1. 1
CONSTIUTIONAL LAW— UNBALANCED AMERICA: THE INCONSISTENCY ANDCONFUSION
ARISING OVER THE TREATMENT OF INTELLECTUALLY–DISABLED CRIMINALS. HALL V. FLORIDA,
134 S. CT. 1986 (2014).
I. INTRODUCTION
Imagine a scenario where two intellectually disabled teenagers each brutally murder a
different family of four, for no apparent reason.
Damian, one of the boys was diagnosed mentally challenged at birth. He does well in
school, but learns things a little slower than average. He enjoys reading books, but cannot quite
read at his grade level. Damian is able to communicate how he feels with his close relatives.
There have been a few hiccups in the past, but nothing too abnormal. Damian does his chores
around the house and gets paid an allowance, which he uses to buy video games. His parents fear
that the violent video games may have an adverse effect on him, but they give him the benefit of
the doubt.
Charlie, also diagnosed mentally challenged at birth and a resident of another state,
cannot read anything past a first grade reading level. Charlie needs to be watched, because he
once almost burned his house down. Despite his parents’ prodding him to go outdoors, Charlie
spends his time indoors watching violent action movies all day.

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Both Charlie and Damian have been regularly exposed to violence in some way, and now
they are now on trial for murder. Each defendant claims an Intellectual Disability as a mitigating
factor justifying a punishment short of the death penalty. Each defendant hires an expert to
administer an IQ test. Damian’s parents in protecting the best interest of their son, inform him
that if he scores really low on the IQ test, he can escape the death penalty on an account of
Intellectual Disability. Damian decides to follow his parent’s advice and purposely scores low on
the test. Charlie, on the other hand, has no idea why he is in custody awaiting trial. He takes the
IQ test, and scores surprisingly well. The court sentences Charlie to the Death Penalty without
hearing his testimony. Damian gets acquitted without testimony, and the Court deems him
intellectually disabled and mandates around-the-clock therapy and supervision.
In 2002, the Supreme Court of the United States in Atkins v. Virginia ruled that is it
unconstitutional to sentence “intellectually disabled” defendants to death.1 The Court determined
that death row was not an appropriate punishment because, while intellectually disabled people
often know what is right and wrong, they cannot effectively communicate and “have diminished
1 Atkins v. Virginia, 536 U.S. 304 (2002).

3. 3
capabilities to understand and process information.”2 Using Atkins as the paramount case in
disability law, the Supreme Court heard Hall v. Florida in 2014, which dealt with the problem of
whether testimony could be admitted when the IQ score is above a cut-off.3 More specifically,
Hall combats whether a Court can admit testimony of intellectual disabled defendant the state’s
cut-off statute deems them not to be disabled. The Supreme Court ruled in Hall that it is
unconstitutional to enforce a statute that established a 70-point maximum as a prerequisite to
being deemed intellectually disabled and therefore not subject to the death penalty per the Atkins
case.4 The Supreme Court’s opinion in Hall offered an alternative, suggesting that a 70–75 range
was an appropriate remedy.5
Damian and Charlie both have diminished capacities in one way or another, but Damian
had the capacity to understand that he could escape the death sentence by purposely failing the
2 Id. at 305.
3 Hall v. Florida, 134 S. Ct. 1986 (2014).
4 Id.
5 Id.

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IQ test. Say Charlie scored a 76. This falls out of the new IQ range established in Hall. Thus, it is
not rational that the IQ test is dispositive to testimony about Charlie’s incapability to be alone.
Additionally, it is not rational that Damian is able to escape the death penalty because he knew
he could manipulate the test by purposely scoring under par.
This note dives into the problem of the states’ lack of consistency in Intellectual
Disability statutes. This note proposes that courts should not rely exclusively on the results of IQ
testing to determine whether to impose the death sentence, instead should rely on IQ tests and
testimonial evidence together. By implementing a consistent standard, intellectually disabled
defendants could be fairly tried the same way in every state. Defendants would be able to
introduce a plethora of evidence, giving them more rights regardless of the state’s positions
towards this particular group of people. This note also discusses how the newly proposed range
in Hall constitutes an unfair cutoff when it disallows evidence of adaptive deficits in mental
disabilities to be brought in. Part II explains the history of Intellectual Disability and how it was
treated in courts prior to Atkins and Hall as well as analyzing the separate approaches that
jurisdictions use to determine Intellectual Disability. Part III further analyzes Hall, confronting
the arguments made by the Supreme Court on which appropriate standard to use. Part IV

5. 5
introduces a solution that can overcome the discrepancies in testing for Intellectual Disability.
Doing away with these discrepancies will give the same rights to each intellectually disabled
defendant in each state, permitting courts to weigh a multiple forms of evidence bearing on a
defendant’s intellectual capacity.
II. BACKGROUND
Intellectual Disability is one of the most common disabilities.6 The whole concept of
Intellectual Disability depends on how cultures and people from different times define and
categorize people with mental illnesses.7 Throughout history, doctors and scientists attempted to
uncover the truth of mental disabilities in people.8 In the mid-1800s, the United States worked
with great optimism to rehabilitate and train the disabled population, hoping a “normal” life
6 Catherine K. Harbor & Pallab K. Maulik, History of Intellectual Disability, INT’L
ENCYCLOPEDIA OF REHABILITATION (2010), http://cirrie.buffalo.edu/encyclopedia/en/article/143/.
7 Id.
8 See id.

