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January 27, 2009

Notable (and cert-worthy?) Pennsylvania Supreme Court decision on application of Atkins

This post at How Appealing alerts me to a recent ruling from Pennsylvania that providing a fitting follow-up to this recently-noted law review article discussing the challenges that lower courts are having implementing Atkins, the Supreme Court's 2002 Eighth Amendment ruling barring the execution of mentally retarded defendants.  This new article on the ruling in The Legal Intelligencer details the basics:

In a decision that may prove to be a lightning rod in the debate over Pennsylvania's use of the death penalty, the state Supreme Court has ruled that any criminal defendant with mental impairments, short of being legally defined as "mentally retarded," can be executed for capital offenses.  A dissenting justice accused the majority of being "draconian" and warned the ruling might lead to putting mentally retarded people to death.

The justices in the 5-2 decision in Commonwealth v. Vandivner ruled that those seeking waiver of the death penalty must show records noting a defendant's mental illness began before his or her 18th birthday -- a decision Justice Max Baer labeled as problematic for certain defendants.

"To say this is troubling is an understatement," Baer wrote in his concurring and dissenting opinion. "Many defendants, such as appellant, were not afforded the specialized expert attention, IQ tests, or adaptive assessments memorialized in school records, required by the majority to corroborate their claim of mental retardation."

As some readers may know, states have implemented Atkins in a variety of ways (which was to be expected when the Supreme Court in Atkins expressly left it to the states to administer is broad and vague holding).  Assuming cert in sought in this case, the fact that death row defendant Vandivner here had the burden to prove his retardation and the fact that this burden was applied quite stringently could draw the Justices' attention.  Or, if the Supreme Court ends up doing something notable in the capital cases of Bobby v. Bies (08-598) it took up a few weeks ago (details here), there might be some GVR juice in Vandivner.

Some related posts:

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"Draconian" is an interesting word choice. A determination of mental retardation precludes a capital murderer from getting what he deserves. Certainly, courts can make issues of proof such that only those who truly qualify escape full payment for their crimes. Making sure that a loophole doesn't get expanded through the machinations of the capital defense bar isn't "draconian". Rather, it protects the people's right to impose this unquestionably constitutional sentence. The dissent is engaging in unbridled sophistry here. Funny how vigilance with respect to the public's right to govern itself is called "draconian" by a judge. But hey, who cares about our democracy, there are killers to protect.

Posted by: | Jan 27, 2009 4:04:47 PM

And this case is a perfect illustration of legal capriciousness that results when using the concept of mental retardation as a basis upon which to determine life or death. The reason the DSM uses the age of 18 as a cut off is not because there is anything magical about the age of 18 from a psychological point of view. It's that mental retardation is a concept of educational development. It is a theory about how minds work and change during the aging process and the impact those changes have upon the educational process.

The dissent's concern about the availability of assessment prior to age 18 is spot on. But it misses the point. The reason that a person may or may not get an educational assessment will depend upon many factors wholly unrelated to the law. People are not given educational assessments in the K-12 system with an eye out towards whether or not the person might need it later on in adult life. They are educational assessments designed solely for educational purposes. If there is no educational need for the assessment, or even if there is a need but there are no resources, an assessment will not be done.

The most bizarre outcome from a psychological point of view, however, is the aging of the assessment itself. Because mental retardation is a theory of how minds change over time, it is entirely possible for a person to be given an assessment of mental retardation for Special Education purposes in elementary school and then grow out of that as they mature. The idea that once a person is diagnosed as mentally retarded they are always mentally retarded has no bases in psychology theory, no basis in the DSM, and no basis in fact. Psychologically speaking, the closer in time any assessment is to the purposes to which it will be put, the more useful that assessment will be. No honorable psychologist would base his current assessment of the mental state of an individual using as his sole evidence of support an assessment that was done 20 or 40 years before for purposes wholly unrelated to present questions. Yet the law does just that.

The net result is that some individuals will be spared death even though they were not mentally retarded at the time they committed the crime, but had the good fortune (I suppose) to be slow in developing at a young age. Meanwhile, others will be put to death simply because they never had the proper assessment done for whatever reason. The idea that an assessment of mental retardation is a sound basis upon which to make life or death decisions of any type is unsound and unethical from a psychological perspective.

