« Prez candidate Hillary Clinton now talking abut equalizing crack and powder federal sentences | Main | SCOTUS grants cert on quirky aspect of federal gun prohibition case »

October 30, 2015

"IQ, Intelligence Testing, Ethnic Adjustments and Atkins"

The title of this post is the title of this intriguing new paper authored by Robert M. Sanger and available via Bepress.  Here is the abstract:

In Atkins v. Virginia the U.S. Supreme Court declared that executing the intellectually disabled violated the U.S. Constitution’s Eighth Amendment prohibition against cruel and unusual punishment.  In Atkins, the Court relied heavily on medical standards, which indicated that individuals with an IQ of approximately or below seventy and who met the other criteria for intellectual disability were ineligible for the death penalty. Twelve years later, in Hall v. Florida, the Court evaluated a Florida statute that created a bright line rule, making anyone whose IQ was above seventy eligible for execution, regardless of other factors suggesting the defendant was, despite his IQ score, intellectually disabled.  Finding the statute violated the Constitution, the Court stated that the Florida statute’s bright line rule made the possibility too great that an intellectually disabled person would be executed.

Since Atkins, some prosecution experts have begun using so-called “ethnic adjustments” to artificially raise minority defendants’ IQ scores, making defendants who would have been protected by Atkins and its progeny eligible for the death penalty.  This Article details this practice, looking at several cases in which prosecutors successfully adjusted a defendant’s IQ score upward, based on his or her race.  The Article then turns to the arguments put forth by these prosecutors for increasing minority defendants’ IQ scores, namely that it would be improper not to adjust the scores.  Statistically, some minority cohorts tend to perform worse on tests than White cohorts; prosecutors argue that this discrepancy is not based on intellectual inferiority, but rather that there are testing biases and behavioral factors that cause minority test-takers to underperform.  Thus, the argument goes, minority IQ scores should be increased to control for these biases and behavioral factors.

Evaluating the merits of these arguments, this Article concludes that ethnic adjustments are not logically or clinically appropriate when computing a person’s IQ score for Atkins purposes.  This Article looks at epigenetics to explain the discrepancies in IQ scores, concluding that environmental factors — such as childhood abuse, poverty, stress, and trauma — can cause decreases in actual IQ scores and which can be passed down from generation to generation.  Therefore, given that individuals who suffered these environmental factors disproportionately populate death row, ethnic adjustments make it more likely that individuals who are actually intellectually disabled will be put to death.  Ultimately, after looking at the Supreme Court’s affirmative action jurisprudence, this Article concludes that the practice of ethnic adjustments for the purpose of determining eligibility for the death penalty violates the Fourteenth Amendment’s Equal Protection Clause and would not survive strict scrutiny.

October 30, 2015 at 05:35 PM | Permalink


«… some prosecution experts have begun using so-called “ethnic adjustments” to artificially raise minority defendants’ IQ scores, making defendants who would have been protected by Atkins and its progeny eligible for the death penalty.»

▼ ☺ A Modest Proposal ☺ ▼
Artificially “profession adjust” the degree of evil and lack of available correction , to said prosecutors and “experts” to make them qualify for the “John of Salisbury Sanction

Posted by: Docile Jim Brady „ the Nemo Me ☺ Impune Lacessit guy in Oregon ‼ | Oct 30, 2015 7:16:10 PM

Intellectual disability is now defined by trouble functioning. Atkins started his drug business at age 9. He performed poorly on IQ tests because of educational deprivation. He was educationally deprived because time is money. Go to school, lose $1000 in business today. You decide.

Atkins lured a competitor into his car, took a ride, and executed him. Is that trouble functioning?

Now look at the lawyer dumbass.

Utter failure of every self stated goal of every law subject. Total failure in running the government, which under their domination does nothing well. Failure of government Job One and Job Last, protecting the public from physical harm.

Who is mentally retarded, Atkins or the vile subhuman filth on the Supreme Court?

Posted by: Supremacy Claus | Oct 30, 2015 7:21:52 PM

Here. For the lawyer dumbass.

Was Atkins mentally retarded?

From http://www.aamr.org/

What is intellectual disability?

Intellectual disability is a disability characterized by significant limitations both in intellectual functioning (reasoning, learning, problem solving) and in adaptive behavior, which covers a range of everyday social and practical skills. This disability originates before the age of 18.

Posted by: Supremacy Claus | Oct 30, 2015 7:28:00 PM

I think, ultimately, this is a legal and moral judgment rather than scientific one. IQ tests themselves are biased in a way that favors white people. But there are two questions that counteract that. One is legal: Can this consideration survive strict scrutiny. The answer there seems a clear no. For starters, I'm not sure the Supreme Court has ever held that the state has a compelling interest in executing people. Second, a blanket adjustment based on race is using a pure race stereotype (it's one thing to say that statistically, the test is biased, and another to say that it's inaccurate in a specific case).

SC, Atkins considered things like the ability to have reasoned thought and considered actions (as opposed to impulsive actions without regards to the consequences). Believe it or not, drug dealing requires neither of those things. All it requires is a disregard of (or obliviousness to) the consequences and some people to get you stared.

Posted by: Erik M | Oct 31, 2015 8:23:50 AM

Erik. Your argument brings up a point I have been trying to make. All mitigating factors are really aggravating factors. If you cannot reason, doesn't that make one more dangerous, and should compel longer sentences.

Posted by: Supremacy Claus | Oct 31, 2015 11:27:01 AM

The most important policy implication of Atkins was discussed once in a NY Times article.

Atkins spent so much time with lawyers that his language ability improved to a point of making his IQ score death eligible.

So I have proposed that mentally retarded people be sent, not to special education classes, but to law firms.

I think such a program would be mutually beneficial.

The lawyers would enhance the language ability of the people with mental retardation.

The mentally retarded can teach the lawyers more common sense.

Posted by: Supremacy Claus | Oct 31, 2015 11:16:53 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB