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The constitutional importance of conforming to accepted professional practice in adjudicating claims of intellectual disability in capital cases: a comment on Hall v. Florida.

In Atkins v. Virginia, 535 U.S. 304 (2002), the Supreme Court held that the Fourteenth and Eighth Amendments to the U.S. Constitution forbid the execution of individuals with intellectual disabilities. After that decision, Freddie Lee Hall asked a Florida state court in a post-conviction proceeding to vacate his death sentence based on evidence that he had an IQ of 71. Hall v. Florida, 134 S.Ct.1986, 1988 (2014). The state court denied his petition, holding that the relevant Florida statute required a petitioner to show that he had an IQ of 70 or below before being allowed to present mitigating intellectual disability evidence. The Florida Supreme Court affirmed, upholding the constitutionality of the Florida statute. Hall v. State, 109 So. 3d. 704 (2013).

The Florida statute at issue defined "significantly subaverage general intellectual functioning" as "performance that is two or more standard deviations from the mean score on a standardized intelligence test"--i.e. 70 or below. Florida treated 70 as a mandatory cutoff, meaning that if a petitioner tested above that number "sentencing courts [could not] consider even substantial and weighty evidence of intellectual disability as measured and made manifest by the defendant's failure or inability to adapt to his social and cultural environment, including medical histories, behavioral records, school tests and reports, and testimony regarding past behavior and family circumstances." Hall v. State, 134 S.Ct. 1986, 1994 (2014).

Acknowledging the "inherent error in IQ testing," the Supreme Court reversed the Florida Supreme Court, holding the strict 70 point cutoff unconstitutional because it created an unacceptable risk that persons with intellectual disabilities would be executed in violation of the Eighth and Fourteenth Amendments. In closing, the Supreme Court stated that a bright-line cutoff rule "is in direct opposition to the views of those who design, administer, and interpret the IQ test. By failing to take into account the standard error of measurement, [a bright-line cutoff] not only contradicts the test's own design but also bars an essential part of a sentencing court's inquiry into adaptive functioning."

In the course of its opinion, the Supreme Court lists Virginia as being one the states that had unconstitutionally drawn a clear IQ cut-off at 70, based on the decision of the Virginia Supreme Court in Johnson v. Virginia, 591 S.E. 2d 47, 59 (2004). For our Virginia readers, I would like to summarize the historical record bearing on the issue decided by the Virginia Supreme Court in Johnson. I respectfully contend that the Court's decision in Johnson misinterpreted the relevant language in the statute. Moreover, it is important for trial courts to understand the determinative role played by scientific knowledge and accepted professional practice in the adjudication of Atkins claims.

The Virginia statute governing the adjudication of Atkins claims was drafted by the Crime Commission based on a report prepared by an expert Clinical Advisory Group (CAG) that I chaired for the Crime Commission. In an article published in the University of Richmond Law Review in 2007, Katherine Gustafson and I reviewed the drafting history and the relevant scientific and professional literature, showing that the statutory language referring to IQ testing was intended to incorporate standard professional practice, including recognition of the standard error of measurement in interpreting IQ scores. See Richard J. Bonnie and Katherine Gustafson, Implementing Atkins v. Virginia: How Legislatures and Courts Can Promote Accurate Assessments and Adjudications of Mental Retardation in Death Penalty Cases, 41 U. RICHMOND L. Rev 811 (2007). Excerpts from that article follow (original footnotes omitted):

Interpretation of IQ Scores

   According to the definition of mental retardation in the Virginia
   statute, "significantly subaverage intellectual functioning" must
   be "demonstrated by performance on a standardized measure of
   intellectual functioning administered in conformity with accepted
   professional practice, that is at least two standard deviations
   below the mean." (5) In addition, the statute directs that
   "[t]esting of intellectual functioning shall be carried out in
   conformity with accepted professional practice." (6) These two
   provisions are perhaps the most important provisions in the statute
   because they import standard practices of administering, scoring,
   and interpreting IQ tests into the law....

