In the following 2006 journal article, Duvall and Morris outline a number of critical issues that psychologists must recognize when serving as expert witnesses in Atkin’s MR/death penalty cases. The primary focus of the article was on the U. S. Supreme Court Atkin's (2002) ruling that deferred to the states when defining mental retardation.
- Duvall, J. C. & Morris, R. J. (2006). Assessing Mental Retardation in Death Penalty Cases: Critical Issues for Psychology and Psychological Practice (2006). Professional Psychology: Research and Practice 37 (6), 658 – 665. (click here to view)
In 2002, the United States Supreme Court decided the Atkins case, which held that mentally retarded defendants could not be executed. The opinion gave no guidance on the definition of mental retardation, preferring to leave to individual states the task of determining not only the definition of mental retardation but also the assessment procedures to be used in making the diagnosis. This lack of guidance has resulted in many issues, including varying definitions of what constitutes mental retardation across states, use of different assessment procedures to make the determination that a person has mental retardation, and numerous psychometric concerns regarding the provision of psychological assessment services to the courts in capital cases that involve a defendant who may have mental retardation. This article examines these latter issues in detail from both psychological and legal perspectives and makes recommendations for practicing psychologists.
[note – italics designates direct quotes. Underlining reflects emphasis of the blogmaster].
The Atkins opinion recognized two different clinical definitions of mental retardation--the 1992 American Association on Mental Retardation (AAMR) defintion and, the 2000 definition published by the American Psychiatric Association in the Diagnostic and Statistical Manual of Mental Disorders (4th ed., text rev.; 2000).
The 1992 AAMR mental retardation definition requires substantial limitations in present functioning “characterized by significantly sub-average intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work.” Further, mental retardation must manifest before age 18 (Atkins v. Virginia, 2002, p. 308, n. 3).
The American Psychiatric Association formulation is as follows: The essential feature of mental retardation is significantly sub-average general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/ interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). (American Psychiatric Association, 2000, p. 41)At the time of this 2006 article, according to the authors, the federal government and 38 states permitted the execution of defendants found guilty of capital crimes. Prior to Atkins only 19 states had enacted statutes prohibiting the execution of persons meeting a statutory definition of MR. After the SCOTUS decision an additional 10 states enacted such statutes. "In addition, 11 states that permit imposition of the death penalty still lack any express statutory bar to the execution of a person having mental retardation. These states are Alabama, Mississippi, Montana, New Hampshire, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, and Wyoming (“Oklahoma Senate,” 2006; “Our Turn,” 2006; Rawls, 2005)."
An example of the post-Atkin's effect on states was the state of Texas which, via Atkins, "compelled the Texas Court of Appeals to make its own definition of mental retardation, and it chose the 1992 AAMR definition (Ex Parte Briseno, 2004). Courts in other states that still lack governing statutes have created their own definitions and procedures as well."
A valuable component of the this article was the provision (via a table) of a summary of the definitions, operational cut-off scores, and any mandated assessments in different states that had laws protecting individuals with MR from being executed (see Table 1 in article) As Duvall and Morris discuss, a situation can arise where a psychologist is faced with an ethical issue when a state has a different cut-off score for MR when compared to the AAMR and APA operational definitions.
many statutes appear to provide that an IQ score above 70 (or in Connecticut, above 69) would alone defeat a defendant’s claim that mental retardation exempts him or her from eligibility for the death penalty. These legislated cutoff scores directly conflict with American Psychiatric Association and AAMR definitions, which permit IQ scores of 70 to 75 as indicative of sufficiently subaverage intellectual functioning (Luckasson et al., 2002).
the use of a “70” IQ score as a cutoff score reflects a statistical convention rather than a natural boundary and that using precise cutoffs mistakenly suggests that a 1-point difference in two people’s scores reflects a significant difference in their cognitive capacities.
Flynn Effect issues:
According to Duvall and Morris, in 2006 no state statute specifically addressed the Flynn effect (see prior posts), an issue that can have a major impact on death penalty cases.
For example, in those cases in which a defendant was convicted during either the beginning or end of a renorming period, the defendant’s IQ could be artificially lower or higher.
Thus, a potentially important implication of the Flynn effect is that some borderline death row inmates or capital murder defendants who were not classified as mentally retarded in childhood because they were administered an older version of an IQ test will qualify as mentally retarded if they are administered a more recent test. Given the magnitude of the effect (nearly a full standard deviation decrease in IQ is associated with changing norms since the first edition of the WISC was phased out in the early 1970s), the shifts in eligibility for death row inmates could be significant.