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would result from each patient.9 America’s optimism proved to be empty when it was discovered
that “normalcy,” an abstract concept, was unobtainable.10 After this breakthrough, intellectually
disabled people became the scapegoat on accounts of the rising crimes, illnesses, and poverty
sweeping the developing nation.11 Patients were placed in established residential institutions to
protect “normal society,” and often sterilizing them to prevent the inheritance of disabilities to
offspring.12 By 1944, thirty states passed sterilization laws, which allowed doctors to sterilize
mentally challenged people.13 Courts were even upholding these sterilization statutes, deeming
them to be constitutional.14 It was not until the mid-1980s when the trends of inclusion and
9 Id.
10 Id.
11 Id.
12 Harbor, supra note 6.
13 Id.; Some of those states included Indiana, Virginia, North Carolina, Georgia, and
California.
14 See Buck v. Bell, 47 S. Ct. 584 (1927).

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deinstitutionalization became apparent in the United States.15 Although Intellectual Disability
continues to be stigmatized and neglected, attitudes continue to change through the advancement
of science and knowledge.16
A. Defining Intellectual Disabilities
After the many years of segregation and neglect to the mentally disabled population,
organizations around the word have progressed in coining Intellectual Disability. Intellectual
Disability is defined as “a disability characterized by significant limitations in both intellectual
functioning and in adaptive behavior.”17 Adaptive behavior constitutes the collection of
conceptual (language and literacy), social (interpersonal skills and self-esteem), and practical
15 Harbor, supra note 6.
16 Id.
17 Definition of Intellectual Disability, AM ASS’N ON INTELL. ANDDEVELOPMENTAL
DISABILITIES (November 6, 2014), http://aaidd.org/intellectual-
disability/definition#.VFvG6ocmTww [hereinafter AAIDD].

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skills (personal care).18 Usually, there are developmental disabilities, which are disabilities
during the developmental period, or before the age of eighteen.19 According to the American
Association on Intellectual and Developmental Disabilities (AAIDD), intellectual functioning
can be measured through an IQ test, with a test score of around 70 or as high as 75.20 The
American’s Psychiatric Association (APA), however, sets the IQ of 70 or under plus at least two
deficits in at least two areas of adaptive behavior.21
18 Id.
19 Id.
20 Id.
21 Tammy Reynolds, C.E. Zupanick, and Mark Dombeck, Diagnostic Criteria for
Intellectual Disabilities: DSM-5 Criteria, COMMUNITYCOUNSELING SERVICES, INC.
http://www.communitycounselingservices.org/poc/view_doc.php?type=doc&id=10348&cn=208
[hereinafter APA].

9. 9
B. Testing Intellectual Disabilities
When measuring something, there must always be some kind of standard of error
measurement incorporated in the result, since humans are prone to make errors from time to
time.22 For Intellectual Disability, the standard of error measurement (SEM) estimates how a
repeated measure of a person taking the same test tends to be distributed around his or her own
“true” score.23 An examinee may be influenced by factors such as him or her being uninterested
of doing well on the test or fatigue during the exam, resulting in an obscure score.24 To combat
unreliability caused by these factors, a SEM is implemented to express the reliability of test
22 See Measurement and Error Analysis, C. PHYSICS LABS MECHANIC(November 7, 2014),
http://www.webassign.net/question_assets/unccolphysmechl1/measurements/manual.ht
ml
23 Leo M. Harvill, Standard Error of Measurement, INSTRUCTIONAL TOPICS IN EDUC.
MEASUREMENT, available at http://ncme.org/linkservid/6606715E-1320-5CAE-
6E9DDC581EE47F88/showMeta/0/
24 Id.

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scores in an understandable way.25 Good test questions have high correlations of right answers
that can be used in every population, and the bad questions are dropped because they have
different correlations with outcomes across demographic subgroups, causing biased test
questions in favor of dominant groups and at the expense of minority groups.26
IQ tests deal mainly with the examinee’s learning ability rather than how much a person
has learned in the past.27 If the purpose of IQ tests were to measure raw learning ability, the
method would be poor because cultural, familial, and personality differences affect learning
ability.28 Our society values the ability to “make generalizations from incomplete data and to
25 Id.
26 Id.
27 Id.
28 Id.

