Monday, November 30, 2009

Research briefs 11-30-09: More on malingering assessment (WAIS-III) and third-party testing observers

Two new articles that caught my eye (with abstracts and links to articles)

Curtis, K. L., Greve, K. W., & Bianchini, K. J. (2009). The Wechsler Adult Intelligence Scale-III and Malingering in Traumatic Brain Injury Classification Accuracy in Known Groups.  Assessment, 16(4), 401-41 (click here).
 A known-groups design was used to determine the classification accuracy of Wechsler Adult Intelligence Scale–III (WAIS-III) variables in detecting malingered neurocognitive dysfunction (MND) in traumatic brain injury (TBI). TBI patients were classified into the following groups: (a) mild TBI not-MND (n = 26), (b) mild TBI MND (n = 31), and (c) moderate/severe (M/S) TBI not-MND (n = 26). A sample of 80 general clinical patients was used for comparison. Verbal IQ, Verbal Comprehension Index, and Working Memory Index detected approximately 25% of malingerers with a false positive (FP) error rate of approximately 5% in the mild TBI group. Comparable FP rates were obtained in M/S TBI. FP rates for Performance IQ, Perceptual Organization Index, and Processing Speed Index were acceptable in mild TBI but too high in M/S TBI. Previously studied specialized indicators (Vocabulary minus Digit Span and the Mittenberg formula) failed to differentiate malingerers from nonmalingerers. The clinical application of these findings is discussed.

Otto, R. K. & Krauss, D. A. (2009).  Contemplating the presence of third party observers and facilitators in psychological evaluations.  Assessment, 16(4), 362-372 (click here)
Significant controversy surrounds how psychologists should balance competing interests when considering whether and under what conditions third parties should be permitted to be present during psychological evaluations. This is especially true in forensic contexts where much is often at stake for those being assessed. Unfortunately, existing professional statements on this issue provide limited guidance to practitioners on how to think about this issue. In this article, the authors (a) distinguish between different types of third party participants, (b) highlight the competing interests that underlie third party presence decisions, and (c) offer a framework for psychologists to employ when considering third party presence.

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Wednesday, November 25, 2009

Woods v Texas Standwown Texas update: May be executed after Thanksgiving break

The StandDown Texas Project just made a post indicating that after Thanksgiving the first person to possibly be executed may be mentally retarded (intellectual disability).  The initial ICDP post re: Woods v Texas (plus links to relevant court decisions) can be viewed by clicking here.  As one can surmise from my initial post, the Woods case contains a quagmire of psychometric issues.

The StandDown report includes a link to a Texas newspaper that has posted a brief online interview with Woods.

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Moratorium and ABA-based team review of Kentucky death penalty announced

State of Kentucky death penalty moratorium and ABA-lead review story can be found at the DPIC.

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iPost: Use of fmri evidence in capital punishment case

Click link for story. Not an Atkins MR case but interesting
development of brain scan and expert testimony to attempt to establish
brain-based psychopathology diagnosis for defendant.

Kevin McGrew PhD
Educational/School Psych.
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Tuesday, November 24, 2009

20th Annual Butters-Kaplan West Coast Neuropsychology Conference - SAVE THE DATE]

Register Today

20th Annual Butters-Kaplan West Coast Neuropsychology Conference
Advances in Pediatric Neuropsychology:
From Toddlers Through School-Aged Children

March 25-28, 2010

Dear Colleague,

As most of you have probably heard, the neuropsychology community suffered a deep loss with the passing of Dr. Edith Kaplan on September 3, 2009, at the age of 85. At the 20th anniversary of the West Coast Neuropsychology Conference, we will honor the life and works of Edith as part of a program on child neuropsychology that she and I were in the middle of organizing when Edith succumbed to complications related to heart surgery.

The internationally renowned speakers at the 2010 conference will present their latest findings on the assessment and remediation of cognitive and behavioral impairments in pre-school and school-aged children. The speakers will (a) emphasize practical tools that clinicians and educators can use to provide comprehensive assessments and remediation strategies for children with neurocognitive deficits; and (b) highlight the role that Edith's work played in their particular line of research. This year's conference will also feature a pre-conference workshop on a new set of assessment tools – the Advanced Clinical Solutions for the WAIS-IV and WMS-IV – which provides new subtests, demographic-corrected norms, and effort measures designed for patients between the ages of 16 and 89. Thus, the preconference workshop on Thursday evening will be in the area of adolescent and adult neuropsychology, and the main conference from Friday to Sunday will be in the area of child neuropsychology. The program is intended for neuropsychologists, clinical psychologists, school psychologists, speech therapists, learning specialists, educators, psychiatrists, neurologists, and other interested health professionals.

