The U.S. Supreme Court vs. The American Psychological Association

By Dov Fox

The U.S. Supreme Court has not in recent years held the views of the American Psychological Association (APA) in so high regard as it did this week.

In 2012, the Court set aside the APA’s arguments for why due process requires the exclusion of eyewitness testimony obtained under suggestive circumstances that rendered it especially likely to be unreliable.

And in 2011, when the Court struck down on free speech grounds a state regulation on violent video games, it gave short shrift to the APA’s warnings about those games’ connection to violent behavior in young boys.

But in its recent death penalty decision, Florida v. Hall, the Court relied heavily on important APA insights in declaring it unconstitutional for states to set an IQ cutoff to determine whether a prisoner is eligible to receive capital punishment.

Freddie Lee Hall, convicted of murdering two people in 1978, argued that his cognitive impairment made it cruel and unusual for the state to take his life. But under Florida law, the state high court had held, Hall’s IQ score was just high enough to disqualify him from being spared execution.

Writing for the 5-4 majority, Justice Kennedy cited extensively to the brief filed by the APA to conclude that IQ tests are so imprecise that any rigid threshold “creates an unacceptable risk that persons with intellectual disability will be executed.” He wrote:

Florida’s rule disregards established medical practice in two interrelated ways. It takes an IQ score as final and conclusive evidence of a defendant’s intellectual capacity, when experts in the field would consider other evidence. It also relies on a purportedly scientific measurement of the defendant’s abilities, his IQ score, while refusing to recognize that the score is, on its own terms, imprecise.

. . .

The Florida statute, as interpreted by its courts, misuses IQ score on its own terms, and this, in turn, bars consideration of evidence that must be considered in determining whether a defendant in a capi­tal case has intellectual disability. Florida’s rule is invalid under the Constitution’s Cruel and Unusual Punishments Clause.

Now Florida’s high court will take another look at Hall’s case in light of the Supreme Court’s decision. It requires the state’s rules about death-eligibility to incorporate additional evidence, such as general intellectual or adaptive functioning, beyond just the IQ scores that the APA has shown are imprecise and subject to error.

This entry was posted in Criminal Law, Disability, Dov Fox, Empirical, First Amendment, Mental Health, Scientific Evidence by Dov Fox. Bookmark the permalink.

About Dov Fox

Dov Fox is Professor of Law and founding Faculty Director of the Center for Health Law Policy and Bioethics at the University of San Diego School of Law. He has published dozens of articles in leading journals of law and medical ethics, most recently “Reproductive Negligence” in 117 Columbia Law Review 149 (2017). His current book project, Birth Rights and Wrongs, is under contract with Oxford University Press. His work has been featured in CNN, ABC, NPR, BBC, Reuter’s, Bloomberg, the Boston Globe, and the Washington Post. Fox is a regular columnist for The Huffington Post and contributor to the Bill of Health blog. He also serves on the advisory boards of the American Constitution Society and Appellate Defenders, the non-profit law firm that administers all appointed counsel for indigent defendants in California's Fourth Appellate District. Prior to teaching, Fox served as a law clerk to the Honorable Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit. He has also worked at the law firm of Wachtell, Lipton, Rosen & Katz; the consulting firm of McKinsey & Company; and the Civil Appellate Staff at the U.S. Department of Justice. Fox was awarded a Rhodes Scholarship to attend Oxford University, where he earned his DPhil and then received a Soros Fellowship for New Americans to attend Yale Law School, where he served as projects editor for the Yale Law Journal and all three years was awarded the prize for best student paper in law and the sciences.

One thought on “The U.S. Supreme Court vs. The American Psychological Association

  1. Nice post, Dov.

    In Perry, the majority cleverly embraced the APA’s brief, but used it against Perry in a smooth jujitsu to say that eyewitness unreliability is such a ubiquitous problem that due process can’t be the doctrinal mechanism for regulating it.

    “Perry’s argument, reiterated by the dissent, thus lackssupport in the case law he cites. Moreover, his positionwould open the door to judicial preview, under the bannerof due process, of most, if not all, eyewitness identifications. External suggestion is hardly the only factor thatcasts doubt on the trustworthiness of an eyewitness’ testimony. As one of Perry’s amici points out, many otherfactors bear on “the likelihood of misidentification,” post,at 9—for example, the passage of time between exposure to and identification of the defendant, whether the witness was under stress when he first encountered the suspect, how much time the witness had to observe the suspect, how far the witness was from the suspect, whether thesuspect carried a weapon, and the race of the suspect andthe witness. Brief for American Psychological Association as Amicus Curiae 9–12. There is no reason why an iden- tification made by an eyewitness with poor vision, for ex-ample, or one who harbors a grudge against the defendant, should be regarded as inherently more reliable, less ofa “threat to the fairness of trial,” post, at 14, than the identification Blandon made in this case. To embrace Perry’s view would thus entail a vast enlargement of thereach of due process as a constraint on the admission of evidence.”

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