Friday, October 30, 2009

Adolescent cognitive maturity and capital punishment: APA American Psychologist articles and amicus briefs

I had just started reading the latest issue of the American Psychologist with great interest, when Karen Franklin (In the News Blog) posted a nice summary of the featured article.  A central issue in the featured article, which also had some response counter-point articles, is what appears at face value to be APA's schizophrenic stance, as articulated in two different Amicus Briefs, re: whether adolescents have the cognitive maturity to make certain decisions (criminal behavior vs ability to make decision for an abortion).  As a result of eventual court decisions, juvinelle's can not be consider for capital punishment (death penalty).  The articles make for interesting reading re: the use of psychological research to inform judical thinking and decision-making.

The two different APA Amicus Briefs can be found at Psychology and the LawRoper v Simmons (2005) and Hodgson v Minnesota (1990).  A more recent APA Amicus Brief related to juvenile sentencing and the death penalty (Graham v Florida; Florida v Sullivan) is also of interest for capital punishment cases.  All APA Amicus Briefs can be reviewed by clicking here.

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Intelligence theory and testing posts in the "pipeline"

Future posts at either ICDP or IQs Corner blogs.
  • What does the WAIS-IV measure per CHC theory?
  • School psychologist potential role in Atkins MR proceedings (with actual case example from court records)
  • Can a person with mild MR achieve above their IQ? (remember Forrest Gump)
  • Courts struggle with establishing adaptive behavior functioning during childhood
  • Why IQ scores may differ - scoring errors are potentially more of a problem than we acknowledge
  • Description/overview of major IQ tests
  • CHC analysis of major IQ tests, with emphasis on composite scores (since these are what are paid attention to in court proceedings)
  • Hopefully clear definitions of "standard error of measurement" and "standardized tests" some misunderstandings need clarification
  • Why you can't average standard scores...a psychometric "no no"
  • plus other stuff
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Five Atkins court decisions posted today: Atkins "Decision Friday"

The on-line "what topics do you want covered" survey has revealed a number of reader preferences.  ICDP readers clearly want access to copies of Atkins MR IQ/Adaptive Behavior court decisions.  I've posted a good number in the Court Decisions section of the blog and have, whenever possible, made comments, critiques, raised questions, etc.  However, I've got a number of copies of decisions stacked up like airplanes at O'Hare airport during peak flying times.

To remedy this situation, today I'm posting PDF copies of all court decisions I have in my in-box without comment.  Readers can check them out now.  The following have been posted and are now included in the Court Decisions section of the blog.  As time permits I will make comments, etc. related to some of these decisions.

Also...a tip-of-the-hat to Kevin Foley (a regular guest blogger) and Karen Salekin (see Professional Experts blogroll) for providing copies of most of these files or directing me where to locate such files.

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Wednesday, October 28, 2009

Lewis v Quarterman (Texas, 2008): Improper test administration and the role of IQ test authors in Atkins cases

The failure of a psychological examiner to follow an IQ tests standardized testing procedures in an Atkins case.  The role of expert testimony by the author of the IQ test in question.  A couple new wrinkles in another Atkins decision.  Lewis v Quarterman (Texas, 2008) has been added to the Court Decisions section of ICDP.  I'd like to thank Kevin Foley, a regular guest blogger at ICDP for the tip on this decision.

In Lewis (2008), the primary issue was the first prong of the MR determination---level of general intellectual functioning.  Lewis had been tested three times (of course, with the traditional adult WAIS-III battery), but his most recent IQ score was based on the Stanford-Binet Fifth Edition (SB5; SB-V), a battery based on the contemporary CHC theory of cognitive abilities.  Lewis had full scale scores of 59 (WAIS-III),70 and 79.  The later score (SB5 score of 79) was the major point of contention in this decision.  Although it is not atypical for attorneys representing either side in Atkins cases to raise challenges about proper administration and scoring of an IQ test, what is unique (in this case) is the filing of an affidavit (by the defense) by the author of the SB V (Dr. Gale Roid).  Asking authors of the IQ tests to provide expert input is not the norm in Atkins cases, and does take the issue of proper test administration and scoring to a higher level.

Before proceeding, I should reveal that I am a colleague of Dr. Roids and was initially on the revision team for the SB V (check out acknowledgments section).  I did not continue on the project as the revision of the WJ III was ramping up (I'm a coauthor) and I did not have sufficient time to work on both.  There is a small fraternity/sorority of applied psychometricians who specialize in developing or revising individualized intelligence tests.  Dr. Roid is one.  I have tremendous respect for his psychometric skills and professional integrity.  Also, by way of background, my interest in starting the ICDP blog originated when I was asked to do the same, but for the battery I am a coauthor (WJ III/BAT III).  I did not review taped test administration but was asked to check the scoring and correct use of the computer scoring and proper norms.  I will eventually make a post about this experience in the context of the issues of test administration and scoring errors. 

