Hall v Florida SCOTUS reverberations: Retroactive in Florida and Kentucky

From Bloomberg Law

The United States Law Week^®
October 27, 2016

Criminal Law

IQ Rule for Death Penalty Retroactive in Fla., Ky.

BNA Snapshot

• Rule loosening restraints on mental disability evidence in death cases retroactive

• Opens door for fresh sentencing for some death-row inmates

 

By Lance J. Rogers

Oct. 24 — Death-row inmates in Florida and Kentucky whose near-normal IQ scores blocked them from introducing any evidence that they are too intellectually disabled to be executed must be given a fresh chance to present their claims, a divided Florida Supreme Court and a unanimous Kentucky Supreme Court ruled Oct. 20 (Walls v. State, 2016 BL 350410, Fla., No. SC15-1449, 10/20/16 and White v. Commonwealth, Ky., No. 2013-SC-000791-MR, 10/20/16).  The decisions throw open the door for other death-row inmates who were barred from introducing such evidence just because their IQ scores were above a bright-line threshold.

Hall Rule Breaks New Ground

In both cases, the courts ruled that Hall v. Florida, 82 U.S.L.W. 4373, 2014 BL 145335 (U.S. May 27, 2014), which declared unconstitutional Florida's categorical bar against intellectual disablility evidence in capital cases for any convicted defendant whose IQ score is above 70, must be applied retroactively.

The rule announced in Hall is not simply a different interpretation of a rule of criminal procedure, it is a substantive restriction on the states’ power to execute someone, the Kentucky Supreme Court said in an opinion by Justice Bill Cunningham. “We are dealing here with a U.S. Supreme Court directive that not only proscribes intellectually disabled people from being put to death, but defines the manner in which the mental deficiencies of offenders must be evaluated,” Cunningham wrote. Kentucky Justice Samuel T. Wright III agreed that Karu Gene White should get a new hearing but concurred in separate opinion that addresses waiver issues.

The Florida Supreme Court reached the same conclusion about retroactivity in its 5-2 per curiam ruling. “We find that Hall warrants retroactive application as a development of fundamental significance that places beyond the State of Florida the power to impose a certain sentence—the sentence of death for individuals within a broader range of IQ scores than before,” it said.  Justice James E. C. Perry concurred in the result only and Barbara J. Pariente filed a separate concurrence arguing that Frank A. Walls was entitled to a new hearing to avoid “manifest injustice.” Justice Charles T. Canady, joined by Justice Ricky L. Polston, argued in dissent against making Hall retroactive, noting that it will cause “a major disruption to the application of the death penalty.”

The Florida Attorney General's Office and the Kentucky Attorney General's Office represented their respective states.

The Department of Public Advocacy represented White. The Office of the Capital Collateral Regional Counsel represented Walls.

To contact the reporter on this story: Lance J. Rogers in Washington at LRogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

For More Information

White v. Commonwealth is available at http://src.bna.com/jAE.
Wallis v. State is available at http://src.bna.com/jAI.

Research Byte: The negative Flynn Effect: A systematic literature review via BrowZine

The negative Flynn Effect: A systematic literature review
Dutton, Edward; van der Linden, Dimitri; Lynn, Richard
Intelligence, New Articles:



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Working memory studies among individuals with intellectual disability: An integrative research review via BrowZine

Working memory studies among individuals with intellectual disability: An integrative research review
Lifshitz, Hefziba; Kilberg, Esther; Vakil, Eli
Research in Developmental Disabilities, Vol. 59 – 2016: 147 - 165

10.1016/j.ridd.2016.08.001

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SCOTUS Hall v Florida wins on remind in Florida supreme court

http://www.floridasupremecourt.org/decisions/2016/sc10-1335.pdf

A visual history of human knowledge

I am a HUGE fan of data visualization and network theory and analytics. I think these techniques, when applied to intelligence test data, could provide us much more important insights than the continued use (misuse?) of linear SEM/CFA models. Network visual models are elegant...and more reflective of "reality".

