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January 25, 2018

"How IQ Tests Are Perverted to Justify the Death Penalty"

The title of this post is the headline of this new Pacific Standard commentary.  Here are excerpts:

The Supreme Court has slowly been carving out exemptions to the death penalty for people with intellectual disabilities.  In 2002, the Supreme Court ruled in Atkins v. Virginia that people with intellectual disabilities could not be executed, but left it up to the states to determine who is or is not eligible for that protection.  In 2014, in Hall v. Florida, the court ruled that a state can't use a simple IQ cut-off.  Then, in last year's Moore v. Texas, the court ruled that states must consider the best psychiatric and medical information about disability when determining disabled status.  Still, IQ testing continues to play a major role, with a threshold of around 70 serving as the cutoff score, below which a person cannot legally be executed.

Here's where "ethnic adjustments" come in.  The practice, as documented by attorney Robert Sanger in a 2015 article in the American University Law Review [available here], adjusts IQ scores upward for people of color convicted of capital crimes.  According to Sanger, prosecutors in Florida, Texas, Alabama, Tennessee, Missouri, California, Pennsylvania, and Ohio have all used ethnic adjustments to successfully impose the death penalty on people who otherwise might have been deemed exempt.  In his article, Sanger works methodically through case after case, noting in particular the role played by expert witnesses for the prosecution, who testify to the racial biases of IQ testing. In most cases, these experts have never met the person convicted of the capital crime or assessed that person for disability, even as their testimony clears the way for execution.

At the end of his article, Sanger writes, "The idea of racially classifying a person and then using 'ethnic adjustments' to increase his or her IQ score, thereby qualifying that person for execution, is logically, clinically, and constitutionally unsound.  In fact, when looked at more closely, it is a wonder how the practice has gone largely unchallenged over the last few years."  When I spoke to him over the phone, Sanger confirmed to me that no clear constitutional challenge to the practice has emerged to his knowledge, and certainly not at the United States Supreme Court, or in California, where he practices law.

January 25, 2018 at 12:56 PM | Permalink


This view is obsolete. Intelligence is defined these days by the ability to function. The test was designed for educational attainment, and not for culpability.

Atkins of the Supreme Court decision had a drug dealing business at age 9. He did not attend school because he would have lost too much money. His educational deprivation explains his poor performance on the test. Then he lured a competitor into his car, shot him, and disposed of the body.

He spent so much time with lawyers, his language ability improved. It improved to a point where is no longer scoring in the MR range, and now qualifies for the death penalty.

Even at 9, Atkins had very good social skills, entrepreneurship, and functioned at a much higher level than I did, at least.


Posted by: David Behar | Jan 25, 2018 1:11:33 PM

So we only execute those too stupid to fail their IQ test?

Posted by: Boffin | Jan 25, 2018 2:47:30 PM

In many contexts people have advocated for the use of adjustments to counter cultural bias and increase the number of people qualified for certain things.

Seems to me you can't have it both ways.

I somewhat disagree that an IQ test is a measure of educational attainment. Historically, IQ was a score obtained by dividing a person’s mental age score, obtained by administering an intelligence test, by the person’s chronological age, both expressed in terms of years and months. The resulting fraction is multiplied by 100 to obtain the IQ score. The score is relative to other people of similar age. Tests were developed for different age groups.

Posted by: rsteinmetz | Jan 25, 2018 4:38:39 PM

Mr. Steinmeitz. What were you doing at age 9? Did you have a drug business, in a very dangerous ghetto? Same question for the Justices of the Supreme Court. Who had a higher intelligence, Atkins, or you and me?

Posted by: David Behar | Jan 25, 2018 5:47:09 PM

This Atkins Effect, of improving language test performance by hanging out with appellate lawyers, is serious. It represents an innovative approach to Special Ed. Send people with Intellectual Disability to work in lawyers' offices. The benefit will be mutual. The lawyers will improve their language skills (but not their math skills). The students will impart street smarts and common sense to the lawyers.

Posted by: David Behar | Jan 25, 2018 5:52:44 PM

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