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deduce new information from abstract rules.”29 Without standardized IQ tests, decisions about
diagnosis, qualifications for services, and treatment will be made, but in a more haphazard
manner.30
1. IQ Tests and Case Law Prior to the Court’s Landmark Holding that Putting
Defendants to Death who are Mentally Disabled is Unconstitutional
Prior to 2002, IQ tests really had no relevance in determining the punishment of
convicted intellectually disabled defendants.31 The abrogated case Penry v. Lynaugh dealt with a
defendant having a nine or ten year-old mentality, resulting in his inability to learn from his
mistakes.32 The Supreme Court of the United States refused to apply the Eighth Amendment to
29 Scott Barry Kaufman, What Do IQ Tests Test?: Interview with Psychologist W. Joel
Schneider, SCI. AM. (February 3, 2014), http://blogs.scientificamerican.com/beautiful-
minds/2014/02/03/what-do-iq-tests-test-interview-with-psychologist-w-joel-shneider/
30 Harvill, supra note 23.
31 Natalie Cheung, Note, Defining Intellectual Disability and Establishing a Standard of
Proof: Suggestions for a National Model Standard, 23 HEALTH MATRIX 317, 318 (2013).
32 Penry v. Lynaugh, 492 U.S. 302 (1989).

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intellectually disabled criminal defendants, allowing states to sentence them to death row.33 The
Court found that allowing the Eighth Amendment to apply to intellectually disabled defendants
would implement a “new rule,” which would “brea[k] new ground and would impose a new
obligation on the States and Government.”34 Additionally, the Court never instructed the jury
that it could consider mitigating evidence to help the defendant’s case.35 The Supreme Court felt
the need to procrastinate on the Eighth Amendment issue because there was no precedent in this
area of law, which, in turn, gave the authority to decide the liberties of intellectually disabled
defendants in the hands Supreme Court justices at a later time.36
33U.S. CONST. amend. VIII (“Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.”); Id. at 320.
34 Id. at 320.
35 Id.
36 Id.

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2. IQ Tests and Case Law After the Court’s Landmark Holding that Putting Defendants
to Death who are Mentally Disabled is Unconstitutional
In 2002, the Court abrogated Penry when it decided Atkins v. Virginia.37 In this case, the
defense presented testimony by a forensic psychologist who said that the defendant on trial for
capital murder was mildly retarded, while a prosecution expert witness expressed the view that
the defendant was of at least average intelligence.38 Because of the “dramatic shift in the state
legislative landscape that ha[d] occurred in the past 13 years”, the Court granted certiorari to
revisit the constitutional question from Penry.39 Atkins held that by applying the Eighth
Amendment in light of America’s “evolving standards of decency,” it would prevent excessive
punishment because the Constitution “places a substantive restriction on the State’s power to
take a life” of a mentally challenged person.40 The Supreme Court cited two reasons for its
decision. First, on account of retribution, the Court noted that the justification on the basis for the
37 Atkins, 536 U.S. at 308.
38 Id. at 308.
39 Id. at 310.
40 Id. at 321.

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death penalty cannot apply to intellectually disabled defendants; and second, intellectually
disabled defendants are “less able to give meaningful assistance to their counsel and are poor
witnesses, giving an impression that they show no remorse for their crimes.”41
The Court left the states with the task of developing appropriate ways to enforce the
ruling of Atkins.42 The Court, however, did provide guidelines to the states by quoting
Intellectual Disability definitions from the APA and AAIDD.43 Although these definitions are
similar, they are not identical. Both organizations explain what constitutes Intellectual Disability,
but not the legal standards for proving it.44 Because the Tenth Amendment gives states the power
to decide their own methods of punishment for defendants, as long as it does not supersede the
41 Id. at 309.
42 Cheung, supra note 31.
43 Id.
44 See AAIDD, supra note 17; APA, supra note 21.

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Constitution,45 the different methods prevented a consensus on punishment over the states, which
caused the disparity and inequality of intellectually disabled defendants residing in different
states.
III. PROBLEMS IN HALL V. FLORIDA
A. The Prevalent Facts of Hall v. Florida
In 1978, Freddie Lee Hall and an accomplice kidnaped, beat, raped, and murdered a
twenty-one year-old newlywed.46 Hall and his accomplice then drove to a convenient store that
they planned to rob, and subsequently killed a sheriff’s deputy.47 When Hall was first sentenced
45 U.S. CONST.amend. X (“The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the
people.”); but see Roper v. Simmons, 543 U.S. 551 (2005)(holding that it is unconstitutional for
all states to execute a minor under the Eighth Amendment).
46 Hall, 134 S. Ct. at 1990.
47 Id.

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to death in 1981, the Court had not yet decided the constitutional issues raised in Penry.48 Also,
at that time, Florida law did not consider Intellectual Disability as a mitigating factor.49 Hall’s
lawyer testified that he “could not really understand anything [Hall] said,” and “[Hall] had a
mental level comparable to a 4-year-old.”50 Professional clinicians testified that, “in their
professional opinion” Hall was “significantly retarded, “mentally retarded,” and “had levels of
understanding typically seen with toddlers.”51 Hall’s siblings testified saying that there was
something very wrong with him as a child.52 The jury, notwithstanding this testimony, voted to
sentence Hall to death, even after the Court adopted the jury’s recommendation that “Freddie
Lee Hall had been mentally retarded his entire life.”53
48 This case was 21 years before the Atkins decision.
49 Id.
50 Id. at 1991.
51 Id.
52 Id.
53 Hall, 134 S. Ct. at 1991.