It is my professional belief that some (but not all) test authors can provide an important external validity check re: questions raised about proper test administration and scoring of the tests they develop.  This is my professional opinion as a coauthor of an individually administered cognitive and achievement test battery.   However, in many cases it is not possible to identify a single author that can serve as an expert for a test that may be used in court proceedings.  Some IQ tests have multiple authors on the team, each responsible for different (and sometimes overlapping) parts of the tests construction, norming, and statistical analysis.  In other cases a test author may be an professional with a strong publication background and solid theoretical knowledge, but it is the internal staff at the test's publisher that do the major test construction, norming, and psychometric analysis....the publishers internal psychometric staff may know more about the technical aspects of a test (that would benefit the court) than a particular author. 

There is only a handuful (I can count them on one hand) of intelligence test authors who are involved in all aspects of the development of the test (inclusive of the psychometric analysis and development of the test score norms) and who can provide valuable, objective, external expert information to the courts.  Also, some authors may have contractual limitations with a publisher that prohibit them from testifying about the test in legal proceedings.  All this being said, it is my professional belief that  authors that are appropriately and uniquely qualified (e.g., Dr. Gale Roid) can provide valuable input to courts regading testing issues related to their test.  Professionally I believe I have these qualifications related to the WJ III system of instruments and intelligence test development and psychometrics in general.  But let’s get back to the Lewis decision.

The SB5 score of 79 was the primary point of argument in the Lewis decision.  As often happens in these cases, when IQ testing is conducted, the testing is often taped.  This allows for state and/or defense experts to review the IQ testing for the appropriate use of standardized testing procedures (as spelled out by the tests manuals) and possible scoring errors.  A defense expert (not Dr. Roid) had “re-scored” the SB5 and came up with an adjusted score of 75, based on the judgment that errors were made in administration in scoring.

Dr Roid concluded that the original administration and scoring of the SB5 was improper as it included "nine procedural errors"--errors that significantly invalidated the resultant score. According to the decision:
Dr. Roid is the author of the Stanford-Binet IQ test administered to Lewis by Dr. Rosin. Dr. Roid reviewed Dr. Rosin's testimony, notes from, and video recordings of, Dr. Rosin's administration of the IQ test to Lewis, and the test results. The conclusions detailed in Dr. Roid’s affidavit were: administration of the test to Lewis was invalid because standardized procedures were not followed, making the use of the published norms questionable; and, the effect of assistance given by Dr. Rosin to Lewis during the IQ test administration would result in an inflated IQ estimate.

Of particular interest for this blog post, is the fact that the appellate courts oral arguments re: the SB5 test administration and scoring are available for all to hear.  I found the discussion by the very involved panel and lawyers insightful as they struggled to understand psychometric concepts in their own language and vocabulary.  The oral argument can be accessed at the court's argument page [follow the link and type in the docket number - 07-70024 -  in the space provided].  Or, a copy of the MP3 file can be downloaded by clicking here [ is a large file]

Some quotes from the taped oral argument that struck me where:

  • "Outlier" IQ of 79
  • “variances from protocol” --- which meant failure to follow the SB5’s standardized test administration procedures
  • "infected the score" --- which was a panel member’s way of communicating that a score had been invalidated
  • "dumbed it down" --- a quote referencing the fact that the examiner did not follow the standard directions for a working memory test via not requiring the essential task demand of the working memory test (active manipulation of stimuli while being held in working memory)---thus changing the construct being measured.  The test was now measuring an easier aspect of short-term memory.
What I found particularly disturbing (in the oral argument) was the mention of the argument (made by the psychologist who had originally administered the SB5)  that the standard error of measurement (SEM) accounted for any procedural errors made.  Yes, SEM does reflect some variance in scores due to scoring errors, but cannot be a shield to hide behind when multiple standardized procedural errors are made---particularly if certain procedural errors result in significant raw score changes that invalidate ("infect") the final score.  Carried to its logical extreme, any psychologist could make their own idiosyncratic adjustments to a tests standardized testing procedures and claim that the standard error of measurement confidence band would still include the person's "true" IQ score.  As someone who has (a) administered over 1,000 IQ tests during my career, (b) developed standardized intelligence tests, and (c) trained individuals in standardized testing procedures, I'm concerned  the concept of SEM might be abused to hide improper methods that invalidate test scores.  As I learned during my graduate level intelligence testing course, there are only two ways to give a standardized test --- word-for-word or verbatim!  Of course, all well trained examiners are familiar with the accepted practice of "testing the limits" procedures, but that is a topic for another day.

