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January 26, 2009

The challenges of implementing Atkins

I just noticed on SSRN this new paper on how well (or should I say how poorly) lower courts are implementing the Eighth Amendment capital ruling barring the execution of mentally retarded defendants.  The piece is titled "Of Atkins and Men: Deviations from Clinical Definitions of Mental Retardation in Death Penalty Cases", and here is the abstract:

Under Atkins v. Virginia, the Eighth Amendment exempts from execution individuals who meet the clinical definitions of mental retardation set forth by the American Association on Intellectual and Developmental Disabilities and the American Psychiatric Association.  Both define mental retardation as significantly subaverage intellectual functioning accompanied by significant limitations in adaptive functioning, originating before the age of 18.  Since Atkins, most jurisdictions have adopted definitions of mental retardation that conform to those definitions.  But some states, looking often to stereotypes of persons with mental retardation, apply exclusion criteria that deviate from and are more restrictive than the accepted scientific and clinical definitions.  These state deviations have the effect of excluding from Atkins's reach some individuals who plainly fall within the class it protects.  This article focuses on the cases of Roger Cherry, Jeffrey Williams, Michael Stallings and others, who represent an ever-growing number of individuals inappropriately excluded from Atkins.  Left unaddressed, the state deviations discussed herein permit what Atkins does not: the death-sentencing and execution of some capital defendants who have mental retardation.

January 26, 2009 at 08:57 PM | Permalink


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» Atkins, Psychologists, and the Death Penalty from Crime and Consequences Blog
Doug Berman at Sentencing Law and Policy has a post referencing a new paper on SSRN which discusses the implementation of Atkins. Commenter "Daniel" makes this deft observation: [W]hen psychologists talk about mental retardation, they speak of it... [Read More]

Tracked on Jan 27, 2009 2:32:23 PM


Well, when you constitutionalize an IQ test and exercise will vice judgment, you cannot complain about foot-dragging by states.

One rule should be imposed by states--any finding of malingering should bar Atkins relief.

And, somehow I doubt these guys get all that worked up about someone not retarded getting Atkins relief.

Posted by: | Jan 26, 2009 9:04:43 PM

In almost all of these cases, there are records from childhood, such as special education records, that reflect IQ scores in the range at which mental retardation may be diagnosed. So unless you think these people, at 9, 10, 11 years old, were already plotting their great escape from a death sentence for a murder they planned to commit in adulthood, then, well... wait, why I am wasting my time? Of course you believe that.

Posted by: DK | Jan 26, 2009 10:25:06 PM

DK, there are numerous situations where IQ tests administered either post-sentence or in anticipation of the sentencing hearing that are used as evidence. I believe Atkins involved an IQ test done in anticipation of sentencing.

Posted by: | Jan 26, 2009 10:37:13 PM

From the opinion: "In the penalty phase, the defense relied on one witness, Dr. Evan Nelson, a forensic psychologist who had evaluated Atkins before trial and concluded that he was 'mildly mentally retarded.' His conclusion was based on interviews with people who knew Atkins, a review of school and court records, and the administration of a standard intelligence test which indicated that Atkins had a full scale IQ of 59."

From the petitioner's brief: "Atkins's academic failure began early. He flunked second grade and was held back (JA 276-77), the school transcript noting: 'work of grade too difficult' (JA 277). He struggled in third grade, getting 5 Cs, 2 Bs and 3 Ss ('satisfactories'). He was 'socially promoted' from fourth to fifth grade, meaning that he was moved up without regard for whether he had been able to learn the fourth grade material. His grades in fourth grade were 4 Fs, 3 Ds, 2 Ss. He improved slightly in fifth grade: 2 Fs, 6 Ds and 2 Ss. Dr. Nelson had no records for sixth grade. In seventh grade, Atkins got one F, 4 Ds and one C. He was finally referred for testing for special education, but, inexplicably, did not receive it. (JA 277.) Instead, he was put in the lowest of three tracks (JA 307) and moved on to eighth grade, where he received all Fs (JA 277). The transcript notes that he did not meet the requirements for promotion to high school. Yet, he was placed in high school. (JA 277-78.)17 In ninth grade, his average was D+. The first time through tenth grade, it fell to D-. It stayed there in his second try at tenth grade. His sole success in school came in those high-school years when he was placed in a structured environment for slow learners, with a student-teacher ratio of eight to one. Only then was he able to earn some Bs and Cs, and even one A. (JA 278-79.) Atkins left school without graduating."

No IQ score (anomalous in that way, likely the result of the failure of the school to actually conduct the assessment it referred him for), but I think you get the point.

Posted by: DK | Jan 26, 2009 11:22:12 PM

The fundamental problem is that "mental retardation" is, even in the DSM, not a discrete concept. It is a concept upon which reasonable people, even professional psychologists, can and do disagree. There is no bright-line test for mental retardation; it's always a judgment call and there is almost going to be people on one side or the other that disagree with that call.