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When the Supreme Court decided Atkins in 2002, Hall filed a motion claiming that he
had an Intellectual Disability and could not be executed.54 Hall again presented evidence of
Intellectual Disability, including an IQ score of 71.55 In response, Florida argued that Hall could
not be found mentally disabled because Florida’s statutory threshold requires that Hall must
produce an IQ test score of 70 or below before presenting any additional evidence of his
Intellectual Disability.56 Hall appealed, but was rejected by Florida’s Supreme Court holding that
Florida’s 70-point threshold was constitutional.57 The Supreme Court of the United States
granted certiorari to Hall’s case in 2013.58
54 Id. at 1991–92.
55 Id. at 1992.
56 Id.
57 Id.
58 Id.

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B. The Supreme Court’s Analysis of Hall
When Hall was heard in the Supreme Court, the Court focused on how to define
Intellectual Disability to align with the holding of Atkins.59 The Court reasoned that the best way
to do define it was to “consider the psychiatric and professional studies that elaborate on the
purpose and meaning of the IQ stores to determine how the scores relate to Atkins.”60 This
approach lead to a better understanding of how legislation in other states and the holdings of
state courts has implemented Atkins.61 The Court also reasoned that it must express its own
independent determination “in the light of the instruction” in those sources and authorities.62
Florida’s statute on its face is consistent with the views of APA and AAIDD; however,
the strict IQ cut-off score of 70 barred Hall from presenting other evidence is the issue.63 The
59 Hall, 134 S. Ct. at 1993.
60 Id.
61 Id.
62 Id.
63 Id. at 1994.

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Supreme Court determined that Florida’s rule disregards established medical principles because
it makes an IQ score as final and conclusive evidence, when experts in the field would consider
other evidence, and it relies on a “purportedly scientific measurement” of the defendant’s
abilities, while refusing to recognize that the score is imprecise because of the SEM.64
Professionals who design, administer, and interpret IQ tests have agreed for many years that IQ
test scores should be read as a range because of the SEM being affected by factors such as the
demeanor of the examiner, location of the test, and simple lucky guessing.65
Despite the SEM, Florida used this test as a fixed number, barring evidence of adaptive
functioning.66 A significant majority of states implement Atkin’s protections by taking the SEM
into account, acknowledging the error in a test score, and providing “objective indicia of
society’s standards” on the death penalty question in the context of the Eighth Amendment.67
64 Id. at 1995.
65 Hall, 134 S. Ct. at 1995.
66 Id. at 1996.
67 Id.

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The Court then compared a number of state’s statutes, concluding that an individual like Hall,
who has an IQ of 71, would not be deemed automatically eligible for the death penalty in most
states.68 The rejection of the strict 70 cut-offs in the vast majority of States and trend toward
recognizing the SEM provides “strong evidence of consensus that our society does not regard
this strict cutoff as proper or humane.”69 In the opinion’s closing, Justice Kennedy wrote:
The death penalty is the gravest sentence our society may impose. Persons
facing that most severe sanction must have a fair opportunity to show that the
Constitution prohibits their execution. Florida’s law contravenes our Nation’s
commitment to dignity and its duty to teach human decency as the mark of a
civilized world. The States are laboratories for experimentation, but those
experiments may not deny the basic dignity the Constitution protects.70
This idea led the Court to hold that the IQ score of 71 was unconstitutional, and IQ scores
must have a range of 70-75, factoring in the SEM.71 By failing to take into account the SEM,
Florida’s statute not only disregards the test’s own design, but bars an vital part of a court’s
68 Id. at 1997.
69 Id. at 1998.
70 Id. at 2001.
71 Hall, 134 S. Ct. at 2001.

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inquiry of adaptive functioning.72 Under the Constitution, Hall had the right to present evidence
of his Intellectual Disability, including problems in his adaptive functioning over his lifetime.73
C. Dissenting Issues
In Justice Alito’s ten page dissent, he modifies the majority’s interpretation of “evolving
standards of maturing ‘society,” from meaning what American society as a whole believes to
strictly “the evolving standards of professional societies,” or the APA’s standards.74 Whether a
punishment is “cruel and unusual” relies on societal norms, and legislatures—not courts—are
designed to respond to the “moral values of the people.”75 The majority in Hall relied on the idea
that “our society views mentally challenged offenders as categorically less culpable than the
average criminal.”76 These views cause “widespread judgment about the relationship between
72 Id.
73 Id.
74 Id. at 2002. (Alito, S., dissenting).
75 Id.
76 Id.

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mental retardation and the penological purposes of the death penalty.”77 Because there is no clear
consensus of the measurement of Intellectual Disability within the states, the majority had no
basis in holding that Florida’s measurement contravenes the society’s standard of decency.78
Justice Alito states that the standards of the American people—not the standards of a
“professional consensus”—were rejected by the Atkins Court.79 Atkins made it clear that the
professional consensus was not dispositive.80 If courts were to rely solely on professional views
and the organizations’ definitions, courts would have to follow the new changes and then
determine whether the change was legitimate according to courts’ precedents.81 The majority
77 Hall, 134 S. Ct at 2002–03.
78 Id. at 2005.
79 Id.
80 Id.
81 Id. at 2006.

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made the judgment that the definitions established at the time of Atkins were not relevant
anymore.82 Also, there is no guidance on which organizations’ view should govern.83
Justice Alito argued that question in Hall should be whether Florida’s actual “conclusive”
approach with the range cut-offs falls outside the range of Atkins.84 The Court never identified
what other kind of evidence of intellectual functioning should be admitted.85 Additionally, the
majority failed to offer evidence suggesting that the “longstanding reliance on multiple IQ test
scores a measure of intellectual functioning is so unreasonable or outside the ordinary as to be
unconstitutional.”86
82 Id.
83 Hall, 134 S. Ct. at 2006.
84 Id. at 2007.
85 Id.
86 Id. at 2008.

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If the Court had merely held that Florida must allow defendants to present additional
mitigating evidence, the decision would have been more succinct.87 However, the Court held that
if the IQ scores fell within the range of 71–75, only then could the defendant provide additional
evidence, which would deviate from the original definition of Intellectual Disability at the time
of Atkins.88 The APA and the AAIDD definitions provide that there needs to be both “subaverage
[sic] intellectual functioning” AND “significant limitations in adaptive skills.”89 The Court
ignored the fact that adaptive behavior cannot be used solely to determine disabilities in human
functioning because both prongs are meant to show “distinct components of Intellectual
Disability.”90 Adaptive behavior is decided on a subjective basis, and Florida’s legislature tried
to avoid going that route.91
87 Id.
88 Id.
89 Hall, 134 S. Ct. at 2008; AAIDD, supra note 17; APA, supra note 21.
90 Id.
91 Id. at 2009.

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IV. SOLUTIONS TO THE INCONSISTENCY OF INTELLECTUAL DISABILITY BETWEEN THE STATES
The reason that courts such as Hall face these issues is because of the lack of consistency
between treatments of intellectually disabled defendants within the states. The United States is
becoming increasingly accepting of intellectually disabled people.92 Courts are more likely today
to be more empathetic to intellectually disabled defendants; however, according to the different
state statutes and court decisions, each state evolves at a different pace.93 A state has its own
political issues, which accounts to inconsistent standards pertaining how difficult it is to prove
that a defendant has Intellectual Disability.
92 See Robert Perske, Coming Out of the Darkness: America’s Criminal Justice System
and Persons with Intellectual Disabilities in the 20th Century, 45 INTELL. & DEVELOPMENTAL
DISABILITIES 216, 216 (2007)
http://www.robertperske.com/articles/coming_out_of_darkness.pdf.
93 Id.

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A. The Problem with the Lack of Consistency in the States
There are currently thirty-two states that adhere to the death penalty for convicted
defendants, and eighteen states that have abolished the death penalty.94 From this information, it
is apparent that there are already discrepancies within the states on the question of whether to
execute criminals. The Tenth Amendment gives the states their own power to decide these
matters, as well as whether to use IQ testing to determine the Intellectual Disability of a criminal
defendant.95 The following sub-sections are a few examples of how jurisdictions treat
intellectually disabled defendants, noting the different interpretations each state holds. These
states vary on different procedural factors such as IQ scores and how much they influence into
the determination and whether expert testimony is a necessity.
94 States With and Without the Death Penalty, DEATH PENALTY INFO. CENTER (2015),
http://www.deathpenaltyinfo.org/states-and-without-death-penalty.
95 U.S. CONST. amend. X.

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1. California
California Penal Code § 1376 states that the court or jury may decide the question of
Intellectual Disability.96 The statute provides that first, “the defendant shall present evidence in
support of the claim that he or she is a person with an Intellectual Disability” with the
prosecution rebutting that evidence.97 After an opinion of a qualified expert stating that a
defendant is intellectually disabled, without the necessity of an IQ test, the court shall hold a
hearing to determine whether the defendant is intellectually disabled.98 The statute provides that
each party may offer rebuttal evidence, and the court may allow a case to be reopened to present
more evidence.99 The court may rely on qualified expert analysis and by the court’s own
examination of the defendant.100 Finally in the closing argument, the statute states that the
96 CAL. PENAL CODE § 1376(b)(2) (West 2014).
97 Id.
98 Id.
99 Id.
100 Id.

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defendant has the burden of proof under preponderance of the evidence.101 The jury must reach a
unanimous decision regarding the question of Intellectual Disability.102 If the jury is hung on the
Intellectual Disability issue, a new jury is selected to question the defendant’s Intellectual
Disability again.103 It is clear that California shows they rely solely on the defense’s testimony
without the necessity of using IQ scores.
2. Tennessee
Tennessee uses the APA’s definition of Intellectual Disability.104 The definition
references using an IQ test, but it is not made dispositive on the question of Intellectual
Disability.105 The statute states, “[t]he burden of production and persuasion to demonstrate
Intellectual Disability by a preponderance of the evidence is upon the defendant;” however “the
101 CAL. PENAL CODE § 1376(b)(3) (West 2013).
102 Id.
103 Id.
104 See APA, supra note 21.
105 TENN. CODE ANN. § 39-13-203(c) (2014).

