New important Atkins SCOTUS decision on fall 2025 docket: How to evaluate and interpret multiple IQ scores in Atkins cases (Hamm[AL] v Smith)?

 This fall 2025, the Supreme Court of the United States (SCOTUS) will be hearing a case related to intelligence testing in the context of Atkins intellectual disability (ID) death penalty cases. The case is Hamm v Smith.

The question before SCOTUS is :  Whether and how courts may consider the cumulative effect of multiple IQ scores in assessing Atkins claims (in the context of diagnosis ID in death penalty cases)?

Note.  In order to save space and time, instead of writing “general intelligence” or “general intellectual functioning” every time, I use the abbreviation “IQ”.

The respondent (Joseph Smith) has five IQ test scores from comprehensive IQ tests.  He obtained two scores of 75 and 74 during the developmental period (before age 22), and three scores of 72, 78, and 74 between the ages of 28 and 46.  

This case is important for assessment professionals who conduct intelligence testing in general, and potential ID diagnostic cases (Atkins cases in particular).  I find this SCOTUS case particularly interesting given that in 2021, after the 2021 release of the latest official AAIDD manual (Intellectual disability: Definition, diagnosis, classification, and systems of supports), I published a critique where I specifically stated, as one weakness of the new AAIDD manual that “…many high-stakes ID cases often include case files that include multiple IQ scores across time or from different IQ tests. Some form of guidance, at minimum in a passing reference, to the issues of the convergence of indicators and IQ score exchangeability would have been useful. Users will need to go beyond the AAIDD manual for guidance (see Floyd et al., 2021; McGrew, 2015; and Watson, 2015)” (click here to download and read this critique).

All official petitioner and respondent legal briefs (and amicus briefs) have now been published at the SCOTUS blog as of yesterday.  The number of documents posted on the SCOTUS docket are many.  To help the reader better determine which documents are most critical (the final briefs), instead of clicking away on the various links at the SCOUTUS blog, I’ve organized the petitioner and respondent brief links below.

If you prefer to not wade through all the briefs (it is not for everyone), I would encourage practicing assessment professionals read the three respondent-related briefs.  The points made are relevant to all who conduct intellectual assessments.  As a potential conflict of interest notice, I (Dr. Kevin McGrew), together with Dr. Joel Schneider and Dr. Cecil Reynolds (as noted on page three for the APA amicus brief), were consultants to APA in the drafting of that brief.  This work was performed pro bono. I, at a minimum, suggest reading all the respondent briefs.  If time permits, I would also suggest reading the petitioner’s Alabama brief and the US Justice Department Solicitor General’s brief to better understand the petitioner and respondent positions re Hamm v Smith. 

Petitioner briefs

• The state of Alabama brief.  Alabama is the petitioner.  That is, if you want to read why the State of Alabama asked SCOTUS to hear this case, click on the link provided.
• The Alabama brief also includes a very long appendix for those who want to read the prior courts related testimony from the state and various experts. This is a very long read and is not necessary for readers who only want to understand the legal and professional issues. 
• Supporting amicus brief from the US Justice Department Solicitor General.
• Two supporting briefs from legal groups—the American Legal Foundation and the Criminal Justice Legal Foundation.
• Supporting amicus briefs from other states (Idaho et al.; Kentucky)

Respondent briefs

• Smiths respondent brief.
• Supporting amicus brief from American Psychological Association (APA), American Psychiatric Assocation (ApA), and Alabama APA.
• Supporting amicus brief from AAIDD et al.

Final comment.  Those from school psychology should make note that we three consultants involved in drafting the APA/ApA,AL-APA brief all had our original educational roots in the profession of school psychology.  Furthermore, SP professionals should note the significant number of authoritative references to publications authored by school psychologists in the respondents briefs, as well as in some of the petitioners briefs.  I’ve been doing expert consultation, writing declarations, and testifying in court re: Atkins ID cases since 2009.  Joel Schneider and Cecil Reynolds have also been active in a similar capacity.  There are more psychologists who come from, or are affiliated with, the field of school psychology who have been prominent consultants/experts to lawyers and the courts re Atkins cases.  

Perhaps some of these briefs should be assigned readings (in intellectual assessment courses or special topic seminars) for graduate students being trained in the art and science of intelligence testing and interpretation.

