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May 13, 2013

"Lawyers worry new measure of mental retardation could prompt more executions"

The title of this article is the headline of this new Reuters article, which provides an interesting death penalty angle on a high-profile non-death-penalty story.  Here are excerpts:

A new standard from the country's leading psychiatric association to diagnose mental retardation could allow courts to execute convicted criminals with IQ scores below 70 more easily, say death penalty lawyers.

The Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association (APA), is the standard guidebook of psychiatric disorders and is used by clinicians to identify and diagnose psychiatric illnesses.

Each new edition is scrutinized by mental healthcare providers and the pharmaceutical industry for changes in definitions as well as new categories of illnesses.  Such shifts can have enormous economic, social and legal implications and often are the subject of controversy.

The fifth edition of the book since it was first published in 1952, or DSM-V, is due to be released May 22.  Already it has prompted concern from death penalty lawyers because of the change in the way the manual defines mental illness, or intellectual disability, the new name given in DSM-V.

Earlier editions of the DSM defined mental retardation as an IQ score below 70 accompanied by an inability to meet certain developmental norms, such as bathing regularly or maintaining work.  Based on that IQ benchmark, the U.S. Supreme Court ruled in Atkins v. Virginia in 2002 that it is illegal to execute a mentally handicapped person.

But the editors of DSM-V have dropped the 70 IQ score as an indicator of mental retardation and instead recommend that clinicians consider IQ scores while analyzing an individual's behavior to determine if he or she meets the developmental standards.

Making the definition of mental retardation more subjective could prompt more courts to subvert Atkins, said David Dow, a death penalty lawyer in Houston whose client Marvin Wilson was executed in Texas last summer despite his IQ score of 61.

"There are a lot of courts that are hostile to the basic legal doctrine the Atkins case established," Dow said. "When you replace a test that is one part objective, one part subjective with a solely subjective test, it becomes easier for courts that are hostile to the constitutional principle of Atkins to evade that criterion."...

From 2002 to 2012, only a quarter of the death row inmates who claimed to have mental retardation were granted stays of execution, according to research by John Blume, director of Cornell University Law School's Death Penalty Project. This included cases that had exhausted all appeals from the time of the Atkins decision to the end of 2012.

"Judges and jurors have stereotypes of what it means to be mentally retarded," Blume said. "There is a problem with people who have lower than 70 IQ scores getting executed in spite of the Atkins ruling, and under the new DSM guidance, that problem is only going to get worse."

According to Darrel Regier, vice chairman of the task force that produced the DSM-V revisions, the DSM is developed to provide guidelines for diagnosing mental illnesses for clinicians, not to provide treatment or judicial guidelines, and the test scores are only useful when interpreted by a clinical expert.

The DSM-IV's reliance on an IQ score led, in some cases, to jurors sentencing people with IQ scores of 71 or 72 to death, in spite of the test's five-point margin of error, Regier said. "A single IQ point on a test can have profound implications for life and death without (clinical) interpretation," he said.

James Harris, the founding director of the Developmental Neuropsychiatry Program at the Johns Hopkins University School of Medicine and a member of the DSM-V work group, said the criteria focus on three areas of adaptive functioning: academic, social and practical.... "We believe that we are providing the courts with a more fine-grained means to consider adaptive functioning more comprehensively and more meaningfully," Harris said.

There are many clear realities, as well as many opaque stories, concerning death penalty administration and adjudication lurking in this story.  For starters, Atkins was decided by the Supreme Court more than a decade ago, and I find it both troublesome and telling that we have not gotten anywhere close to figuring out the final practical "cash out" of Atkins during this period despite the reality that there should be only a few hundred capital cases in which a murder defendants status as mentally retarded could be reasonably disputed.

Second, while defense lawyers seem quick to suggest that the new change in the DSM will make it easier for some lower courts to "evade Atkins," it seems to me that the new DSM will also make it easier for some lower courts to perhaps expand Atkins to offenders with IQ measures of 75 or higher.  Indeed, I have seen more than a few courts quickly reject Atkins claims based on an IQ score in the 70s, and then news DSM would seem to preclude too-ready reliance on a single number to resolve these claims.