I glanced though the article and truthfully the take-away point for me was that, once again, judges are being required to make decisions that are truthfully out of their realm of expertise because law school never trained them on any of these issues.

As for the text that DK quotes, an honest psychologist would look at that data and see it as inconclusive. There is data there that support the conclusion that he was mentally retarded and data that argues in the opposite direction.

I recognize that some people would argue that when the case is close, perhaps better to error on the side of caution and call it mental retardation. But that approach is just a matter of personal preference; it has no basis in psychology.

Posted by: Daniel | Jan 26, 2009 11:40:21 PM

Daniel, those are fair points. The thing is, though, were an assessment being made in an innocuous context like, say, special education or social security, one can indeed say that almost all psychologists would come down in favor of mental retardation in many cases where in the criminal justice context state courts side with hack psychologists the State retains who offer "the other side." There have been executions--post-Atkins--of undeniably mentally retarded people--people for whom 99 out of 100 psychologists would diagnose as being mentally retarded outside the forensic context. There probably isn't a single case of it happening the opposite way (a person getting relief for whom 99 out of 100 psychologists would rule out mental retardation). This is the result of the distorting effect of the death penalty on the judicial system. It's got nothing to do with the expertise or lack thereof of the judge. Judges make decisions like this every day (i.e., what's an "unreasonable" search?).

And, despite all this, the point attempted to be made above about malingering is simply frivolous. Any forensic mental retardation assessment takes into account a person's entire life. It cannot be "faked" for the purpose of meeting a legal standard because there will be a documentary history that will immediately put the lie to it if tried.

Posted by: DK | Jan 27, 2009 12:46:37 AM

One thing I noted from the article is that the authors conclude that the standard error of measurement (SEM) should always favor an Atkins claim. But a fair alternative explanation is that SEM also could mean that someone is not MR given a certain IQ score. While IQ tests are good, they are far from perfect.

As far as what DK quotes from the petitioner's brief above, I think there's some confusion here between IQ and academic achievement. IQ is understood to rest outside of school performance (for the most part), while achievement is wholly within the realm of school performance. That's why there are separate tests for each construct. Certainly, poor school performance is a red flag for possible low IQ, but it may also signal poor home environment, lack of motivation, and a lousy school system.

DK also claims "There have been executions--post-Atkins--of undeniably mentally retarded people--people for whom 99 out of 100 psychologists would diagnose as being mentally retarded outside the forensic context. There probably isn't a single case of it happening the opposite way (a person getting relief for whom 99 out of 100 psychologists would rule out mental retardation)."

I'd be interested in citations to those cases. I'm not saying they haven;t happened, but I'd be curious at the fact patterns. One thing is for sure, out of 100 psychologists, I bet more than 1 would disagree. The problem with Atkins is not the clear cut cases of profound retardation, but the "close calls" where our assessment instruments simply lack sensitivity. Thus, the clinician makes a judgment call - and human judgment is a notoriously tricky matter.

Posted by: Steve Erickson | Jan 27, 2009 8:26:29 AM

DK. I hear what you are saying but let me respond. It is true that judges make judgment calls every day such as whether or not a search is reasonable. But the 4th amendment is something that lawyers study in law school. Judges do not take classes in law school on psychological analysis; they don't study the ins and outs of psychological interpretation. They rely on the experts to inform them and when experts disagree they don't have any other real basis for decision making except the law as they understand it. The consequence is that they make make rulings that seem to make sense legally but in fact make no sense psychologically.

And, in fact, your second point is an excellent example of that situation. Mental retardation is first and foremost a concept of *educational development*. This concept, quite appropriate in that setting, has been ripped from its moorings and been used as a tool to achieve certain legal ends. This ripping of the concept of mental retardation from its historical and cultural context is, for lack of a better phrase, intellectual abuse.

In writing this way I have no horse to ride on in the debate over the death penalty. But when psychologists talk about mental retardation, they speak of it with a set of intellectual assumptions and from a world view that is frankly alien to law. The result is that the two sides often talk past one another rather than with one another. I don't have a problem with people who wish to argue that individuals with certain mental disabilities should not be killed. But as a educational psychologist, I fail to see what mental retardation has to do with making that determination. For example, there is nothing in the DSM that says that people who are mentally retarded don't know right from wrong, or that they can't understand the consequences of their actions; concepts which historically have been very important to the law in assessing moral blameworthiness.

If the SC believes that it's unconstitutional for people with certain mental disabilities to be killed, I am OK with that. But as a psychologist, I think it shows a distinct lack of psychological sophistication and rigor on the part of the legal profession that it chose the concept of mental retardation as the foundation upon which to build that superstructure.

Posted by: Daniel | Jan 27, 2009 11:48:51 AM

Yes, I also think that iq tests are not perfect at all. Recently I submitted an iq test at www.quickiqtest.net - it consists of 15 questions with pictues. I would say that such an iq test can actually just tell you something about the abstract side of your mind as not everything depends on your imagination..

Posted by: Janet | Aug 31, 2009 10:50:28 AM

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