APA 2019 workshop on "New Developments in the Death Penalty and People with Intellectual Disability:

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Atkins decisions: More on Moore v TX (2018). ABA files brief on behalf of Moore - UPDATED 11-20-18 to include APA amicus brief

Interesting turn of events re: Moore v. Texas. ABA story here.

The AG’s motion can be found here. The ABA amicus brief can be found here.

The trail of prior documents and decision can be found starting here.

11-20-18 UPDATE.  I previously did not have a copy of the APA amicus brief. A copy is now available here.


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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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SCOTUS: Moore v Texas (2016) update - APA (and others) amicus brief

An update on the Moore v Texas (2016) case before SCOTUS. The American Psychological Association (and other mental health organizations) have filed an amicus brief that primarily challenges the Texas Briseno adaptive behavior factors. Click here to access the brief. I have yet to locate a copy of the AAIDD amicus brief.

 

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Hall v Florida SCOTUS case: Amicus Briefs by APA and AAIDD

 

The Atkins case of Hall v Florida will be heard by SCOTUS shortly. Like most Atkins cases, the issues are complex. But the essence of the case is Florida's "bright line" test for the first ID Dx prong...which, based on the FLorida Cherry Court decision, is set at a firm IQ score of 70 with no recognition of the standard error of measurement (SEM).

Both APA and AAIDD have spearheaded two separate Amicus Briefs, which also include other organizations. The two briefs have now been posted in the brief sidebar of this blog. They can also be found at the links below.

APA led Amicus Brief

AAIDD led Amicus Brief

 

 

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SCOTUS Hall v Florida Atkins ID update: Petitioners and Amicus Briefs--major focus on IQ "bright line" and SEM

The Atkins MR/ID case of Hall v Florida, which is to be heard by SCOTUS this spring, had two mportant briefs posted within the last week.

The Hall v Florida petition was filed Dec 16. Today, an Amicus Brief was filed by a number of organizations, led by the American Psychological Association.
Click here for a variety of posts re: Atkins cases in Flordia, which have been problematic due to the Florida "Cherry court" establishment of a "bright line" score of 70, with no consiseration of the standard error of measurement (SEM)

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APA Speciality Guidelines for Forensic Psychology now available via American Psychologist

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Research Bytes: Individuals with ID/MR in the criminal justice system

The journal Exceptionality had a small special issue addressing issues surrounding the involvement of individuals with disabilities in the criminal justice systems. The two key articles are featured below. Greenspan's article is a nice overview of the key issues in Atkins MR/ID death penalty cases.

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Kevin McGrew APA Flynn effect in Atkins MR/ID cases complete handouts--as promised

Here is a copy of all my slides, in PDF format, that I promised at my APA Div 33 Atkins ID/MR symposium.


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New APA journal App for iPhone and iPad

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Dr. Greg Olley's APA Div 33 Presidential address on Atkins MR/ID death penalty issues

The Death Penalty, the Courts, and What We Have Learned about Intellectual Disability. APA Div 33 Presidential Address by Dr. Greg Olley.

Dr. Greg Olley's Presidential Address (Div 33) was devoted to issues surrounding Atkins MR/ID death penalty issues. It is worth a read. I have tremendous respect for Greg's experience, knowledge and insight. His article starts on page two of the division newsletter.


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intelligence intelligence testing Atkins cases ICDP blog psychology school psychology neuropsychology Forensic psychology criminal psychology criminal justice death penalty capital punishment ABA IQ tests IQ scores adaptive behavior AAIDD mental retardation intellectual disability Flynn effect practice effects SEM standard error of measurement APA Division 33 American Psychological Association Greg Olley 8

In the public interest: Intellectual disability, the Supreme Court, and the death penalty.

In the public interest: Intellectual disability, the Supreme Court, and the death penalty.

American Psychologist - Vol 68 (5)

This article deals with a case that recently came before the U.S. Supreme Court. The issues involved whether attorneys provided effective assistance to a person convicted of murder when no mitigating evidence was presented (either strategically or by neglect) to the jury concerning the intellectual disabilities of their client during the death penalty phase of the trial. The Supreme Court had previously ruled that the death penalty for intellectually disabled individuals (mentally retarded) constituted cruel and unusual punishment. In this case the attorneys made a strategic decision not to present possibly mitigating evidence for the death penalty phase. The Supreme Court considered whether the appeals court abdicated its judicial review responsibilities. The results of psychological evaluations are presented, and the decisions of the Supreme Court are discussed. (PsycINFO Database Record (c) 2010 APA, all rights reserved)

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Kevin McGrew, PhD

Educational Psychologist

APA Division 33: Intellectual and Developmental Disabilities Atkins related newsletter articles

In the past I mentioned the importance of APA Divisions 33 (Intellectual and Developmental Disabilities) and 41 (American Psychology-Law Society) for psychologists and other professionals interested in Atkins cases. 

