Grants: FL's Mental Retardation Standard and Mortgage Fraud

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By William Peacock, Esq. on October 21, 2013 2:58 PM

Atkins is resurfacing in the Supreme Court, just not in the case that many were pulling for.

In a pair of certiorari grants in this morning's orders list, the Supreme Court took a case about Florida's controversial and rigid standard for proving mental retardation in capital cases, and another case where a circuit split has developed over mortgage fraud restitution.

Of the two, the capital case will likely garner far more attention (as it should) and could affect all future Atkins claims of retardation as an exemption from execution.

Hall v. Florida: Is Florida's Rigid Standard Permissible?

In Atkins, the Supreme Court held that the execution of the "mentally retarded" (an inappropriate term, yet it is the controlling legal standard) amounted to cruel and unusual punishment. Proving retardation requires a showing of "subaverage intellectual functioning" and "significant limitations in adaptive [social and practical] skills," all evident before the age of 18. The court also indicated that scores under "approximately 70" typically indicate retardation.

Florida passed a law with a bright-line cutoff, requiring defendants to prove that their IQs were at or below 70. Though the trial court and Florida Supreme Court both (pre-Atkins) found that Hall was "probably somewhat retarded," Florida's high court upheld his execution after Atkins due to a trifecta of IQ scores: 71, 73, and 80, reports The New York Times.

Is that bright-line rule consistent with a constitutional rule that the execution of the mentally retarded is "cruel and unusual punishment?"

Robers v. United States: Mortgage Fraud Restitution

Like "Roberts," but without the "t."

The Mandatory Victims Restitution Act of 1996 requires the defendant to return property to its owner, but when return of the property is inadequate, the statute requires the defendant to pay the "value of the property on the date of sentencing, less the value (as of the date the property is returned) of any part of the property that is returned."

For these types of offsets in a mortgage fraud context, the question is how to value the collateral real estate. In recapping Robers, the Circuit Splits blog noted that the Seventh Circuit joined the Third, Eighth, and Tenth Circuits in holding that the real estate is valued at the time of the foreclosure sale. (This is good for the victim, as the property is probably worth diddly-squat at the time of foreclosure, especially considering the housing bubble.)

Conversely, the Second, Fifth, and Ninth Circuits establish valuation at the time the victims obtain title to their homes (closer to the peak value of the home, which seems to mean that the victims feel the brunt of the bubble burst).

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