Ferguson v. Allen
| Decision Date | 21 May 2020 |
| Docket Number | Case No. 3:09-cv-0138-CLS-JEO |
| Parties | THOMAS DALE FERGUSON, Petitioner, v. RICHARD F. ALLEN, Commissioner, Alabama Department of Corrections, Respondent. |
| Court | U.S. District Court — Northern District of Alabama |
THOMAS DALE FERGUSON, Petitioner,
v.
RICHARD F. ALLEN, Commissioner,
Alabama Department of Corrections, Respondent.
Case No. 3:09-cv-0138-CLS-JEO
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA NORTHWESTERN DIVISION
May 21, 2020
MEMORANDUM OPINION
The question addressed in this opinion is whether petitioner, Thomas Dale Ferguson, is categorically excluded from execution by the Supreme Court's opinion in Atkins v. Virginia, 536 U.S. 304 (2002), holding that death is not a permissible punishment for an intellectually disabled convict. Id. at 321;1 see also, e.g., Moore v. Texas, 137 S. Ct. 1039, 1053 (2017); Hall v. Florida, 572 U.S. 701, 713, 722 (2014); Bobby v. Bies, 556 U.S. 825, 831 (2009). The issue was presented as a result
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of granting Ferguson's Rule 59(e) motion and vacating Part "V.F." of this court's prior memorandum opinion, which addressed Ferguson's claim that he had been improperly denied a hearing on his mental capacity claim.2 An evidentiary hearing was held on August 27, 2019. Following consideration of the evidence, pleadings, post-hearing briefs, and additional research, the court enters the following opinion.
The Supreme Court's seminal holding in Atkins v. Virginia was based, at least in part, upon the majority's belief that deficits in the areas of "reasoning, judgment, and control of their impulses" did not allow intellectually disabled criminals to act with the same degree of "moral culpability that characterizes the most serious adult criminal conduct." 536 U.S. at 306. The Court majority also was not persuaded that the execution of intellectually disabled criminals would advance the deterrent or retributive purposes of the death penalty.3 Consequently, the majority concluded that
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the execution of such persons was "excessive," and that the Eighth and Fourteenth Amendments placed "a substantive restriction" upon a state's power to take the life of an intellectually disabled offender. Id. at 321.4
Notably, the Atkins opinion did not provide definitive procedural or substantive guides for determining when a state prisoner claiming an intellectual disability fell within the protection of the Eighth and Fourteenth Amendments' prohibition against the imposition of cruel and unusual punishments. Instead, the Court left to the states "the task of developing appropriate ways to enforce the constitutional restriction." Atkins, 536 U.S. at 317 (quoting Ford v. Wainwright, 477 U.S. 399, 405, 416-17 (1986) (addressing the execution of insane persons)).
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The Alabama Supreme Court first addressed the criteria for enforcing the constitutional restriction in Ex parte Perkins, 851 So. 2d 453 (Ala. 2002), holding that, in order to be classified as mentally retarded (now described as "intellectually disabled"), a defendant "must have significantly subaverage intellectual functioning (an IQ of 70 or below), and significant or substantial deficits in adaptive behavior. Additionally, these problems must have manifested themselves during the developmental period (i.e., before the defendant reached age 18)." Id. at 456.
The Alabama Supreme Court's subsequent opinion in Smith v. State, 213 So. 3d 239 (Ala. 2007), layered a gloss on the Perkins standard, and held that a defendant must exhibit both significantly subaverage intellectual functioning and significant deficits in adaptive behavior during three periods of his or her life: (i) before the age of eighteen; (ii) on the date of the capital offense; and (iii) currently. Id. at 248 (citing Perkins, 851 So. 2d at 456). See also Holladay v. Allen, 555 F.3d 1346, 1353 (11th Cir. 2009) (same).5
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Ferguson bears the burden of proving, by a preponderance of the evidence, that he is intellectually disabled. See, e.g., Ex parte Carroll, No. 1170575, 2019 WL 1499322, at *1 (Ala. Apr. 5, 2019). "Intellectual disability is characterized by significant limitations both in [a] intellectual functioning and in [b] adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability [c] originates before age 18." American Association on Intellectual & Developmental Disabilities, Intellectual Disability: Definition, Classification, and Systems of Support 5 (11th ed. 2010) (emphasis and alterations supplied).6
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A. Proof of Significant Limitations in Intellectual Functioning
Proof of the first element of an alleged intellectual disability is best represented by intelligence quotient ("IQ") scores obtained by the administration of standardized assessment instruments,7 such as the "Wechsler Intelligence Scale for Children," the "Wechsler Adult Intelligence Scale," or the "Stanford-Binet Intelligence Scales."