I recently joined both (although I've yet not received confirmation of my secret decoder ring and handshake for Div 33).

Today I was rummaging around the Div 33 website and was looking at past editions of the newsletter.  I found  that a large number of recent newsletters contained articles related to intellectual disability and Atkins cases.  I downloaded them for some late-night reading.  Others may find them of interest.  Below is a list of articles in recent newsletters.  You can access them by clicking here, and then using the "Current Issue" menu to locate specific issues.  Enjoy

• Vol 31 (2), 2006 - Division 33 Ad Hoc Committee on Mental Retardation and the Death Penalty by J. Gregory Olley, Stephen Greenspan and Harvey Switzky
• Vol 32 (1), 2006 - The Assessment of Adaptive Behavior in Adult Forensic Cases: Part 1 by J. Gregory Olley
• Vol 32 (3), 2006 - The Assessment of Adaptive Behavior in Adult Forensic Cases: Part 2. The Importance of Adaptive Behavior by J. Gregory Olley
• Vol 32 (3), 2007 - Capital Offenders and the Death Sentence: A Scandal That Must Be Addressed by James R. Flynn
• Vol 32 (3), 2007 - Flynn-Adjustment is a Matter of Basic Fairness by Stephen Greenspan
• Vol 33 (1), 2007 - The Assessment of Adaptive Behavior in Adult Forensic Cases: Part 3. The Importance of Adaptive Behavior by J. Gregory Olley
• Vol 33 (2), 2007 - 2007 Edgar A. Doll Address: “Why Mental Retardation and Intellectual Disabilities Are Important and Why Nobody Cares by Douglas K. Detterman
• Vol 33 (3), 2006 - Issues in the Use of the “Flynn Effect” to Adjust IQ Scores When Diagnosing MR by Stephen Greenspan
• Vol 34 (1), 2008 - Linguistic Sensitivity Does Not Require One to Use Grossly Deficient Norms: Why US Norms Should Be Used With the Mexican WAIS-III in Capital Cases by Hoi K. Suen and Stephen Greenspan
• Vol 35 (1), 2009 - Update on the Committee on Mental Retardation and the Death Penalty by J. Gregory Olley

Technorati Tags: psychology, APA, American Psychological Assoication, developmental disabilities, intellectual disabilities, mental retardation, APA Div 33, APA Div 41, Psychology and Law, adaptive behavior, intelligence, IQ tests, Flynn Effect, WAIS-III, WAIS-III Mexican norms

Adolescent cognitive maturity and capital punishment: APA American Psychologist articles and amicus briefs

I had just started reading the latest issue of the American Psychologist with great interest, when Karen Franklin (In the News Blog) posted a nice summary of the featured article.  A central issue in the featured article, which also had some response counter-point articles, is what appears at face value to be APA's schizophrenic stance, as articulated in two different Amicus Briefs, re: whether adolescents have the cognitive maturity to make certain decisions (criminal behavior vs ability to make decision for an abortion).  As a result of eventual court decisions, juvinelle's can not be consider for capital punishment (death penalty).  The articles make for interesting reading re: the use of psychological research to inform judical thinking and decision-making.

The two different APA Amicus Briefs can be found at Psychology and the Law.  Roper v Simmons (2005) and Hodgson v Minnesota (1990).  A more recent APA Amicus Brief related to juvenile sentencing and the death penalty (Graham v Florida; Florida v Sullivan) is also of interest for capital punishment cases.  All APA Amicus Briefs can be reviewed by clicking here.

Technorati Tags: psychology, American Psychologist, APA, American Psychological Association, juveniles, adolescents, cognitive maturity, captial punishment, death penalty, abortion decisions, Amicus Briefs

APA Div. 41, 33 and Law and Human Behavior journal

This weekend I joined Division 41 (American Psychology-Law Society) of the American Psychological Association.   I will be monitoring publications and activities related to the Intellectual Competence and Death Penalty blog.  As a result I've add the divisions journal, Law and Human Behavior, to the list of professional journals monitored by this blog (see listings on right-side of blog).

