Presiding over a Capital Case • 137
CHAPTER 7
MENTAL RETARDATION
Todd Elwyn, M.D., J.D.
Melissa Piasecki, M.D.
[7.1.]
Introduction
This chapter addresses the diagnosis of mental retardation in capital
cases. First, we review the U.S. Supreme Court decision in Atkins v. Virginia,622
establishing the legal standard in capital cases for those diagnosed with mental
retardation. Next, we describe the potential complexities facing a court when the
defense argues that a defendant has mental retardation. These complexities
include differing definitions of mental retardation and the numerous tools which
can be used for measuring its component parts. Next, we discuss special issues in
the diagnosis of mental retardation, such as the potential for malingering. We
include an illustrative case to outline the perspectives of the parties and the
potential contrasts in approaches to the defendant based on perspective. Last, we
review cases following Atkins that offer additional perspectives on the questions
relating to mental retardation in capital cases.
[7.2.]
Atkins v Virginia
A Virginia jury convicted Atkins of capital murder and related crimes
and he was sentenced to death. The Virginia Supreme Court affirmed relying on
Penry v. Lynaugh,623 and rejected Atkins' contention that he could not be
sentenced to death because he is mentally retarded. The U.S. Supreme Court
reversed and remanded, holding that “death is not a suitable punishment for a
mentally retarded criminal.”624
[7.3.]
Facts of the Case
On the night of August 16, 1996, after drinking alcohol and smoking
marijuana, Daryl Renard Atkins and William Jones abducted Eric Nesbitt from a
convenience store, robbed him, drove him to an automated teller machine to
withdraw additional cash, then took him to a deserted area where, ignoring his
pleas to leave him unharmed, shot him eight times and killed him.625 Jones and
Atkins were indicted for capital murder, but Jones became ineligible to receive
the death penalty after pleading guilty to first-degree murder in exchange for his
testimony against Atkins.626 Although Atkins testified that Jones had actually
622
536 U.S. 304 (2002).
492 U.S. 302 (1989).
624
Atkins, 536 U.S. at 321.
625
Id. at 307.
626
Id.
623
138 • Presiding over a Capital Case
shot and killed Nesbitt, Jones' testimony was deemed more coherent and credible
than Atkins' testimony and Atkins was convicted of abduction, armed robbery,
and capital murder.627
At the penalty phase of the trial, the state introduced victim impact
evidence and proved two aggravating circumstances: future dangerousness and
“vileness of the offense.”628 In the penalty phase, the defense relied on a forensic
psychologist, Dr. Evan Nelson, who had concluded that Atkins was “mildly
mentally retarded.”629 His opinion was based on interviews with Atkins, Atkins'
family members, and deputies at the jail where he had been incarcerated for the
preceding 18 months.630 Dr. Nelson reviewed Atkins' statements made to the
police, the investigative reports concerning the case, and school and court
records. He also administered a standard intelligence test (the Wechsler Adult
Intelligence Scales test (WAIS-III)), which indicated that Atkins had a full scale
IQ of 59. Dr. Nelson testified that, in his opinion, Atkins' limited intellect had
been a consistent feature throughout his life, and that his IQ score of 59 was not
an “aberration, malingered result, or invalid test score.”631 The jury sentenced
Atkins to death.632
Because the trial court had used a misleading verdict form, the Virginia
Supreme Court ordered a second sentencing hearing.633 Dr. Nelson again testified
for the defense and an expert rebuttal witness, Dr. Stanton Samenow, testified for
the state.634 Dr. Samenow opined that Atkins was not mentally retarded, but
rather was of "average intelligence, at least," and diagnosable as having antisocial
personality disorder.635 Dr. Samenow's opinion was based upon two interviews
with Atkins, a review of his school records, and interviews with correctional
staff.636 He did not administer an intelligence test, but did ask Atkins questions
taken from the 1972 version of the Wechsler Memory Scale.637 Dr. Samenow
attributed Atkins’ “terrible” academic performance to the fact that he “is a person
who chose to pay attention sometimes, not to pay attention others, and did poorly
because he did not want to do what he was required to do.”638 The jury again
sentenced Atkins to death.639
627
Id.
Id. at 308.
629
Id.
630
Id.
631
Id.
632
Id. at 309.
633
Id.
634
Id.
635
Id.
636
Id. at 309 n. 6.
637
Id.
638
Id.
639
Id. at 309.
628
Presiding over a Capital Case • 139
Atkins appealed to the Supreme Court of Virginia, arguing that he could
not be sentenced to death because he is mentally retarded.640 In affirming the
imposition of the death penalty, the majority of the state court rejected his
contention.641 Relying on the U.S. Supreme Court’s holding in Penry v.
Lynaugh,642 they indicated they were “not willing to commute Atkins' sentence of
death to life imprisonment merely because of his IQ score.”643 The dissenting
justices found Dr. Samenow's opinion that Atkins possessed average intelligence
as “incredulous as a matter of law,” and concluded that “the imposition of the
sentence of death upon a criminal defendant who has the mental age of a child
between the ages of 9 and 12 is excessive.”644
[7.4.]
Findings and Reasoning
Justice Stevens, joined by Justices O'Connor, Kennedy, Souter, Ginsberg,
and Breyer reviewed the Eighth Amendment prohibition on “excessive”
sanctions: “Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.”645 A punishment is “excessive” if it is
not graduated and proportioned to the offense, as judged by currently prevailing
standards of decency.646 Assessing proportionality should be informed by
objective factors to the maximum possible extent, the clearest and most reliable
of which is the legislation enacted by the country's legislatures.647 The U.S.
Supreme Court noted, however, that on the question of the acceptability of the
death penalty under the Eighth Amendment, the Constitution contemplates that in
the end the U.S. Supreme Court must bring to bear its own judgment.648
The U.S. Supreme Court reviewed state legislation and noted that since
1986, 18 states and the federal government have enacted statutes prohibiting a
person with mental retardation from the death penalty.649 The U.S. Supreme
Court suggested this consistency in the direction of change provided powerful
evidence that today society views mentally retarded offenders as less culpable
than the average criminal.650 The execution of mentally retarded offenders is
uncommon even in those states that allow it.651 The U.S. Supreme Court found
that a national consensus has developed against it and that the only question of
serious disagreement is in determining which offenders are, in fact, retarded.652
640
Id. at 310.
Id.
642
492 U.S. 302 (1989).
643
Atkins, 536 U.S. at 310.
644
Id.
645
Id. at 311.
646
Id.
647
Id. at 312.
648
Id. at 313.
649
Id. at 314.
650
Id. at 315.
651
Id. at 316.
652
Id. at 316-317.