Even though each of the assessment instruments used to measure Ferguson's IQ at various stages of his life was, on the date of its administration to him, generally considered to be a reliable test, and capable of producing valid scores,8 each
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instrument also contained potential for measurement error.9 The Supreme Court's opinion in Hall v. Florida recognized that:
The professionals who design, administer, and interpret IQ tests have agreed, for years now, that IQ test scores should be read not as a single fixed number but as a range. . . . Each IQ test has a "standard error of measurement," . . . often referred to by the abbreviation "SEM." A test's SEM is a statistical fact, a reflection of the inherent imprecision of the test itself. . . . An individual's IQ test score on any given exam may fluctuate for a variety of reasons. These include the test-taker's health; practice from earlier tests; the environment or location of the test; the examiner's demeanor; the subjective judgment involved in scoring certain questions on the exam; and simple lucky guessing. . . .
The SEM reflects the reality that an individual's intellectual functioning cannot be reduced to a single numerical score. For purposes of most IQ tests, the SEM means that an individual's score is best understood as a range of scores on either side of the recorded score. The SEM allows clinicians to calculate a range within which one may say an individual's true IQ score lies. See APA Brief 23 ("SEM is a unit of measurement: 1 SEM equates to a confidence of 68% that the measured score falls within a given score range, while 2 SEM provides a 95% confidence level that the measured score is within a broader range"). A score of 71, for instance, is generally considered to reflect a range between 66 and 76 with 95% confidence and a range of 68.5 and 73.5 with a 68% confidence. See DSM-5, at 37 ("Individuals with intellectual disability have scores of approximately two standard deviations or more below the population mean, including a margin for measurement error (generally +5 points). . . . [T]his involves a score of 65-75 (70 ± 5)"). . . . . Even when a person has taken multiple tests, each separate score must be assessed using the SEM, and the analysis of multiple IQ scores jointly is a complicated endeavor. . . .
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Hall, 572 U.S. at 713-14 (citations omitted, emphasis supplied). Thus, the Standard Error of Measurement ("SEM") accounts for a margin of error of five points, both below and above the test-taker's IQ score on the standardized assessment instrument at issue. Ledford v. Warden, Georgia Diagnostic & Classification Prison, 818 F.3d 600, 640 (11th Cir. 2016).10
1. IQ scores found in Ferguson's public school records
During November of 1979, when Ferguson was six years of age, he obtained a Full-Scale IQ score of 77 on the Stanford-Binet Intelligence Scale.11
Six years later, when Ferguson was on the threshold of the 1985-86 school year, he was evaluated at the request of his mother for special educational services because of a noted "lack of academic progress, suspected learning disability, deficient reading skills, and deficient handwriting skills." Doc. no. 39-5 (Petitioner's Exhibit 5), at 21 (Morgan County School System Confidential Student Evaluation). The "Wechsler Intelligence Scale for Children-Revised (WISC-R)" assessment instrument was administered on August 6, 1985, and he achieved a Verbal IQ score
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of 74, a Performance IQ score of 71, and a Full-Scale IQ score of 71. Id. at 22.12 Significantly, however, even though Ferguson "did not appear to be challenged by the more difficult items on the test," the test administrator noted that he "gave up easily on both verbal and non-verbal items."13 After reviewing the test scores, the school system concluded that Ferguson was eligible for special services as an "educationally mentally handicapped" student.14 Such children typically were segregated from the main student body and placed in "a self-contained classroom with about six or seven other students."15
During March of 1988, when Ferguson was fifteen and in the second semester of his 8th Grade, 1987-88 school year, school system policy required that he be re-
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evaluated for continued receipt of the special services provided to educationally mentally handicapped students.16 The WISC-R was re-administered on March 1, 1988, and Ferguson achieved a Verbal IQ score of 87, a Performance IQ score of 88, and a Full-Scale IQ score of 87 — a decided, sixteen-point improvement over his performance on the same assessment instrument nearly three years before.17 (During the hearing held in this court, Ferguson's own expert, Dr. Robert D. Shaffer, confirmed that Ferguson's scores on six of the ten subtests comprising the WISC-R improved on the 1988 re-test, and that he did not score two standard deviations below the mean on any subtest.18) The test administrator recorded that Ferguson's full-scale score fell "within the low average range of intellectual functioning."19 Consequently, he was moved into classes for students classified as "learning disabled."20 Such students were not segregated from the larger student body, but received additional assistance with certain subjects.21
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2. State court IQ...
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