I've also mailed my application and dues to Division 33 (Intellectual and Developmental Disabilities) and will make a similar post once I receive my membership notification.

Technorati Tags: psychology, APA, Division 44, Divison 33, American Psychology-Law Society, developmental disabilities, MR, mental retardation, forensic psychology, law and psychology, Atkins cases, capital punishment, death penalty

Atkins v Virginia: American Psychological Associations position

Another FYI (no comment) post.

In this evenings searching of the internet I ran across the APA's Topic: Psychology and Law page where the position of APA in the Atkins v Virginia case is stated. Click here to view.

Atkins MR death penalty experts: Knowledge and exerience required (Olley, 2009)

What does it take to be an expert in Atkins MR death penalty cases? A good article outlining a number of the skills, knowledge, issues and expertise required is that by Olley (2009) in the special issue of the journal Applied Neuropsycholgy. Individuals considering testifying in Atkins MR death penalty cases should read this article in full.

• Olley, J. G. 2009. Knowledge and Experience Required for Experts in Atkins Cases. Applied Neuropsychology,16 (2), 135-140.

Abstract

The United States Supreme Court’s Atkins v. Virginia (2002) decision has created a need for experts who are knowledgeable and experienced in both mental retardation and forensic psychology. This article summarizes the issues that are critical to the diagnosis in the ‘‘close calls’’ that typify Atkins cases. A resolution of such close calls hinges upon the expert’s ability to testify with regard to the characteristics of mild mental retardation and the way that diagnostic standards may be applied differently in clinical versus forensic settings. The critical impairments are not in the form of physical stigmata. They are characterized by difficulties in judgment when engaged in typical community functioning. The keys to these close calls are the individual’s problems in functioning in the community with the degree of independence required for adults.

ARTICLE SUMMARY

[note: Italics are direct quotes. Underline is emphasis added by the blogmaster]

According to the articles author:

Those who have been testifying in Atkins hearings have come from varied professional backgrounds. The knowledge and expertise needed for "expert testimony in Atkins involve an unusual mix of background in the field of developmental disabilities with a background in forensic psychology. This combination of credentials was rare before the Atkins decision, and, thus, psychologists and other experts who are asked to testify may have limited experience in some of the essential aspects of the diagnosis of mental retardation in this new context."

Forensic psychologists are most likely to be recognized and accepted by the courts as experts, but the majority of forensic psychologists have little training or experience in the field of developmental disabilites (mental retardation).

Given the lack of uniform training, the author suggests the following as key issues that Atkins experts need to be familiar with:

• Relevant professional standards (note--see Standards, Ethics and Position Statements" links in current blogs sidebar (right side of blog)
  

• Current definitions of mental retardation, and the recognition that different states may have different definitions and diagnostic criteria.

• Relevant ethical principles of their profession "(American Academy of Psychiatry and the Law, 2005; American Psychological Association, 2002), position statements made by professional organizations (e.g., American Bar Association Task Force on Mental Disability and the Death Penalty, 2006; Bonnie, 2004; Committee on the Revision of the Specialty Guidelines for Forensic Psychology, 2008), and recommendations made by recognized authorities in the field (e.g., Bonnie & Gustafson, 2007; Ellis, 2003)."

• Understand a key difference between clinical and forensic settings. In clinical settings, typically definitions and criteria are used to identify individuals "who meet the criteria and would benefit from services and supports." In such situations professional standards allow psychologists to excercise clinical judgment and to take into consideration the potential benefits of services for the assesed invididual. In contrast, the most significant issues in court settings are likely to focus more on the application of professional definitions in a more narrowly circumscribed and constrained legal context.
  

The author notes that "most Atkins cases are close calls; that is, evidence exists for and against the diagnosis, and if the defendant has mental retardation, it is in the mild range with functioning between two and three standard deviations below the population mean." The author then lists a number of important issues that must be recognized in these "close calls." They include, but are not limited to:

Impairment in Typical Community Functioning. This is not an easy task an involves a variety of issues, including:

• Understanding that mild MR is primarily identified by impaired typical community functioning and not specific diagnostic signs or physical symptoms. The cause of mild MR is typically unnkown.

• Typical functioning is difficulty to assess given that the person is incarcerated in a structured environment and collecting pre-incarceration information re: typical commmunity functioning requires significant effort.

• An individuals typical functioning must be compared to the normative standards of the appropriate population (US population...not a prison population)

• Recognition that mild MR may coexist with other disorders or diagnoses.