641
140 • Presiding over a Capital Case
The task of developing appropriate ways to enforce the constitutional restriction
upon the execution of sentences was left to the states.653
The U.S. Supreme Court asserted that the consensus against the
execution of the mentally retarded reflected widespread judgment that mentally
retarded offenders were less culpable and that the penological purposes of the
death penalty are not served by executing the mentally retarded.654 The U.S.
Supreme Court reviewed the common elements of the definition of mental
retardation (subaverage intellectual functioning, and significant limitations in
adaptive skills such as communication, self-care, and self-direction that manifest
before age 18) and asserted that while the mentally retarded may know the
difference between right and wrong and may be competent to stand trial, they
have diminished capacities in several areas: understanding and processing
information, communicating, abstracting from mistakes and learning from
experience, engaging in logical reasoning, controlling impulses, and
understanding the reactions of others.655 Also, they act on impulse rather than
pursuant to a premeditated plan and in group settings are followers rather than
leaders.656
Because of these deficiencies, the U.S. Supreme Court questioned
whether the justifications recognized as the basis for the death penalty —
retribution or deterrence — apply to mentally retarded offenders.657 If not, the
U.S. Supreme Court asserted that the imposition of the death penalty on a
mentally retarded person is the purposeless and needless imposition of pain and
suffering, which is an unconstitutional punishment.658 Retribution -- the interest
in seeing that the offender gets his "just deserts" — requires a severity of
punishment depending upon the culpability of the offender such that the death
penalty is reserved for the most serious of crimes.659 The U.S. Supreme Court
held previously that the culpability of the average murderer is insufficient to
justify the imposition of the death penalty, and thus the lesser culpability of the
mentally retarded offender should not merit that form of retribution.660 Executing
the mentally retarded will not measurably further the goal of deterrence.661 The
theory of deterrence is predicated upon the notion that the increased severity of
the punishment will inhibit criminal actors from carrying out murderous
conduct.662 Capital punishment can serve as a deterrent only when murder is the
result of premeditation and deliberation.663 The sort of cold calculus that precedes
the decision is at the opposite end of the spectrum from behavior of mentally
retarded offenders as they are less able to process the information of the
653
Id. at 317.
Id.
655
Id. at 318.
656
Id.
657
Id.
658
Id. at 319.
659
Id.
660
Id.
661
Id. at 320.
662
Id.
663
Id. at 319.
654
Presiding over a Capital Case • 141
possibility of execution as a penalty and control their conduct based upon that
information.664
The U.S. Supreme Court expressed concern that some of the
characteristics of mental retardation undermine the procedural protections
provided by capital jurisprudence and increase the risk that the death penalty will
be imposed in spite of factors which may call for a less severe penalty.665 The
U.S. Supreme Court cited to the possibility of false confessions and the lesser
ability of mentally retarded defendants to make a persuasive showing of
mitigation in the face of prosecutorial evidence of one or more aggravating
factors.666 Mentally retarded defendants may also be less able to give meaningful
assistance to their counsel, typically are poor witnesses, and their demeanor may
create an impression of lack of remorse for their crimes.667 Reliance on mental
retardation as a mitigating factor may enhance the likelihood that the aggravating
factor of future dangerousness will be found by the jury.668
[7.5.]
Dissenting Opinions
(Chief Justice Rehnquist, joined by Justice Scalia, and Justice Thomas).
Justice Rehnquist challenged the conclusion that a national consensus had
developed against the death penalty for mentally retarded capital murder
defendants who are competent to stand trial, aware of the punishment they are
about to suffer and why, and whose mental retardation has been found an
insufficiently compelling reason to lessen their individual responsibility for the
crime.669 He noted that the laws of 19 other states besides Virginia continue to
leave the question of proper punishment to sentencing judges or juries.670 Chief
Justice Rehnquist agreed with Justice Scalia that the U.S. Supreme Court's
assessment of the current legislative judgment regarding the execution of
defendants like petitioner more resembled a post hoc rationalization for the
majority's subjectively preferred result rather than any objective effort to
ascertain the content of an evolving standard of decency.671 Justice Rehnquist
criticized the majority’s decision to place weight on the views of professional and
religious organizations, and opinion polls in reaching its conclusion as
unsupported by precedents and antithetical to considerations of federalism.672 He
argued they should not be accorded any weight on the Eighth Amendment scale
when the elected representatives of a state's populace have not deemed them
persuasive enough to prompt legislative action.673 He questioned whether the
surveys upon which the U.S. Supreme Court relied were conducted in accordance
664
Id.
Id. at 320.
666
Id.
667
Id.
668
Id. at 321.
669
Id.
670
Id. at 322.
671
Id.
672
Id.
673
Id. at 326.
665
142 • Presiding over a Capital Case
with generally accepted scientific principles.674 He suggested that in order to be
credited they should be offered as evidence at trial, where their sponsors can be
examined and cross-examined about methodological matters.675
He argued that the work product of legislatures and sentencing jury
determinations ought to be the sole indicators by which courts ascertain the
contemporary American conceptions of decency for purposes of the Eighth
Amendment.676 He concluded that they are the only objective indicia of
contemporary values firmly supported by precedents and are better suited than
courts to evaluating and giving effect to the complex societal and moral
considerations that inform the selection of publicly acceptable criminal
punishments.677
Additionally, he criticized the U.S. Supreme Court's reference to other
countries' disapproval of imposing the death penalty for crimes committed by
mentally retarded offenders because the viewpoints of other countries are
irrelevant to the issue of national consensus.678 He asserted that there are strong
reasons for limiting the inquiry into what constitutes an evolving standard of
decency under the Eighth Amendment to the laws passed by legislatures and the
practices of sentencing juries in America.679
(Justice Scalia, with whom Chief Justice and Justice Thomas join,
dissenting.) Justice Scalia asserted that the majority's decision found no support
in the text or history of the Eighth Amendment nor in current social attitudes but
rested upon nothing but the personal views of its members.680 He began by
reviewing the case: after convicting Atkins of capital murder, the jury at
resentencing heard extensive evidence of petitioner's alleged mental retardation
through the testimony of a defense and the evidence from family members.681
They also heard evidence contesting the evidence of retardation and presented
testimony of a psychologist who found absolutely no evidence other than the IQ
score indicating that Atkins was in the least bit mentally retarded and concluded
that Atkins was of average intelligence, at least.682 The jury also heard testimony
about petitioner's 16 prior felony convictions that provided graphic depictions of
Atkins' violent tendencies.683 Atkins' mental retardation was a central issue at
sentencing, but the jury, concluding it was not a compelling reason to spare him
the death penalty in light of the other factors, sentenced him to death and the
Supreme Court of Virginia affirmed.684
Justice Scalia criticized the U.S. Supreme Court's conclusion that no one
who is even slightly mentally retarded can have sufficient moral responsibility to
674
Id.
Id. at 327.
676
Id. at 328.
677
Id.
678
Id.
679
Id.
680
Id. at 337.
681
Id. at 338.
682
Id.