I cordially invite you to join us for this exciting and informative program and look forward to hosting you in San Diego, America's finest city.

Dean C. Delis, PhD
Conference Director

This activity has been approved for AMA PRA Category 1 Credit™.

For more information and to register online,

UC San Diego School of Medicine
Continuing Medical Education
9500 Gilman Drive, MC0617, La Jolla, CA 92093-0617

Phone: (858) 534-3940 • Toll-Free: (888) 229-OCME (6263) • Fax: (858) 534-7672
E-mail: • Website:

For technical comments or questions, contact the webmaster.
Copyright 2010, University of California, San Diego. All rights reserved.

Monday, November 23, 2009

iPost: American Psych Law Society 2010 conference

FYI--next conference in Vancouver

Kevin McGrew PhD
Educational/School Psych.
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iBlogging mobile post: SLP on Atkins cases

SLP had post today about recent study re success rate of Atkins claims
and "pushback" by some states re MR categorical exemption from death

Kevin McGrew PhD
Educational/School Psych.

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Sunday, November 22, 2009

Atkins MR/ID death penalty court decisions: 12 from Ohio

A dozen State of Ohio Atkins MR death penalty decisions have just been posted to the "Court Decisions" section of the ICDP blog.  Another gracious tip-of-the-hat to Kevin Foley, a regular guest blogger at ICDP, for providing copies.  A total of n=55 decisions are now available for reading and research.

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Friday, November 20, 2009

iBlogging mobile post: Malingering in litigation text resource

Kevin Foley, a major resource for ICDP P, has authored a online book on malingering in litigation. It is somehow accessible via the Loislaw web site. This web site is included in IDCPs blogroll.

Double click on image to enlarge

Malingering in Atkins MR/ID DP cases: State-of-the art, malinger by proxy, and voodoo psychometrics

A quick reading of a small sample of Atkins MR/ID death penalty court decisions makes it clear that the issue of malingering is often a critical component of expert testimony.

The APA Dictionary of Psychology defines malingering as:
the deliberate feigning of an illness or disability to achieve a particular desired outcome (e.g., financial gain or escaping responsibility, punishment, impresonment, or military duty) (p.551)
I am not an expert on the state-of-the-art of the psychometric integrity of various malingering measures used to purportedly detect defendant malingering.  Clearly in capital punishment cases there is the possibility of a strong motivation to score low on IQ tests or standardized measures of adaptive behavior -- lower scores may make the difference between execution or life in prison without parole. Not being an expert in this area of forensic assessment, I'm going to try provide information from high quality sources re: the state-of-the art of malingering assessment.  Also, when appropriate, I will point out situations of inappropriate (unethical?) malingering assessment methods when they are obvious.  This current post contains a sampling of interesting malingering issues, research, and an example of inappropriate malingering assessment.  Click here for prior posts re: malingering issues, research and references.

What does the research say about malingering assessment in the context of intellectual disability determination?

I've found the scholarly work of Salekin and Doane to be of particular value in providing an evaluation of the research in this area. Below are two recent journal articles by Salekin and Doane.  I believe the abstracts/summaries speak for themselves.

Doane, B., & Salekin, K. L. (2009). Susceptibility of current adaptive behavior measures to feigned deficits. Law and Human Behavior, 33, 329-343.

The current study examined the susceptibility of the Adaptive Behavior Assessment System—2nd edition (ABAS-II; Harrison & Oakland, 2003) and the Scales of Independent Behavior—Revised (S1B-R; Bruininks, Woodcock, Weatherman, & Hill, 1996) to the feigning of adaptive functioning deficits. Using four different instruction sets, the authors evaluated whether the provision of diagnostic information (a form of coaching) improved participants’ ability to simulate adaptive deficits commensurate with a diagnosis of mental retardation. The authors found that the ABAS-II was quite vulnerable to believable manipulation by raters, while the SIB-R was not. In fact, exaggeration on the SIB-R was easily detected regardless of the information provided. Implications regarding the use of these measures in Atkins mental retardation evaluations are discussed.

