Sixth Circuit Court of Appeals rules against Flynn effect adjustment of IQ scores in Atkins death penalty cases: Black v Carpenter (2017)

A newly published 6th Circuit opinion (Black v Carpenter, 2017) rules against norm obsolescence (the Flynn effect) in the evaluation of IQ test scores in Atkins ID death penalty cases.  I obviously disagree with this decision as outlined in my 2015 chapter in the AAIDD "The Death Penalty and Intellectual Disability" (Polloway, 2015).

I have no further comment at this time as my expert opinion is clearly articulated in the AAIDD publication and I will continue my efforts to educate the courts.  This decision is at variance with the official positions of American Association on Intellectual and Developmental Disabilities (AAIDD) and the American Psychiatric Association (DSM-5), the two professional associations with official  guidance regarding  the diagnosis of ID. 

This looks like another issue that might need the attention of SCOTUS.

The following section is extracted from the complete ruling.


E. Implications of the Flynn Effect

There is good reason to have pause before retroactively adjusting IQ scores downward to offset the Flynn Effect. As we noted above, see n.1, supra, the Flynn Effect describes the apparent rise in IQ scores generated by a given IQ test as time elapses from the date of that specific test’s standardization. The reported increase is an average of approximately three points per decade, meaning that for an IQ test normed in 1995, an individual who took that test in 1995 and scored 100 would be expected to score 103 on that same test if taken in 2005, and would be expected to score 106 on that same test in 2015. This does not imply that the individual is “gaining intelligence”: after all, if the same individual, in 2015, took an IQ test that was normed in 2015, we would expect him to score 100, and we would consider him to be of the same “average” intelligence that he demonstrated when he scored 100 on the 1995-normed test in 1995. Rather, the Flynn Effect implies that the longer a test has been on the market after initially being normed, the higher (on average) an individual should perform, as compared with how that individual would perform on a more recently normed IQ test.

At first glance, of course, the Flynn Effect is troubling: if scoring 70 on an IQ test in 1995 would have been sufficient to avoid execution, then why shouldn’t a score of 76 on that same test administered in 2015 (which would produce a “Flynn-adjusted” score of 70) likewise suffice to avoid execution? Further, even if IQ tests were routinely restandardized every year or two to reset the mean score to 100, and even if old IQ tests were taken off the market so as to avoid the Flynn Effect “inflation” of scores that is visible when an IQ test continues to be administered long after its initial standardization, that would only mask, but not change, the fact that IQ scores are said to be rising.

Indeed, perhaps the most puzzling aspect of the Flynn Effect is that it is true. As Dr. Tassé states in his declaration, “[t]he so-called ‘Flynn Effect’ is NOT a theory. It is a wellestablished scientific fact that the US population is gaining an average of 3 full-scale IQ points per decade.” The implications of the Flynn Effect over a longer period of time are jarring: consider a cohort of individuals who, in 1917, took an IQ test that was normed in 1917 and received “normal” scores (say, 100, on average). If we could transport that same cohort of individuals to the present day, we would expect their average score today on an IQ test normed in 2017—a century later—to be thirty points lower: 70, making them mentally retarded, on average.

Alternatively, consider a cohort of individuals who, in 2017, took an IQ test that was normed in 2017 and received “normal” scores (of 100, on average). If we could transport that same cohort of individuals to a century ago, we would expect that their average score on a test normed in 1917 would be thirty points higher: 130, making them geniuses, on average.

It thus makes little sense to use Flynn-adjusted IQ scores to determine whether a criminal is sufficiently intellectually disabled to be exempt from the death penalty. After all, if Atkins stands for the proposition that someone with an IQ score of 70 or lower in 2002 (when Atkins was decided) is exempt from the death penalty, then the use of Flynn-adjusted IQ scores would conceivably lead to the conclusion that, within the next few decades, almost no one with borderline or merely below-average IQ scores should be executed, because their scores when adjusted downward to 2002 levels would be below 70. Indeed, the Supreme Court did not amplify just what moral or medical theory led to the highly general language that it used in Atkins when it prohibited the imposition of a death sentence for criminals who are “so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus,” 536 U.S. at 317. If Atkins had been a 1917 case, the majority of the population now living—if we were to apply downward adjustments to their IQ scores to offset the Flynn Effect from 1917 until now—would be too mentally retarded to be executed; and until the Supreme Court tells us that it is committed to making such downward adjustments, we decline to do so.