683
Id. at 339.
684
Id.
675
Presiding over a Capital Case • 143
be subjected to capital punishment for any crime as an implausible sociological
and moral conclusion and an even more implausible interpretation of the
Constitution.685 A punishment is "cruel and unusual" under the Eighth
Amendment if it is one of those modes or acts of punishment that 1) was
considered cruel and unusual at the time that the Bill of Rights was adopted, or 2)
is inconsistent with modern standards of decency.686 Because the execution of the
mildly mentally retarded would not have been considered "cruel and unusual"
in 1791, the majority argues that execution of the mildly retarded is inconsistent
with the "evolving standards of decency that mark the progress of a maturing
society.”687
Eighth Amendment judgments regarding the existence of social
"standards" are to be informed by objective factors, first among which are the
statutes passed by society's elected representatives as they will have a better
sense of the evolution in views of the American people.688 Justice Scalia berated
the majority’s finding of a national consensus forbidding execution of the
mentally retarded when only 18 states--less than half (47%) of the 38 states that
permit capital punishment (for whom the issue exists)--have very recently
enacted legislation barring it.689 He further pointed out that only 7 of the 18 states
have legislation prohibiting the execution of all mentally retarded defendants
since several states allow it under some circumstances (e.g., for those already on
death row).690 Justice Scalia concluded the prohibition against executing the
mentally retarded was not a statement of absolute moral repugnance, but one of
current preference between two tolerable approaches.691
Justice Scalia asserted that the "fudged 47%" figure resembled evidence
the U.S. Supreme Court found inadequate to establish consensus in earlier
cases.692 He worried that the legislation of all 18 states is still in its infancy such
that no state knows whether these laws are sensible in the long term.693 He
panned the U.S. Supreme Court's argument regarding the "consistency of the
direction of change" because there was no other direction in which change could
occur, and pointed out that merely 14 years earlier all death penalty statutes
included the mentally retarded.694 He warned that reliance upon trends of even
much longer duration than 14 years is a perilous basis for constitutional
adjudication.695 He also criticized the majority's reliance upon the margins by
which state legislatures have enacted bans on execution of the retarded as one
could then argue that the number of people represented by the legislators voting
685
Id.
Id.
687
Id. at 340.
688
Id. at 341.
689
Id. at 342.
690
Id.
691
Id. at 343.
692
Id.
693
Id. at 344.
694
Id.
695
Id. at 345.
686
144 • Presiding over a Capital Case
for each bill would be significant in determining consensus.696 Consensus, he
argued, is a consensus of the sovereign states that form the Union, not a nose
count of Americans for and against.697
Justice Scalia criticized the argument that evidence of a "national
consensus" could be found in the infrequency with which retarded persons are
executed in states that allow their execution. He found it overwhelmingly
probable that those considerations that induced the majority to believe that death
should never be imposed on mentally retarded offenders cause prosecutors and
juries to believe that it should rarely be imposed.698 Justice Scalia agreed with the
Chief Justice's dissent, that the views of professional and religious organizations,
the results of opinion polls, and the practices of the world community are
irrelevant.699
Justice Scalia challenged the two assumptions underlying the U.S.
Supreme Court's analysis: that the Eighth Amendment prohibits excessive
punishments, and that sentencing juries or judges are unable to account properly
for the "diminished capacities" of the retarded.700 The Eighth Amendment, he
asserted, is addressed to always-and-everywhere "cruel" punishments, such as the
rack and the thumbscrew.701 The assumed inability of judges or juries to take
proper account of mental retardation, he declared, was unsubstantiated and
contradicted the immemorial belief that they play an indispensable role in such
matters.702
Justice Scalia disagreed with the two reasons the U.S. Supreme Court
gave as to why the death penalty was an excessive punishment for all mentally
retarded offenders.703 The claim that the "diminished capacities" of the mentally
retarded raise a "serious question" whether their execution contributes to the
"social purposes" of the death penalty, (retribution and deterrence) ignores a third
"social purpose" of the death penalty--the incapacitation of dangerous criminals
and the consequent prevention of crimes that they may otherwise commit in the
future.704 Moreover, Justice Scalia challenged the claim that retribution is not
advanced because the mentally retarded are no more culpable than the average
murderer, asserting that there is no established correlation between mental acuity
and the ability to conform one's conduct to the law in such a rudimentary matter
as murder.705 Even if there were a direct connection, Justice Scalia questioned
whether there is a scientific analysis that shows that a mildly retarded individual
who commits an exquisite torture-killing is "no more culpable" than the
"average" murderer in a holdup-gone-wrong or a domestic dispute; or a
696
Id. at 346.
Id.
698
Id.
699
Id. at 347.
700
Id. at 348.
701
Id. at 349.
702
Id.
703
Id.
704
Id. at 350.
705
Id.
697
Presiding over a Capital Case • 145
moderately retarded individual who commits a series of 20 exquisite torturekillings.706
Justice Scalia asserted that culpability, and deservedness of the most
severe retribution, depends not merely upon the mental capacity of the criminal
but also upon the depravity of the crime--the sort of question traditionally
answerable by the sentencer's weighing of the circumstances (both degree of
retardation and depravity of crime) in the particular case.707 He reasoned that the
fact that juries continue to sentence mentally retarded offenders to death for
extreme crimes shows that society's moral outrage sometimes demands execution
of retarded offenders.708 By admitting that mental retardation does not render the
offender morally blameless, the majority cannot then say that the death penalty is
never appropriate retribution, no matter how heinous the crime.709 As long as a
mentally retarded offender knows "the difference between right and wrong," only
the sentencer can assess whether his retardation reduces his culpability enough to
exempt him from the death penalty for the particular murder in question.710
Regarding the argument that the deterrent effect of the death penalty is
not advanced, Justice Scalia reiterated that this claim would lead to the same
erroneous conclusion discussed earlier--that the mentally retarded (because they
are less deterred) are more likely to kill.711 Even if the deterrent effect for
mentally retarded individuals is less for others, the deterrent effect of a penalty is
adequately vindicated if it successfully deters many, but not all, of the target
class.712 Moreover, Justice Scalia argued, it is not clear that a murderer is
somehow less blameworthy if he knew his act was wrong but he did not fully
appreciate that he could die for it.713 But if so, he should be treated like an
offender who may be "less likely" to respond to the death penalty because he was
abused as a child such that his background should be considered by the sentencer
as a mitigating factor.714 Justice Scalia reasoned that if mentally retarded
offenders face a special risk of wrongful execution due to such things as being
less able to be an effective witness or provide assistance to counsel it might
support a due process claim but has nothing to do with an Eighth Amendment
claim that execution of the mentally retarded is cruel and unusual.715 Finally,
Justice Scalia predicted that the process of a capital trial would be turned
into a game since the symptoms of mental retardation can readily be feigned,
noting that the mere pendency of this case brought petitions by death row
inmates claiming for the first time, after multiple habeas petitions, that they
are retarded.716
706
Id.