Salekin, K. L., & Doane, B. (2009). Malingering intellectual disability: The value of available measures and methods. Applied Neuropsychology, 16, 105-113.

Atkins v. Virginia (2002) is a case that has changed the landscape in relation to the assessment of malingering in a legal context. This landmark decision abolished the death penalty for defendants found to have intellectual disability (ID; formally known as mental retardation), but limitations in our assessment techniques lead to questions regarding the veracity of ID claims. In fact, Justice Scalia noted with clarity that concerns exist regarding the ability of individuals to feign ID and to do so successfully. At the time of writing, little empirical research has been completed, but that which exists demonstrates an overall lack of validity for traditional measures of cognitive malingering for use with this population. This manuscript provides an overview of the utility of many of the traditional measures of malingering for use with an ID population and serves as a call for research in this very important area.
In closing, review of the research in the assessment of malingered ID demonstrates that effort tests and indices of cognitive malingering are not working with this population, and that true cases can be misidentified as malingered. Some would say that the inclusion of multiple measures of malingering and the interpretation of all of the data together, rather than tests in isolation, provide control for diagnostic error. But to date, we have no data to suggest that either of these techniques is protective and more importantly, we have no data on how a juror or a judge might be impacted by even the slightest mention of malingering. Though untested, these authors posit that it is very unlikely that a defense expert will succeed in supporting an Atkins claim if there is even a hint that malingering may have occurred.

Another interesting topic is malingering resulting from examiner bias.  I find the concept of "malingering by proxy" very interesting.  Below is a discussion of this phenomenon as described by Schlesinger:

Schlesinger, L. B. (2003).  A case study involving competency to stand trial:  Incompetent defendant, incompetent examiner, or "malingering by proxy" ? Psychology, Public Policy, and Law, 9 (3/4), 381-399.
The most blatant kind of examiner bias, however, is seen mostly in forensic cases: the deliberate, conscious intent to distort or misrepresent findings for partisan purposes. This sort of conduct is a breach of professional ethics (Committee on Ethical Guidelines for Forensic Psychologists, 1991), unlike the involuntary forms of bias resulting from patient attributes.
There is yet another variety of examiner bias that is not an automatic act of impaired judgment arising from patient demographics, nor is it an intentional falsification of results. Here, the forensic psychologist finds in the defendant (nonexistent) signs, symptoms, or disorders that were initially suggested by the referring attorney. External incentives (such as economic gain) are typically absent. The effect, which could be called “malingering by proxy,” derives from the forceful opinions of the legal advocate, which can be quite contagious. My impression is that this form of examiner bias is not an uncommon occurrence in forensic work, where the structure of relationships leaves the clinician particularly vulnerable to such (nonconscious) infection.
The genesis of this form of examiner bias begins when the clinician is first approached about the case. Most forensic referrals come from a lawyer who attempts to recruit the consultant for the defense or the prosecution team. For instance, an attorney might call and say:
  • Hello Dr. Z; I was referred to you by a psychiatrist, Dr. Y. She told me you had worked with her on many cases. Your colleague regards you highly and said you are one of the top forensic psychologists in the area. I’d like to retain your services for help with a client I represent. Dr. Y. saw my client yesterday and thought he was mentally retarded. My law partner and I just came back from the county jail, and he seemed retarded to the both of us. We all think he is incompetent to stand trial. Can I count on you to be part of the defense team? By the way, don’t worry about your fee; my client’s family is very supportive of him, and they’ll be sure to pay you promptly.
After an introduction like this, some consultants may find it difficult to disregard the flattery or to challenge members of a “team” they are about to join. However, if forensic psychologists are not careful at this point, they could succumb to a form of examiner bias that could jeopardize the entire evaluation before they have even met the defendant.

