Monday, December 14, 2009

To Test or Not to Test--That is the Question: Atkins MR/ID death penalty guest post by Kevin Foley

Another guest post from Kevin Foley, a regular contributor and valuable source of information for the ICDP blog.  Any URL links embedded in the guest post have been added by the ICDP blogmaster.

To Test or Not to Test – That is the Question.

A psychologist is asked to render an opinion on whether a death row inmate is mentally retarded (ID). The individual has numerous full scale IQ scores spanning decades, all but one of which is consistent with the MR diagnosis, taking into consideration the standard error of measurement.  Assume for the moment that there is evidence of significant deficits in adaptive functioning, both currently and before age 18. Should the psychologist administer an IQ test, or can he “pass” and rely on the prior scores?  Well, in the matter of Darryl Gumm, an Ohio inmate, the court-appointed psychologist decided to take the pass. [1]

On intelligence-quotient (“IQ”) tests administered between 1974 and 1979, Gumm received full-scale scores of 73, 70, and 71. In 1980 and 1981, when Gumm was 15 and 16 years old and living in an orphanage, his junior high school placed him in eighth and ninth grade classes for students deemed “educable mentally handicapped” and “educable mentally retarded.”  An IQ test administered in 1981 yielded a full-scale score of 79. According to the court, “That and other testing showed that Gumm functioned during those years on a second-to-third-grade educational level.”

On IQ tests administered in 1992, right before his trial, and in 1994, Gumm received full-scale scores of 70, 67, and 61.

Under Ohio law, the defendant must demonstrate by a preponderance of the evidence (1) that he suffers from “significantly subaverage intellectual functioning,” (2) that he has experienced “significant limitations in two or more adaptive skills, such as communication, self-care, and self-direction,” and (3) that these manifestations of mental retardation appeared before the age of 18.

Dr. Ott [court- appointed expert] reviewed the legal standard for mental retardation provided in Atkins and Lott [Ohio case which set the standard for Ohio Atkins cases] and the psychological standards provided in 2000 by the APA and in 2002 by the AAMR. He reviewed Gumm’s records, conducted a two-and-one-half-hour interview with Gumm, and interviewed Gumm’s sisters, a brother, and his two special-education teachers. His examination led him to the opinion that Gumm was “presently mentally retarded.”

For purposes of his examination, Dr. Ott disregarded two of Gumm’s later scores, because they had been achieved in a group test. [The court did not report what tests these scores were obtained on or what the scores themselves] He also found the 79 scored in 1981to be “problematic,” coming as it did a mere two years after the 70 scored in 1978 and the 71 scored in 1979. Dr. Ott stated that he had elected not to test Gumm’s IQ to aid him in his analysis, because his understanding of “the stability of IQ over time[,] and particularly once one reaches adolescence,” led him to expect no dramatic improvement over the intervening years; because a test administered in a restrictive setting like a prison would give an invalid view of an individual’s functioning; and because testing conducted after the age of 18 and under Gumm’s circumstances would be open to questions concerning Gumm’s motivation to do his best. He insisted that historical records and the consistency of those records over time were much more useful to his analysis than the results of a test conducted currently.

Dr. Ott concluded that Gumm’s IQ test scores from age eight to age 26 were, with the exception of the 1981 score, “very consistent * * * within the same range” and “consistent with mental retardation when one takes into account the standard error of measurement.” 

It is the poster’s contention that the psychologist should have administered a new IQ test to obtain an estimate of Gumm’s current level of intellectual functioning. First, as pointed out by the dissenting judge, “Lott requires evidence of present retardation.” (slip opinion at pg. 17). Second, the AAMR’s 9th edition of its Definition, etc., at page 5, provides that, “Mental retardation refers to substantial limitations in present functioning.”(emphasis added) Third, the concept of the “stability” of IQ scores has limits. The National Research Council committee that examined mental retardation assessment noted that,
  • “Among children and adolescents between the ages of 6 and 16 years, total test scores should be considered valid for as long as three years. For adults ages 18 to 50 living in stable conditions and with stable health, total test scores should be considered valid for as long as five years. After age 50, total test scores might be considered reasonably valid for three years, but separate intellectual abilities, like Gf-Gc, might become important considerations.” [2]

Fourth, ostensibly for various reasons, many of the Atkins claimants have wildly varying IQ scores over the years. A couple of examples are in order. Between 1994 and the testing for his Atkins  hearing, Gerald Cornelius Eldridge scored – on Weschler IQ tests - between a 72 and a 112, a forty  point difference! [3]  Joe Elton Nixon – between 1974 (when he was 12 or 13) and 1992 – obtained IQ scores of 88, 73, and 72. In 1993 he scored a 68 on the SB. In 2006 on the WAIS-III  he obtained an 80 and he passed the TOMM.[4] Thus, he demonstrated a range of IQ scores between 88 and 68 – 20 points.

 Fifth, the expert was lucky. The judge accepted his reasoning. He might not be so lucky the next time.

 [1]  State v. Gumm, 169 Ohio App. 3d 650, 2006-Ohio-6451 (2006).
 [2]  Mental Retardation: Determining Eligibility for Social Security Benefits 126 (2002).
 [3]  Eldridge v. Quarterman, 2008 U.S. Dist. LEXIS 19647 (S.D. Tex. 2008).
 [4]  Nixon v. State,  2009 Fla. LEXIS 37 (Fla.).

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