This is a very good TED talk.

A visual history of human knowledge
http://www.ted.com/talks/manuel_lima_a_visual_history_of_human_knowledge?utm_source=tedcomshare&utm_medium=email&utm_campaign=tedspread

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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Research byte: The influence of working memory and cognitive load on police shooting decisions, interrogation, and jury decisions

Journal of Applied Research in Memory and Cognition

Available online 22 July 2016

In Press, Corrected Proof — Note to users

Working Memory and Cognitive Load in the Legal System: Influences on Police Shooting Decisions, Interrogation and Jury Decisions ^☆

• Heather M. Kleider-Offutt,
• Amanda M. Clevinger,
• Alesha D. Bond

 Show more

C

doi:10.1016/j.jarmac.2016.04.008

Get rights and content

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The ability of police and jurors to make informed, unbiased decisions is paramount to the integrity of the legal system. Police and jurors as decision-makers follow procedures ensuring that individuals receive a fair trial from the time of arrest to sentencing. However this process has come under public scrutiny with recent negative media attention focused on police shootings, aggressive handling or interrogation of suspects, and jurors’ seemingly biased treatment of minority group members. Most researchers studying factors that motivate police and juror behavior focus on the external influences of decision-making, such as the climate of violence in a neighborhood, or culturally-entrenched criminal stereotypes. Fewer have focused on the cognitive factors that impact the internal decision-making processes. In this review we compile the research on individual differences in cognitive ability (e.g., working memory capacity) and event circumstances (e.g., high emotion, attention load), that influence police and jury decision-making. The majority of studies in this area are laboratory-based which may attenuate the transfer of findings to real-world settings, but cognitive mechanisms engaged in the field are likely similar. Overall, this review suggests that overload of cognitive capacity reduces controlled processing ability, which may work to undermine the reliability of decision-making at all phases of the legal process. Field studies are needed to better understand when decision-makers may be overburdened, and what interventions are most appropriate.

Stephen Greenspan on "Why DSM5 suggested a switch from adaptive behavior to adaptive reasoning": APA Div 33 featured conversation

 

My long time professional colleague Dr. Stephen Greenspan, is conducting a featured conversation hour for Division 33 at the forthcoming APA convention in Denver.  He has provided me an advanced copy of his outline and has graciously given me permission to make it available at the ICDP blog.  A copy can be obtained by clicking here.

Stephen is one of the great "thinkers" in the field of intellectual disabilities.  Our professional lives crossed long distance when I was a doctoral student.  My advisor, Dr. Robert Bruininks, put me in charge of a series of studies investigating the constructs of adaptive and maladaptive behavior.  These studies eventually led to my dissertation--which was a CFA validation study of Greenspan's Model of Personal Competence (see 1990 reference below).  To the best of my knowledge, this was the first published article validating Greenspan's model.

Below are links to the various articles (I simply grabbed them from my MindHub web page--please visit if you want additional information).  Consistent with Stephen's outline notes, in this validated model of personal competence, conceptual intelligence was operationalized as measured by intelligence tests, and was not considered a domain of adaptive behavior.

Of interest is the recent study by MaCann et al. that provides structural (CFA) evidence for a separate cognitively oriented social-emotional construct, distinct from the other cognitive domains in the CHC taxonomy of human intelligence.  Although MaCann et al. refer to the construct as emotional intelligence, a reading of the dimensions suggest it could easily be called social intelligence.  

Finally, as Bruininks and I were pulled away from our AB/PC program of research for different reasons, I continue to be perplexed why other researchers have not tried to extend and refine the research on the model of personal competence, particularly given its prominence (and disagreements) in definitions of ID.

Adaptive Behavior and Personal Competence Research (select articles)

• Thompson, J. R., McGrew, K. S., & Bruininks, R. H. (2002).  Pieces of the puzzle. Measuring the personal competence and support needs of persons with intellectual disabilities. Peabody Journal of Education, 77(2), 23-29.
• Thompson, J., McGrew, K. & Bruininks, R. (1999).  Adaptive and maladaptive behavior.  Functional and structural characteristics.  In R. L. Schalock & D Braddock (Eds), Adaptive behavior and its measurement: Implications for the field of mental retardation(pp. 15-42).  Washington, DC.  American Association on Mental Retardation.
• Widaman, K. & McGrew K., (1996).  The structure of adaptive behavior.  In J.W. Jacobson & J.A. Mulick (Eds.), Manual of diagnosis and professional practice in mental retardation (pp. 97-110).  Washington, D.C.  American Psychological Association.
• McGrew, K., Bruininks, R., & Johnson, D. (1997).  Confirmatory factor analysis investigation of Greenspan's model of personal competence.  American Journal on Mental Retardation, 100(5) 533-545.
• Greenspan, S., & McGrew, K. (1996).  Response to Mathias and Nettlebeck on the structure of competence.  Need for theory-based methods to test theory-based questions.  Research in Developmental Disabilities, 17, 145-152.
• Bruininks, R., Chen, T., Lakin, C., & McGrew, K. (1992).  Components of personal competence and community integration for persons with mental retardation in small residential programs. Research in Developmental Disabilities, 13, 463-479.
• Ittenbach, R., Spiegel, A., McGrew, K., & Bruininks, R.  (1992). A confirmatory factor analysis of early childhood ability measures within a model of personal competence.  Journal of School Psychology, 30, 307-323.
• McGrew, K., Bruininks, R., & Thurlow, M. (1992). Relationship between measures of adaptive functioning and community adjustment for adults with mental retardation. Exceptional Children, 58, 517-529.
• McGrew, K., Ittenbach, R., Bruininks, R., & Hill, B. (1991). Factor structure of maladaptive behavior across the lifespan for persons with mental retardation. Research in Developmental Disabilities, 12, 181-199.
• McGrew, K., & Bruininks, R. (1990).  Defining adaptive and maladaptive behavior within a model of personal competence. School Psychology Review, 19, 53-73.
• McGrew, K., & Bruininks, R. (1989).  The factor structure of adaptive behavior. School Psychology Review, l8, 64-8l.
• Bruininks, R., McGrew, K., & Maruyama, G. (1988).  Structure of adaptive behavior in samples with and without mental retardation.  American Journal on Mental Retardation, 95(3), 265-272.

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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Morse on Neuroscientific Evidence

Check this article: http://lawprofessors.typepad.com/crimprof_blog/2016/06/morse-on-neuroscientific-evidence.html

The Clinical Neuropsychologist | Call for Papers--New stat and psychometric advances

The Clinical Neuropsychologist | Call for Papers

The primary objectives of this special issue are to: (1) highlight new statistical and psychometric advances that are relevant to the practice of…

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Research byte: A cross-syndrome evaluation of a new attention rating scale: The Scale of Attention in intellectual Disability via BrowZine

A cross-syndrome evaluation of a new attention rating scale: The Scale of Attention in intellectual Disability
Freeman, Nerelie C.; Gray, Kylie M.; Taffe, John R.; Cornish, Kim M.
Research in Developmental Disabilities, Vol. 57 – 2016: 18 - 28

10.1016/j.ridd.2016.06.005

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Texas Courts Rely on “Of Mice and Men” to Define Intellectual Disability and Sentence People to Death

Texas Courts Rely on "Of Mice and Men" to Define Intellectual Disability and Sentence People to Death

This piece originally appeared at Salon. Bobby James Moore has a lifelong intellectual disability,…

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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.

 

David Kaye on Hall v Florida-- "Deadly statistics: Quantifying an "unacceptable risk in capital punishment" - In press article in Law, Probability and Statistics

The following article is "in press" in Law, Probability and Statistics.  A preview can be found here.