Id. at 351.
708
Id.
709
Id.
710
Id.
711
Id.
712
Id.
713
Id. at 352.
714
Id.
715
Id.
716
Id. at 353.
707
146 • Presiding over a Capital Case
[7.6.]
Mental Retardation
Several factors complicate making the diagnosis of mental retardation.
First, different organizations define mental retardation slightly differently.
Second, psychologists and psychiatrists can select from a variety of assessment
tools to detect mental retardation and all of the tools have some degree of
potential error.717 Third, while all definitions of mental retardation require both
below average intelligence and functional limitations, individuals may differ
greatly in their social, academic and occupational abilities. Fourth, mental
retardation has many potential causes but the diagnosis is independent of causal
factors. Even the term mental retardation is subject to dispute—The American
Association on Mental Retardation718 recently changed its terminology for the
term to “intellectually and developmentally disabled.” For the purposes of this
chapter, we use the more commonly understood term “mental retardation.”
Conditions that cause the mental retardation may be present at birth but
the diagnosis may not be established until many years later, especially for mildly
mentally retarded people. Some of the congenital causes of mental retardation
include exposure to infections or toxins such as alcohol during fetal development,
chromosomal abnormalities and oxygen deprivation during delivery. After birth,
environmental problems that can lead to mental retardation include lead exposure
or extreme deprivation. In the majority of mental retardation diagnoses, doctors
are unable to identify the underlying cause. The etiology in these cases is
idiopathic, or unknown.
[7.7.]
Diagnostic Criteria
Both the American Psychiatric Association (APA) and the American
Association on Intellectual and Developmental Disabilities (AAIDD) offer
definitions for mental retardation. The APA publishes the Diagnostic and
Statistical Manual 4th Edition, text revision (DSM-IV-TR).719 The DSM-IV-TR,
the accepted reference manual for psychiatric diagnosis used by psychiatrists,
717
For an in depth analysis of the challenges facing courts implementing Atkins and a
review of Virginia’s relevant statutes, see Richard J. Bonnie and Katherine Gustafson,
The Challenge of Implementing Atkins v. Virginia: How legislatures and courts can
promote accurate assessments and adjudications of mental retardation in death penalty
cases 41 U. RICH L. REV. 811 (April 26, 2007) [hereinafter Challenges of Implementing
Atkins].
718
The American Association on Mental Retardation changed its name on January 1,
2007 to the American Association on Intellectual and Developmental Disabilities. Press
Release, American Association on Mental Retardation, World’s Oldest Organization on
Intellectual Disability Has a Progressive New Name (Nov. 2, 2006),
http://www.aamr.org/About_AAID/name_change_PRdreen.htm. We will use “AAIDD”
except when referencing citations from publications that were published under the earlier
designation of “AAMR.”
719
AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL 4TH
EDITION, TEXT REVISION (American Psychiatric Press Inc., 2000) (1952) [hereinafter
DSM-IV-TR].
Presiding over a Capital Case • 147
psychologists and other mental health professionals, defines mental retardation
using specific criteria described in the next section. The AAIDD has defined
mental retardation since 1921720 and describes it not as a mental disorder but in
terms of a functional state.721 Rarely would a psychiatrist or psychologist select a
diagnostic definition from a source other than these two organizations. Their
definitions are sufficiently different to merit a comparative review in the
following section. The two organizations require, however, the same three prongs
for a diagnosis of mental retardation: (1) significant limitations in intelligence
(operationalized by IQ scores); (2) multiple deficits in adaptive behavior; and (3)
onset during the developmental period before 18. Regardless of the definition
used, mental retardation is a clinical diagnosis that requires interpretation of the
diagnostic criteria by a trained mental health professional.
[7.8.]
DSM-IV-TR Criteria
The DSM-IV-TR definition of mental retardation requires that the patient
display both of the following: “[s]ignificantly subaverage intellectual
functioning: an IQ of approximately 70 or below” and “[c]oncurrent deficits or
impairments in present adaptive functioning . . . in at least two of the following
areas: communication, self-care, home living, social/interpersonal skills, use of
community resources, self-direction, functional academic skills, work, leisure,
health and safety.”722 The definition also requires onset of these characteristics
before age 18.723 The age requirement establishes that mental retardation
represents a delay or interruption of normal development rather than a loss of
functioning due to an injury or dementing illness. While the diagnosis requires
evidence of impairment before age 18, there is no cut-off age (in any diagnostic
scheme) for making the diagnosis of mental retardation.
The DSM-IV-TR is a clinical tool and does not give specific rationale for
making the diagnosis definition of mental retardation or any other diagnosis. The
DSM-IV-TR also includes a cautionary statement that the inclusion of a
diagnosis in the manual “does not imply the diagnosis meets legal or other
medical criteria for what constitutes a mental disease, mental disorder or mental
disability.”724
The DSM-IV-TR defines several levels of mental retardation. Mild
mental retardation is defined as an IQ level of 50-55 to approximately 70. The
range in definitional IQ scores reflects the margin of error of all IQ tests, which
will be addressed in a later section. The vast majority of people with mental
720
AMERICAN ASSOCIATION ON MENTAL RETARDATION, MENTAL RETARDATION
DEFINITIONS, CLASSIFICATION, AND SYSTEMS OF SUPPORTS (Luckasson et al. eds., 10th
edition, 2002) (1921) [hereinafter AAMR].
721
In addition to the book and manual on mental retardation, the AAID’s website
includes information on the diagnosis at
http://www.aamr.org/Policies/faq_mental_retardation.shtml.
722
DSM-IV-TR at 41.
723
Id.
724
Id. at xxxvii and at xxxi; The DSM-IV-TR also includes a section on the limitations of
the categorical approach to psychiatric diagnoses.
148 • Presiding over a Capital Case
retardation are mildly mentally retarded. People with mild mental retardation
have functional impairments that require additional community support and
special education classes at school. As adults, they may live independently with
support from family, “trainers” or in group homes with minimal supervision.
Some people with mild mental retardation maintain employment, especially if an
employer is motivated to provide additional support and to modify the job to fit
the skills of the individual.725 Individuals with IQ scores in the 71-84 range may
be diagnosed with “borderline intellectual functioning” which the DSM-IV-TR
describes as a condition distinct from mental retardation.726 The capital cases
which involve defendants with a differential diagnosis of mild mental retardation
versus borderline intellectual functioning are those most likely to focus the
court’s attention to the known limitations of the current measurement tools.
According to the DSM-IV-TR, people with moderate mental retardation
have IQ scores of 35-40 to 50-55. They are able to learn vocational skills and
manage their daily self-care with support and supervision. People in this category
may live in a community group home or with family.727 Defendants with this
level of intellectual deficit are less likely to generate controversy about the
diagnosis of mental retardation since their deficits would be more obvious.
