Atkins article: Determining Intellectual Disability in Death Penalty Cases: A State-by-State Analysis (2020). Jennifer LaPrade & John L. Worrall

Determining Intellectual Disability in Death Penalty Cases: A State-by-State Analysis.  Jennifer LaPrade
John L. Worrall, 2020.

Journal of Criminal Justice and Law: Official
Journal of the Law and Public Policy Section
of the Academy of Criminal Justice Sciences
Volume 3, Issue 2, pp. 1-28 (2020)

Link.

Abstract

In Moore v. Texas (2017), the U.S. Supreme Court ruled that Texas death penalty definitions of intellectual disability were inadequate because they strayed too far from clinical definitions. This study examines how each state defines intellectual disability with regard to death penalty eligibility. It reveals a wide variation in the standards used by states, with no clear consensus on definitions of intellectual disability or who should measure it. Variations pertain to age at onset, proof of intellectual disability status at the time of the crime, burden of proof required to make the intellectual disability determination, and who makes the final decision. Implications and suggestions for the future are discussed.

iPost: The states role in framing innocents and the death penalty

• Content Types
  
• Subject Collections
  

中文(简体) 中文(繁體) English Deutsch 한국어 日本語 Français Español العربية Русский

Journal Article

	Framing innocents: the wrongly convicted as victims of state harm Journal Crime, Law and Social Change Publisher Springer Netherlands ISSN 0925-4994 (Print) 1573-0751 (Online) Issue Volume 53, Number 3 / April, 2010 DOI 10.1007/s10611-009-9231-z Pages 259-275 Subject Collection Humanities, Social Sciences and Law SpringerLink Date Thursday, January 07, 2010	Add to marked items Add to shopping cart Add to saved items Permissions & Reprints Recommend this article

PDF (203.5 KB)HTMLFree Preview Saundra D. Westervelt1  and Kimberly J. Cook2 (1)  University of North Carolina at Greensboro, Greensboro, NC, USA (2)  University of North Carolina at Wilmington, Wilmington, NC, USA Received: 20 October 2008  Accepted:21 December 2009  Published online: 8 January 2010 Abstract   We adapt the victimology of 'state harms' framework outlined by Kauzlarich et al. (Critical Criminology, 10(3), 173–194, 2001) to understand the post-exoneration experiences of 18 death row exonerees. Kauzlarich et al. develop six points of commonality shared by most victims of state crime. Application of this framework to death row exonerees highlights the role the state plays in creating and exacerbating the harms they suffer. This analysis also lays a foundation for further theoretical inquiry into the wrongful conviction of the innocent as a form of state crime. Saundra D. Westervelt Email: sdwester@uncg.edu

Sent from KMcGrew iPhone (IQMobile). (If message includes an image-double click on it to make larger-if hard to see) 

State case and statute references for intellectual disability (ID)/mental retardation (MR)

Click here to access a document listing state case and statute references re: mental retardation/intellectual disabilities (MR/ID)

Technorati Tags: Psychology, forensic psychology, forensic psychiatry, neuropsychology, intelligence, IQ, IQ tests, IQ scores, adaptive behavior, intellectual disability, mental retardation, MR, ID, criminal psychology, criminal defense, ABA, American Bar Association, Atkins cases, death penalty, capital punishment, state MR statutes, state MR cases

Excellent article on role of "Dr. Death" psychologist and junk science in Texas Atkins MR death penalty cases

A January 8, 2010 article in the Texas Observer is probably the most accurate investigative story I've read regarding some of the voodoo psychometrics (aka., junk science by "Dr. Death") and questionable professional behavior by a psychological examiner in Atkins death penalty cases. René Feltz did an excellent job in covering the major issues and some of the crazy things that have occurred Atkins death penalty cases, particularly in the state of Texas.  The Plata case has been previously commented on at this blog (click here for comments and link to court decision file).

