Wednesday, November 30, 2016

SCOTUS blog analysis of yesterday's Moore v Texas arguments before SCOTUS

You can find an analysis of yesterday's oral arguments re Moore v Texas (hinging primary on adaptive behavior and Texas Briseno factors) a the SCOTUS blog.

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Court Decision: Bell v South Carolina (2016)

Another Atkins decision, this time from South Carolina. The court decided in favor of Bell's petition and considers him intellectually disabled and, thus, excusable from the death penalty. Decision can be found here.

Thanks to Dr. Greg Olley, who serve as an expert witness in the case, for making me aware of this recent decision

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SCOTUS transcripts for Moore v Texas Atkins ID case

Copy available at the following link

Tuesday, November 29, 2016

Research Bytes: The Relation Between Intellectual Functioning and Adaptive Behavior in the Diagnosis of Intellectual Disability via BrowZine

The Relation Between Intellectual Functioning and Adaptive Behavior in the Diagnosis of Intellectual Disability
Tassé, Marc J.; Luckasson, Ruth; Schalock, Robert L.
Intellectual and Developmental Disabilities: Vol. 54 Issue 6 – 2016: 381 - 390


University of Minnesota Users:

Non-University of Minnesota Users: (Full text may not be available)

Accessed with BrowZine, supported by University of Minnesota.

Monday, November 28, 2016

Texas Death Case Tests Standards For Defining Intellectual Disability

The case of Moore is getting lots of media attention

Texas Death Case Tests Standards For Defining Intellectual Disability

From NPR on Flipboard

Enlarge this image The U.S. Supreme Court on Tuesday hears a case that questions intellectual disabilities and the death penalty —…

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High court to examine mental disability, death penalty issue

High court to examine mental disability, death penalty issue

From News, a Flipboard magazine by Flipboard Newsdesk

HOUSTON (AP) — The U.S. Supreme Court is set to examine whether the nation's busiest state for capital punishment is trying to put to death…

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Wednesday, November 23, 2016

Texas Death Case Tests Standards For Defining Retardation

Texas Death Case Tests Standards For Defining Retardation

From News, a Flipboard magazine by Flipboard Newsdesk

The U.S. Supreme Court returns on Tuesday to the question of mental retardation and the death penalty - specifically, what standards may…

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Monday, November 21, 2016

Special Olympics Chair comments on Moore v Texas SCOTUS Atkins death penalty case

TIME Ideas (Op-Ed)
Special Olympics Chair: Texas’ Standard of Intellectual Disability Is Horrific
'Labels have consequences'
By Tim Shriver,
November 18, 2016

Tim Shriver is Chairman of the Special Olympics

In recent months, name calling and bullying have grown to unprecedented levels. Even as both the President and the President-elect signal the need for unity, social media is full of venom, talk shows remain full of virulent attacks, winners gloat arrogantly and losers bemoan angrily. In our culture, nasty has become the new normal.

Our nation’s treatment of people with intellectual disabilities is more than enough evidence of this pattern. For them, labeling and ridicule are deadly serious problems. Labeling someone “retarded” isn’t a joke: it’s a sentence. People with intellectual disabilities are still institutionalized and abandoned because of the label. Isolation, unemployment and poverty are too often the norms.

That’s why it’s so important that laws look beyond stereotypes and fears and protect rights and dignity. The Supreme Court has a chance to do that on Nov. 29, 2016, when Justices will hear Moore v. Texas and determine whether Texas overstepped in its standards for determining intellectual disability in death penalty cases.

In 2002 when the Supreme Court handed down its landmark decision Atkins v. Virginia, it moved in the right direction. After suffering through centuries of injustice, people with intellectual disabilities won a small measure of protection when the Court ruled that any individual with an intellectual disability had vulnerabilities that made it unconstitutional for the state to execute them. The same court that in 1927 authorized the forced sterilization of people with intellectual disabilities in state institutions with the infamous words of Oliver Wendell Holmes, “three generations of imbeciles are enough,” this time got it right.

In so doing, the court overturned deep and terrifying stereotypes and recognized what both science and experience should have long made clear: people with intellectual disabilities have abilities but also challenges: they are less able to advocate for themselves; more likely to be coerced into behaviors they don’t understand; less likely to understand the implications of their actions and at higher risk for unreliable trials and wrongful convictions.

As a result of Atkins, the law of the United States now makes it illegal to kill a person with an intellectual disability—even for the state. But sadly, that hasn’t stopped the old stereotypes from remerging.

When Bobby Moore, a person with an intellectual disability, was 14-years old, his father became enraged that Moore couldn’t read and threw him out on the street. As a teen, Bobby did not understand the days of the week, how to tell time, and other basic information and skills.

Bobby ate out of trash cans, mowed lawns for money, and eventually lived in the back of a pool hall where he sometimes played pool. Like every person, including those with intellectual disability, Bobby was better at some things than others. With the help of others, he managed to survive.