Severe mental retardation is associated with IQ levels of 20-25 to 35-40.
People in this range have very limited verbal communication skills and require
higher levels of supervision and support in community settings than people with
less disability.728
People with an IQ level less than 20-25 are diagnosed with profound
mental retardation. This diagnosis implies global deficits in functioning and a
need for constant supervision and care.729
IQ SCORE
71-84
55-70
40-55
25-40
<25
DIAGNOSIS
Borderline Intellectual Functioning
Mild Mental Retardation
Moderate Mental Retardation
Severe Mental Retardation
Profound Mental Retardation
FUNCTIONING
Some impairment
May live independently
Group home living
Limited communications skills
Needs constant care
At times, an evaluator is unable to administer an IQ test to an individual
who appears functionally limited. This may happen with very young children or
with uncooperative examinees. The diagnosis of Mental Retardation, Severity
Unspecified communicates the evaluator’s judgment that the individual would
meet the diagnosis of mental retardation if a valid IQ measure were obtained.730
725
Id. at 42-43.
Id. at 740.
727
Id. at 43.
728
Id. at 43-44.
729
Id. at 44; For a critique on the severity subcategories see AAMR at 26-27 and 35-36.
730
Id. at 52.
726
Presiding over a Capital Case • 149
[7.9.]
AAMR Definition
In contrast to the American Psychiatric Association and the DSM-IV-TR
definition to mental retardation, the definition for mental retardation put forth by
the American Association on Intellectual and Developmental Disabilities does
not specify a numerical value for IQ. In the Atkins case, the definition of mental
retardation used by Justice Stevens was similar to the 1992 American
Association on Mental Retardation (“AAMR”) definition which was:
Mental retardation refers to substantial limitations in present
functioning. It is characterized by significantly subaverage
intellectual functioning, existing concurrently with related
limitations in two or more of the following applicable adaptive
skills areas: communication, self-care, home living, social skills,
community use, self-direction, health and safety, functional
academics, leisure, and work. Mental retardation manifests itself
before age 18.731
The current 2002 AAID definition is “Mental retardation is a disability
characterized by significant limitations both in intellectual and adaptive behavior
as expressed in conceptual, social and practical adaptive skills. This disability
originates before age 18.” 732 The AAMR states that the diagnosis of mental
retardation serves the functions of establishing eligibility for services, benefits
and legal protection.733
Although the AAMR definition itself does not specify what IQ test
results represent “significant limitations in intellectual behavior,” the current
AAMR workbook and textbook state that the IQ criterion is “approximately two
standard deviations below the mean.”734 Rather than describe levels of severity in
mental retardation, the AAMR identifies levels of necessary community support
for mentally retarded people.735
[7.10.]
Tools for Assessing Mental Retardation
In order to accurately diagnose mental retardation, psychologists and
psychiatrists require tools that are reliable and accurate. The tools must directly
assess the elements specified in the definitions and they must validly measure IQ
731
Atkins, 536 U.S. at 308, n 3 (the court references both the 1991 AAMR definition and
the APA definitions of mental retardation but did not endorse a single definition. The
court describes mental retardation as clinically defined by “subaverage intellectual
functioning but also significant limitations in adaptive skills such as communication, selfcare, and self-direction that become manifest before age 18.”).
732
Id. at 1.
733
Id. at 22; the AAMR Workbook is a manual that includes case studies and worksheets
for use in diagnosis, classification and identifying systems of supports.
734
Id. at 58.
735
P. J. Accardo and A. J. Capute, Mental Retardation and Developmental Disabilities
Research Review, 4(1) MENTAL RETARDATION 2-5 (1998); AAMR at 28.
150 • Presiding over a Capital Case
and adaptive functioning in order to meet a standard of scientific certainty about
the diagnosis. Bonnie and Gustafson stated “At the very least, the Court must
have assumed that expert differences would rest on articulable differences in
scientific or clinical judgment, rather than on hidden disagreements about
whether the offender deserves a death sentence.”736
[7.11.]
Measurement of IQ
For over 100 years, psychologists have measured intelligence with
standardized tests.737 A individual’s test results are compared to a reference
population and converted into a number referred to as an Intelligence Quotient
(IQ). IQ tests have evolved over time. A small number of tests tend to be very
commonly used but many tests are available.738 The expanded options in IQ tests
allow examiners to select a test that best matches the cultural and linguist
characteristics of the test taker.739
Although they are standardized, IQ tests do not perfectly measure
intelligence. The potential error in IQ tests can impact an individual’s score and
sometimes lead to discrepant conclusions about the diagnosis of mental
retardation. If a psychologist tested the IQ of 1,000 randomly selected people, the
1,000 IQ scores would symmetrically spread around the average score (or mean)
arbitrarily set at 100. IQ scores in a population have a predictable spread (or
distribution) around the mean and predictable variability between scores. This
allows a description of the variance of IQ scores known as the “standard
deviation” or “SD.” Most IQ tests have a standard deviation of 15 points. The
great majority of people in a random sample have IQ scores within two standard
deviations (thirty points) of the mean. This encompasses the range of 100 +/- 30,
or all scores in the range of 70 to 130. Below 70 is the extreme low, or mental
retardation range.740 Above 130 is the very superior or genius range. Only a small
percentage of the population has IQ scores that are more than two SD’s from the
mean. The lowest two or three percent of the population meet the IQ criterion for
mental retardation with a score at or below 70.741
736
Challenges of Implementing Atkins at 3.
GALE H. ROID AND R. ANDREW BARRAM, ESSENTIALS OF STANFORD-BINET
INELLIGENCE SCALES (SB5) ASSESSMENT 3-9 (John Wiley and Sons 2004).
738
DSM-IV-TR at 41; In addition to the Wechsler and the Stanford-Binet scales, other IQ
tests in common use include the Cognitive Assessment System and the Kaufman
Adolescent and Adult Intelligence Test. See Challenges of Implementing Atkins at 7 as
well as AAMR at 59-66.
739
Challenges of Implementing Atkins at 6.
740
See Challenges of Implementing Atkins at 2 in which they state “[i]n short, the
diagnosis of mental retardation is in large part a statistical construct.”
741
D. WEDDING and M. L. STUBER, BEHAVIOR & MEDICINE 236-237 (Hogrefe & Huber
Publishers 2006).
737
Presiding over a Capital Case • 151
[7.12.]
Commonly Used IQ Tests
The psychologist David Wechsler developed tests to measure IQ for
several different age ranges. These tests, like other IQ tests, use subtests to
measure verbal and nonverbal or performance abilities. For example, verbal and
memory abilities are measured through vocabulary tasks, verbal reasoning skills
and short term recall tasks. Nonverbal tasks include logical completion of
diagrams and copying block designs.