   For the purposes of this section regarding the interpretation of IQ
   scores, we will assume that "significantly subaverage intellectual
   functioning" . is operationalized as a score of 70 or below on a
   specific IQ test. That is often the case, given that a score of 70
   is typically two standard deviations below the mean on a test
   designating a score of 100 as the mean. This assumption, and the
   question of whether the law should explicitly establish a cut-off
   IQ score for mental retardation (as many states do), will be
   discussed later in this paper. .

   All measurement, both physical and psychological, has some
   potential for error. For example, when someone's height is being
   measured, the result will be influenced by many factors including
   the particular tool being used, the eyesight of the measurer, the
   care taken by the measurer, and whether the person being measured
   is wearing shoes or slouching. Psychological testing has even
   greater potential for error because it is more subjective. Error
   may be introduced by the examiner making a timing mistake, failing
   to record responses, over-prompting, mishandling stimuli objects,
   or neglecting to repeat parts of the instructions. Error may also
   be introduced by the defendant's mood and general health, luck, or
   other undetermined factors. In any kind of measurement there are
   always tradeoffs between cost and accuracy.

   Standard error of measurement (SEM) helps to quantify the errors in
   intelligence tests in order to facilitate the most accurate
   interpretation and presentation of scores. Both the [American
   Association on Mental Retardation (AAMR)] (7) and the [American
   Psychiatric Association (APA)] definitions of mental retardation
   stress the importance of considering SEM when evaluating IQ scores.
   SEM varies between measures and between age groups within each
   measure. Each measure is accompanied by a table of calculated SEMs
   by age group. Generally, SEM is estimated to be between three and
   five points for well-standardized IQ tests....

   [T]he SEM must always be taken into account when interpreting
   scores on IQ tests; failing to do so would be a clear departure
   from accepted professional practice in scoring and interpreting any
   kind of psychological test, including IQ tests. The importance of
   the SEM is so well-established in the field that it would be
   superfluous to direct experts to take it into account in a statute
   governing Atkins evaluations and adjudications, and most state laws
   say nothing about it. Nonetheless, in its effort to provide as much
   guidance as possible to courts, the proposal drafted by the
   Clinical Advisory Group explicitly stated that SEM must be
   considered in Atkins cases, as did the initial drafts of the bill
   in the Atkins subcommittee. In the course of the subcommittee and
   Crime Commission deliberations, prosecutors proposed that specific
   reference to SEM be omitted on the ground that this would simplify
   the scientific language of the bill. However, the CAG
   representatives urged the subcommittee and the Crime Commission to
   retain the SEM language in order to emphasize that any IQ score
   actually represents a range of possible scores. The Crime
   Commission proposal as passed by the Senate included the CAG's
   reference to the SEM in the definition of mentally retarded:

      "Mentally retarded" means a disability ... characterized ...
      by (i) significantly subaverage intellectual functioning as
      demonstrated by performance on a standardized measure of
      intellectual functioning carried out in conformity with accepted
      professional practice, that is at least 2 standard deviations
      below the mean, considering the standard error of measurement
      for the specific instruments used....

   However, the reference to the SEM was deleted from the version of
   the Atkins bill passed by the House of Delegates and was then
   omitted in the bill approved by the joint conference committee.
   [Together with other Crime Commission drafters of the bill, I]
   decided to acquiesce in this amendment on the ground that the
   omitted language, though desirable, was not necessary. As noted
   above, the requirement that intellectual functioning be assessed in
   conformity with accepted professional practice mandates the
   consideration of the SEM. As a matter of professional practice,
   experts will have to testify about why they think a particular
   score indicates that a defendant's performance on a specific
   measure was at least two standard deviations below the mean.
   Ensuring that forensic experts and lawyers sufficiently understand
   the importance and effects of SEM thus becomes a matter of

Cut-Off Scores

   For purposes of the preceding discussion of the role of standard
   error of measurement, and other factors affecting the
   interpretation of IQ scores, we have assumed that "significantly
   subaverage intellectual functioning" is operationalized as scoring
   70 or below on a specific IQ test. While this is a useful
   assumption to make when explaining the effects of factors like
   standard error of measurement, a score of 70 or below (or any other
   specific cut-off score) should not be embraced by courts or state
   legislatures as a part of the definition of mental retardation.
   Instead, a significant limitation in intellectual functioning
   should be defined as performance that is at least two standard
   deviations below the mean, as both the AAMR and the APA
   recommended, and the Virginia statute provides.

