More than a decade after the U.S. Supreme Court’s landmark decision barring execution of the mentally retarded, the justices on Monday agreed to examine how to determine mental disability in capital cases.

The court granted review in Hall v. Florida, a challenge to the state’s law that, in effect, sets a bright-line cutoff of an IQ of 70 or below to qualify as mentally retarded and exempt from the death penalty. Freddie Hall was convicted and sentenced to death for the 1978 murder of Karol Hurst, seven months pregnant, whose car he and another man hijacked to use in a robbery. The state’s governor signed his first death warrant in 1982.

The justices’ grant of review almost immediately drew a caution from long-time death penalty supporter Kent Scheidegger of the Criminal Justice Foundation on his blog, Crime and Consequences. He asked whether the court was preparing to micromanage decisions about mental retardation just as it micromanaged states’ capital sentencing systems after its ruling in 1976 reinstating the death penalty.

The court’s approach during the post-1976 era was a “disaster,” he claimed, adding that the justices in Atkins v. Virginia, barring execution of the mentally retarded, promised that “states would have leeway in this area. Will the court now break this promise and micromanage the retardation determination procedure, repeating its huge mistake of 1980s?”

However, Hall presents the court with a way to avoid micromanaging this area, said John Blume, director of the death penalty project at Cornell University School of Law.

“There clearly is a need for the Supreme Court to do something in this area,” he said. “There are a handful of states who have adopted either definitions of mental retardation or procedures which make it very difficult for a person to prove they should be exempt from the death penalty. Florida is one of those states, but it is not a Florida-specific problem.”

The justices would avoid micromanagement by ruling that there is a clinical definition of mental retardation and states should adhere to it, Blume said.

Florida law, enacted before the Atkins decision, defines mental retardation as “significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior, and manifested during the period from conception to age 18.” The first prong of that test requires performance on a standardized intelligence test that is two or more standard deviations from the mean score, according to the Florida Supreme Court.

Hall argues that the cutoff of an IQ of 70 violates Atkins and that a range of scores, from 67 to 75, that includes standard error measurement, is the correct approach. His scores on three tests ranged from 71 to 80.

“The state of Florida cannot invent out of whole cloth a bright line cutoff for determining mental retardation, where no instrument exists that can measure IQ with that level of precision,” his attorney, Eric Pinkard of the Capital Collateral Regional Counsel in Tampa, Fla., wrote in Hall’s petition for review. “While this Court granted the states leeway in crafting appropriate methods to enforce the constitutional restriction against execution of the mentally retarded, it did not grant the authority for a state to create out of thin air a definition of mental retardation which undoubtedly will fail to identify mentally retarded capital defendants.”

Hall’s mental retardation first became an issue during his 1992 resentencing. At that time, the state court judge and the Florida Supreme Court found that Hall had been mentally retarded “all of his life.” But when Hall sought an exemption from the death penalty after the Atkins decision, the Florida Supreme Court imposed the IQ 70 rule.

The state of Florida, which opposed high court review, told the justices that Atkins “expressly left the task of defining retardation to the States.” The court also noted in Atkins that the definitions adopted by the various state statutes were not identical to the clinical definitions. The state argues that its definition is consistent with the elements outlined by the justices in its Atkins ruling even though it was adopted prior to Atkins.

Eight death penalty states besides Florida have a bright-line IQ cutoff: Arkansas, Delaware, Idaho, Kentucky, North Carolina, Tennessee, Virginia and Washington.

The justices could rule narrowly by saying states cannot have an arbitrary cut-off, Blume said. However, he added, “The thing that would bring the most clarity to this and would be beneficial to everyone would be if the court were to say: There is a generally understood clinical definition on what mental retardation is and states cannot adopt a definition that would exclude what any reasonable clinician would say is mental retardation.”

Contact Marcia Coyle at mcoyle@alm.com.