In an appeal from a denial of a disability claim, the federal appeals court stated, “The ALJ did not err in discrediting Hine’s IQ scores as there is substantial evidence in the record to support this decision. . . . Second, the ALJ found Hines’s demeanor at the hearing inconsistent with a finding of retardation.” Hines v. Astrue, Case No. 07-3788 (8th Cir., Mar. 25, 2009), slip op. at 6.
The primary problem with the above cases is there is no reliable way to distinguish those who just barely qualify as “mentally retarded” from those who just barely miss qualifying – simply by the way they act in the formal setting of a courtroom – or elsewhere. As Professor Karen Salekin and colleagues noted, “in comparison with their more severely disabled counterparts, individuals with mild ID are less likely to be identified as having a disability because their outward presentation is not recognizably different from the nonimpaired population.” Karen L. Salekin, et al, Offenders With Intellectual Disability: Characteristics, Prevalence, and Issues in Forensic Assessment, 3 J. Mental Health Res. Intell. Disab. 97 (2010). [Blogmaster comment - I previously reviewed this article in a prior post].
The findings in Henderson and Hines bring to mind Justice Potter Stewart’s now famous words in his concurrence in the pornography case, Jacobellis v. Ohio, 378 U.S. 184 (1964) (Stewart, J.,concurring), that he could not define pornography, “But I know it when I see it”. However, the assessment and diagnosis of intellectual disability is not like pornography. There are formal instruments for assessing intellectual functioning and adaptive behavior, and experts who are well-qualified in expressing opinions of whether an individual meets the diagnostic criteria. It should not boil down to judges, who are not qualified to do so, saying, “I can’t tell you exactly how a mentally retarded person would look and act in a courtroom, but I know it when I see it, and he ain’t mentally retarded.”
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