Junk science malingering assessment--from actual cases

In two recent Atkins court decisions in the state of Oklahoma (see Salazar, 2005 and Lambert, 2005), the states prosecution psychologist (Dr. Prosecution Psychologist - Dr. PP) testified re: malingering based, in part, on non-normed, non-standardized malingering measures that Dr. PP had developed himself, and one which he named after his secretary (in an attempt to mask the purpose of the test to the defendant).  The two "instruments" in question were the non-standardized Blackwell Memory Test and the Oklahoma Spelling Test.  Apparently the Blackwell Memory test was modelsx after other formal instruments that use a "forced choice symptom validity" test format.   Similar to prior voodoo psychometric activities commented on at this blog, I'm dumb founded that a professional psychologist testifying in an Atkins hearing, or any other clinical or forensic setting, would attempt to assess a psychological construct (viz., malingering) via the development of their own special instrument that did not undergo the professional accepted and required test development procedures (as clearly spelled out the the Joint Test Standards).  This activity clearly violates a number of professional standards. Below are at least two (and I'm sure there are more when one examines all relevant professional codes of ethics/standards) from the Joint Test Standards:
Standard 1.4:  If a test is used in a way that has not been validated, it is incumbent on the user to justify the new use, collecting new evidence if necessary

Standard 11.2.  When a test is to be used for a purpose for which little or no documentation is available, the user is responsible for obtaining evidence of the test's validity and reliability for this purpose

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Thursday, November 19, 2009

Five additional Atkins MR/ID related court decisions posted today at ICDP

Five additional Akins MR death penalty court related decisions have just been posted to the "Court Decisions" section of the ICDP blog.  Another gracious tip-of-the-hat to Kevin Foley, a regular guest blogger at ICDP, for providing copies.  A total of n=43 court decisions are now available for reading and research.

Each can be accessed via the links below:

If my "skim memory" serves me well, I believe the Hill and Green decisions involve some Daubert expert testimony standard related issues and decisions.  Also, I believe the Nelson decision seemed like a good decision given the presented psychological expert information.  I hope to say more at a later date.

 I  have not read these and don't have any psychometrically related comments at this time. I'm still overwhelmed  with professionals sending me copies of decisions and other material, so my current triage-based decision is to get the material others can have access.  With time I will be selectively reading and commenting (when I feel it appropriate) about psychometric issues in select cases. 

I just need to get the back load of files I've received posted and linked before I can dig into these myself. 

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Wednesday, November 18, 2009

Can a mild MR/ID person fail to be formally diagnosed before the age of 18? Do Forrest Gump's exist?

The third prong of MR/ID identification in Atkins hearings is the need for MR/ID to be diagnosed before the age of 18. There are a number of potential problems with implementing this part of the MR/ID definition.

The question should be asked: "Is it possible for someone who is mild MR (e.g., IQ=70) to NOT be identified as MR/ID while they are in school?"

The answer is "yes." One cannot assume that the lack of MR/ID identification or special educations services during a person's formative school years (up to age 18) means they were not eligible for those services at the time. How can this be?

First, in most cases, even if a formal diagnosis and placement in special education did not occur, typically the school records of many Atkins defendants frequently show that many of these individuals have a long history of poor academic performance, retention in grade, etc. Also, I was a school psychologist from 1975-1989 and vividly remember  the "games" school psychologists and school systems often played re "dodge the MR diagnosis" when possible. School psychologists and special educators are a caring group and would much prefer to minimize a parents pain (when hearing the results of special education and psychological testing) by labeling a student as "learning disabled" (LD) rather than "mentally retarded" (MR). Gresham (2009) captures the reality of intellectual testing and diagnosis in the mid 1970's to 1980's when he stated:
It is well-established that schools were and are reluctant to classify children as mentally retarded, particularly African-American students since the 1970s (MacMillan & Siperstein, 2002). Schools frequently assign a more ‘‘palatable’’ label to students who would otherwise be classified as mentally retarded, using labels such as ‘‘specific learning disability’’ or ‘‘speech and language impairment.’’ In Atkins cases, this frequently works against the defense’s efforts because there is no developmental history of an individual ever being diagnosed as mentally retarded, thereby making it difficult to prove the developmental criterion of mental retardation.(p.9).

Gresham, F. M. (2009).  Interpretation of Intelligence Test Scores in Atkins Cases:  Conceptual and Psychometric Issues.  Applied Neuropsychology, 16, 91-97
Second, there has been a long-held (mistaken) assumption, both in the lay public and with many professionals who do intelligence testing, that a person's IQ score sets a limit on their academic learning.  That is, because of their limited intellectual ability (IQ), one cannot expect these individuals to achieve at levels above their measured IQ.  This is a false assumption.

For any given level of IQ scores, there is a normal distribution of achievement around that level of intelligence.  Half of the population with a specific IQ score will score at or below that IQ score (what many people assume to be correct), but half of the population with that IQ will score above that IQ score...and some by a large amount (what many people fail to recognize and understand).