In my opinion, the decision of the appeals court was correct.  They got it right.  They vacated and remanded the original district court decision---telling the district court judge to "go back to the drawing board."

I would urge psychologists who engage in intelligence testing to listen to the oral be the mouse in the corner and hear how legal professionals grapple with IQ testing and psychometric concepts.  It is very interesting.  Also, this decision, as well as others I've read, suggest the need for future blog posts that more precisely define the psychometric concepts of the standard error of measurement (SEM) and standardized testing procedures.  I will work on those in the near future.

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Monday, October 26, 2009

Bit off-task FYI: ABA National Mentor Program for Lawyers and Law Students with Disabilities

This FYI post is a bit "off task" for the focus of the ICDP blog.  The post is intended primarily for folks in the legal professional who may be reading this blog.  I make this FYI post given my long-standing involvement in special education and disability issues during my career.

The Disability Discussion Docket (3D) listserv, a service of the ABA Commission on Mental and Physical Disability Law, just released its  National Mentor Program for Lawyers and Law Students with Disabilities handbook.

As mentioned in the list post, "The Handbook is an easy to use document that has tips, definitions, and concepts to make your existing mentor-mentee relationship even better! The Handbook is meant for mentees and mentors, novices and experts."

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Friday, October 23, 2009

Research briefs 10-23-09: Malingering, bias,expert testimony, IQ testimony,neuropsychological testing

Articles that caught my eye during my weekly search of a wide range of professional literature.

Heilbronner, R. L., Sweet, J. J., Morgan, J. E., Larrabee, G. J., & Millis, S. R. (2009). American Academy of Clinical Neuropsychology Consensus Conference Statement on the Neuropsychological Assessment of Effort, Response Bias, and Malingering. Clinical Neuropsychologist, 23(7), 1093-1129.
During the past two decades clinical and research efforts have led to increasingly sophisticated and effective methods and instruments designed to detect exaggeration or fabrication of neuropsychological dysfunction, as well as somatic and psychological symptom complaints. A vast literature based on relevant research has emerged and substantial portions of professional meetings attended by clinical neuropsychologists have addressed topics related to malingering (Sweet, King, Malina, Bergman, & Simmons, 2002). Yet, despite these extensive activities, understanding the need for methods of detecting problematic effort and response bias and addressing the presence or absence of malingering has proven challenging for practitioners. A consensus conference, comprised of national and international experts in clinical neuropsychology, was held at the 2008 Annual Meeting of the American Academy of Clinical Neuropsychology (AACN) for the purposes of refinement of critical issues in this area. This consensus statement documents the current state of knowledge and recommendations of expert clinical neuropsychologists and is intended to assist clinicians and researchers with regard to the neuropsychological assessment of effort, response bias, and malingering.

Frumkin, I. B. (2006). Challenging expert testimony on intelligence and mental retardation. The Journal of Psychiatry & Law, 34, 51-71.
An accurate assessment of a defendant's intellectual functioning is oftentimes needed to help in the assessment of a variety of psycholegal issues. Psychologists' evaluations and testimony are sometimes based upon misinterpretation of data. A host of factors may not be considered that could influence how the psychologist, and ultimately the court, view a defendant's intellectual capabilities. This article will discuss definitions of intelligence and mental retardation, tests of adaptive functioning, the Flynn and practice effects, abbreviated scales of intelligence, crosscultural issues in intellectual assessment, and malingering of cognitive abilities.

Phillips, S. (2009). Legal disparities in the capital of capital punishment. Journal of Criminal Law & Criminology, 99(3), 717-755.

Death penalty opponents charge that wealthy defendants who can hire legal counsel are exempt from capital punishment, but that indigent defendants who receive court-appointed counsel are frequently condemned to death. The critique is based on sensational stories, but anecdotes cannot establish a causal relationship. To explore the issue systematically, the current research examines the impact of legal counsel on the District Attorney's decisions to seek the death penalty and juries' decisions to impose death sentences against adult defendants indicted for capital murder in Harris County (Houston), Texas from 1992 to 1999 (n=504). Harris County is the largest jurisdiction in the nation to use the appointment method rather than the public defender method to deliver indigent capital defense, though by no means the only such jurisdiction. The empirical comparison of hired counsel to appointed counsel in Harris County reveals three central findings: (1) Defendants who hired counsel for the entire case were never sentenced to death; (2) Defendants who hired counsel for a portion of the case were substantially less likely to be sentenced to death; (3) Hiring counsel is not the province of the wealthy, as almost all of the capital murder defendants in this study were poor. Though not the focus of the research and a finding that must be considered tentative, the data also reveal that defendants who hired counsel for the entire case were much more likely to be acquitted. To be clear, the findings are not an indictment of appointed attorneys, but rather an indictment of the structural deficiencies . inherent in the appointment method. The research concludes with a call for Harris County—the capital of capital punishment—to establish a Public Defender Office with a specific Capital Defender Office. Though not a panacea, the public defender method comes much closer to the adversarial ideal of evenly matched partisans doing battle to produce justice.