• Self report information from the defendant "is of very questionable value in the diagnosis of mental retardation. The expert in an Atkins proceeding should, of course, meet with the defendant, interview him, and engage him in whatever activities might help to determine his understanding of his current situation, his ability to report on factual aspects of his history, and his ability to relate to others. However, the defendant’s assessment of his own functioning is not a valid source of data on which to form a diagnosis. Most people with mild mental retardation can engage in casual conversation and report on their experiences and other concrete topics. Limitations in understanding and communication become evident when the individual is asked to explain his statements or to discuss topics that require abstract reasoning or analysis."

• "the extent to which the individual was able to live independently with minimal assistance is key to the diagnosis of mental retardation in close calls."

• individuals with mild MR rarely have social relationshiops that are mutually beneficial and reciprocal. "In most cases, the individual has few friends and the existing relationships tend to be one-sided. That is, the individual depends on a parent or girlfriend or neighbor as a ‘benefactor’ or has acquaintances who try to exploit him for money, labor, drugs, or other resources."

Significant Impairment in General Intelligence. Select issues to recognize include:

• A cause-and-effect relationship betwen intelligence (IQ) and adaptive functioning is difficult to prove

• Atkins defendents typically have taken multiple IQ tests and the scores often fluctuate around the legal cut-off score. Experts need to recognize the potential reasons for this IQ variability and account for it in their interpretation and conclusions.

Training Issues in Forensic Psychology

• States and jurisdictions may specify different standards regarding who can testify as an expert in Atkins cases. Experts need to be aware of the professional standards involved in a specific case before deciding to serve as an expert witness.

• "psychologists preparing to testify in Atkins proceedings would benefit by becoming members of two divisions of the American Psychological Association. Division 33 (Intellectual and Developmental Disabilities) and Division 41 (American Psychology-Law Society) often provide information relevant to Atkins and offer the opportunity to become acquainted with colleagues with experience in this area."

Article summary

The expert in an Atkins proceeding must have experience with individuals with mild mental retardation, knowledge of the research on this population, and knowledge of the applicable laws and court procedures. This combination of knowledge and experience was rare before the Atkins decision, and experts who now work in this area must broaden their experiences to provide the most valid and objective information to the court. As the other articles in this issue have demonstrated, the diagnosis of mild mental retardation is complex and requires more than the rigid application of test scores. People with mild mental retardation may have basic academic skills and several areas of adequate community functioning. Their difficulties that set them apart are more likely located in their judgment than in their knowledge and skills. Reschly (2009, this issue) provides an excellent summary in noting that ‘‘The core issue is the use of abstract reasoning and judgment in coping with everyday demands in a socially and economically complex society.’’

Court decision upholds MR diagnosis in death penalty case: Davis v US (2009)

A recent US District Court decison (District of Maryland) was handed down April of this year (2009). Davis v US has been added to the Court Decisions section of this blog (see right-hand side of blog page).

In this case, the defendant was ruled to be MR and thus, was not eligible for the death penalty. Reading this decisions gives important insights re: how the courts weigh and judge conflicting expert testimony and evidence re: IQ scores and adaptive behavior. It is interesting to see how the court accepts or does not agree with different expert testimony and how it attends to the two primary professional definitions (AAMR/AAIDD APA) of MR.

Of interest re: IQ scores are discussions of the importance of full scale global IQ scores in the context of sub-composite discrepancies (Verbal vs Performanc IQ) and the relevance of the Flynn Effect. Also of interest is how the subjects history was used to establish MR during his developmental period (before age 18), the third prong of the accepted MR definitions (IQ deficit; adaptive behavior deficit; MR originating before age 18).

APA Atkin's relevant professional divisions: 33 and 41

Psychologists involved in Atkin's proceedings need to be aware of certain standards, ethics, etc. On the right-side of this blog I'm adding (on a continual basis) important professional resources. As recommended in a recent article by Olley (2009; I'm currently skimming this article and will provide a post sometime soon), membership in certain American Psychological Association Divisions can be helpful in securing information, networking with others involved in Atkin's cases, etc. Two in particular are suggested:

• Division 33: Intellectual and Developmental Disabilities

• Division 41: American Psychology-Law Society

Technorati Tags: psychology, educational psychology, developmental psychology, clinical psychology, forensic psychology, Atkins cases, MR, mental retardation, intellectual disability, death penalty, capital punishment, American Psychological Association