How High an IQ Must A Person Have To Be Executed?

In proving foresight may be vain:
The best laid schemes o’ Mice an’ Men
Gang aft agley,
An’ lea’e us nought but grief an’ pain,
For promis’d joy!

Lennie said, “I thought you was mad at me, George.”

“No,” said George. “No, Lennie. I ain’t mad. I never been mad, an’ I ain’t now. That’s a thing I want ya to know.”

The voices came close now. George raised the gun and listened to the voices.

Lennie begged, “Le’s do it now. Le’s get that place now.”

“Sure, right now. I gotta. We gotta.”

And George raised the gun and steadied it, and he brought the muzzle of it close to the back of Lennie’s head. The hand shook violently, but his face set and his hand steadied. He pulled the trigger. The crash of the shot rolled up the hills and rolled down again. Lennie jarred, and then settled slowly forward to the sand, and he lay without quivering.

Capital Crimes

A gang of gypsies in England gang raped a young girl (and another previously) at knifepoint while filming the deeds, laughing all the while and even posted one of the rapes on social media. At their trial, Judge Nicholas Rowland excused their crimes because he said the criminals were “‘very young’, had low intelligence, a ‘limited understanding of consent’ and were susceptible to ‘peer pressure’.”

[Rowland] said that the second boy fell into the bottom one per cent in IQ for his age, and he had been diagnosed with ADHD, while the third boy had ‘low intellectual capacity’ and he had a ‘limited understanding of consent’.

Iryna Zarutska, 23, was riding a train in Charlotte, when Decarlos Dejuan Brown Jr rose up, slit her throat, and as he was exiting the train gleefully declared he “got” his white woman. Brown had been arrested some 14 times before he murdered Zarutska, for crimes including armed robbery. He was freed each time. For the murder, he was found by Experts to be “incompetent to stand trial”.

Brown and the gypsies were not alone. Recently, there were these cases:

Many states have humane destruction laws that apply when animals (usually dogs) have attacked or killed humans. Florida, for instance, confiscates vicious dogs and puts them down. When any animal kills and eats a man it is usually put down, and most think it wise and prudent to do so. But some curiously argue the animals cannot help themselves, that it is their nature to attack and kill and even eat people, and who are we to judge?

In any case, it is clear that dogs, nor any animal, are not as intelligent as man. Just as it is clear obvious truth that some men are not as intelligent as others. Yet this fact does meet resistance from Equalitarians and Universalists, both forgiving every sin except the sin of claiming sin exists.

A Supreme Mess

Alabama was going to execute murderer Joseph Clifton Smith (white), but his lawyers appealed and then the states’s lawyers appealed after a lower court said Smith could escape his fate. The case recently reached the Supreme Court which let the lower court’s ruling stand.

Smith’s lawyers didn’t argue Smith was stupid; they insisted there was a chance (these are their arguments, not mine) his “IQ” was below 70. This number became an odd cutoff: murderers “with IQs” greater than 70 could be executed for their despicable crimes. Those “with IQs” less than 70 were allowed to get away with it. Or so it seems. We explore this idea below.

But first examine the Supreme Court’s 2002 decision in Atkins v Virginia. The facts were not too different than with Smith: planned robbery followed by abduction and despicable murder. The Courts said the execution of “low IQ” persons was “cruel and unusual punishment” prohibited by the Eighth Amendment. Not surprisingly, Scalia and Thomas and even Rehnquist disagreed.

The Eighth Amendment reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Since 2002, executing a dumb criminal is “cruel”, yet executing an intelligent criminal is not cruel nor unusual. This is odd because, as any dog owner can attest, even dogs can know right from wrong, and even stupid men know murder is wrong.

Scalia wrote in his dissent that an Expert (a psychologist) on one of the appeals testified Smith had “an IQ of 59”. Smith also, and in this case, really had “16 prior felony convictions for robbery, attempted robbery, abduction, use of a firearm, and maiming.” He noted previous courts ruled only the profoundly retarded, those “idiots” who “had an IQ of 25 or below”, had a “‘deficiency in will’ rendering them unable to tell right from wrong”.

Neither Akins nor Smith nor Brown above were “idiots” in this sense.

The Court conveniently ignores a third “social purpose” of the death penalty–“incapacitation of dangerous criminals and the consequent prevention of crimes that they may otherwise commit in the future,” Gregg v. Georgia…

Scalia wrote that it wasn’t true the “mentally retarded really more disposed (and hence more likely) to commit willfully cruel and serious crime ” and instead “being childlike generally suggests innocence rather than brutality.”

To the key pertinent question of culpability:

Assuming, however, that there is a direct connection between diminished intelligence and the inability to refrain from murder, what scientific analysis can possibly show that a mildly retarded individual who commits an exquisite torture-killing is “no more culpable” than the “average” murderer in a holdup-gone-wrong or a domestic dispute? Or a moderately retarded individual who commits a series of 20 exquisite torture-killings? Surely culpability, and deservedness of the most severe retribution, depends not merely (if at all) upon the mental capacity of the criminal (above the level where he is able to distinguish right from wrong) but also upon the depravity of the crime–which is precisely why this sort of question has traditionally been thought answerable not by a categorical rule of the sort the Court today[351]imposes upon all trials, but rather by the sentencer’s weighing of the circumstances (both degree of retardation and depravity of crime) in the particular case. The fact that juries continue to sentence mentally retarded offenders to death for extreme crimes shows that society’s moral outrage sometimes demands execution of retarded offenders. By what principle of law, science, or logic can the Court pronounce that this is wrong? There is none. 