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IQ practice effect implications for Atkins MR death penalty cases

What are the implications of repeated testing with the same IQ test (practice effects) for Atkins MR related death penalty decisions?

I've been asked this question a number of times but have not had time to search the literature.  Today a generous IQDP reader (Saor Stettler; attorney in CA) sent me a link and PDF copy of a recent review article in the Open Access Journal of Forensic Psychology (click here for PDF copy of the web article).  It looks like a decent review of the literature related to a number of common instruments.  I know there is a pletheor a research on IQ practice effects.  This article might be a good starting point, particularly since it is written in the context of Atkins cases. Below is the citation and abstract.

Thanks to Mr. Stettler for sending this info.  I encourage other readers to sent me links, copies of articles, copies of Atkins decisions, etc.  There is much information available and only so much time to locate it.

Ray, C. L. (2009).  Ethical Implications of Practice Effects on Mental Retardation Claims in Capital Cases.  Open Access Journal of Forensic Psychology, Vol (1).
Using the same intelligence test for multiple examinations of a defendant in a capital case can result in practice effects.  Strict numerical IQ cutoffs are used in some states to determine whether or not a person is considered mentally retarded.  The practice effects of several intelligence tests are reviewed.  Findings are presented regarding practice effects for performance versus verbal items on intelligence tests.  The importance of time frames, IQ, frequency of re-evaluation, and age with respect to practice effects are examined.  Recommendations are discussed concerning the use of intelligence tests in capital cases.

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Thursday, October 22, 2009

Woods v Texas (2009): Another Atkins MR death penalty decision psychometric quagmire

Woods v Texas (2009) is the most recent (October 7, 2009) Atkins mental retardation death penalty decision I've come across (now added to Court Decisions listings).  Woods denial of classification of mental retardation was previously decided in 2008 (Woods v Texas, 2008).  And, per usual with these decisions, the decision contains a quagmire of psychometric issues.  Although I've stated previously that I'm no longer shocked at some of the psychometric testimony and the courts interpretations and decisions (sometimes which border of voodoo psychometric logic), I guess I still am....but more a form of numbness to some of the material I have read.  Woods v Texas (2009) does not disappoint with a boat-load of psychometric issues that need further exploration.

As I've stated previously, I simply can not keep up with these cases.  Each requires considerable study and reflective thought...and I currently lack the time to do each justice.  Rather than sit on these decisions until I have the time, I'm posting them so others, who may have the time or motivation, may dissect them and possibly offer comments via the comments feature of this blog or, and my preference, to submit a guest blog post for publication at this site.

The above being said, I've done a very quick skim of the decision and see some of the "old familiar" measurement issues being present, and some "newbies".  Below is a sampling of issues that need to be addressed in sfuture post:

  • Flynn Effect
  • Standard error of measurement (SEM)
  • Diagnosis of MR before the age of 18.  Especially in the presence of IQ testing during the school years that produced IQ scores of 78 and 81, yet Wood's was diagnosed as learning disabled (LD) and not MR.  I've yet to delve into the whole issue of the accuracy of school-based classifications.  Having been a school psychologist for 10+ years, during the time when IQ tests where under serious fire for MR classification, esp. for minority students (the famous  Larry P. decision that sent shock waves through the psyche of many school psychologists when it came to classifying any minority student as MR even when faced with IQ test scores that were in that range), I know that many students were given the more politically easy Dx of LD to avoid the potential fallout of  labeling someone (esp. a minority student) MR.  It was simply the "easy way out"....yet now I wonder if these decisions are clouding Atkins rulings related to the third prong of the definition of MR (Dx prior to age 18).  This is another whole post or series of posts.
  • Adaptive behavior (AB) definition.   I see in the decision, that in the same breath, both adaptive behavior and maladative behavior, which are separate constructs, are discussed as they exist under the single umbrella of adaptive behavior.  This relates to the discussion of the Scales of Independent Behavior--R (SIB-R) adaptive and maladaptive index scores.  Yet another long post or series of posts.  Toss in Texas' unique Briseno twist on adaptive behavior and there is much to dissect.
  • Adaptive behavior (AB) assessment.  Aside from using an appropriate nationally normed measure of AB (SIB-R), I'm dumbfounded by the use of the SSSQ as a measure of AB, given that the SSSQ was normed on a sample of individuals with disabilities.  Woods apparently scored 95, which was in the normal functioning range when compared to other individuals with disabilities.  This would be analagous to developing WAIS-III/IV IQ norms based only on a sample of individuals with mental retardation, and then giving the test to a person and saying they are average or normal.  It would only tell you that when compared to other individuals with MR, they are better functioning than most so classified people.  Standardized psychometric instruments (IQ or AB) used in Atkins decisions  should only be based on nationally representative samples characteristic of the populatlion of the US....not a select subsample of individuals with disabilities.  This makes no sense. 
  • Competency to stand trial.  Then there is the use of an instrument I've not yet familarized myself with..the Competency Assessment to Stand Trial For Defendants with Mental Retardation (CAST-MR).  This may be an excellent psychometric tool....I need to examine it and determine how it fits in the whole Atkins three-prong defintion of MR for death penalty cases.  It has been my understanding (which I need to verify) that competency to stand trial is a separate issue from determination of mental retardation.  Again....I suspend judgment and comments until I can get up to speed on this instrument.  That being said, a skim of the decision suggests the scores were used when debating whether Woods was MR...hmmmm.....doesn't seem appropriate.
  • Short form IQ tests.  Do short form screening IQ tests (e.g., WASI) have any place in Atkins MR determination?
More than enough to chew on. 

