Atkins ID/MR court decision: Brownlow v Texas (2020)

Here is a recent Atkins related court decision.  Brown v Texas (2020).  AP news story is here

Atkins Court Decision: TX CCA Commutes Bobby Moore’s Death Sentence in Intellectual Disability Case

After iterating through the courts for years, the Atkins case of Bobby Moore, which had the Texas Briseno factors as a core issue, has been settled.

Click here for news story.  Here is another news story link.

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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Law Review Article: Evaluating Intellectual Disability: Clinical Assessments in Atkins Cases (Ellis et al., 2018)

This new law review article is, IMHO, the best overview article regarding the history of ID, the legal issues in Atkins cases, and good discussion of the major conceptual and measurement issues found in many Atkins cases. An excellent introduction to ID issues in Atkins cases.

EVALUATING INTELLECTUAL DISABILITY: CLINICAL ASSESSMENTS IN ATKINS CASES

James W. Ellis, Caroline Everington, Ann M. Delpha

ABSTRACT

The intersection of intellectual disability and the death penalty is now clearly established. Both under the U.S. Supreme Court's constitutional decisions and under the terms of many state statutes, individual defendants who have that disability cannot be sentenced to death or executed. It now falls to trial, appellate, and post-conviction courts to determine which individual criminal defendants are entitled to the law's protection. This Article attempts to assist judges in performing that task. After a brief discussion of the Supreme Court's decisions in Atkins v. Virginia, Hall v. Florida, and Moore v. Texas, it analyzes the component parts and terminology of the clinical definition of intellectual disability. It then offers more detailed discussion of a number of the clinical issues that arise frequently in adjudicating these cases. For each of these issues, the Article's text and the accompanying notes attempt to provide judges with a thorough survey of the relevant clinical literature, and an explanation of the terminology used by clinical professionals. Our purpose is to help those judges to become more knowledgeable consumers of the clinical reports and expert testimony presented to them in individual cases, and to help them reach decisions that are consistent with what the clinical literature reveals about the nature of intellectual disability and best professional practices in the diagnostic process.

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Law Review Article: Comment post-Moore: Call for national standard for ID def in capital cases

Article can be found here.



CONCLUSION

The Supreme Court's decision in Moore served as little more than a lackluster attempt to provide states with guidance in creating a standard for determining intellectual disability for the purposes of capital punish-ment. While the Court attempted to narrow the leniency it provided to states with its holdings in both Moore and Hall, it has likely done nothing more than cause confusion as states attempt to create legislation that ad-heres to the Court's mandates. The Court's refusal to provide states with a functional definition of intellectual disability in capital cases might seem merely frustrating at first glance, but it is also potentially unconstitu-tional-arguably violating both the Eighth Amendment and the equal pro-tection clause. What is more, as each state creates its own test for deter-mining intellectual disability, the states increase their risk of violating the Eighth Amendment's prohibition of cruel and unusual punishment. Thus, the Court should provide the states with a definition to avoid these pressing constitutional concerns.

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Validity, Interrater Reliability, and Measures of Adaptive Behavior: Concerns Regarding the Probative Versus Prejudicial Value

Validity, Interrater Reliability, and Measures of Adaptive Behavior: Concerns Regarding the Probative Versus Prejudicial Value

Psychology, Public Policy, and Law. Article link.

Karen L. Salekin,The University of Alabama
Tess M. S. Neal,Arizona State University
Krystal A. Hedge, Federal Medical Center, Devens, Massachusetts

The question as to whether the assessment of adaptive behavior (AB) for evaluations of intellectual disability (ID) in the community meet the level of rigor necessary for admissibility in legal cases is addressed. AB measures have made their way into the forensic domain, in which scientific evidence is put under great scrutiny. Assessment of ID in capital murder proceedings has garnished a lot of attention, but assessments of ID in adult populations also occur with some frequency in the context of other criminal proceedings (e.g., competence to stand trial, competence to waive Miranda rights), as well as eligibility for social security disability, social security insurance, Medicaid/Medicare, government housing, and postsecondary transition services. As will be demonstrated, markedly disparate findings between raters can occur on measures of AB even when the assessment is conducted in accordance with standard procedures (i.e., the person was assessed in a community setting, in real time, with multiple appropriate raters, when the person was younger than 18 years of age), and similar disparities can be found in the context of the unorthodox and untested retrospective assessment used in capital proceedings. With full recognition that some level of disparity is to be expected, the level of disparity that can arise when these measures are administered retrospectively calls into question the validity of the results and, consequently, their probative value.

Keywords: adaptive behavior measures, Atkins, forensic evaluations, validity, interrater reliability


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Breaking News: SCOTUS vacates Moore v Texas Atkins decision: Briseno adaptive behavior standards not consistent with medical consensus

SCOTUS has vacated Moore v Texas which had as the central issue the inappropriate use of the state of Texas's unusual Briseno adaptive behavior standards.