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determination of whether the defendant had Intellectual Disability at the time of the offense of
first-degree murder shall be made by the court.”106 If the trial raises an Intellectual Disability
question and the court determines that the person is not intellectually disabled, the defendant
may offer evidence of diminished capacity as a mitigating circumstance.107 The Tennessee
Supreme Court stated in a case applying this statute, “even though the trial court is not required
to follow a particular expert, it must give full and fair consideration to all the evidence
presented.”108 The Court then emphasized that, “[a]ligning the application of the statute with the
clinical approach to diagnosing and assessing Intellectual Disability will result in more accurate
and consistent decisions."109 Tennessee shows an interest in the advantages of an IQ result, but
also has a great interest in testimonial evidence, showing that IQ tests are used only if direly
needed.
106 Id.
107 TENN. CODE ANN. § 39-13-203(e) (2014).
108 Van Tran v. Colson, 764 F.3d 594, 610 (6th Cir. 2014).
109 Id.

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3. Kentucky
Kentucky law simply states, “[a] defendant with significant sub-average intellectual
functioning existing concurrently with substantial deficits in adaptive behavior and manifested
during the developmental period is referred to…a defendant with a serious Intellectual
Disability.”110 Kentucky uses “significantly sub-average general intellectual functioning" to refer
to a defendant with an IQ of 70 or below.111 The court in Bowling v. Commonwealth stated that
IQ scores taken around the time of trial reflected that a defendant had an IQ in the 86–87 range,
which, in turn, did not allow the defendant to have an evidentiary hearing on the issue of
Intellectual Disability.112 It appears that Kentucky law favors scientific analysis as dispositive
over any other form of evidence.
110 KY. REV STAT. § 532.130(2) (West 2012).
111 Id.
112 See Bowling v. Commonwealth, 377 S.W.3d 529 (Ky. 2012).

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4. Arkansas
Although Arkansas’s IQ requirement of 65 is lower than the ranges set forth in AAIDD
and APA, Arkansas still appears to follow Atkins when it comes to not executing an intellectually
disabled defendant.113 The statute states that a court “shall raise special sentencing provision of
mental retardation by motion prior to trial” and that defendant has the burden of proving mental
retardation at the time of committing the offense by a preponderance of evidence.114 However,
the Arkansas Supreme Court ruled that it is certainly within a district court’s province to choose
one qualified expert’s opinion over another qualified expert’s opinion; but it is not the opinion
itself that is important, but the rationale underlying it.115 For example, in Engram v. State, a
forensic psychologist testified that defendant’s IQ score would likely fall between the scores of
76 and 86, and that testimony resulted in the defendant not being able to the defend on the
113 ARK. CODE ANN. § 5-4-618(a)(2) (West 2014); see Atkins, 536 U.S. at 309; Coulter v.
State, 365 Ark. 262, 227 S.W.3d 904 (2006); AAIDD, supra note 17; APA, supra note 21.
114 Id.§ 5-4-618(d)(1) (West 2014).
115 Newman v. State, 2014 Ark. 7 at 27, 2014 WL 197789, at 7.

32. 32
grounds of mental disability.116 In Arkansas, the expert’s testimony, without an IQ test,
supersedes science and evidence.
B. Problems with Solely Relying on Scientific Measurement
Some states rely too heavily on the IQ scores, allowing them solely to determine whether
to bring other evidence into question.117 Scientific measurements create an assortment of
problems that can have drastic impacts on the defendant’s liberties such as purposely failed
exams, SEMs, and other pertinent factors causing flawed exam scores.118
Some people in the United States may have been wrongly executed because of
inaccuracies in the IQ tests.119 On the other hand, the inaccuracies may have been used to escape
116 See Engram v. State, 360 Ark. 140, 200 S.W.3d 367 (2004).
117 See supra text accompanying notes 96–116.
118 See Kaufman, supra note 29.
119 Vox Vocis, A Death Row Inmate’s Life Should Not Hinge on an IQ Test, OFPOL. AND
MEN (March 11, 2014), http://ofpoliticsandmen.org/2014/03/11/death-row-inmates-life-hinge-iq-
test/.

33. 33
execution if they scored lower on the tests than their actual score.120 A large inaccuracy that
Courts tend to ignore is purposely failing an IQ test. It leaves one to wonder if experts are able
pick up on how much effort is put into an IQ test, posing the question as to what happens when
defendants decide to fail in order to escape the death penalty.121 Cut-off scores appear to be too
simplistic and conclusive, so balancing the scores with testimonial evidence on how an
120 Jessica Griggs, Inaccurate IQs Could be a Matter of Life and Death, NEWSCIENTIST
(May 12, 2011), http://www.newscientist.com/article/dn20470-inaccurate-iqs-could-be-a-matter-
of-life-and-death.html#.VGVRe4cmTwx.
121 See, e.g., M.B. David, Police Refuse to Hire Applicants with High IQs, POL.
BLINDSPOT (October 30, 2013), http://politicalblindspot.com/police-officially-refuse-to-hire-
applicants-with-high-iq-scores/.