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Wednesday, October 21, 2009

Dufour v Florida (2008-2009): State of Florida has its psychometric head in the sand re: precision of IQ scores in Atkins death penatly cases

More on Dufour v Florida (in process) Atkins case. [Note.  Dufour has been added to the Court Decisions section of the blog]

The other day I posted an AAIDD Amicus Brief supporting Dufour's appeal fo the Florida Supreme Court for a a diagnosis of mental retardation.  It was clear from the brief that one of the main points of contention was the argument that the court needed to take into consideration the standard error of measurement (SEM) in IQ scores.

I've now obtained copies of the most recent Ninth Judicial Circuit Courts 2008 order denying Dufour's motion for determination of mental retardation (click here to view).  Despite a number of total full scale IQ scores just above 70, and others below 70 (although questions were raised about their validity--e.g., malingering) it is my reading of this order that the state of Florida has drawn a line in the psychometric sand at the IQ score of 70, and that SEM is not to be taken into consideration in making a determination of mental retardation.  The Florida Supreme Court has consistently invoked an absolute MR criterion of "IQ of 70 or below" as evidenced on page 3 of the order (citing Phillips v State, 2008; Cherry v State (2007), Jones v State (2007)

It appears that the state of Florida has its psychometric head in the sand regarding one of the most basic, fundamental and accepted concepts in psychological measurement--namely, the tests are fallable (contain some measurement error) and, more importantly, psychometrics allow for the quantification of this known measurement error in the form of the SEM (which allows for the establishment of a confidence band around an obtained IQ score, reflecting the empirically known amount of error present in each score).  Pardon my psychometric bluntness...but the Florida Supreme Courts stance is simply wrong.  Intelligence testing, although the best empirical technology to emerge from the field of psychology, is not as precise as some technologies from the hard sciences.  You can not, and should not, establish single score cut-offs based on IQ tests.  They have a quantifiable and known degree of measurement precision that must be taken into consideration when making decisons about people

After the 2008 denial order, Dufour filed an ammended initial brief with the Florida Supreme Court (click here to view; apparently the first petition exceeded a maximum page length, thus resulting in the "ammended initial brief").   There is much to read and digest (e.g., early school performance suggestive of adaptive behavior and academic problems; issues of malingering during testing being raised; disagreements over scoring of items in subtests; etc --- I simply have not had time to read this brief in depth...I'm behind in reading all of the recent decisions I've located or people have sent me).  The brief outlines three arguments, only one (and just one aspect of this argument) which I focus on in this post.

Tthe original SCOTUS Atkins v Virginia decision fall-out (produced by allowing each state to set its own definition and criteria for mental retardation) is part of the problem with Dufour and other MR death penalty cases in Florida.  In the 2009 Dufour brief, it states that the Florida statute defines the subaverage intellectual component of MR as a score two standard deviations below the mean (which is IQ=70).  The brief states that the relevant Florida statute does NOT specify a specific IQ cut-off score of 70.  The argument is made that in a different decision (Foster v State, 2006), the court did allow for an IQ score as high as 75 (although the person was not considered MR due to the other "prongs" of the MR definition), which does reflect an acknowledgment of the SEM of IQ scores.  However, the Cherry v State (2007) decision, which set a score of 70, appears to be pivitol in how the Florida court has viewed subsequent Atkins related cases, included Dufour.