Prior posts regarding this case can be found here. The history of the case before SCOTUS is available at the SCOTUS blog. A copy of the decision can be accessed 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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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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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.

SCOTUS update: Moore v Texas - all amicus briefs and documents

Shout out to Guy McBride, John Willis, and Ron Dumont for reminding me that all relevant briefs and SCOTUS related documents for Moore v Texas are available at the SCOUTUS blog. I clearly had a brain spasm as I monitor the SCOUTUS blog regularly. Thanks guys.

 

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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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Law Review Article: Crowell (2016) on Texas Briseno factors

 

 

A good Texas Law Review article on the Texas Briseno adaptive behavior factors. Click here to read. Click on image to enlarge

 

 

 

 

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SCOTUS Atkins activity: MOORE, BOBBY J. V. TEXAS The petition for a writ of certiorari is granted

MOORE, BOBBY J. V. TEXAS The petition for a writ of certiorari is granted. One question presented relates to Texas’s problematic, non scientific Briseno factors for adjudicating Atkins claims.   SCOTUS Blog has all the papers here.

 

AAIDD/ARC SCOTUS 2015 amicus brief regarding Texas adaptive behavior issues (Briseno factors)

An amicus brief (click to access) has been filed with SCOTUS by AAIDD and ARC regarding a petition for writ of certiorari for a case in Texas (Lizcano).  Briefly, the amicus brief points out the problems with the Texas Briseno factors (click here for all prior Briseno related posts) in the evaluation of prong 2 of the Dx of ID (adaptive behavior).  The problems at issue address the most basic principles of scientific reliability and validity in the evaluation of the adaptive behavior prong of the ID definition

Atkins MR/ID death penalty court decision: Chester v Thaler (TX, 2011)

Another Atkins decision from Texas....Chester v Thaler (TX, 2011). The decision includes a rather lengthy discussion of Texas' Briseno adaptive behavior factors.

intelligence,intelligence testing,mental retardation,intellectual disability,Atkins MR,Atkins ID,Atkins cases,ICDP blog,psychology,school psychology,neuropsychology,forensic psychology,criminal psychology,criminal justice,death penalty,capital punishment,ABA,IQ tests,IQ scores,psychometrics,adaptive behavior,AAIDD,mental retardation,intellectual disability,Briseno factors,Chester v Thaler (2011)

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Atkins MR/ID Death Penalty Court Decision: Wilson (TX, 2010,2011) loses on remand

This is a new decision related to the Texas case of Wilson which was previously posted in August 2010, at that time with a guest blog post by Kevin Foley.

The latest decision (Wilson v Thayler, 2011) is now included in the Court Decisions blogroll. Kevin Foley provides the following guest comments regarding this latest decision.

Marvin Lee Wilson Loses on Remand Guest blog comments by Kevin Foley.



Marvin Lee Wilson’s petition for a writ of habeas corpus relief, the Fifth Circuit Court of Appeals remanded the case back to the district court and ordered that, “The district court shall consider Petitioner’s motion and the full state Atkins record under the current law.” Apparently, the federal district court denied the habeas corpus claim without having the complete state court record before it. [Click here for copy of decision]

The district court’s resolution of the Atkins claim on remand was disappointing, to say the least. The district court stated that the state trial court’s decision was, “less than clear”, a comment that is a red flag to any lawyer, because it is an indication that, in some respects, one may not be able to tell just what the trial judge did or what reasoning he used. The district court’s discussion seemed to go downhill from here. Incredibly, the district court pointed out that, “the state court did not explicitly state that Wilson suffered from significantly sub-average general intellectual functioning [nor did the trial court make a specific finding about Wilson’s level of intellectual finding] . . . The state court also did not make explicit findings and reached no explicit conclusions as to whether Wilson had significant limitations in adaptive functioning, and it made no explicit finding as to whether Wilson’s significantly alleged sub-average intellectual functioning and significant limitations in adaptive skills ( if he had them) occurred prior to the age of eighteen”. What is going on here? How can a court rule on a mental retardation claim without making findings on the three elements of the diagnosis? Well, what the trial court did was - at least according to the federal habeas corpus judge – “The state court made explicit findings as to each of the seven Briseño factors”, the dubious judge-created “test” for whether a capital defendant is mentally retarded. It is a discouraging development in the land of Atkins jurisprudence that a court can adjudicate a mental retardation case without making findings on the three major elements of the diagnosis, instead relying mostly on the so-called Briseño factors - and have such a effort survive appellate and habeas corpus review.

[Blogmaster comment. Click here for all prior posts that touch on the Texas Briseno standards]








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ex parte Briseno (2004, TX) decision now posted. Adaptive behavior in TX Atkins cases

The Texas Briseno factors, which relate to the evaluation of the adaptive behavior prong in Texas MR/ID Atkins death penalty cases, is often mentioned in Texas Atkins cases (click here for all ICDP posts that may mention Briseno).  It was brought to my attention that a copy of the original decision was not available here at ICDP.  Thanks to Karen Salekin and on of her students that situation has now been rectified.  You can access ex parte Briseno (2004) now (and it is not listed in the Court Decisions blog roll).

