Kentucky.

This may seem like a splitting-hairs type issue affecting much too small a group of people to make into a significant issue to be watched and acted upon by advocates for people with intellectual disabilities.

I disagree with that assumption.

This is a complex issue that has far reaching ramifications not only for people with developmental disabilities but for society as a whole.

For one thing people with developmental disabilities are over represented in the prison population. They can be susceptible to bad choices and in some cases have difficulty understanding the ramifications of those choices. It’s why the court acted on this in the first place. Also, that 2002 ruling was another in a series of acknowledgements by that court and others of how extreme capital punishment is in general in modern society.

On The Arc’s national website it states that “(w)hile those with intellectual disabilities comprise 2% to 3% of the general population, they represent 4% to 10% of the prison population, with an even greater number of those in juvenile facilities and in jails (Petersilia, 2000). One study that looked at the number of people with disabilities in state and federal prisons found that fewer than 1% of inmates had physical disabilities while 4.2% had mental retardation (referred to in this fact sheet as intellectual disabilities) (Veneziano & Veneziano, 1996).

We know that involvement in the criminal justice system, especially early involvement, can promote further criminal behaviors. The reasons for this are complicated too, of course. Everything that deals with individuals is complicated. But it seems clear from years of observation and societal and legal changes, the Supreme Court’s own 2002 ruling for example, that we have decided that our government should not be in the business of executing people if there are extenuating circumstances that might seem more cruel and more unusual in that particular instance. We have further agreed that having a degree of intellectual disability should be such a circumstance.

That degree is what is currently being debated and the arguments are taking on a surreal slant, out of the writings of Orwell and Kafka—two writers who explored how bizarre things can get when laws and regulations lose any foundation in common sense. That is bad for people with developmental disabilities in particular and bad for everybody else in general.

What we have here is an argument that says that a person convicted of a capital crime in Florida who has an IQ of 69 can be executed and another with an IQ score of 71 cannot. I don’t know about you but if I read that in a piece of creative writing I would call it absurdist satire. The legal arguments on behalf of the inmate challenging the Florida use of the strict cutoff of IQ scores are focused, by practical necessity, on the variable accuracy of IQ scores, which have a fluxuating  margin of error, of which even the experts are unsure of the range. But even those arguments sound slightly absurd when applied to people.

Even with other criteria being taken into account, the use of IQ as a major determining factor makes for an easy out for the criminal justice systems in an area that is as complex as the human mind and as diverse as each individual person. Evaluating a person’s capacity for judgment is an ever involving field still presenting significant challenges to top professionals and I would guess way beyond the competencies of all but the most unique state psychologist or prison physician.

Of course, like universal health care, the simple solution would be to do away with the death penalty as being cruel and unusual for everyone. That is unlikely to happen anytime soon. In the meantime, we can hope that at the very least the justices will clarify their 2002 ruling based on its original intent—to ensure that people with intellectual disabilities, which can make them more susceptible to bad life path choices and less equipped to understand the full ramifications of those choices, are not subject to the irrevocable sentence of being put to death.

Again we see that we understand ourselves and our society best based of how we relate to and treat each other. As people with intellectual and other developmental disabilities have become more and more integrated into their society they have brought a number of lessons about tolerance and understanding with them that continue to help that society evolve to better and better places.

Because things do change. Often time the laws are bringing up the rear but they do eventually get there.

Justice Antonin Scalia, the court’s strongest supporter of Florida’s rigid rule, argued on Monday that “courts should defer to a state’s legislative judgment rather than look to evolving standards set by groups such as the American Psychiatric Association. This APA is the same organization that once said homosexuality was a mental disability and now says it’s perfectly normal,” Scalia said. “They change their minds.”

Of course they do. That’s called progress.

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Disability in Focus