* * *

COLE, Chief Judge, concurring in the opinion except for Section II.E. I concur with the majority opinion except as to the section discussing the implications of the Flynn Effect. In holding that Black did not prove that he had significantly subaverage general intellectual functioning, we concluded that Black’s childhood IQ scores would be above 70 even if we adjusted those scores to account for both the SEM and the Flynn Effect. Accordingly, I would not address the question of whether we should apply a Flynn Effect adjustment in cases generally because it is unnecessary to the resolution of Black’s appeal. Regardless, courts, including our own in Black I, have regarded the Flynn Effect as an important consideration in determining who qualifies as intellectually disabled. See, e.g., Black v. Bell, 664 F.3d 81, 95–96 (6th Cir. 2011); Walker v. True, 399 F.3d 315, 322–23 (4th Cir. 2005).

The Newly Informed Decency of Death: Hall v. Florida Endorses the Marshall Hypothesis in Eighth Amendment Review of the Death Penalty by Chance Meyer :: SSRN

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3004672

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APA Handbook of Forensic Neuropsychology

APA Handbook of Forensic Neuropsychology

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Cole, Simon A.; Bertenthal, Alyse
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Research Byte: Reliability of competence and sanity opinions---a meta-analysis

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"Intelligent" intelligence testing with Wechsler Arithmetic test

This article is a good reminder that "intelligent" intelligence testing requires "knowing thy subtests."

The authors conclude "In summary, while Arithmetic may be considered a measure of concentration or working memory, it should be kept in mind that many other factors influence it and that its specificity as a concentration measure is limited."







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The development of expertise

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File under the assessment of malingering

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Preserved cognitive functions with age are determined by domain-dependent shifts in network responsivity

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On the coat tails of Moore. Sosa has sentence reused to LWOP---Atkins case

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SCOTUS blog summary of Moore v Texas Atkins decision

SCOTUSblog

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• Opinion analysis: A victory for intellectually disabled inmates in Texas
• Argument transcript
• Argument analysis: Justices hesitant about extending ERISA to church-affiliated pension plans
• Argument preview: Court to weigh suppression of evidence in notorious D.C. murder
• Live blog of opinions (Update: Completed)
• Tuesday round-up
• Petition of the day
• Argument transcripts

Opinion analysis: A victory for intellectually disabled inmates in Texas

Posted: 28 Mar 2017 10:51 AM PDT

A Texas death-row inmate will get a shot at a new sentence after the Supreme Court ruled today that a state court applied the wrong standards to conclude that he was not intellectually disabled and therefore could be executed. Bobby James Moore was convicted and sentenced to death for shooting a supermarket employee during a 1980 robbery. But Moore argued that he was exempt from execution because he was intellectually disabled – for example, he failed first grade twice, still did not grasp basic principles like telling time at the age of 13, and had suffered a "debilitating" injury when he was hit in the head with a chain and a brick during the battle over integrating public schools.

The Texas Court of Criminal Appeals – the state's court of last resort for criminal cases – rejected Moore's challenge to his death sentence. It relied on its 2004 decision in another case, Ex parte Briseno, involving an inmate's intellectual disability. Briseno used a set of 1992 standards for evaluating intellectual disability, along with several "evidentiary factors" that take into account, among other things, whether the people who knew the inmate best when he was growing up regarded him as intellectually disabled. Moore asked the Supreme Court to weigh in; today the justices, by a vote of 5-3, vacated the Texas court's ruling and sent the case back for a new look.