 

Deadly Statistics:
Quantifying an “Unacceptable Risk” in Capital Punishment
David H. Kaye*
Law, Probability & Risk
Vol. 15, No. 4, Dec. 2016 (in press)

Abstract: In Atkins v. Virginia, the U.S. Supreme Court held that the Eighth Amendment ban on
cruel and unusual punishment precludes capital punishment for intellectually disabled offenders.
Death-penalty states responded with laws defining intellectual disability in various ways. In Hall v.
Florida, the Court narrowly struck down the use of a measured IQ of 70 to mark the upper limit of
intellectual disability because it created “an unacceptable risk that persons with intellectual disability
will be executed.” But the Court was unclear if not inconsistent in its description of an upper limit
that would be acceptable. Four dissenting Justices accused the majority not only of misconstruing
the Eighth Amendment, but also of misunderstanding elementary statistics and psychometrics. This
article uses more complete statistical reasoning to explicate the Court’s concept of unacceptable risk.
It describes better ways to control the risk of error than the Court’s confidence intervals, and it argues
that, to the extent that the Eighth Amendment allows any quantitative cut score in determining an
offender’s intellectual disability, these more technically appropriate methods are constitutionally
permissible.

Keywords: Hall v. Florida, cruel and unusual, Eighth Amendment, capital punishment, intellectual
disability, IQ, psychometrics, cut-score, measurement error, standard error, confidence interval,
shrinkage estimator, Bayesian inference, credible region, burden of persuasion

Contents
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. The Intellectual Disability Trilogy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II. The Need to Allow States to Use Cut Scores and the Meaning of “Significantly Subaverage”
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
III. True Scores and Single-measurement Error Within Classical Test Theory.. . . . . . . . . . . . . . 15
A. First- and Second-order Questions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
B. True Scores and Measurement Error.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
C. Reliability and Standard Error of Measurement (SEM). . . . . . . . . . . . . . . . . . . . . . . . 18
D. Confidence Intervals from the SEM (SEM-IS).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
E. SEM-adjusted-maximum Score (SEM-AM).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
F. Confidence Intervals from the Standard Error of Estimate (SEE-IS). . . . . . . . . . . . . . 27
IV. Other Statistical Issues in and Outside of Hall. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
A. Multiple Scores. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
B. Credible Regions (BCR). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Summary and Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Only Two Justices Want To Tackle Whether The Death Penalty Should End

An Atkins related ruling

Only Two Justices Want To Tackle Whether The Death Penalty Should End

From News, a Flipboard magazine by Flipboard Newsdesk

Stephen Breyer and Ruth Bader Ginsburg are virtually alone in this effort. Ruth Bader Ginsburg and Stephen Breyer: Alone in their…

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Perlin on The Death Penalty and Mental Disability [feedly]

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Perlin on The Death Penalty and Mental Disability
// CrimProf Blog

Michael L. Perlin (New York Law School) has posted 'Merchants and Thieves, Hungry for Power': Prosecutorial Misconduct and Passive Judicial Complicity in Death Penalty Trials of Defendants with Mental Disabilities (Washington and Lee Law Review, Vol. 73, 2016, Forthcoming) on...
----

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Morse on Law and the Sciences of the Brain/Mind [feedly]

----
Morse on Law and the Sciences of the Brain/Mind
// CrimProf Blog

Stephen Morse (University of Pennsylvania Law School) has posted Law and the Sciences of the Brain/Mind (Oxford Handbook on Law and the Regulation of Technology, Oxford, Forthcoming) on SSRN. Here is the abstract: This chapter is a submission to the...
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******************************************************

Kevin McGrew, PhD

Educational Psychologist

Director, Institute for Applied Psychometrics

IAP

www.themindhub.com

******************************************************

The Handbook of Intellectual Disability and Clinical Psychology Practice: 2nd Edition (Paperback)

The Handbook of Intellectual Disability and Clinical Psychology Practice: 2nd Edition (Paperback)

The Handbook of Intellectual Disability and Clinical Psychology Practice will equip clinical…

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Panel to hold clemency hearing for Georgia death row inmate