The article includes a number of embedded YouTube videos which are worth watching. The last video in the online article is a particularly good brief summary of the major issues in this story. Click here if you want to view this third video directly from YouTube (in case you do not want to take the time to read the newspaper article).

An excellent example of "sunlight is the best disinfectant."

Technorati Tags: psychology, forensic psychology, forensic psychiatry, neuropsychology, criminal psychology, criminal justice, American Bar Association, ABA, Atkins cases, Texas and death penalty, voodoo psychometrics, junk science, Dr. Death, Denkowski, Rene Feltz, mental retardation, intellectual disability, MR, ID, AAIDD, Texas Observer

Dufour v Florida (2009) update: State still has its head in the sand re basic psychometrics (esp. SEM)

Update on Dufour v Florida (2009). 

ICDP's original post re: this case, including links to the court decisions, is available here.  Also, as previously posted, AAIDD submitted an Amicus Brief on behalf of Dufour.  And, I continue to articulate disbelief in the state of Florida's continued reliance on the Cherry court-based draw-a-line-in-the-sand at IQ=70 and don't cross it....period..and damn the standard error of measurement (SEM) approach to Atkins MR/ID death penalty cases also reflected in Brown v FL.

The defense subsequently submitted a response brief (click here) that focused on a number of arguments, with the bright-line cut-off score of 70 and failure to recognize the standard error of measurement (SEM) being what has concerned me the most.  And yes...there are the usual cast of issues being argued by the state and defense in this case (evidence of low or high adaptive functioning; malingering or not; dueling expert witness credibility, etc.).  But as I stated in my original post:

"Although I've not completed an exhaustive and critical analysis of all documents, it continues to concern me that in this case, as in other Florida cases, the state appears to continue to ignore the concept of the standard error of measurement (SEM). Cheery v Florida( 2007) continues to rear its head in many of these decisions. It appears the state of Florida continues to rely on the Cherry court to establish an absolute IQ score of 70 or below...period. The state of Florida apparently does not understand, or does not want to accept, the concept of SEM."

I was flabbergasted to read  the prosecutions answer (click here) for ignoring the SEM.  The brief stated "the standard error of measurement is not a criteria for diagnosis, but, a 'statistical term.' " A statistical term!!!  Even after admitting that experts from all sides accept and recognize the professional and scientific concept of SEM in psychological measurement, the primary argument is that is is just a statistical term....what kind of logic or argument is that?  It is not an argument. It is based on no logic.  To me this statement reflects a deliberate attempt to stick ones head in the sand when one knows they have lost an argument based on accepted science, professional standards, and simple logic.  It is analogous to arguing against the concept of "gravity" and saying it should not be recognized because it is "just a physics term."

Beyond my laser-like focus on the bright-line cut-score and SEM issues, a reading of these two new documents are a good education for the manner in which psychological information and data are torn apart and argued, especially in the acknowledged messy area of determining adaptive behavior functioning.

In summary, first there was the inability of the state of Florida to accurately count votes in a presidential election (Gore v Bush).  Now we have the deliberate attempt to not recognize a very basic numerical/statistical concept (SEM).  What's up with the quantitative literacy at the highest levels of power in FL?  SEM is easy to understand and I have provided a very readable document that should make SEM understandable for even those -1 SD below the mean on quantitative literacy. 

Come on Florida..this is not that hard. 


Technorati Tags: psychology, forensice psychology, school psychology, educational psychology, neuropsychology, criminal psychology, criminal defense, IQ, IQ tests, IQ scores, SEM, standard error of measurement, ID, MR, intellectual disability, mental retardation, AAIDD, Atkins cases, capital punishment, death penalty, Dufour v Florida, Brown v Florida

State special education definitions of MR/ID

Thanks to Randy Floyd for sending this article to me.  The article summarizes state eligibility guidelines for MR/ID as promulgated by state education agencies--thus covering the school-age population of students with potential MR/ID and special education services.  State law governing the definition and criteria for Atkin's decisions do not directly correspond with state special education rules, laws, and regulations.

