Tuesday, April 5, 2011

But he doesnt look mentally retarded (intellectually disabled): Guest post by Kevin Foley

The following is a guest blog post by a regular ICDP contributor, Kevin Foley.

But He Doesn’t Look Mentally Retarded (Intellectually Disabled)! Kevin F. Foley

    Two federal courts have approved trial court findings that persons – both of whom alleged they were mentally retarded (ID) – simply did not look and act as if they were mentally retarded.  In the Atkins matter concerning James Lee Henderson, where the state court concluded that Henderson was not mentally retarded, “The trial judge also explicitly relied upon his personal knowledge and recollection of Henderson’s in-court demeanor during both the trial and [the state court] habeas hearing.” [1]

    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.” [2]

    While the word demeanor may sound formal and legalistic, make no bones about it – the word refers to the way a person looked and acted.  Demeanor has been defined as the “outward behavior or bearing” of a person. [3]

     One has to question the wisdom of such conclusions. As a more insightful federal district judge observed, “The mildly mentally retarded ‘usually live independently or semi-independently in the community and . . . . [o]ften the mildly mentally retarded persons ‘pass’ in the community. In other words, neither their appearance nor demeanor, particularly on brief interaction, reveals the severity of their intellectual deficiency.’” [4]  In other words, the conclusion, “But he doesn’t look retarded,” is a dubious one at best.

    More recently a district court judge disapproved of a lower tribunal’s use of the “eyeball” technique of diagnosis in a federal disability case. “[I]t appears that the ALJ relied on his personal observations, in part, to discredit the plaintiff’s claim of significantly subaverage general intellectual functioning with deficits in adaptive functioning . . . But here, the court is not convinced that the ALJ’s personal observations, without support from other evidence or professional opinions, can constitute substantial evidence to support the rejection of the plaintiff’s I.Q. score.” [5]

    While a person with Down Syndrome may be readily identifiable by the way he or she looks, the majority of the mildly mentally retarded do not suffer from this or a similar genetic disorder.  With regard to the way a mentally retarded person looks,  “The physical examination may provide evidence of an obvious etiology often associated with mental retardation, such as Down syndrome.  More often, however, it will provide only supportive evidence . . .  or it will not provide any useful information about etiology at all.” [6] In other words, many mentally retarded persons do not any look any different than their non-intellectually disabled peers.

    A primary problem with lay conclusions that someone doesn’t sound or look mentally retarded 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.” [7]   Moreover, conclusions about a person not appearing to act as if he was mentally retarded can be misleading due to the fact that, “People with mental retardation often respond to such treatment [stigmatization] by trying to ‘pass’ as a person of average intelligence.” [8] 

    So there we have it – just like with many other aspects of adjudicating intellectual disability, courts can be found coming to the opposite conclusion on the same issue, without apparently being aware of their colleagues’ opposite approach.  The need for better guidance and uniformity is obvious, but apparently nowhere on the horizon.

1  Henderson v. Quarterman,  U.S.D.C., E.D. Tex., Civil Action No. 1:06-CV-507 (filed Mar. 31, 2008), slip op. at pg. 10 (emphasis added).
2  Hines v. Astrue, Case No. 07-3788 (8th Cir., Mar. 25, 2009), slip op. at 6 (emphasis added).  A third example can be found in  State v. McManus, __ N.E. 2d __, No. 82S00-0503-PD-78 (Ind. 2007), slip op. at pg. 8 (emphasis added), where the court noted, “Dr. David Hilton, a court-appointed psychiatrist, testified that his ‘abbreviated assessment of cognitive functioning would suggest probably low average intelligence,’ and he noted that McManus’ ‘general presentation, communication skills, and use of vocabulary . . . would not suggest mental retardation’”.  Of course, a person’s presentation refers to the way he presents himself – or looks – to others.
3  Oxford Dictionaries Online,  http://oxforddictionaries.com/view/entry/m_en_us1239284#m_en_us1239284 (accessed Mar. 31, 2011).
4  U.S. v. Hardy, No.  94-381  (E.D. La. Nov. 24, 2010), slip op. at 110-11, quoting from, MANUAL OF DIAGNOSIS AND PROFESSIONAL PRACTICE IN MENTAL RETARDATION (John W. Jacobson &  James Anton Mulick, eds., 1996).
5  Order, Whitmire v. Astrue, No. 3:09-3245-JFA (D. S.C., March 28, 2011), at pg. 9.
6  Mental Retardation: Definition, Classification, and System of Supports 75 (9th ed. 1992).
7  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).
8  Elizabeth Nevind-Saunders, Incomprehensible Crimes: Defendants With Mental Retardation Charged With Statutory Rape,  N.Y.U.L.Rev. 1100 (2010).

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