The Wechsler Intelligence Scale for Children, currently in its fourth
revision (the WISC-IV), is for children from six to seventeen years old. The
Wechsler Adult Intelligence Scale, currently in a third revision (the WAIS-III) is
used for testing people in the 16 to 89 age range. It contains six verbal subtests
and five perceptual/ motor subtests.742
The Stanford-Binet IQ test, currently in its fifth revision (the StanfordBinet-V or SB5), is used for ages from two and a half years to young adult. The
Stanford-Binet-V may not be able to accurately measure IQ below 40 (moderate
and severe mental retardation ranges).743 These and all IQ tests must be
administered in a standard fashion to be valid. Administration must follow the
test guidelines such as reading the instructions and timing tests in a standardized
way. Departing from the clinical standards may lead to invalid results.
[7.13.]
Screening IQ Tests
Some shorter IQ tests, which take less time to administer, are used for
screening. When an individual scores outside the normal IQ range, they are
selected out for closer evaluation. Screening IQ tests, also described as “short
form” tests, are more prone to error than standard IQ tests. In situations where
much is at stake, such as a capital case, screening tests are not adequate.744
742
AAMR at 60-61.
AAMR at 62.
744
See Rivera v. Quarterman, 505 F.3d 349 (5th Cir. 2007); J. Widroff and C. Watson,
Mental Retardation and the Death Penalty: Addressing Various Questions Regarding an
Atkins Claim 36 J. AM. ACAD. PSYCHIATRY L. 413-415 (2008).
743
152 • Presiding over a Capital Case
[7.14.]
Errors in Measurement
Psychological tests, like all measurement tools, have a potential for error.
Because they often rely on subjective ratings, psychological tests may be more
error-prone than other tools.745 The amount of possible error in IQ tests is
quantified and is expressed as “standard error of measurement” or SEM.
Common IQ tests have different SEMs which vary from one to five points and
depend, in part, on the age of the test-taker. For a test with an SEM of three
points, a score of 100 might be expressed as 100 +/- 3. This means that the true
score very likely lies between the values of 97 and 103. For an individual with a
score near average, these ranges are not very significant. For the capital
defendant with a borderline IQ score of 71, the standard error of measurement is
a critical consideration, since the true score is likely in the range of 68 to 74.746
The SEM is the reason that the DSM-IV-TR includes a five point spread in the
descriptions of different categories of mental retardation and why some state
statutes include a range in the definition. The AAID states that the IQ criterion in
their definition reflects “the SEM for the specific assessment instruments used
and the instrument’s strengths and weaknesses.” 747 The SEM for the WISC-IV is
3.2. The SEM for the WAIS varies slightly with age but averages around 2.3. The
Stanford-Binet has a SEM 1.6 for adults and 3.58 for children, reflecting the
greater known error in tests with children.
Another area of potential error in IQ tests is a phenomenon called the
Flynn Effect, which describes how a population’s mean score “creeps” up over
time up to three IQ points per decade. In order to keep the average score 100, IQ
tests need to be recalibrated (renormed) every ten to twenty years. If an
individual takes an IQ test at the end of a test’s cycle when it is due for
recalibration, that individual may test up to six points higher than he would on
the newer version. The Flynn Effect is a potential confound for defendants who
score on the borderline of mental retardation. They may argue that an older
version of the test led to an incorrectly high IQ score and that downward
adjustment is necessary to reflect the true IQ score.748
A third possible source of error in IQ tests is the “test-retest” or practice
effect. If a person is retested on IQ within six to twelve months he or she is likely
to score higher since he has familiarity and practice with the type of tasks
745
Challenges of Implementing Atkins at 10.
Sometimes a broader range of IQ score is used to increase the confidence that the true
score is captured. Psychologists often seek a high level of confidence by using a broader
score range. A 95% confidence interval is one in which one may be 95% confident that
the true score lies within the interval. This level of confidence requires an interval of 2
SEMS, or +/- ten points.
747
AAMR at 58.
748
Tomoe Kanaya, Matthew Scullin and Stephen Ceci, The Flynn Effect and U.S.
Policies: The Impact of Rising I.Q. Scores on American Society via Mental Retardation
Diagnosis, 58 AM. PSYCHOL. 778, 786-87 (2003); Challenges of Implementing Atkins at
11.
746
Presiding over a Capital Case • 153
required by the test.749 The practice effect typically affects the performance tasks
more than verbal tasks.750
A fourth possible source of error is transient or state dependent
symptoms that may negatively affect an IQ score. A person with poorly
controlled seizures may test lower on an IQ test during a period when the
seizures occur three times a week. The same person may test higher on IQ during
a period when the seizures are well controlled. Artificially low scores can also
occur when a person has active symptoms of mental illness, such as depression or
psychosis that affect concentration and motivation.751
Once an IQ measurement enters the legal setting, there is the potential for
forensic bias. This is the possible unintentional bias of an examiner who is
aligned with the attorneys who retained him or her. Since the examiner who tests
IQ is responsible for scoring and interpreting the test results, the bias may
express itself in the form of an elevated or lowered IQ score or in the findings of
adaptive behavior tests. Some might argue that this potential for forensic bias
means that IQ test results preceding an individual’s arrest are more likely to be
accurate than those obtained after an individual becomes a defendant. However,
well meaning clinicians providing community services prior to legal
entanglements may liberalize a diagnosis of mental retardation in order for
their clients to receive benefits and services eligible only to people with the
diagnosis. Thus, even the pre-arrest clinical record has the potential to distort
diagnostic criteria.
[7.15.]
Tests of Adaptive Behavior
Since 1959, the AAID has required deficits in three domains of
functional or adaptive behavior to meet the diagnosis of mental retardation. This
reflects the awareness that IQ scores have limitations and should not be the sole
determinant of a diagnosis of mental retardation.752 The DSM-IV-TR definition
also requires functional deficits. In general, the behaviors that are targeted by
these criteria are those that impact daily independent living. If an individual
requires supports for managing everyday life, this should translate into
measurable adaptive limitations. The field of psychology offers an abundance of
tools for assessing functional abilities but the tests are only scientifically valid if
the tools are administered in a standardized fashion.753 Like IQ tests, the mean
score on adaptive behavior tests is set at 100 and the standard deviation is
generally around 15. Significant deficits of adaptive behavior are noted in
individuals scoring two or more standard deviations below the mean score.754
749
R. J. McCaffrey and H. J. Westervelt, Issues Associated with Repeated
Neuropsychological Assessments 5(3) NEUROPSYCHOLOGY REV. 203-221 (1995).
750
Challenges of Implementing Atkins at 11-12.
751
Id. at 12.
752
AAMR at 56-57.
753
Challenges of Implementing Atkins at 15.