Regardless of the Cherry court decision, and regardless of the particulars and nuances of the various Atkins-related decisions made in Florida, the Florida Supreme Court needs to recognize the universally accepted professional/expert fact that intelligence test scores contain a quantifiable degree of measurement error that is represented by the SEM.  The SEM must be considered in the interpretation of IQ scores.   The Florida Supreme Court would receive a failing grade in any introductory graduate level assessment course for failure to recognize the importance of the SEM of IQ scores....but, of course, I would not assign a failing grade until I had bracketed their performance with the appropriate SEM-based confidence band.

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Tuesday, October 20, 2009

FYI: DPIC report on reconsideration of death penalty in current economy

FYI (no comment) post.

The Death Penalty Information Center has released its latest report, "Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis." The report combines an analysis of the costs of the death penalty with a newly released national poll of police chiefs who put capital punishment at the bottom of their law enforcement priorities.

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The Last Lawyer: A new book about borderline mentally retarded death row inmate (Guest post by Author John Temple)


In 2001, North Carolina passed a law banning the execution of the mentally retarded.  Among other conditions, the law required that defendants produce proof of a reliable IQ test of 70 or below.  As described in my new book, The Last Lawyer, the law set off a flurry of activity among the state’s capital post-conviction lawyers.

The Center for Death Penalty Litigation, a non-profit law firm in Durham, NC, that represents death row inmates and provides assistance to lawyers who take on capital post-conviction cases, led the response to the mental retardation law.  The CDPL organized an effort to screen the case of every inmate on North Carolina’s death row (at that time, about 200) for evidence of mental retardation.  Some anti-death penalty activists wanted to file mental retardation claims on behalf of all death row inmates – even the most able-minded – in hopes of clogging the system with pleadings.  That idea was discarded and, in the end, claims were developed on behalf of 52 inmates, a full quarter of the inmates on death row.

One of the claims involved a North Carolina farmhand named Levon “Bo” Jones, whose case provides the main narrative of The Last Lawyer.  Jones’s case shows how difficult it is for attorneys to gather strong evidence in borderline mental retardation cases. 

Jones had taken at least four IQ tests throughout his life, but the scores fell across a wide range: 71, 80, 83 and 98.  He was placed in Educably Mentally Retarded classes in the sixth grade, but if an IQ test had placed him there, those records had been lost.  Most frustrating of all, from his lawyers’ point of view, Jones refused for years to take a new IQ test.  A stubborn character, Jones hated any mention of the word “retarded” and believed his lawyers should have been focused on proving his innocence, not testing his intelligence
Undaunted, lawyers and investigators from the CDPL spent months and years crisscrossing the rural communities of North Carolina, gathering evidence about Jones’s life skills and abilities.  They interviewed Jones’s family members, former employers and teachers and developed a case for mental retardation despite of their own client’s opposition.

For more information about The Last Lawyer, please visit my website.

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Update to Ryan 8th Amendment Law Review Article

This is an update to post made yesterday regarding a law review (Washington University Law Review) article by Ryan--Does the Eighth Amendment Punishments Clause Prohibit Only Punishments That Are Both Cruel and Unusual

The original post now includes a copy of the abstract and a link to the current draft of this manuscript.

Amicus Brief: AAIDD (Dufour v Florida, 2009)

I just posted a new Amicus Brief (see Amicus Brief section of blog; click here to go to brief)  filed by AAIDD in Dufour v Florida (2009).  The brief focuses primarily on the need to incorporate the Standard Error of Measurement (SEm) in establishing a range for intellectual disability determination and the need for objective measurement of adaptive behavior (and not to place undue emphasis on specific adaptive behavior strengths).  The brief aruges that Florida law is not consistent with the Atkins v Virginia SCOTUS decision.

I'm hoping to locate copies of decisions related to the Dufour case and post them when I can.

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Monday, October 19, 2009

Atkins MR death penalty related law review articles from Washington University Law Review

[Note...this is a revision to this post originally made 10-19-09.  At that time I was unaware that I could download a current draft of the law review article by Ryan.  I've now downloaded it and it is available, along with the abstract, below]

Thanks to Sentencing Law and Policy for FYI re: the forthcoming article in the Washington University Law Review--Does the Eighth Amendment Punishments Clause Prohibit Only Punishments That Are Both Cruel and Unusual? by Professor Meghan J. Ryan.  The SLP blog provides a link to the abstract of the article. 

Below is the abstract.  Click here for copy of current draft.