Bergeron, R., Floyd, R., & Shands, E.  (2008).  States’ Eligibility Guidelines for Mental Retardation: An Update and Consideration of Part Scores and Unreliability of IQs.  Education and Training in Developmental Disabilities, 43(1), 123–131. (click here to view)

Abstract

Mental retardation (MR) has traditionally been defined as a disorder in intellectual and adaptive functioning beginning in the developmental period. Guided by a federal definition of MR described in the Individuals with Disabilities Education Act, it is the responsibility of each of the United States to describe eligibility guidelines for special education services. The purpose of this study was to examine eligibility guidelines for MR for the 50 states and the District of Columbia. This study examined the terms used to describe MR, the use of classification levels, the cutoff scores, and the adaptive behavior considerations for each state. In addition, this study examined guidelines for consideration of intelligence test part scores and consideration of the unreliability of IQs through consideration of the standard error of measurement (SEM) or an IQ range. As found in previous studies, results revealed great variation in the specific eligibility guidelines for MR from state to state. The greatest variation appeared to be across the adaptive behavior considerations. Approximately 20% of states (10) recommend consideration of intelligence test part scores, and approximately 39% of states (20) recommend attention to unreliability of IQs through consideration of the SEM or an IQ range.

Technorati Tags: psychology, school psychology, educational psychology, special education, forensic psychology, neuropsychology, criminal psychology, ID, MR, IQ, intellectual disability, mental retardation, AAIDD, intelligence, IQ tests, reliabilitypsychometrics, SEM

FYI: Ohio governor puts hold on all executions until at least Dec 2009

Courtesy of Sentencing Law and Policy.

Technorati Tags: psychology, forensic psychology, criminal psychology, criminal justic, Ohio, death penalty, capital punishment, state executions

Court decision added: North Carolina v Jones (2006-2008)

Related to my prior FYI book post (re: The Last Lawyer), I found copies of all relevant court decisions from 2006 to 2008 (North Carolina v Jones) at the ACLU web site. Click here.  The links to the PDF court papers are near the bottom of the page.  A quick search of the files using the keyword "mental retardation" indicates that this is a case where MR was an issue....and it thus fits with other Atkins cases posted at this blog.


Technorati Tags: psychology, forensic psychology, criminal justice, criminal psychology, neuropsychology, law, death penalty, capital punishment, North Carolina v Jones, Bo Jones, innocent, intelligence, IQ tests, IQ scores, mental retardation, MR, developmental disabilities

MR and Atkins cases: Guide to state legislative issues (James Ellis)

In my morning web searching I ran across the following document that may be of interest to readers of this blog.  The title of the document is Mental Retardation and the Death Penalty:  A Guide to State Legislative Issues.  It is written by a law professor--James W. Ellis, Regents Professor of Law, University of New Mexico School of Law.  According to his faculty web page, Ellis has "worked on behalf of people with mental disabilities in the civil and criminal justice system." The publication is associated with the International Justice Project.  I noticed that some of the MR related links at the IJP page are not working..so I'm not sure how active or current this project is.

Below is the first paragraph.

The interest in State Legislatures in the topic of mental retardation and the death penalty has obviously heightened with the United States Supreme Court’s decision in Atkins v. Virginia, 122 S.Ct. 2242 (June 20, 2002). The purpose of this document is to provide legislators and advocates with guidance in implementing the Atkins decision, so that each State’s death penalty legislation is in full compliance with constitutional requirements.