Technorati Tags: psychology, forensic psychology, forensic psychiatry, neuropsychology, intelligence, school psychology, psychometrics, educational psychology, IQ, IQ tests, IQ scores, adaptive behavior, adaptive functioning, intellectual disability, mental retardation, MR, ID, criminal psychology, criminal defense, criminal justice, ABA, Atkins cases, Atkins death penalty, American Bar Association, Atkins cases, death penalty, capital punishment, AAIDD, Atkins MR/ID listserv, ICDP blog, psychiatry, psychiatry and criminal justice, Briseno standards, Texas and death penalty

Atkins MR/ID death penalty case a "notable petition" before SCOTUS. Hall v Thaler

Interesting potential SCOTUS development as reported at the SCOUTUS BLOG.  Hall v Thaler (previously listed here at ICDP as Hall v Quartermann;  has now been updated to be Hall v Thaler under the Court Decisions section to reflect recent developments) is reported to be a "notable petition"----which, according to the site, "indicates it is a case scheduled for consideration by the Justices."

The listing is under the notable petitions section of the SCOTUS blog, and includes links to filed background documents (5th Circuit opinion; Petition for certiorari;  Amicus brief of Texas State Senator Rodney Ellis et al; and Amicus brief of AAIDD and ARC.  The case is docket number 10-37.  I've only had time to skim a few pages but this Texas case appears to have the potential to raise a number of critical Atkin's issues---and provide SCOTUS with the chance to address some of the mess left post-Atkins.

Will monitor as close as possible.  Would appreciate others sending me FYI's as they learn and hear more.

Technorati Tags: psychology, forensic psychology, forensic psychiatry, neuropsychology, intelligence, school psychology, psychometrics, educational psychology, IQ, IQ tests, IQ scores, adaptive behavior, adaptive functioning, intellectual disability, mental retardation, MR, ID, criminal psychology, criminal defense, criminal justice, ABA, Atkins cases, Atkins death penalty, American Bar Association, Atkins cases, death penalty, capital punishment, AAIDD, Atkins MR/ID listserv, ICDP blog, psychiatry, psychiatry and criminal justice, Flynn effect, Briseno standards, Texas and death penalty, SCOUTS petition, Hall v Thaler

Court Decision: Hill v Schofield (GA, 2010): "Beyond reasonable doubt" in doubt in GA ID/MR Atkins ruling

As noted in a brief post yesterday, with a link to the Sentencing and Law Policy blog, a panel of the 11th Circuit Court of Appeals issued a decision (Hill v Schofield; GA, 2010) that potentially could have wide-ranging consequences for many Atkins cases. The court declared Georgia's intellectual disability/death penalty statute was unconstitutional insofar as it placed the burden of proof on the defendant "beyond a reasonable doubt" (the highest standard required in court).  The court stated,

By imposing the overwhelming majority of the risk of error on the defendant in its application of the most stringent standard possible, Georgia holds that it is far better to erroneously execute a mentally retarded person than to erroneously impose a life sentence on one not mentally retarded. Requiring a defendant to prove mental retardation beyond a reasonable doubt is appropriate only if the interests of a state in maximizing the number of death sentences outweigh the constitutional right of mentally retarded offenders not to be executed. This state interest, however, is not constitutionally permissible at the cost of violating the constitutional right of a  mentally retarded offender not to be executed.

Hill v. Schofield, __ F. 3d __ , Case No. 08-15444 (11th Cir., June 18, 2010), slip op. at pgs. 14-15.

However, the decision was not without strong dissent.  I am no lawyer, but a few folks I know withknowledge of these matters suggest that it is likely that the state will ask for a a rehearing in front of the entire array of the 11th circuit's judges, a procedure known as motion for rehearing en banc. A motion for rehearing is (according to my sources) a prerequisite for seeking review by the SCOTUS.

Although the case is limited to the 11th Circuit (Fla, Ala, Ga) it could potentially have impact elsewhere. The concept of limited powers to define and apply Atkins could possibly be extended beyond just the burden of proof (e.g., one could argue bright line cutoff scores, SEM, and courts claiming to know the types of behaviors the define the AB prong of the Dx--Briseno AB standards in Texas). 

Clearly this case warrants close monitoring.

I have added the case to the ICDP Court Decisions blogroll with a link to the decision.

Technorati Tags: psychology, forensic psychology, forensic psychiatry, neuropsychology, intelligence, school psychology, psychometrics, educational psychology, IQ, IQ tests, IQ scores, adaptive behavior, adaptive functioning, intellectual disability, mental retardation, MR, ID, criminal psychology, criminal defense, criminal justice, ABA, American Bar Association, Atkins cases, death penalty, capital punishment, AAIDD, Atkins MR/ID listserv, ICDP, beyond reasonable doubt, Georgia death penalty, Hill v Schofiled 2010, Hill v GA 2010, standards of proof