Abstract (Ryan)
  • There is a great struggle in the United States between proponents of the death penalty and death penalty abolitionists who believe that the practice is cruel and even unconstitutional.  Although the punishment of death is enshrined in the Fifth and Fourteenth Amendments of the Constitution, the Supreme Court seems to have followed its moral compass in chipping away at the death penalty because of the cruelty of the practice.  The Court’s struggle between the text of the Constitution and its moral inclinations in the death penalty context has resulted in an inconsistent and confusing Eighth Amendment Punishments Clause jurisprudence.  While attempting to maintain neutrality on the topic and thus relying almost exclusively on assessing the unusualness of a practice through a purportedly objective assessment of state legislative action, the Court seems to have covertly injected into the equation its subjective views as to what punishments are unconstitutionally cruel.  This tension between an objective measure of unusualness and a subjective assessment of cruelty has led the Court to make inconsistent statements about whether the Punishments Clause prohibits only punishments that are both cruel and unusual, or rather prohibits both cruel punishments and unusual punishments.  This Article goes where no other has, identifying and exploring this important question.  After tracing the history of the Eighth Amendment, analyzing the Court’s early interpretations of the prohibition on “cruel and unusual punishments,” and parsing the text of the Punishments Clause, the Article concludes that the Clause prohibits only punishments that are both cruel and unusual and that each of these components of the Clause should thus be independently assessed.  While this interpretation may narrow the scope of the Amendment, it allows for further innovations in humane methods of punishment and revives the federalist foundation of this nation that the Court’s current jurisprudence has stifled.

Will poking around the Washington University Law Review I located another recent relevant manuscript of interest--Cruel and unequal punishments by Nita Frahany (click to view).  The article discussesimplications of the original Atkins v Virginia decision re: potential interactions/conflicts between the Eight and Fourteen Amendments of the U. S. constitution.


This Article argues that Atkins v. Virginia and its progeny of categorical exemptions to the death penalty create a new and as of yet undiscovered interaction between the Eighth and the Fourteenth Amendments of the U.S. Constitution. When the United States Supreme Court adapted its proportionality analysis from categories of crime to categories of people, it abandoned intrajurisdictional analysis, a de facto equality consideration under the Cruel and Unusual Punishments Clause. The Court, the legal academy, and commentators have failed to consider the remarkable equal protection implications of this doctrinal shift. To see the point in practice, one need only consider two criminal defendants: the first was mentally retarded from birth; the second suffered a traumatic brain injury at the age of twenty-two; and both have identical cognitive, behavioral, and adaptive impairments. Under state statutes cited approvingly in Atkins and others enacted since, the first defendant cannot be executed, but the second one can. This seems wrong on its face, but to understand why, it is necessary to explore the interaction of the Eighth and Fourteenth Amendments. The doctrinal shift in Atkins has profoundly altered that interaction, putting the Cruel and Unusual Punishments Clause in tension with the Equal Protection Clause. This Article illustrates that conflict, and how legislative classifications adopted pursuant to categorical exemptions under the Eighth Amendment may now be subject to Fourteenth Amendment scrutiny.

Disclaimer:  I'm not a lawyer [although I did stay at a Holiday Inn Express last night---just attempt at a little TV commercial related humor  :)  ].  This information is posted as FYI "as is."
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Saturday, October 17, 2009

Friday, October 16, 2009

Personal observation: Adaptive behavior as gullibility (S. Greenspan's position)

I've not spent as much time discussing conceptual, theoretical, empirical and measurement issues surrounding the second prong of MR determination...namely, deficits in adaptive behavior.  I simply have not had time to delve into this literature as much as I would like...but I will eventually.

That above being said, I had a personal experience/observation last week consistent with Stephen Greenspan's campaign to ground adaptive behavior in the concept of "everyday intelligence" and the notions of "gullibility" or "foolish actions."

I've been going to a local health club for over 15+ years.  One time I left a nice watch behind in the locker I had used (when done they are unlocked as you take your lock with you)...only to return within an hour (after recognizing that I had left it behind) to find it missing.  No one had turned it in....and it never surfaced.  Another time I left my iPod on a locker bench and went to shower.  Upon return it was MIA....and yes...never to be reported or returned.  I learned my lesson and should have known better.  I tend to be an absent-minded professor at times.

Last week I entered the locker room and saw a watch sitting on the ledge by a large mirror.  As I dressed to work out I kept an eye to see if someone had simply put it down temporarily.  I decided to let it sit.   When I returned after my work out (45 minutes later), the watch was still sitting on the ledge.  I decided that if it was still there when I had showered and dressed that I'd take it to the front desk and give it to them.  Just prior to departure a young man walked in from the swimming pool area and calmly picked up the watch and put it on his wrist.  He clearly had simply left it there on purpose while he swam.  On first glance, he did not look physically different from many other young men...although a bit overweight.  Within a few minutes another young man came from the swimming pool along with an older male.  They started talking and it became clear the two young men were developmentally disabled (mentally retarded in old terminology) and the older man was their caregiver..who had taken them swimming.  As the young man with the watch talked I could tell he was developmentally delayed.

