A majority of U.S. Supreme Court justices on Monday appeared skeptical of Florida’s hard IQ cutoff for determining who cannot be executed because of an intellectual disability.

With the rest of the federal government shuttered because of a snowstorm, the high court heard arguments in Hall v. Florida, in which Freddie Lee Hall claims that the state’s rule that mental disability is proved by an IQ of 70 or below violates the Eighth Amendment ban against execution of the intellectually disabled.

The high court arguments came 12 years after the justices’ ruling in Atkins v. Virginia, which held that execution of mentally retarded persons violated the prohibition against cruel and unusual punishment in the Eighth Amendment.

In Atkins, the justices suggested that “clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18.”

Although Florida law generally tracks those three elements, the Florida Supreme Court has ruled that if the person’s IQ is above 70, there is no consideration of the remaining two elements: adaptive skills and onset of intellectually disability before age 18. In considering the IQ score, there also is no consideration of the standard error of measurement adopted by most clinicians because of the inherent imprecision in IQ tests.

“The only real question presented in this case is just this: If a state conditions the opportunity to demonstrate mental retardation on obtained IQ test scores, it cannot ignore the measurement error that is inherent in those scores,” Hall’s counsel, Seth Waxman of Wilmer, Cutler, Pickering Hale and Dorr, argued. “That is a feature, a statistical feature of the test instrument itself.”

Hall was sentenced to death for the 1978 abduction, rape and murder of a 21-year-old woman who was seven months pregnant. Although state trial courts found he had been “mentally retarded his entire life,” when he pressed his Atkins claim in 2009 he scored above 70 on a number of intelligence tests. The standard error of measurement of plus or minus five points would make him ineligible for the death penalty.

Justice Antonin Scalia told Waxman that the court in Atkins looked to how the states defined mental retardation—and many, he added, had adopted 70 as the criterion.

“I mean, the criterion is what do the American people think is the level of mental retardation that should make it impossible to impose the death penalty,” Scalia said. “We didn’t look for the answer to that question to the APA [American Psychiatric Association] or any of the other medical associations. We looked to what the states did.”

Justice Anthony Kennedy asked whether the court should defer any more or less to psychologists and psychiatrists than to economists in examining the necessity of the standard error of measurement.

“Oh, I think it has to be much, much more because, as this court pointed out, this is a clinical condition,” Waxman said. “It’s a condition that can only be appropriately diagnosed by professionals.”

But, Scalia interjected, “They changed their mind, counsel. This APA is the same organization that once said that homosexuality was a mental disability and now says it’s perfectly normal. They change their minds.”

Florida Solicitor General Allen Winsor argued that the very fact that the medical criteria continue to change counsels against constitutionalizing the standard error of measurement in this area.

Winsor faced his toughest questioning from the court’s more liberal justices. For example, Justice Stephen Breyer asked “what’s so terrible” about allowing a defendant to bring in an expert to testify that the 70 number is subject to error. And Justice Elena Kagan suggested the 70 cutoff was inconsistent with Supreme Court case law insisting on individualized consideration in imposing the death penalty.

“We allow people to make their best case about why they’re not eligible for the death penalty,” Kagan said. “And essentially what your cutoff does is, it stops that in its tracks, as to a person who may or may not even have a true IQ of over 70, let alone it stops people in their tracks who may be mentally retarded.”

Adopting Hall’s rule, Winsor said, “would double the number of people who are eligible for the exemption. And that’s inconsistent with Florida’s purposes of the death penalty.”

Winsor told the court that eight states had adopted a hard cutoff of 70 or two standard deviations: Alabama, Florida, Idaho, Kansas, Kentucky, North Carolina, and Virginia and Maryland, which has since repealed the death penalty.

Contact Marcia Coyle at mcoyle@alm.com.