There is more: I have only given highlights pertaining to the question of intelligence and guilt. (Incidentally, late in his dissent, Scalia calls phrases like less likely used in that context “pretty flabby language”.)

Intelligence is not IQ

Sotomayor (with Jackson joining) wrote the first opinion in the new Alabama-Smith case. They decided on the cutoff of an IQ score of 70 as execution worthy. Yet what happens if the convicted has more than one IQ test score or there is uncertainty? Which do you pick? And what IQ score should SCOTUS justices have (which they didn’t address).

At his sentencing hearing, Smith introduced evidence of intellectual disability, including an IQ score of 72 and testimony from the test’s administrator explaining that the test’s standard error of measurement indicated Smith’s IQ could be as low as 69 or as high as 75.

This had a footnote, which read:

The standard error of measurement reflects the potential error inherent in an IQ test and is used to calculate a confidence interval, a “range within which one may say an individual’s true IQ score lies.” Hall v.
Florida…(2014).

There are two problems. The first is that, as I am always ranting, IQ is not intelligence. IQ is a score on a test. No one has an IQ. Some have scores on tests. Everybody has intelligence to varying degree. See this, this, this and this for exhaustive critiques. All of which end with the vain plea: if you mean intelligence, just say intelligence and not “IQ”.

The second problem is that confidence intervals don’t mean what Sotomayer says, though everybody, even statisticians, takes them as meaning as she says. Their true meaning is so bizarre that nobody can keep their real definition in mind. Not even SCOTUS judges. This is one of the many measures in so-called frequentist statistics I’m always railing about in the Class. Do not use them.

For the morbidly curious—everybody else can skip this paragraph or see this post—here is what the true definition is: If an infinite (no fewer) number of experiments were run, each identical but randomly different to the one which gave us our data, and each experiment had a confidence interval calculated, then a certain percent of these infinite intervals will “cover” or contain the true value of the thing of interest. About your own confidence interval, the one you just calculated, nothing can be said, except the tautology the true value may or may not be in the interval.

Even you understood this, it does not apply to the Smith case or to any “IQ”. What is possible is a guess, within some bounds, of what a given person might score on a test.

Later Sotomayor says:

On [an IQ] test administered by King, Smith scored a 74 with a 95% confidence interval of 70 to 79. On the test administered by Dr. Fabian, Smith scored a 78 with a 95% confidence interval of 72 to 83. At this point, Smith had obtained five IQ scores ranging from 72 to 78.

There follows wrangling over the IQ test scores and their variability on subsets of the tests.

Smith’s second expert, too, testified that Smith’s scores were “in the range of what would be considered mild intellectual disability,” “particularly” when “consider[ing] the standard error of measurement.”…

The court acknowledged that King “testified that if there are multiple sources of IQ over a long period of time[,] it contributes to the construct of validity indicating what a true IQ score is for an individual” and that “multiple IQ scores” in Smith’s case “place him in the borderline range, functioning just above intellectual disability.”

Even experts can’t distinguish between IQ tests, which only crudely measure intelligence, and intelligence itself. Nor can SCOTUS justices, because later there is testimony Smith’s “true” IQ might be 69. Nor can Sotomayor nor anyone else deal with the many different scores she received for Smith: “the parties agree that there is no single approach to weighing multiple IQ scores.”

A considerable number of pages is devoted to this mysterious question.

But it is, of course, the wrong question, and not just for the reasons I have given. Because nowhere does Sotomayor (nor Jackson) ask: Did Smith know what he was doing was wrong? In this crime? In all his other previous crimes, including those in which he wasn’t arrested?

Which, of course, the answer is yes, yes, he did. Thus his “IQ” test score is irrelevant. Smith, like Brown now or Atkins then, is anyway sufficient dangerous in the sense Scalia defined.

Justice Thomas naturally saw this gaping hole. He opened his dissent:

Such persons [with low IQ scores] could not be executed, the Court said, even if they “know the difference between right and wrong,” even if they “are competent to stand trial,” and even if they are intelligent enough to deserve other “criminal sanctions.

Thomas also saw the consequence of Atkins: “The result was predictable: To avoid execution, Smith tried to convince courts that he is not intelligent enough to be executed.”

But Smith is not insufficiently intelligent to be executed. He can read at an 11thgrade level. He took five IQ tests and did not once receive a score of 70 or below, instead scoring 75, 74, 72, 78, and 74. The lower courts held that he could not be executed based only on the hypothetical possibility that these IQ scores were all wrong and that his IQ is in fact 70 or below.

It is preposterous to pick a magic number like this wholly artificial 70 to conclude moral culpability. Yet because of this new ruling it is now a good money bet to watch for a slew of claimed IQ scores below this new magic number to argue for leniency of any kind, not just escaping capital punishment.

Justice Alito chides the Court for punting on the question of how to use the multiple scores, which for all her word Sotomayor punted. But Alito does seem to be suspicious of IQ tests, and writes of their “true” values using scare quotes, which I applaud.

I do not see anywhere in the SCOTUS ruling, which means it is surely not in earlier court documents, whether anyone bothered to ask Smith if he knew murder was wrong.

I, too, dissent. Smith ought to be executed.

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