As I left I recognized that this was just one real world indicator of Stephan Greenspan's notion of gullibility.  Clearly this young man had a naive trust in others. He had deliberately left the watch on the ledge so it would not get wet while swimming...with little awareness of the potential for theft.  I believe this would fit under the definition of gullibility.

Just a personal observation that struck a chord.

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Assessing competency for trail for individuals with mental retardation: New article

I just found this article in my weekly search of the social and behavioral sciences literature.  Unfortunately, my university library does not have access to this article, so I can't read the complete copy for possible comments.  Thus, I'm simply presenting the reference citation and abstract.  If any reader has access to this journal and could forward me a PDF copy of the article it would be greatly appreciated.

Kalbeitzer, R., & Benedetti, R. (2009). Assessment of Competency to Stand Trial in Individuals with Mental
Retardation. Journal of Forensic Psychology Practice, 9(3), 237-248.

The basic components of the legal standard for competency to stand trial inherently emphasize the importance of cognitive capacities. However, extant research reflects that forensic evaluators specifically attend to cognitive limitations less frequently than to other factors, such as psychopathology, in their assessments. In addition, individuals with mental retardation are frequently under-identified within the criminal justice system and are more likely to be referred for competency evaluations if they have an accompanying psychiatric illness. However, individuals with mental retardation present with a unique set of characteristics that may impair their competency to stand trial, even without symptoms of mental illness. This case report highlights the specific impairments in individuals with mental retardation and discusses possible implications of those impairments on their competency to stand trial. In addition, this article offers suggestions about how to communicate the impact of those factors in a forensic evaluation.

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More on the use of part IQ scores: Judge playing psychologist (Guest post by Kevin Foley)

In response to the posting of the J. Williams (2007, Texas) Atkins ruling, Kevin Foley has provided the following guest blog comment.  As noted in original posting of the courts decision, I will be making additional comments in future posts.

Dr. McGrew provided two thought provoking postings on the use of partial IQ scores in the Atkins context. But the problem with inappropriate use of partial IQ scores does not lie solely with expert witnesses. The J. Williams (2007, Texas) Atkins case involves a judge’s use of partial IQ scores, without any suggestion by the experts that this was an appropriate way to deal with the Atkins claimant’s IQ scores.  In Jeffrey Demond Williams’ case, the federal magistrate judge court concluded that the partial IQ scores should control over the full scale IQ scores, with no explanation of why (and under what authority) these partial IQ scores should be used as the measure of general intellectual functioning.  Williams had taken three IQ tests, with full scale IQ scores of 70, 70, and 71, all consistent with a diagnosis of mental retardation. To deal with these scores, the magistrate judge stated, “While those three scores appear superficially to show a consistent subaverage intellectual functioning over time, a closer examination reveals that Williams was capable of scoring a Verbal IQ of 79 and a Performance IQ of 77, well outside the mentally retarded range.” [1] The court concluded its decision by stating that, “Considering Williams’ borderline IQ scores in light of his academic performance . . . ,” signifying that it had, in fact, used the partial scores which were in the borderline range (77 and 79) instead of the full scale IQ scores.

Interestingly, even though the magistrate judge sided with the prosecution expert in the end, according to the decision, the prosecution’s expert did not suggest that the judge should use the partial IQ scores of 77 and 79.  The prosecution expert testified that “Williams’ three IQ scores at or near 70 are the result of poor effort on all three tests.” [2] Moreover, this expert’s report filed with the court made no such recommendation. Instead, the state’s expert suggested that a score of 83 on a non-verbal IQ test (TONI-3) given to Williams by the Texas Department of Corrections was the best indicator of Williams intellectual functioning. [3]

So what we have is a magistrate judge playing psychologist and determining on his own that the partial IQ scores were the best indication of Williams intellectual functioning, without any analysis or citation to authority, legal or scientific, to support his conclusion in this regard.  The magistrate’s opinion was adopted by the district court judge, and her findings were affirmed on appeal.  The appeals court compounded the error by approving this approach.

[1] Memorandum and Recommendation, Williams v. Quarterman, Civil Case No. H-04-2945 (S.D. Tex. filed Jan. 8, 2007), at page 70-71.  Even if the court ultimately made the correct decision – that Williams was not mentally retarded - that does not excuse this inappropriate manner of dealing with the three IQ scores.  This especially so in a case like this one, where the magistrate judge admitted that, “reasonable jurists can disagree about whether the evidence supports Williams’ claim that he is mentally retarded.”  Id. at 77. In close cases, the courts need to especially vigilant to ensure that their analysis is both legally and scientifically sound.

[2] Id. at  68.

[3] Psychological Report of Thomas G. Allen, Ph.D., in the matter of  Williams v. Dretke, Civil Case No. H-04-2945,  (Feb. 8, 2006)

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