I previously wrote about this, and provided the statistical explanation plus real-world data (using IQ and achievement data from the WJ III Battery).  That material was written for a policy paper, but the guts of the message and the data make it clear that it is possible for someone with a measured of IQ of 70 to be achieving above their measured intelligence, often into the lower or middle levels of the average range.  I've extracted the relevant portion of the specific NCEO policy report and am making it available here (click here---click here for the complete report).  Additionally, an on-line PPT slideshow is available that presents this information in a very understandable format (click here for "Forrest Gump" presentation).  I would urge readers to review those materials before reading further..............................................................................................................................................

Assuming you have followed my directions, you now know that it is just as likely for a student with an IQ of 70 to be achieving above their tested intelligence as it is to be achieving below their level of tested intelligence.  Why is this important for the third prong of Atkins decisions?

This is important because (and if folks want some references and articles I'll dig them was research done in the mid to late 1970's) it is known that there are "gatekeeping" characteristics of students that increase the probability they will be referred to special education for assessment.  Typically these are low achievement , behavior problems, ADHD, etc..  Thus, many school special education and school psychology personal end up seeing those students with mild MR (in this example IQ=70) who are a biased sample of the complete population of students with the same level of intelligence.  Those who are not achieving satisfactorily or who dispaly behavior problems, are likely to be referred.  Those who sit still, listen, attend, don't bother others, and who demonstrate achievement at levels that a classroom teacher can manage, are typically not referred.  These later students, some who may have an IQ of 70, go unnoticed and undiagnosed as they progress through the school system.  As demonstrated in the reports and slideshows, a decent number of these students will demonstrate achievement levels above that often expected for a person with an IQ of 70...often into the range considered low average or average for a grade.  They may have the same level of cognitive abilities, but are not identified or referred for testing and classification because of their decent achievement and good behavior.

Bottom line. 
It is possible for an individual in the upper end of the mild MR/ID ranges to NOT be referred for special education testing and/or services, even though their level of measured of intelligence might make them eligible for "MR/ID" services.  The absence of placement in an MR/ID program (and the lack of IQ testing) during an individuals school career does not preclude the possibility that they may have meet the magical IQ score for services ONLY if they had been referred.  The occurrence of IQ testing and special education services during an individuals formative years of life (up to age 18) does NOT mean that they can not be diagnosed MR/ID later in life.

Of course, there are all kinds of caveats and special "what ifs" that I could address.  One would be the need to look at the distribution of achievement scores for individuals with mild MR IQs and concurrent measured deficits in adaptive behavior (as per a standardized adaptive behavior scale) they show the same achievement distribution (above and below the measured IQ) as presented in the above materials?  This is an empirical question.  One needs data on samples where subjects have scores from IQ, achievement, and adaptive behavior measures to answer this question empirically.  I may have some such data sets in my files and plan to locate them and see if they have sufficient sample sizes and measures to evaluate this question.

It is possible for a person to NOT be identified as MR/ID before the age of 18
.  Identification before the age of 18 is a complex interplay of individual characteristics of the person and characteristics of the school social system and social-political policies in-place at the time.

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iBlogging: Law, brain and behavior journals

Thanks to Neuroethics and Law blog for this info

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Tuesday, November 17, 2009

Request for assistance to develop mental disability interview protocol

With the permission of the author of the reproduced email below, I'm making this as an FYI courtesy post.

Good afternoon,
I’m a fellow at Human Rights Watch and the ACLU and will be documenting the experiences of noncitizens with mental disabilities in US immigration removal proceedings. The advocacy objective of our project is to ensure due process protections for individuals with mental disabilities (including intellectual disabilities, severe mental illness, and various gradations of “capacity”) in their legal proceedings.

As I prepare for my interviews (in detention facilities across the US), I would appreciate any assistance in developing a protocol for interviewing people with mental disabilities and obtaining informed consent for the interview itself. If you have resources, templates or experience you can share with me, please let me know.
Many thanks,
Sarah L. Mehta, Esq.
Aryeh Neier Fellow
Human Rights Watch/American Civil Liberties Union
350 Fifth Ave, 34th Floor
New York, NY 10118-3299
tel: 212-377-9437


AP101 Brief #2: IQ test battery descriptive comparison information

Although the adult Wechsler intelligence battery (WAIS-R; WAIS-III; WAIS-IV) is the most frequently used intelligence battery in Atkins cases (often called the "gold standard"), other intelligence tests are starting to show up in psychological reports.  These other tests are either newer intelligence batteries (first editions published in the past 30 years), revisions of older batteries (e.g., Stanford-Binet), or are tests reflecting scores from a test taken while a defendent was in school (and the battery only providesnorms for school-age populations).  Over time I will be presenting information that will allow readers to better understand the similarities and differences of these different batteries, with a particular focus on why they may provide different scores.

