This investigation was reported by Dana Goldstein and Maurice Chammah for The Marshall Project, a nonprofit news organization focused on the U.S. criminal justice system. You can sign up for their newsletter, or follow The Marshall Project on Facebook or Twitter.
Ever since the Supreme Court ruled that prisoners suffering from “mental retardation” — a now outdated term — could not face the death penalty in the 2002 case Atkins v. Virginia, debates about whether a felon qualifies for execution have often revolved around a single number: an IQ score. On Tuesday, Georgia prisoner Warren Hill was executed for the 1990 beating death of a fellow inmate. His attorneys argued unsuccessfully that his IQ of 70 disqualified him for the punishment. This evening, Texas is set to execute Robert Ladd for beating a woman to death with a hammer in 1996. His attorney has pointed out that Ladd’s IQ of 67 would disqualify him from execution in most other states.
Last May, the Supreme Court built on the Atkins decision by ruling that Florida could not exclusively use a simple IQ cut-off when it determined who was fit for execution. “An IQ score is an approximation, not a final and infallible assessment of intellectual functioning,” Justice Anthony Kennedy wrote, demanding a more holistic approach by medical professionals. “Intellectual disability is a condition, not a number.”
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And prosecutors are able to exploit that uncertainty when defendants take IQ tests after a crime has been committed, since prosecutors can argue that defendants are purposefully not doing their best, explained capital defense attorney John Blume. “It’s pretty hard to overcome the possibility that the person might be malingering.”
Texas, where Ladd is set to be executed this evening, still relies on the 2004 court decision Ex Parte Briseno, which said judges could consider a variety of factors. These include whether a defendant is able to “hide facts or lie effectively,” respond to “external stimuli” with “rational and appropriate” conduct, and “show leadership.” The court left more specific requirements up to the state legislature and made a passing reference to Lennie Small, a character from John Steinbeck’s novella “Of Mice and Men,” as someone who might be disabled but might also still deserve execution. The author’s son, Thomas Steinbeck, recently said he wasn’t happy about this, and that “the character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability.”