Posted by: Daniel | Jan 27, 2009 8:27:31 PM

"Or, if the Supreme Court ends up doing something notable in the capital cases of Bobby v. Bies (08-598) it took up a few weeks ago (details here), there might be some GVR juice in Vandivner."

I would place a large wager that the Supreme Court will reverse the Sixth Circuit in Bies. If so, it is highly unlikely there will be any "GVR juice."

The cutoff for the categorical exclusion of Atkins is indeed arbitrary, but that is a problem with Atkins itself, not its implementation by lower courts.

Defendants who do not qualify for the categorical exclusion because they are not quite impaired enough still qualify for consideration of that condition as a mitigating circumstance under Lockett-Eddings-Penry. If the jury considered the condition and decided it was outweighed by the aggravating factors of the case, what is wrong with that?

Posted by: Kent Scheidegger | Jan 27, 2009 8:35:39 PM

"Capriciousness"? I don't think that's really fair either. The courts have a responsibility to enforce Atkins and to ensure that Atkins does not become expanded beyond its boundaries. And what of the inability to prove up the issue? Remember, psychiatrists do not dictate the meaning of the Constitution. In other words, "mental retardation" doesn't necessarily mean what psychiatrists say, it means what people think of it. Mental retardation, to the average member of society, is something that manifests itself in childhood. Now, it may be, of course, that it is cured in later life (and in which case Atkins would not bar execution). And it may be that people become of lower intelligence later in life (through injury or whatever), and maybe those people should get Atkins relief. But Atkins has not been extended to them, and the courts shouldn't simply make up rules because some people at the margins may get executed when more perfect information was not available.

Personally, the idea that a murderer not lucky enough to be tested when he's younger gets executed somehow is "capricious", especially given the fact that he can still present his adult-onset retardation to the jury, is Orwellian. Don't commit murder, and you won't be subject to a human system which has human limitations, but that is, on the whole, extremely solicitous of murderers arguing that they should not be executed.

Posted by: federalist | Jan 27, 2009 8:46:20 PM

federalist. "Remember, psychiatrists do not dictate the meaning of the Constitution." This is entirely true. But the law does not dictate to psychologists what mental retardation means either. Mental retardation is first and foremost a psychological term. It is condition that, as a legal matter, can't be diagnosed by a judge or a lawyer but only by a state-licensed mental health professional. How the average person would define mental retardation is utterly meaningless to both the law and psychology. No one asked them.

When a judge's analysis of the Constitution is based upon a misunderstanding and a misapplication of a psychological concept, psychologists have every right to object and point out the error. I never said that the Supreme Court's ruling in Atkins was wrong as a matter of law, as a matter social policy, or even as a matter of justice. I have said it's wrong as a matter of psychology. And I stand by that. It is ruling that misuses and abuses psychological concepts.

Posted by: Daniel | Jan 27, 2009 9:25:13 PM

Daniel wrote: "It [Atkins] is ruling that misuses and abuses psychological concepts."

I don't think so. The Court expressly relied on the AAMR (now AAIDD) and APA. Expert opinions from psychologists are offered and listened to by courts making these decisions. A court does not just try to look at IQ scores and records and make its decision absent this critical input.

As for the Pennsylvania court, it sounds like its holding has been a bit exaggerated: "The trial court did not hold, and we do not suggest, that objective IQ testing occurring before age eighteen is required to prove mental
retardation." This is proper, because, to make a diagnosis of mental retardation, a psychologist would not require documentary evidence of an IQ score prior to age 18. A psychologist can use clinical judgment to make a determination about whether any given person's intellectual and adaptive functioning deficits originated before age 18. Atkins allows courts to listen to the expert opinions of psychologists (which should include their exercise of clinical judgment) and then make a decision, just like courts do in cases every day where expert opinion evidence is admitted on all sorts of issues, including mental health issues in criminal and civil courts. There is nothing abusive to psychological concepts about that.

Daniel wrote: "No honorable psychologist would base his current assessment of the mental state of an individual using as his sole evidence of support an assessment that was done 20 or 40 years before for purposes wholly unrelated to present questions. Yet the law does just that."