Panel to hold clemency hearing for Georgia death row inmate

From News, a Flipboard magazine by Flipboard Newsdesk

ATLANTA (AP) — A Georgia death row inmate scheduled to die this week was neglected and mistreated as a child and has substantial…

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Research Byte: A NIT-picking analysis: Abstractness dependence of subtests correlated to their Flynn effect magnitudes via BrowZine

A NIT-picking analysis: Abstractness dependence of subtests correlated to their Flynn effect magnitudes
Armstrong, Elijah L.; te Nijenhuis, Jan; Woodley of Menie, Michael A.; Fernandes, Heitor B.F.; Must, Olev; Must, Aasa
Intelligence, Vol. 57 – 2016: 1 - 6

10.1016/j.intell.2016.02.009

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Ronell Wilson's Atkines ID/MR death penalty decision to be appealed

Andrew Keshner, New York Law Journal, March 23, 2016

The Eastern District U.S. Attorney's Office will appeal a judge's decision to vacate a death sentence for a man convicted of murdering two police officers.

Prosecutors filed notice Tuesday saying they would challenge the decision to undo Ronell Wilson's death sentence. Eastern District Judge Nicholas Garaufis said Wilson was ineligible for capital punishment because he was intellectually disabled in the eyes of the law (NYLJ, March 16).
Garaufis had ruled in February 2013 that Wilson was not intellectually disabled and, therefore, eligible for capital punishment. Later that year, a jury said Wilson deserved death for the 2003 killings of undercover detectives Rodney Andrews and James Nemorin. Wilson appealed, and the U.S. Court of Appeals for the Second Circuit sent the case back to Garaufis to review Wilson's mental capacity in light of a 2014 U.S. Supreme Court case, Hall v. Florida, 134 S. Ct. 1986.

On March 15, Garaufis said he would impose life imprisonment without the possibility of parole based on a "careful interpretation of evolving Supreme Court precedent and a sober review of the evidence." Wilson was convicted of the crimes in 2006; the same jury voted for execution. In 2010, the circuit kept the jury's guilt determination intact, but ordered retrial on the penalty phase. Assistant U.S. Attorney Amy Busa filed the notice of appeal in U.S. v.
Wilson. 04-cr-1016.

Prior posts at this blog regarding this Atkins case can be found here (access to court decisions) and here

NY killer off death row as definition of disabled gets tweak

Some press coverage re Ronell Wilson decision.

NY killer off death row as definition of disabled gets tweak

From News, a Flipboard magazine by Flipboard Newsdesk

NEW YORK (AP) — Prosecutors say Ronell Wilson is a calculating murderer. Since his imprisonment for killing two New York City police…

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Atkins MR/ID Court Decision: Ronell Wilson v US (NY; 2014) Atkins decision overturned (Wilson v US/NY, 2016)

Yesterday the prior decision (Wilson v US/NY, 2014) to not excuse Ronell Wilson as per Atkins, was overturned.  The new 2016 decision can be found here.  Wilson is currently the only individual on death row in NY as per the federal death penalty (click here for prior post).  This has been a very high profile death penalty case.

As per my policy, being one of the "six experts" mentioned in the decision as having provided an expert declaration, I will not comment on any aspects of the court decision.

Atkins ID/MR Court Decisions: Nixon v Florida update--2016 initial brief

A initial brief was recently filed with the Florida Supreme Court in the Atkins appeal of Nixon (Nixon v Florida).  A prior 2009 court decision can be found here. 

Research Byte: Comparison of norms from three Spanish-language and one English-language WAIS-III tests (select subtests)

Norm Comparisons of the Spanish-Language and English-Language WAIS-III: Implications for Clinical Assessment and Test Adaptation.  Funes, Cynthia M.; Hernandez Rodriguez, Juventino; Lopez, Steven Regeser.  Psychological Assessment, Mar 7 , 2016, No Pagination Specified. http://dx.doi.org.ezp1.lib.umn.edu/10.1037/pas0000302

Abstract

1. This study provides a systematic comparison of the norms of 3 Spanish-language Wechsler Adult Intelligence Scales (WAIS–III) batteries from Mexico, Spain, and Puerto Rico, and the U.S. English-language WAIS–III battery. Specifically, we examined the performance of the 4 normative samples on 2 identical subtests (Digit Span and Digit Symbol-Coding) and 1 nearly identical subtest (Block Design). We found that across most age groups the means associated with the Spanish-language versions of the 3 subtests were lower than the means of the U.S. English-language version. In addition, we found that for most age ranges the Mexican subsamples scored lower than the Spanish subsamples. Lower educational levels of Mexicans and Spaniards compared to U.S. residents are consistent with the general pattern of findings. These results suggest that because of the different norms, applying any of the 3 Spanish-language versions of the WAIS–III generally risks underestimating deficits, and that applying the English-language WAIS–III norms risks overestimating deficits of Spanish-speaking adults. There were a few exceptions to these general patterns. For example, the Mexican subsample ages 70 years and above performed significantly better on the Digit Symbol and Block Design than did the U.S. and Spanish subsamples. Implications for the clinical assessment of U.S. Spanish-speaking Latinos and test adaptation are discussed with an eye toward improving the clinical care for this community. (PsycINFO Database Record (c) 2016 APA, all rights reserved)

The Death Penalty and Intellectual Disability

The Death Penalty and Intellectual Disability

This book is the authoritative resource on the application of diagnostic information concerning intellectual disability (ID) in death penalty cases. In a…

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Research Byte: Was Intelligence necessary? via BrowZine

Thoughtful reflections on the journal Intelligence by its founder, Doug Detterman.

Was Intelligence necessary?
Detterman, Douglas K.
Intelligence, Vol. 55 – 2016: v - viii

10.1016/S0160-2896(16)30058-7

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Assessing Adaptive Functioning in Death Penalty Cases after Hall and DSM-5

http://www.jaapl.org/content/44/1/96.abstract?etoc

Journal of the American Academy of Psychiatry and the Law Online

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J Am Acad Psychiatry Law 44:1:96-105 (March 2016)

Copyright © 2016 by the American Academy of Psychiatry and the Law.

Assessing Adaptive Functioning in Death Penalty Cases after Hall and DSM-5

1. Leigh D. Hagan, PhD, 
2. Eric Y. Drogin, JD, PhD and 
3. Thomas J. Guilmette, PhD

+Author Affiliations

1. Dr. Hagan is in independent practice and is Assistant Professor, Department of Psychiatry and Behavioral Sciences, Eastern Virginia Medical School, Norfolk, VA; Dr. Drogin is Lecturer on Psychiatry (Part-Time), Department of Psychiatry, Harvard Medical School, serving in the Program in Psychiatry and the Law, Beth Israel Deaconess Medical Center, Boston, MA; Dr. Guilmette is Professor of Psychology, Providence College, and Adjunct Associate Professor of Psychiatry and Human Behavior, Warren Alpert Medical School, Brown University, Providence, RI.

1. Address correspondence to: Leigh D. Hagan, PhD, P.O. Box 350, Chesterfield, VA 23832. E-mail: lhagan@leighhagan.com.

Abstract

DSM-5 and Hall v. Florida (2014) have dramatically refocused attention on the assessment of adaptive functioning in death penalty cases. In this article, we address strategies for assessing the adaptive functioning of defendants who seek exemption from capital punishment pursuant to Atkins v. Virginia (2002). In particular, we assert that evaluations of adaptive functioning should address assets as well as deficits; seek to identify credible and reliable evidence concerning the developmental period and across the lifespan; distinguish incapacity from the mere absence of adaptive behavior; adhere faithfully to test manual instructions for using standardized measures of adaptive functioning; and account for potential bias on the part of informants. We conclude with brief caveats regarding the standard error of measurement (SEM) in light of Hall, with reference to examples of ordinary life activities that directly illuminate adaptive functioning relevant to capital cases.