Third, if and whenever there is reason to fear lower courts in some states are regularly seeking to evade Atkins, the best solution would be to urge a legislature to codify a particular statutory approach to Atkins issues and/or to convince the Supreme Court to (finally) take up an "applying Atkins" case.  Indeed, I find uniquely worrisome the notion that DSM revisions on any issue ought to be shaped by how the DSM might be applied or misapplied in a few capital cases each years.

A few related posts (mostly pretty old):

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The DSM changed on this point because it was wrong and the Atkins decision illustrated and symbolized the wrongness. The fact is that SCOTUS in Atkins found more strength and clarity in psychological measures of intelligence than psychologists themselves feel. One confronted with this abusive behavior the field had no choice but to respond and to take that number out. The intelligence tests were never meant to decide who lives and who dies and it was fundamentally abusive for the court to rip them out of their scientific context and make them do what Bill O would call an intellectual "shuck and jive".

I actually hope it does help lower courts evade Atkins. Whether they evade it up or down is no affair of mine. Atkins is an ugly and mean-spirited decision that should be overturned.

Posted by: Daniel | May 13, 2013 2:31:17 PM

"Perhaps we should study the minds of the scientists
to learn why they so resist executing these murderers. Might there be something missing in their frontal lobe that negates the practicality of executing killers?" --Chuck Klein cited on C & Consequences blog, 5/4/13

Posted by: Adamakis | May 13, 2013 10:33:11 PM

The reason for exempting individuals with intellectual disability/mental retardation (ID/MR) is that there has long been a national consensus that individuals so defined are and should be entitled to special protections and supports. The class of ID/MR individuals has changed and shifted over the years, as the professional community serving those individuals have refined the definition. The reality is that this process will continue to occur and we shouldn't be afraid of it. The physicians who arrive at these consensus definitions care for and treat the intellectually disabled and have traditionally decided which individuals have cognitive impairments sufficient to require special assistance. In contrast, when courts invent ascientific criteria for defining ID/MR for the purpose of the death penalty only, separate from the standards they use for other programs, as the Texas courts did in Ex Parte Briseno, I have a real problem with it. They are effectively saying "we will kill some intellectually disabled people, but not others" which is entirely inconsistent with Atkins and I hope at some point the Supreme Court reigns that practice in.

Posted by: decencyevolves | May 13, 2013 11:24:28 PM

If advocates want to end discrimination against handicapped people, try ending their privileges first. People with MR, by definition, learning poorly or slowly. So the prohbition against murder has not sunk in. That makes them more culpable, more dangerous, in real life. In the upside lawyer dumbass Twilight Zone of the Supreme Court the reverse of reality is true. All severely aggravating factors become privileged and mitigating factor. Why on earth privilege such heinous and dangerous people? Lawyer make work jobs.

Back to Atkins. At age 9, he was part of a thriving drug business. What were the dumbass Justices doing at the age? Atkins lured a competitor into his car, drove to a remote location and shot him in the head. Could any of the dumbass Justices do that?

Atkins spent time with lawyers. His vocabulary and language have improved a great deal. He missed school because it would have cost too much in drug business to waste time in school. Now, he is death eligible, and no longer retarded. Atkins even discovered a new method of habilitating people with MR. Send them not to worthless special ed classes, but to lawyers' offices.

No. the real party with mental retardation was sitting atop the bench of the Supreme Court.

Posted by: Supremacy Claus | May 14, 2013 3:57:50 AM

|| Atkins lured a competitor into his car, drove to a remote location and shot him in the head...
No. the real party with mental retardation was sitting atop the bench of the Supreme Court.

I nearly concur, but esteem the deficiency to be moral, rather than intellectual.
It takes people more intelligent and well positioned, yet sufficiently morally defunkt,
to save the evildoer from his due punishment.

"There is not in all America a more dangerous trait than the deification of mere smartness
unaccompanied by any sense of moral responsibility."
--T. Roosevelt, Abilene (KS) speech,5/2/1903

Posted by: Adamakis | May 14, 2013 9:58:09 AM

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