754
AAMR at 79; Challenges of Implementing Atkins at 17. Although definitions for
mental retardation include the requirement of adaptive deficits in three domains, the
154 • Presiding over a Capital Case
Tests of adaptive behavior, although well-established for use in diagnosing
mental retardation, are less developed than IQ tests and carry a greater risk of
error.755 Adaptive skills tests are scored according to age.
Adaptive skills tests sample behavior in three or more domains. The
usual areas are conceptual (communication and money skills), social (following
rules, avoiding victimization and socializing) and practical (self-care,
housekeeping and occupational skills). Many tools for adaptive behavior use a
third party respondent—a person who knows the individual well and can describe
his or her level of functioning in a number of domains. Respondents may be
parents, spouses, counselors, work supervisors, or anyone who is familiar with
the individual’s abilities.756 The rationale for using a respondent instead of a
direct interview is the tendency of people with mental retardation to be poor
historians of their abilities.
The Vineland Adaptive Behavioral Scales, Second Edition (Vineland-II)
is a commonly used test of adaptive functioning. The Vineland-II has three
versions, all of which require a respondent. The preferred version is a semistructured interview with the respondent. Information from the interview is coded
on a survey interview form. Another version of the Vineland-II offers a
questionnaire with rating scales that the respondent completes. The rating scale
version may risk more potential bias than the interview version.757 The VinelandII is standardized and an individual’s score can be reported in terms of standard
deviations above or below the mean similar to IQ tests.758 Among the many other
tests of adaptive behavior are the AAMR Adaptive Behavioral Scales, the Scales
of Independent Behavior-Revised and the Adaptive Behavior Assessment Scale,
Second Edition (ABAS-2).759
[7.16.]
Potential Errors of Measurement of Adaptive Behavior
Error may be introduced into the results of adaptive behavior tests in
several ways. First, the term “functional deficit” may be interpreted in different
ways. The AAID emphasizes deficit in performance rather than capacity. That is,
the individual may have the ability to function at a non-deficit level but he or she
may not know when to use certain skills or may lack motivation to use them.760
Second, the adaptive behavior of criminal defendants must often be assessed
in the correctional setting. None of the adaptive behavior tests are specifically
validated for use in prisons, much less on death row. The restricted range of
performance required to function in correctional environments sets a low
criteria is met when a person scores two standard deviations below the mean in one
domain and some limitations in two other domains.
755
Challenges of Implementing Atkins at 6.
756
SARA SPARROW, PH.D., VINELAND II, SECOND EDITION SURVEY FORMS MANUAL 12
(AGS Publishing 2005) [hereinafter Vineland II Survey Forms Manual].
757
Vineland II Survey Forms Manual at 9-11.
758
AAMR at 88.
759
AAMR at 88-90.
760
Challenges of Implementing Atkins at 15; AAMR at 74.
Presiding over a Capital Case • 155
standard for adaptive behavior and there are few opportunities for third party
respondents to observe an inmate’s leisure or community skills. The AAID’s
textbook on mental retardation cautions that “[o]bservations made outside the
context of community environments typical of the individual’s age peers and
culture warrant significantly reduced weight.”761 Outside record review and
interviews with people who knew the defendant well before incarceration should
better inform the examiner in an overall determination of adaptive deficits.762
A third source for error is the respondent. A close friend or relative of the
defendant who understands the protective implications of a diagnosis of mental
retardation may exaggerate observed deficits. On the other hand, using
correctional staff as the respondent may yield the opposite result. The validity of
the test’s results decreases when respondents have only limited knowledge of the
defendant.
[7.17.]
Statutory Variations in the Definition of Mental
Retardation
States that address mental retardation in their statutes related to capital
punishment vary significantly in their definitions. Most states use language
similar to the AAIS’s criterion of “significantly subaverage general intellectual
functioning.” Some states require a cutoff of IQ at 70; others do not specify an
IQ. Some states require the onset of disability by 18, for Utah it is age 22763 and
others state “during developmental period.” Nebraska’s statute does not include
any age criterion.764 In Kansas, the definition for mental retardation uses
diminished capacity language: “[s]ignificantly subaverage general intellectual
functioning, . . . to an extent which substantially impairs one's capacity to
appreciate the criminality of one's conduct or to conform one's conduct to the
requirements of law.”765 State statutes may require specific functional deficits
and may delineate the necessary qualifications of the examiner if appointed by
the court.766 State statutes also vary in the process by which mental retardation
is determined.
[7.18.]
Special Issues in the Diagnosis of Mental Retardation
Mental retardation diagnoses differ from other psychiatric diagnoses and
raise special concerns about malingering. Large discrepancies appear in retests.
This section addresses some of the special issues in mental retardation.
761
AAMR at 85.
Challenges of Implementing Atkins at 15.
763
UTAH CODE ANN. § 77-15a-101 (2003).
764
NEB. REV. STAT. § 28-105.01 (2002).
765
KAN. STAT. ANN. § 21-4623 (2004).
766
VA. CODE ANN. §§ 19.2-264.3:1.1-19.2-264.3:1.2 (2003).
762
156 • Presiding over a Capital Case
[7.19.]
Categorical Diagnosis
Receiving a psychiatric diagnosis does not typically confer a categorical
legal protection, although it is often a requirement for potential protections. For
example, people with schizophrenia are not categorically acquitted of crimes in
states that allow for acquittal by reason of insanity nor are they automatically
deemed incompetent to stand trial. Rather, the clinical diagnosis suggests the
presence of impairments that may impact the individual’s understanding of their
actions or ability to assist in their own defense. Some authors have wondered
why the U.S. Supreme Court did not adopt a diminished capacity/responsibility
approach for capital punishment in mentally retarded defendants, since this
would allow for evaluation of meaningful functional abilities relevant to each
case.767 In capital cases where mental retardation is at issue, the diagnosis itself
confers a categorical legal protection, regardless of the individual’s cognitive and
functional capacities to plan and understand his or her actions. The placement of
an important legal protection on a clinical diagnosis highlights the fallibilities of
the diagnostic definitions and tools.
[7.20.]
Malingering
As noted earlier in this chapter, Justice Scalia referred to the potential for
malingered mental retardation in his dissent.768 Malingering is likely to figure
prominently in contested mental retardation diagnoses. In the DSM-IV-TR,
malingering is defined as “intentional production or false or grossly exaggerated .
. . symptoms motivated by external incentives.”769 There is no definitive test for
malingering, and mental health professionals have no claim to superior detection
of deception.770 The potential for malingered intellectual and functional deficits
in the correctional setting can be offset by adequate collateral documentation of
pre-existing deficits. Records from health care providers (including pediatric
records), schools, employers, military, mental health, and even prior
incarcerations can identify the presence of functional deficits. For example, a
written request for medical services while in a jail will often be preserved in the
medical record and can serve as an example of an inmate’s reading and writing
abilities.