Technorati Tags: psychology, law, disability rights, criminal justice, Atkins cases, intellectual disability, SCOTUS, mental retardation, MR, International Justice Project, legislation, states

Dr. Stephen Greenspan guest comment post: Response to Dr. Judd re: adaptive behavior

Dr. Stephen Greenspan posted a lengthy response comment to Dr. Judd's comment post (re: the original Switzky & Greenspan adaptive behavior chapter post I made-----hope that makes sense and is not another "whose on first" bit). Dr. Greenspan's response can be seen under "comments" at the original Switzky & Greenspan AB chapter post I made. Given that I took Dr. Judd's long comment and turned it into a guest post (with his permission), I'm doing the same for Dr. Greenspan's comments.

Stephen Greenspan said...

I appreciate the kind comments (which I understand are in a guest blog by Dr. Ted Judd) on the chapter “lessons from Atkins” that appeared in WHAT IS MENTAL RETARDATION edited by Harvey Switzky and myself. Unfortunately those lessons do not appear to have been learned. The main point in that chapter is that adaptive behavior as applied in court settings has turned out to be a nightmare, because of the failure to ground it in the notion of “everyday intelligence”. This is a point I have been making in print since 1979, but Atkins experience has proved me more correct than I realized. In Indiana court decisions for example, “adaptive behavior” is frequently described as “adaptation” and any behavior that a defendant engages in which meet a basic need (an example given was eating out of a garbage can when hungry) is used as evidence of normal functioning. Then of course there are the ridiculous “Briseno factors” in Texas, in which their high court came up with a list of adaptive behaviors (such as any evidence of planning) that bear little or no resemblance to mild ID as we know it. What we need is to come up with a notion of “adaptive age” (and eating out of a garbage can would I think be at a pre-toddler—or German Shepherd-- adaptive age equivalent) and get across the notion of adaptive behavior as involving problem-solving at a more abstract level (such as understanding when an interrogator assuring you that confessing is in your interest is being deceptive). The forthcoming AAIDD manual (which I understand is likely to become known as “the green book”) basically just changes MR to ID, makes a few format improvements, but keeps the same primary emphasis on IQ and retains a construct of adaptive behavior that lacks any connection to “intelligence” broadly defined. My self-assigned task has been to try to find aspects of adaptive behavior deficit (such as “gullibility” and “foolish action”) that are more intellectually-grounded and that could be considered universal diagnostic indicators of ID (as framed by the red/ green books, there is no aspect of adaptive behavior which is central to the ID construct). I am working on a paper (invited by AAIDD classification committee chair Robert Schalock) that elaborates on all the reasons why I think the green book missed the boat (I will preview it as a guest blog here, by kind invitation of Dr. McGrew). Chief among these (which has profound implications for Atkins cases) is that AAIDD missed the opportunity to define the construct more broadly, to include the many people with brain-based disorders who fit the behavioral phenotype for ID but have IQ scores that are a little too high. (Harvey and I wrote our chapter very early in our Atkins experiences, and we naively wrote that attorneys in these cases do not make a big deal out of one or two IQ points. We have of course course learned that everything is disputed, especially one or two IQ points). I am honored that AAIDD cites me as providing the theoretical framework for the model of adaptive behavior but I need to point out that what I had in mind was a tripartite model of “adaptive intelligence” (which cause adaptive behavior to fade away) and and not continuing to view adaptive behavior as some vague add-on construct that involves such things as “has good breath” (an item on the ABAS-2)--better would be “understands the social and physical risks of having bad breath.”

Steve Greenspan (for my recent paper on “foolish action”, click on www.stephen-greenspan.com)

Technorati Tags: psychology, educational psychology, special education, developmental disabilities, mental retardation, forensic psychology, criminal psychology, clinical psychology, school psychology, AAIDD, AAMR, adaptive behavior, adaptive functioning, gullibility, social skills

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.’’

FYI pass along post: Public defender claims increased pace of Ohio executions.

FYI post from the Sentencing Law and Policy blog re: pubic defender complaining about increase rate of executions in state of Ohio.  No comment.  Just a "pass along" FYI post.

Technorati Tags: psychology, neuropsychology, forensic psychology, educational psychology, clinical psychology, law, death penalty, executions, Ohio