34. 34
individual is functioning in the real world would be ideal for determining whether a particular
individual is genuinely disabled.122
Generally, the population falls close to the IQ’s “normal” range, which causes difficulties
when statistics based on the performance of people with average IQs are assumed to apply to
people with low IQs.123 The “Flynn Effect” deals with the substantial increase in average scores
on intelligence tests all over the world.124 According to scientists, “Americans gain an average
122 See Maurice Chammah and Dana Goldstein, The Life or Death Test, THE MARSHALL
PROJECT (January 29, 2015), https://www.themarshallproject.org/2015/01/29/the-life-or-death-
test.
123 Vocis, supra note 119.
124 Charles Graham, The Flynn Effect, HUMANINTELLIGENCE (2001),
http://www.intelltheory.com/flynneffect.shtml.

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of approximately 0.3 IQ points per year or 3 points per decade in measured intelligence.”125
Courts tend to use IQ scores from tests introduced more than a decade earlier, which means
scores are often inflated by three or more points.126 Since the Flynn Effect is well established, IQ
tests need to be “recalibrated” from time to time to reset the average.127 From these numerous
errors prevalent in IQ tests, the courts should have a duty to listen to evidence of Intellectual
Disability first, and then order a test to be done. Sometimes numbers are good first
approximations of the truth, but “it is our prerogative to override what the numbers say when
125 Frank M. Gresham & Daniel J. Reschly, Standard of Practice and Flynn Effect
Testimony in Death Penalty Cases, 49 INTELL. & DEVELOPMENTAL DISABILITIES 131, 131
(2011).
126 Peter Aidhous, Death by IQ: US Inmates Condemned by Flawed Tests, NEWSCIENTIST
(August 15, 2012), http://www.newscientist.com/article/dn22180-death-by-iq-us-inmates-
condemned-by-flawed-tests.html#.VGVW_ocmTwy.
127 Id.

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failing to do so would be illogical, impractical, or morally outrageous.”128 Overriding numbers
can become a problem if invoked too frequently,129 thus courts need to weigh adaptive deficit
evidence and scores together, not relying on one to invoke the other.
C. Problems with Relying Solely on Defendant’s Testimony
Determining a defendant’s adaptive behavior is difficult and can be problematic.130
Courts have stated that adaptive behavior is “exceedingly subjective” and experts offer opinions
on both sides of the issue in most cases.131 There are standardized tests that also measure
adaptive functioning, and these are also subject to a standard of error measurement.132 In
addition, the AAIDD suggests that a comprehensive assessment of adaptive behavior will likely
128 Kaufman, supra note 29.
129 Id.
130 Cheung, supra note 31 at 339.
131 Id.
132 Id.

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include a systematic review of the individual’s family history, medical history, school records,
and any other forms of relevant information.133
The majority of the states require defendants to bear the burden of proof when there is a
pretrial hearing regarding the question of Intellectual Disability.134 Additionally, the majority of
the states require that the defendant establish Intellectual Disability by a preponderance of the
evidence standard.135 On the other hand, a handful of states require the use of clear and
convincing evidence, and the federal government, Kansas, and Kentucky are silent as to which
burden to use.136 Georgia is the only state that requires proof beyond a reasonable doubt, which
133 Id. at 340.
134 Christian Grant, Comment, The Texas Intellectual Disability Standard in Capital
Murder Cases: A Proposed Statute for a Broken Method, 54 S. TEX. L. REV. 151, 167 (2012).
135 Id.
136 Id.

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is nearly impossible to meet because of the wide variability of IQ scores.137 For example, a
person suffering from Intellectual Disability might be able to have a job, but others might need
full-time care.138 These account for different degrees of Intellectual Disability where one court
may only look at the defendant having a job and deciding the defendant is not intellectually
disabled, and the one needing full-time care may “without a doubt” be intellectually disabled.139
Preponderance of the evidence is based on a more convincing evidence of probable truth
or accuracy, not on the amount of evidence.140 Allowing this standard may prove that a
137 Jordan Barry, Impossible Proof: Intellectual Disabilities and the Death Penalty,
JURIST (July 23, 2012, 3:30 PM), http://jurist.org/hotline/2012/07/terrica-ganzy-georgia-
disabilities.php.
138 Id.
139 See id.
140 Preponderance of the Evidence, THE FREE DICTIONARY BY FARLEX, http://legal-
dictionary.thefreedictionary.com/preponderance+of+the+evidence.

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defendant’s lack of adaptive functioning to weigh more heavily than IQ tests in front of a jury.141
Clear and convincing standards require evidence being presented to be “highly and substantially
more probably to be true rather than untrue.”142 In other words, evidence must be substantially
greater than a 50 percent likelihood of being true.143
The disparity on which burden of proof to use seems to give states power to decide which
standard reflects the state’s attitude towards intellectual disabled individuals. Having a bright-
line IQ score requirement prevents the fact finder from considering the necessary corollary
evidence of adaptive functioning.144 Requiring the defendant prove significant adaptive
functioning limitations beyond a reasonable doubt prevents the fact finders from recognizing the
141 See id.
142 Ken Lamance, Clear and Convincing Evidence Standard, LEGALMATCH (2014),
http://www.legalmatch.com/law-library/article/clear-and-convincing-evidence-standard.html.
143 Id.
144 Tim Saviello, The Appropriate Standard of Proof for Determining Intellectual
Disability in Capital Cases: How High Is Too High? BERKELEY J. OF CRIM. L. (2015).