Malingering, even when identified with confidence, does not rule out a
diagnosis of mental retardation since both may occur in a defendant. It is possible
that an individual who has a valid diagnosis of mental retardation will exaggerate
his or her deficits to achieve some type of gain, such as avoiding trial or
obtaining a desired housing unit.
767
Challenges of Implementing Atkins at 2.
Atkins, 536 U.S. at 353.
769
DSM-IV-TR at 739-740.
770
Several malingering tests do exist and may be helpful in detecting gross exaggerated
deficits. An example is the Test of Malingered Memory ("TOMM").
768
Presiding over a Capital Case • 157
[7.21.]
Discrepant Findings
Courts will hear evidence that reflects discrepant findings related to the
diagnosis of mental retardation in a capital defendant. Below is a list of some of
the reasons for discrepancies.









[7.22.]
Examiners use different tests to measure IQ and adaptive
functioning.
Examiners do not adhere to standardized administration,
scoring or reporting of test results.
Examiners use different versions of the same test (Flynn
Effect).
Examiners use different collateral sources or give
different weight to collateral reports.
Examiners use different respondents for adaptive skills
assessment.
Examinee was experiencing a time-limited disturbance
in thinking and performance.
There is a test-retest practice effect on IQ tests.
Examiners use different interpretations of mental
retardation definition.
Forensic bias on the part of the examiners.
Co-morbidity
The diagnosis of mental retardation does not rule out or exclude other
diagnoses. For example, a diagnosis of another psychiatric disorder, such as
schizophrenia, can co-exist with mental retardation. People with mental
retardation may have personality disorders, substance use disorders or other
developmental disorders such as autism. In general, people with mental
retardation have three to four times the number of co-morbid mental disorders
when compared to the general population.771 Some people with mental
retardation have behavioral disturbances that do not meet criteria for another
disorder but require behavioral or medication treatment. Although there is
no specific medical treatment for mental retardation, psychiatric medications
are sometimes prescribed to decrease symptoms from behavioral and
emotional problems.
[7.23.]
Illustrative Case
This is a fictional case that illustrates some of the issues in the diagnosis
of mental retardation.
John Smith is a 21 year old white man who is arrested on charges of
killing three people during a botched armed robbery. There is evidence that he
771
DSM-IV-TR at 45.
158 • Presiding over a Capital Case
killed the victims because he thought they would later identify him. The coroner
reported that each victim was shot point blank in the head, execution style. Mr.
Smith has a history of three previous felonies, all related to burglaries and thefts.
Mr. Smith asserts that he is not eligible for capital punishment because he is
mentally retarded. In the jurisdiction of this case, the diagnosis of mental
retardation is determined by jury prior to the sentencing phase of the trial and the
burden of proof is on the defense.
[7.24.]
Defense Perspective
Mr. Smith’s attorney presents evidence that his client has spent his life
attempting to minimize and mask his deficits. In grade school he felt humiliated
by his status as a special education student and had fantasies of moving to
another school where he could start over as a normal kid. He stated to the
forensic examiner that his brothers told him to “Never let anyone know you are
retarded—no girl will ever want to go out with you.” Mr. Smith dropped out of
school in 10th grade.
Although he never learned to read fluently, Mr. Smith learned social
skills and distracted others from his academic limitations. Still, his intellectual
disability interfered with his ability to maintain jobs as a dishwasher or busboy
because he was unable to learn the tasks and meet the demands of the employer.
He lived with his parents until he dropped out of high school and then lived with
a girlfriend because he lacked independent living skills. When he was arrested,
he used his well-developed social skills to try and navigate his new situation in
the jail. He was aware that if anyone knew about his disability, he would be seen
as a weak person and at risk for abuse. Mr. Smith confessed in the police car
even before booking not because he was guilty but because he felt the officers
wanted him to say those things. Mr. Smith’s mother was the respondent for the
adaptive behavior scale and noted multiple deficiencies relative to his peers.
Mr. Smith’s IQ test score of 71 reflects mental retardation because the
standard error of measurement of the test places his score as low as 68 (range of
68 to 74). The second IQ test was artificially inflated due to the test-retest effect.
The examiner was not qualified to test IQ and erred in using the same test within
a three month time period. Adaptive testing done by the prosecution in the jail
setting is invalid because the test reflected only the level of functioning required
in a highly-structured institution. The respondents for the test, correctional
officers, were highly biased against Mr. Smith. Even severely mentally retarded
people can adapt to the diminished expectations of the regimented schedule
requiring only showing up for meals, showering twice a week and keeping quiet.
Mr. Smith shows adaptive deficits in educational, occupational, self-care and
social functioning.
[7.25.]
Prosecution Perspective
Mr. Smith is malingering—he is exaggerating his deficits on IQ testing
to escape the consequences of his behavior. The collateral information is from
Presiding over a Capital Case • 159
family and friends who are vested in the court finding the diagnosis of
mental retardation.
Mr. Smith’s school records provide little support for the claim of mental
retardation. Many of his classes were in "regular" education. He did not require
special education classes until he was in high school. By then, he was engaged in
using drugs, hanging out with delinquent peers, and had stopped trying. Mr.
Smith may have a learning disability that affected his reading skills but it does
not rise to the level of mental retardation. He simply was not a motivated student
and so did not learn in school.
Mr. Smith’s work record suggests he left jobs because he was impulsive
and had a poor sense of responsibility. His impulsive behaviors and parasitic
lifestyle, living off of his parents and girlfriends, are simply more evidence of the
obvious antisocial personality that is highlighted by his criminal record.
Mr. Smith confessed because he was guilty. There was no coercion. He
waived his Miranda rights voluntarily and knowingly.
He did not minimize or mask mental retardation to his friends and
employers simply because he did not have mental retardation. The first IQ test
was low because he “played dumb” at his family’s urging. The second IQ test
showed a normal intelligence score of 78 which is in the normal range. The
functional assessment scale completed in the prison showed he was normal. He is
no different from the other inmates.
[7.26.]
Summary and Future Directions
The challenges of reliably diagnosing mental retardation relate to the
limitations of measurement tools and the potential for malingering and bias.
Nonetheless, courts can sort through some of these confounds when hearing
cases in which capital defendants assert a diagnosis of mental retardation. The
use of qualified examiners using validated tools in standardized fashion and
heavy reliance on collateral records that predate the criminal case will assist the
trier of fact in untangling the issues. Psychological tests will evolve and it is
likely tests of adaptive functioning within correctional institutions will be
developed and validated in response to Atkins. The American Bar Association
adopted recommendations in 2006 that extended the legal protections from Atkins
to defendants with brain injury or dementia.772 States are certain to see attempts at
similar extensions to other groups of defendants.
772
ABA RECOMMENDATION 122A (2006) Submitted by Paul Igasaki, Chair, Section of
Individual Rights and Responsibilities.