No, I don't think the law does do that. Any good psychologist--like any good lawyer--will consider all relevant evidence. And evidence from an assessment done 20 or 40 years before is relevant to determining whether a person is mentally retarded. It may not be dispositive, but it's relevant, particularly given the diagnostic requirement that it originate prior to the age of 18. (Look at you, making me be an apologist for "the law," which I have no desire to do, given my realist and critical legal views.)

Daniel wrote: "The net result is that some individuals will be spared death even though they were not mentally retarded at the time they committed the crime, but had the good fortune (I suppose) to be slow in developing at a young age."

Maybe you don't know this because you're not a lawyer, but it is never a result that any criminal defendant is given any benefit of any doubt by any court. What you posit will not and does not happen. No court will ever find a person to be mentally retarded for the reason that they were slow in developing at a young age. Unlike the State, criminal defendants--and especially death-sentenced ones--are required to meet their burdens of proof. Exceed them, in fact.

Daniel wrote: "Because mental retardation is a theory of how minds change over time, it is entirely possible for a person to be given an assessment of mental retardation for Special Education purposes in elementary school and then grow out of that as they mature. The idea that once a person is diagnosed as mentally retarded they are always mentally retarded has no bases in psychology theory, no basis in the DSM, and no basis in fact."

This is only true at the margins. It is not typical for a person who is mentally retarded to progress (e.g., learn adaptive functioning) to a point that he or she is no longer diagnosable as mentally retarded. And I would disagree that mental retardation is a theory of how minds change over time. It is a description of people who suffer impairments in intellectual and adaptive functioning at any given time, whatever the cause. Most mentally retarded persons simply are mentally retarded and will never not be, even those who receive extensive support that enables them to live somewhat independently. Agreed, there is nothing in stone about this or anything mandated by psychological theory that requires this, but it is true.

Posted by: DK | Jan 28, 2009 12:59:20 AM

Dk writes. "I don't think so. The Court expressly relied on the AAMR (now AAIDD) and APA."

It did but what is missing from your analysis is context. The concept of mental retardation is a psychological concept of mental development originating in the education realm. It was designed by psychologists for psychological purposes. The legal profession has ripped this concept from it's intellectual and cultural foundations and used it for a purpose for which it was never intended.

DK writes: "Expert opinions from psychologists are offered and listened to by courts making these decisions."

True enough. But offering opinions and being listened to by the courts is not the same thing as those courts grasping the intellectual and cultural presumptions from which those opinions and views originate. Not every act of talking presupposes a conversation. And not every conversation results in understanding. The legal profession may give a psychological expert a fair hearing, but rarely do they attempt to comprehend them.

DK writes: "And I would disagree that mental retardation is a theory of how minds change over time. It is a description of people who suffer impairments in intellectual and adaptive functioning at any given time."

And that illustrates my point beautifully. It is true that the evaluation is always made at one specific point in time, but it is a conclusion about a mental process, not a state of mind. And what you think on this point is irrelevant. The psychological profession, as a profession, has made a determination otherwise. When psychologists talk about mental retardation they are always talking about a developmental process. Always. [The DSM uses the term "adaptive" which has evolutionary overtones I've never liked but for the present discussion is synonymous with development. For both the evolutionary concept of adaptation and the concept of development are process orientated.] There is no debate about this point within the field of psychology. None what so ever.

Whether you intended it too or not, your entire post just illustrates my basic point. The law is taking the concept of mental retardation and using it for a purpose for which it was never intended. Does the legal profession, as a profession, have the power to do this. Yes. But it is wrong and it is abusive. The decision to use the concept of mental retardation for other purposes was never the result of a collaborative process among among professional equals. It was an act of intellectual violence.

Posted by: Daniel | Jan 28, 2009 11:27:41 AM

"Does the legal profession, as a profession, have the power to do this. Yes. But it is wrong and it is abusive. The decision to use the concept of mental retardation for other purposes was never the result of a collaborative process among among professional equals. It was an act of intellectual violence."

Pretty over the top. The bottom line is that the law requires (or at least the Supreme Court says the law requires) us to look at an evolving standard of decency in society. Society has a general concept of retardation, and the courts are supposed to give effect to that evolving standard. That it doesn't fit nicely with science is somewhat beside the point.

Posted by: federalist | Jan 28, 2009 12:00:34 PM

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