To kick of this effort, this post presents basic background information re: the most popular comprehensive intelligence batteries,

First, as I've mentioned before, in 2002 a national panel of experts made recommendations re: the use of intelligence and adaptive behavior tests in MR/ID eligibility determination (for SSA benefits).  In that publication a table was presented that listed the comprehensive intelligence batteries deemed suitable for MR/ID determination.  The table can be viewed by clicking here.  Only three of the batteries listed at that time had adult norms.  Also, many of the tests have since been revised/renormed--thus making the basic information in the table out-of-date.  The important point is that there are other intelligence tests (beyond the Wechsler "gold standard") that have been deemed appropriate for MR/ID identification/Dx/classifcation by a national panel of experts.

Floyd, Clark and Shadish (2008) reported on the exchangability of full scale IQ scores from most of the major comprehensive intelligence batteries.  In that article they provide an excellent descriptive summary table of the major characteristics of the respective test batteries.  This table is reproduced below...with a few annotations. [Click here for a larger version of the table image - when image appears, click on it to make it bigger].

Finally, the Floyd et al. article makes reference to supplementary material  availbale upon request.  One piece of this supplementary information is a lengthy footnote describing the various full scale IQ scores (which are typically the primary focus in Atkins cases...for good or bad) available from the different IQ batteries.  I've reproduced the footnote (with embedded URL links to the product descripton web page of each respective publisher)--click here to view.

Thats enough for now.  This is just a start in ICDPs attempt to provide comparative information on intelligence test results that may appear in psychological reports reviewed in Atkins cases.

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Monday, November 16, 2009

Atkins v Virginia: Law review and law journal custom Google search

iBlogging mobile post: Free ABA law review and journal search engine

Double click on image to enlarge.  Link to this search engine is here.  I've also added it to the blog sidebare.

Book review: The Last Lawyer: The Fight to Save Death Row Inmates

I just finished reading "The Last Lawyer" last night.  I would recommend it to anyone who has not been privy to the lengthy, complex and personal winding road of death penalty appeals and the court proceedings.  I agree with Leonard Pitts (one of my favorite syndicated columnist) who, on the book jacket, describes the book as reading "like first-class legal fiction, but it's far more compelling because it is, tragically, legal fact."  So true.  It was an extremely easy read and felt like story unfolding before me.  I found myself frequently saying "just one more short chapter" before going to bed.  Extremely well written.

Readers of this blog will likely find the later half of the book (starting on page 130) particularly interesting (and sobering) as the use of intelligence test scores and the diagnosis of MR/ID becomes a major point of the story.  How some of those in the legal field (and one judge in particular) played with the IQ scores and failed to recognize that they are imperfect measures (the need to recognize measurement error)  is eye-opening and sobering to those of us involved in intelligence testing development and research.

I give it two big thumbs up.


Click here for more information about the book and a link to the authors web site.

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Saturday, November 14, 2009

Personal tidbit: Main office of blogmaster

Just a personal note. I work primarily out of my home office--this is
it. You can never have enough screens! My other offices are coffee
shops. Life has blessed the blogmaster.

Book: Clinical Judgement in mental retardation classification

FYI (no comment) post.  Clinical judgment in MR/ID determination is a complicated issue for courts to deal with in Atkins MR/ID death penalty cases.  I recently read an article where this AAIDD book was recommended reading.  I do not have a copy nor have I read the book.  Click here to learn more and/or order

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Friday, November 13, 2009

Does California's death penalty violate the 8th ammendment: New California Law Review Article

Another law review article.  Not specific to Atkins MR/ID cases, but may be of interest to readers.