But at the age of 20, Bobby was involved in a bungled robbery with two other people in which an employee was tragically shot and killed. He was convicted and sentenced to death. After a lower court found that Bobby had an intellectual disability and was therefore exempt from execution, Texas’s highest criminal court ruled that Bobby’s ability to play pool and mow lawns proved he never had an intellectual disability and could therefore be executed.

Remarkably, the court prohibited the use of current medical standards in evaluating intellectual disability in death-penalty cases and instead used its own unscientific approach and outdated stereotypes. The age-old tendency to label allowed the court to use age-old bias to create a unique set of Texas factors to determine intellectual disability while ignoring decades of science. It is especially shocking that these factors were and are based, in part, on John Steinbeck’s fictional character Lennie from the 1937 novel, Of Mice and Men.

In this case, fiction and stigma trumped science and the Constitution. Never mind that the Texas factors for determining intellectual disability are not used in any medical or clinical setting in the nation. In fact, they’re not even used elsewhere in Texas. In countless situations where the state is responsible for determining intellectual disability, it uses current scientific standards.

The inaccurate Texas standard reinforces one of the most damaging stereotypes about people with intellectual disability—that they can’t be “good” at anything. The reasoning is dangerous and flawed: if you can mow a lawn, you can’t have an intellectual disability. If you have an intellectual disability, therefore, you can’t do anything. Both are wrong—dangerously wrong.

Happily, today people with intellectual and developmental disabilities are living longer and more productive lives than ever thanks to a deeper understanding of their strengths and more generous support for their challenges. In a time of otherwise hopeful change, Texas’ use of stigmatizing stereotypes is a dark blot on our nation’s laws and culture.

Labels have consequences. What we may allow in public discourse, we should not and cannot tolerate in law. It’s time for the Supreme Court to remind our nation that the Constitution and the vision of rights it embodies have no place for ill-informed and deadly stigmas.

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Wednesday, November 16, 2016

Court Decision: Long v Davis (TX: 2016)

Long v Davis (TX: 2016) Atkins COA denial is now posted in Court Decision blogroll. Also available by clicking here.

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Walls v Florida (2016) - remand based on Hall v Florida SCOUTS decision

I just noted that I had failed to post a copy of Walls v Florida (October 2016) decision to the blog roll of cases. It will be available under the Court Decisions blog role in a few moments. A copy can be accessed here.

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Change in intelligence (Gf,Gc): Explanations of Mathew and Compensation effects and Knowledge-is-Power hypothesis

Click on image to enlarge

"According to a first perspective, higher initial levels of knowledge (or reasoning) could facilitate the acquisition of new knowledge (or reason-ing abilities), which has also been labeled Matthew effect1 (Fig. 1, Panel A). Even though the term was originally coined to describe the phenom-enon that eminent researchers often get more credit for the same scien-tific contribution than their unknown competitors (Merton, 1968), it has been applied to various psychological phenomena (e.g., Shaywitz et al., 1995; Stanovich, 1986). In the context of intelligence research, the knowledge-is-power hypothesis (Hambrick, 2004; Hambrick & Engle, 2002) assumes that prior knowledge is the best predictor of fu-ture learning within a given domain of expertise, even stronger than reasoning (beside the fact that the empirical support for corresponding compensation effects is rather weak). As a consequence, students who are already knowledgeable should show the strongest knowledge gains and the achievement gap would widen. Research on expertise suggested several psychological mechanisms accounting for such “fan-spread” effects (Walberg & Tsai, 1983), that is, with a profound knowl-edge base new knowledge can be processed faster, integrated deeper and retrieved more accurately (e.g., Chase & Simon, 1973; Hambrick & Engle, 2002)."

Footnote re Mathew Effect origin: The name refers to the bible verse: “To all those who have, more will be given, and they will have an abundance; but from those who have nothing, even what they have will be taken away” (Matthew 13:12 and also 25:29, The New Oxford Annotated Bible, New Revised Standard Version)

"In the second perspective on how growth in intelligence is related to baseline levels, the gap between more and less capable individuals closes with time. Assuming that the change in both hypothetical sub-groups is still positive, less able test takers catch up (Fig. 1, Panel C). In the school context, the psychological mechanism behind such a com-pensation effect is at first glance somewhat obscure, especially if one takes into account that achievement differences tend to increase over time. This putative contradiction can be solved by assuming that school education especially promotes students with lower abilities during the school year, but that the achievement gap enlarges during vacations (Alexander, Entwisle & Olson, 2001; Cooper, Nye, Charlton, Lindsay & Greathouse, 1996). However, a compensation effect could also result from a lack of support for talented students. Snow (1989, p. 871) inci-sively pointed to the conflicting aims of education in school, that is, “maximize achievement outcome for all students while minimizing achievement variations among them”, which is often “resolved” by tailoring instructions to the needs of less able students."

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Sunday, November 13, 2016

Thompson v Florida: Hall v SCOTUS related new evidentiary hearing

Thompson v Florida decision for a new evidentiary hearing, in light of Hall v Florida, can be found here.