Potential ethical issues:
As per the 2002 Ethics Code and Legally Mandated Procedures for Assessing Mental Retardation In the Ethical Principles of Psychologists and Code of Conduct (APA, 2002), Standard 9.02(a) states: “Psychologists administer, adapt, score, interpret, or use assessment techniques, interviews, tests, or instruments in a manner and for purposes that are appropriate in light of the research on or evidence of the usefulness and proper application of the techniques” (p. 1071).
Although this standard may sound simple in the abstract, Duvall and Morris discuss a number of potential ethical issues that may surface for psychologists as a function of the state in which they perform as an expert witness. For example:
the question arises whether the legally mandated practices in many states involving a number of test administrations by different experts within a short period are consistent with the “proper application” of the procedure for measuring IQ. Standard 2.04 of the ethics code states that “Psychologists’ work is based on established scientific and professional knowledge of the discipline” (APA, 2002, p. 1064). The question here is whether “established scientific and professional knowledge” supports psychologists performing multiple intellectual assessments within a short period of time, without communicating with other professionals regarding which tests were used, and without considering the impact of practice effects and related reliability and validity issues on the test results obtained. The concern is particularly pressing in states such as Kentucky and Tennessee where the case law appears to make the psychologist’s scoring of an IQ test the sole cause for disqualifying a defendant claiming mental retardation to escapeAccording to Duvall and Morris (in 2006):
it appears that no states whose statutes provide for more than one examination by different experts include any provision expressly addressing the psychological measurement issues or the test–retest reliability problems Moreover, no state statute mandates communication between the evaluators so multiple assessment using identical instruments can be avoidedA number of the issues raised by the authors boil down to “ how should a psychologist proceed who (a) is interested in providing psychological services to the court to determine whether a person has mental retardation and (b) desires to behave in a manner consistent with the APA ethics code?”
According to Duvall and Morris, the APA ethics code does provide some assistance for these situations via Standard 1.02:
which addresses what to do if ethical responsibilities conflict with law, regulations, or other governing authority. It states, psychologists must make known their commitment to the Ethics Code and take steps to resolve the conflict. If the conflict is not resolvable via such means, psychologists may adhere to the requirements of the law, regulations, or other governing legal authority. (APA, 2002, p. 1063)
However, Duvall and Morris point out that by following the law a psychologist could be violating basic principles and practices of accepted psychological testing practice—“therefore, a psychologist who provides psychological assessment services to a particular state, as well as any subsequent expert testimony, will conceivably act in accordance with the law while at the same time providing results and testimony that could very possibly be inconsistent with current professional standards of practice, or as the ethics code states, “established scientific and professional knowledge” (APA, 2002).”
So. What is a conflicted psychologist to do?
One way to counteract this conundrum is for the psychologist to follow Standard 1.02 of the APA ethics code by adhering to the law and stating in his or her psychological report, as well as indicating in his or her court testimony the limitations of his or her findings based on the standards of sound psychological testing practices. By informing the court, as well as the prosecution and defense, a decision can be made regarding the fairness of the psychologist’s assessment. A more simple solution is for psychologists to refuse appointments to provide assessments in those states whose statutes clearly violate sound psychometric practices. When the difference in a single IQ point can mean the difference between eligibility and ineligibility for the death penalty, it would appear to us that psychologists involved in these cases should apply the standard of psychological care advocated by the APA ethics code rather than the law.
Summary and Conclusion Section of Article
The lack of guidance in Atkins about definitions and procedures appears problematic for psychological practice because states have different definitions of mental retardation, cutoff score criterion, and assessment procedures. Moreover, some procedures mandated by statute appear to defy sound psychological measurement principles. These circumstances have created an ethical dilemma for those psychologists who choose to assist states in determining whether a defendant in a capital case has mental retardation. Psychologists must follow both the law and the ethics code of their profession. The problem is that the implementations of the Atkins decision in many states can cause psychologists to act in a manner that may violate the APA ethics code. In these instances, psychologists could refuse to accept a court appointment to provide such services and, therefore, avoid an ethical–legal conflict. In instances, however, where such an appointment is accepted, it would appear that psychologists should state clearly in their report to the courts (as well as in any subsequent testimony) the specific limitations associated with their findings that affect the external and internal validity of the test results.
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