Colon, S. (2009).  Capital Crime: How California’s Administration of the Death Penalty Violates the Eighth Amendment.  California Law Review  (click here to view entire article)
There have been fewer executions in California than deaths by lightning strike. But what does the death penalty have to do with lightning? The comparison is drawn from the analysis in the landmark capital punishment case, Furman v. Georgia, which held capital punishment at the time to be unconstitutional. That analysis, now mostly relegated to sound bite status, suggests that California's capital punishment system is unconstitutional. In Furman, Justice Stewart compared being sentenced to death with getting struck by lightning, in the sense that sentencing was both arbitrary and capricious. The Furman court noted that this was not acceptable because it meant that capital punishment could not serve the legitimizing penal purposes of deterrence and retribution. Now once inmates have been sentenced to death in California, executions are so infrequent that comparison with lightning is generous. Because the execution rate in California is so low, sentencing does not correspond to the actual imposition of the death penalty. Only 13 inmates have been executed since 1978. There are currently 677 on death row. This paper aims to show that as a result of a low execution rate and inmate death row stays averaging around 17 years and growing, capital punishment in California is no longer more retributive or deterrent than the punishment of life without parole. As such, it is excessive and violates the Eighth Amendment. Part I introduces the subject in context with other developments in capital punishment. Part II addresses different theories of retribution and deterrence and defines retribution and deterrence in the context of capital punishment and this paper. Part II also illustrates why retribution and deterrence are essential elements to a constitutional capital punishment scheme. Part III argues that the delay in California between judgment and executions frustrates the furtherance of retribution and deterrence. Part IV focuses on the low number of executions in California and why this prevents retribution and deterrence. Part V discusses potential solutions to California's capital punishment problem. Finally, Part VI summarizes key points from the paper.
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Research briefs 11-17-09: Borderline intellectual functioning and ID; Happiest man ever on death row

Articles that caught my eye during my weekly search of journals.

Ferrari, M. (2009). Borderline Intellectual Functioning and the Intellectual Disability Construct. Intellectual and Developmental Disabilities, 47(5), 386-389. (click here to view)
Wehmeyer et al. (2008) recently published a particularly instructive paper in this journal on the construct of intellectual disability. The authors carefully distinguished between operational definitions of the term and those intended to describe and explain the potential basis for the condition; the latter they referred to as constitutive. They also discussed a multidimensional model of human functioning as a preferred way of conceptualizing intellectual disabilities, particularly in contrast to those that have been based on biological traits and defects. However, although they asserted that there are differences at the level of construct between the terms intellectual disability and mental retardation, they reaffirmed Schalock et al.’s (2007) point that this does not translate into any difference in the diagnostic process and that ‘‘the term intellectual disability covers the same population (as those) diagnosed previously with mental retardation in number, kind, level, type, and duration’’ (p. 317). The authors also called for input from the field in preparation for the upcoming manual on Definition, Classification and Systems of Support. This article provides input by calling attention to borderline intellectual functioning, a term referring to a potentially large group of people who may also manifest intellectual disabilities. I begin with a brief overview of the history of the term and then address the need for meaningful dialogue of this issue, both to enhance understanding of the intellectual disability construct and to refine clinical practice and education while developing a clear agenda for reinvigorated research.

Perske, R. (2009). Joe Arridy, ''The Happiest Man Who Ever Lived on Death Row''. Intellectual and Developmental Disabilities, 47(5), 390-394. (click here to view)  --- Additional information re: Joe Arridy can be found at a website devoted to his story.
Most persons would feel an unspeakable repulsion about ever living on death row of an American prison. The lights are kept on night and day. Guards watch closely so no inmate can quietly sneak into oblivion before the official government sanctioned ‘‘send-off’’ day. As the day of death comes closer, the physical and mental strain can be awful. How could anyone laugh for joy in a setting like this? There was once a man who did.

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North Carolina: Historical account of waves of DP executions over 25 years

This is an iBlog mobile post Double click on image to enlarge. I will
see if I can locate a copy of the draft.

Thursday, November 12, 2009

Three new Atkins MR death penalty related law review articles posted

Three new law review articles in the Atkins-Related Law Review Article section of ICDP blog sidebar.  Thanks again to Kevin Foley, a never ending source of information re: Atkins issues and resources.  Articles can be accessed by visiting the above mentioned section of ICDP.