Justice Ginsburg with opinion in Moore v. Texas (Art Lien)

In an opinion by Justice Ruth Bader Ginsburg that was joined by Justices Anthony Kennedy, Stephen Breyer, Sonia Sotomayor and Elena Kagan, the court acknowledged that its recent decisions on intellectual disability and the death penalty assign to the states the primary responsibility for "the task of developing appropriate ways to enforce" the Constitution's bar on executing intellectually disabled inmates. But, the court explained, those decisions do not give the states free rein: Although states do not have to follow every detail of the most recent medical guide on intellectual disabilities, they cannot disregard the standards in those guides either.

In this case, the court concluded, the Texas court's ruling was wrong in multiple respects. First, the justices reasoned, the Texas court should not have focused just on Moore's IQ score of 74. Instead, the Texas court should have also considered the standard error of measurement – that is, the amount that scores could fluctuate around a "true" score. Looked at that way, Moore's score would range from 69 to 79, which would have required the Texas court to consider other evidence of his possible intellectual disability.

The Texas court's decision was also flawed, the Supreme Court continued, because it did not consider current clinical standards when evaluating how well Moore could handle the demands of everyday life, which is a key factor in determining whether someone is intellectually disabled. For example, the Texas court emphasized Moore's strengths – such as that he "lived on the streets, mowed lawns, and played pool for money" – when clinical standards indicate that it should have focused on his deficits.

The Texas court made the problem even worse, the justices reasoned, when it looked to the "evidentiary factors" outlined in the Briseno case. Those factors were essentially invented by the Texas court, without any basis in either medicine or law; indeed, even Texas itself does not use them to determine whether someone is intellectually disabled in other contexts. Instead, the court stressed, the factors rely on inaccurate stereotypes of the intellectually disabled by laypeople and are intended to reflect a consensus by Texans as to which defendants should or should not be subject to the death penalty. But even if an inmate has a relatively mild disability, the court emphasized, such that the Briseno factors would suggest that he is not exempt from execution, the Constitution bars the states from executing anyone with an intellectual disability.

Chief Justice John Roberts dissented from today's ruling, in an opinion joined by Justices Samuel Alito and Clarence Thomas. As an initial matter, Roberts agreed with the majority that the Texas court's reliance on the Briseno evidentiary factors was "incompatible with the Eighth Amendment." But, in Roberts' view, that conclusion was irrelevant, because he would have let stand the Texas court's conclusion that, based on his IQ, Moore was not intellectually disabled. More broadly, Roberts complained that the court's ruling today does not give states enough guidance about how to proceed in similar cases going forward: "States have 'some flexibility' but cannot 'disregard' medical standards. Neither the Court's articulation of this standard nor its application sheds any light on what it means."

After the oral argument, today's decision was not entirely unexpected. But it still represents a big victory for Bobby James Moore and other intellectually disabled inmates on death row in Texas. And it will likely lead to new litigation in the other states that have not adopted legal definitions of intellectual disability that are not specifically based on the current medical standards. Whether it will lead to the confusion at which Roberts hints remains to be seen.

The post Opinion analysis: A victory for intellectually disabled inmates in Texas appeared first on SCOTUSblog.

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Breaking News: SCOTUS vacates Moore v Texas Atkins decision: Briseno adaptive behavior standards not consistent with medical consensus

SCOTUS has vacated Moore v Texas which had as the central issue the inappropriate use of the state of Texas's unusual Briseno adaptive behavior standards.

Prior posts regarding this case can be found here. The history of the case before SCOTUS is available at the SCOTUS blog. A copy of the decision can be accessed here.

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"The Misjudgment of Criminal Responsibility"

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"The Misjudgment of Criminal Responsibility"
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Recently Published on SSRN: "The Misjudgment of Criminal Responsibility" ROBERT A. BEATTEY, CUNY, John Jay College of Criminal Justice MARK R. FONDACARO, J.D., PH.D., John Jay College - CUNY Generally, a criminal statute must consist of two essential elements: a...
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