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Monday, November 7, 2016

John Blume Op-Ed in National Law Journal: Why SCOTUS must enforce Atkins protection: Texas Briseno factors

National Law Journal (Op-Ed)
Why the Supreme Court Must Enforce 'Atkins ' Protection in Capital Cases
OPINION: Later this month, Texas' legal standard on the intellectually disabled will be examined.
 John Blume,
November 7, 2016  

In Atkins v. Virginia the U.S. Supreme Court, in 2002, ruled that the Eighth Amendment's cruel and unusual punishment clause prohibits the execution of persons with intellectual disability. Given that intellectual disability is a long-­standing, well-established clinical diagnosis, the court naturally relied upon the scientifically valid, clinical consensus definitions of intellectual disability in creating the categorical bar.

Since Atkins, several states, ­primarily Florida and Texas, have exhibited displeasure with — and resistance to — the Supreme Court's decision by embracing nonclinical and unscientific practices that are intended to limit the effect of the constitutional mandate.

In Hall v. Florida, the Supreme Court, in 2014, addressed and rejected Florida's "bright line" 70 IQ score cutoff test for assessing intellectual disability, finding it fundamentally at odds with the generally accepted understanding that intellectual disability is "more than a number." This brought Florida back in line with the current science of intellectual disability.

This term, when Moore v. Texas is argued on Nov. 29, the court will consider Texas' attempt to make death row inmates' assertions of intellectual disability extremely difficult to establish.

Shortly after Atkins, the Texas Court of Criminal Appeals, in Jose Briseno's case (ex parte Briseno), expressed its dissatisfaction with the Atkins decision, declaring that its task was to determine "that level and degree of [intellectual disability] at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty."

However, that was simply wrong. The Supreme Court had already decided in Atkins that any person with intellectual disability is exempt from the ultimate punishment. The court did not give Texas license to decide that some persons who have intellectual disability can nevertheless be executed because they do not have the "degree" of intellectual disability meeting a Texas-centric consensus. But that is what the state court did.

After explaining that the fictional character Lennie from Steinbeck's "Of Mice and Men" would meet Texas's definition, it created out of whole cloth seven "evidentiary factors" for Texas courts to consider in assessing claims of intellectual disability. The so-called Briseno factors are steeped in misconceptions and lay stereotypes of intellectual disability, and include clinically meaningless considerations, repudiated by the medical community, such as whether an individual's family and friends considered him intellectually disabled during his childhood and whether a person is capable of lying and hiding facts.

The Briseno factors are idiosyncratic to Texas. No other state has embraced them for use in capital cases where intellectual disability is at issue. In fact, even within Texas, the Briseno factors are not used in any other medical or legal context, like disability benefits or special-education determinations. The Texas capital-punishment system is, in short, an outlier. And its use of the aptly named "Lennie standard" explains why death row inmates with very strong claims of intellectual disability (such as Bobby Moore) routinely have those claims rejected. Texas has one of the lowest defendant success rates in the Atkins context in the nation.

The Supreme Court in Hall made clear that states' intellectual-disability determinations must be "informed by the medical community's diagnostic framework." Texas' use of the fictional character Lennie in establishing the intellectual disability baseline, combined with the creation and application of the Briseno factors, violates this requirement.

The clinical consensus definition of intellectual disability has three prongs: (1) significantly subaverage intellectual functioning; (2) significant deficits in adaptive functioning; and (3) onset in the developmental period. In Hall, the Supreme Court corrected Florida's deviation from the diagnostic framework on prong 1 by rejecting the state's bright-line rule that a person must have an IQ of 70 or below, regardless of the standard error of measurement inherent in any test of intelligence.

The Moore case presents the Supreme Court with Texas' nonscientific gloss on prong 2. Since Briseno, Texas courts have assessed adaptive deficits based on misconceptions about intellectual disability. Texas courts have used a person's ability to perform basic life functions like holding an unskilled job, surviving on the streets or obtaining a driver's license to negate compelling evidence of intellectual disability. But the medical community recognizes that many people with intellectual disability can perform these functions, and giving dispositive weight to perceived "strengths" while ignoring deficits is at odds with the basic diagnostic criteria.

The Supreme Court in Moore now has the opportunity to at least partially fix the underenforcement of Atkins in Texas. A trial judge, after hearing the testimony of several expert witnesses, concluded that Bobby Moore was a person with intellectual disability and that his death sentence should be commuted to life imprisonment without the possibility of parole.

Using the strict nexus requirement and the Briseno factors, the Texas Court of Criminal Appeals overturned the lower court's judgment. In doing so, the state court rejected the consensus clinical definition of intellectual disability and failed to use the scientifically mandated diagnostic framework.

Intellectual disability should not mean something different in Texas capital cases than it does in other death penalty jurisdictions. The Atkins court spoke of the risk of the wrongful execution of persons with intellectual disability. That risk is currently a reality in Texas and it is time for the Supreme Court to change that.
John Blume is the Samuel F. Leibowitz Professor of Trial Techniques at Cornell Law School.