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inaccuracy essential in the process and considering that evidence for its true value.145
Necessitating proof of both intellectual functioning and adaptive functioning limitations by
something greater than a preponderance of the evidence standard requires more than the science
allows.146 A statute that requires a capital defendant to prove his or her Intellectual Disability by
proof greater than preponderance does not guarantee that any intellectually disabled defendant
will be executed, which would constitute a violation of Atkins.147 Instead, it makes it more likely
than not that an intellectually disabled defendant will face execution.148 From this reasoning,
states should all adopt the same standard, preferably the preponderance standard, to weigh
adaptive deficits and IQ scores.
When it comes to expert qualifications in testimony, the states have little variation.149 The
145 Id.
146 Id.
147 Id.
148 Id.
149 Grant, supra note 134 at 168.

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criteria for who qualifies to testify as an expert in not addressed in either the AAIDD or APA
definitions.150 Additionally, the Atkins court failed to set any standards.151 Most states require
experts to be licensed psychologists or psychiatrists without requiring a specialty in Intellectual
Disability.152 Relying on evidence from non-specialized expert testimony may confuse jurors
into basing their decision solely on the testimony of experts, rather than the defendant’s
testimony. In a 2008 study, jurors were found to have no precise understanding on what
constituted Intellectual Disability.153 Some jurors believed that a certain defendant was “not
retarded enough” to be unable to establish right from wrong, and others believed that Intellectual
Disability could not be a mitigating factor in the defendant’s case.154 Also, judges, with the duty
150 Cheung, supra note 31 at 333.
151 Id.
152 Grant, supra note 134 at 168.
153 Sandys, Trahan & Pruss, Taking Account of the “Diminished Capacities of the
Retarded”: Are Capital Jurors Up to the Task?, 57 DEPAUL L. REV. 679, 692 (2008).
154 Id. at 692–93.

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to be impartial, should be the sole determiner of a defendant’s disability because judges are
better trained rather than jurors who are emotionally led.155 Upon review of this study, it clearly
shows how difficult making a determination of Intellectual Disability is.156 It concluded that
because of the errors in science, combined with jurors’ personal philosophies, a low standard of
proof would be ideal.157
D. A Final Proposal
One might wonder how this problem can be resolved with the Tenth Amendment giving
states the right to choose. In 2005, the Supreme Court in Roper v. Simmons held that it was
unconstitutional to place a convicted minor on death row.158 In this case, the defendant
committed a capital murder at the age of seventeen.159 Justice Kennedy reasoned that, “[i]t is
155 Cheung, supra note 31 at 341.
156 Grant, supra note 134.
157 Id.
158 Roper v. Simmons, 543 U.S. 551 (2005).
159 Id. at 551.

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proper that we acknowledge the overwhelming weight of international opinion against the
juvenile death penalty, resting in large part on the understanding that the instability and
emotional imbalance of young people may often be a factor in the crime.”160 This decision was
invoked under the Eighth Amendment, pertaining to every state because it was tested under the
“evolving standards of decency” test just like in Hall.161 In Atkins, the Court invoked the use of
the AAIID and APA under the Eighth Amendment, which gives the notion that it is important to
weigh adaptive evidence and scores together, not relying on one to invoke the other.162 The
states’ inconsistency prevents this notion, ignoring the “evolving standards of decency”. If states
were able to unify under Roper, the states, by themselves, or ordered by the Supreme Court
ultimately could “evolve” and create one standard for determining the burning question of
Intellectual Disability in defendants and prevent further litigation on constitutionality.
160 Id. at 578.
161 Id.
162 See Atkins, 536 U.S. at 304; AAIDD, supra note 17; APA, supra note 21.

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V. CONCLUSION
Even after these twelve years following the decision of Atkins, states are still having
trouble enacting statutes that give intellectually disabled defendants a fair trial. Since then, the
Supreme Court of the United States rejected the cut-off score in Hall, which helped shed light on
the lack of consensus within the states as well as affirm the missing pieces of Atkins. As our
nation strives to evolve into a more-accepting stance, courts and legislatures need to focus on the
goal of preventing inaccuracy and inconsistency in choosing the procedures that give a fair trial
to a group of people apart from the social norm. This note’s recommendations are aimed at
zoning in on these inconsistencies, alluding to deviating away from the solely strict scientific
methods. Although Atkins took away the power to execute intellectually defendants, states still
have archaic statutes dealing with different methods to reflect upon the political stances apparent
in the states. The Constitution is our nation’s threshold that all states have to adhere to. When our
Constitution gives a state power to decide methods for punishment, it tends to cause political
uproars about what the founding fathers intended the Eighth Amendment to mean. Hopefully in
the years to come there will be another case in disability law that will shed more light on the
current inconsistent methods and answer the real questions here: What is moral and what is just?

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