L. Weithorn (2008).  Conceptual Hurdles in the Application of Atkins v. Virginia - Hastings Law Journal
    Mossman, D. (2003).  Atkins v Virgina:  A psychiatric can of worms.  University of Cincinnati College of Law
      Bonnie, R. J. (2004).  The American Psychiatric Association’s Resource Document on Mental Retardation and Capital Sentencing: Implementing Atkins v. Virginia.  The Journal of the American Academy of Psychiatry and the Law.
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        iBlog mobile post: KY evaluating cost/benefit of DP

        Story from DPIC. Click link to read

        Wednesday, November 11, 2009

        iBlog post: Life is good on CA death row?

        Over at SLP blog

        Kevin McGrew PhD
        Educational/School Psych.
        IAP (

        Sent from KMcGrew iPhone (IQMobile). (If message includes an image-
        double click on it to make larger-if hard to see)

        IQ testing while on meds in Atkins MR death penalty cases: Pruitt v Indiana (2005, 2007) court decision

        A new twist in Atkins MR death penalty issues...courtesy of Kevin Foley (thanks again).  Pruitt v Indiana (2005) and again in 2009 (now posted in the Court Decisions blog sidebar).  Below I paraphrase some of the questions raised by this case.  What do readers think? 

        In 2005, the Indiana Supreme Court upheld the trial courts original death penalty decision.  The interesting twist is that a defense expert testified "that he believed Pruitt was under the influence of the antipsychotic medication Trilifon at the time he took the test and the medication superficially increased his ability, resulting in an over-estimation in that test by three to six points. Pruitt argues that the testimony of Dr. Golden and the medical literature both support this conclusion." (p.11). Pruitt obtained a WAIS full scale IQ 76. In 2009 the court again reaffirmed the death penalty sentence.

        Of interest is a relatively recent (2007) AMA journal study (Archives of General Psychiatry), by the Clinical Antipsychotic Trials of Intervention Effectiveness (CATIE) research group, re: the efficacy of antipsychotic medications.  The study examined the cognitive benefits of different medications including perphenazine (Trilafon). The battery of mental tests did not include a full IQ test, but instead a "neurocognitve" composite comprised of  measures of processing speed, reasoning, working memory, verbal memory, and vigilance.  The subjects (n=149) on perphenazine showed a statistically significant .25 standard deviation (SD) improvement (after two months) in their composite score.  A .25 SD z-score improvement translates to an IQ score change (when on a scale of Mean = 100; SD = 15) of 3.75 (roughly 3-4 IQ points).  After 18 months, n=52 of the subjects were again assessed and the SD change from baseline (prior to initiation of medication) was approximately .50 (.49).  On a standard IQ test, this would convert to an increase in IQ scores of approximately 7-8 points (7.5).

        So...was the defense experts claim of an inflated IQ score (due to meds) appropriate...and thus Pruitt should have been ruled to be a person with MR/ID?  Or, should one argue that "you can't have your cake and eat it too" ---- that is, claim you cannot be tested when grossly psychotic (and thus not competent to be executed) and then turn around and discount improved cognitive testing when on medication?

        Other related questions to ponder:
        • If a person is functionally retarded (poor cognitive "performance" in the real world) at the time of the crime (due to psychosis), and later, when properly medicated post-crime and tested, obtain IQ scores suggesting higher non-MR cognitive functioning, what should be the decision regarding MR as per Atkins cases?
        • If the defense expert's arguements had swayed the court, would this open the proverbial "slippery slope?" What about all the other medications used in prisons to address prisoner needs and/or behavior (e.g., stimulants for ADHD; meds to help with sleep; etc.).
        • Of course, this type of case raises the whole complex set of issues of dual diagnosis and which is the primary/secondary diagnostic condition.
        Of course, there are all other kinds of "it depends" issues (standard error of measurement, etc.).  Lets put them all aside and pretend they don't exist or have been accounted for.

        Thoughts?  Reactions?  Comments? 

        Have you taken your meds today?

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        Tuesday, November 10, 2009

        Plata (2007) Atkins MR Texas decision: Another blow against voodoo psychometrics

        Another Atkins court decisions (Plata, 2007, TX) is now available in the Court Decisions on the blog sidebar.  Of interest is the courts recognition of the voodoo psychometrics previously mentioned at ICDP re: the clinical n=1 upward adjustment of IQ scores.  It looks like the Plata's attorney persuaded the court that these magical measurement mis-adventures needed to stop.  Kudos to the attorney and judge for sheddding some sunlight on questionable psychometric practices.

        In January, 2008, Plata was determined to be MR/ID and sentenced to life in prison..and not execution.

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