   The standard deviation measures the variation of scores in
   comparison to the mean score of the population on which the test
   has been normed. Two-thirds of the population will have scores
   falling within one standard deviation on either side of the mean,
   and 95 percent of the population will have scores falling within
   two standard deviations on either side of the mean. The [Wechsler
   Adult Intelligence Scale--Third Edition] and the [Stanford-Binet
   Intelligence Scales, 5 th Edition] both have a mean score of 100
   and a standard deviation of 15. Two-thirds of the population will
   thus have a score between 85 and 115 (one standard deviation) and
   95 percent of the population will have a score between 70 and 130
   (two standard deviations). Consequently, an IQ score of 70 is
   sometimes used as a proxy for a score two standard deviations below
   the mean, but the score of 70 should not be reified.

   Standard deviations should be used in the definition and diagnosis
   of mental retardation instead of cut-off scores for a number of
   reasons. First, different IQ tests use different scoring norms,
   meaning that the mean score does not necessarily have to be set at
   100.... Second, different IQ tests may have different standard
   deviations.... Third, a fixed cut-off score would ignore the fact
   that different IQ tests have different standard errors of
   measurement (SEM). Given the inevitable presence of some
   measurement error, each IQ score should actually be viewed as a
   range of possible scores. . Fourth, IQ tests are generally most
   accurate with respect to people who fall within two standard
   deviations of the mean. Since people with mental retardation by
   definition fall outside this group, their scores are somewhat less
   trustworthy than those closer to the mean. Although this decrease
   in confidence as IQ scores approach high or low extremes certainly
   does not discredit the validity of extreme scores, it does
   highlight the importance of viewing the diagnosis of mental
   retardation as involving clinical judgment and evaluation of all
   three diagnostic criteria (intellectual functioning, adaptive
   behavior, and age of onset). Establishing a fixed cut-off score
   would ignore the role of clinical judgment in the diagnosis of
   mental retardation.

   In addition to these scientific objections to using a cut-off
   score, such scores are also objectionable on legal grounds.
   Focusing on a "number" implies that the diagnosis of mental
   retardation is more mechanical and more objective than it really
   is, and tends to obscure the inevitable clinical factors that
   affect performance on standardized cognitive measures....
   Ultimately, in cases on the margin, experts need to exercise their
   own judgment, as do judges and juries. .Courts and juries can hear
   testimony from experts on both sides to.determine for themselves
   whether a defendant has the requisite intellectual deficits and
   whether he is mentally retarded when all three components of mental
   retardation are considered.

   In Johnson v. Virginia, the Supreme Court of Virginia incorrectly
   observed that.the defendant's "scores of 75 and 78 on these I.Q.
   tests exceed the score of 70 that the General Assembly has chosen
   as the threshold score below which one may be classified as being
   mentally retarded." 591 S.E.2d 47, 59 (Va. 2004). The General
   Assembly did not establish 70 as a threshold score. See Va. Code
   Ann. [section] 19.2-264.3:1.1(A) (Repl. Vol. 2004). It referred to
   a score that is at least two standard deviations below the mean as
   a threshold score. As we have explained above, this is not a
   trivial distinction.

The Supreme Court's decision in Hall makes it clear that the Eighth Amendment requires that judicial determinations of intellectual disability conform to scientific knowledge and accepted clinical practice. Judges would be well-advised to keep this injunction in mind when ruling on all evidentiary and substantive issues arising in the adjudication of Atkins cases.

(5) VA. Code Ann. [section] 19.2-264.3:1.1(A).

(6) VA. Code Ann. [section] 19.2-264.3:1.1(B)(1).

(7) Since publication of the quoted article, the AAMR has revised its name to American Association on Intellectual and Developmental Disabilities.
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Author:Bonnie, Richard J.
Publication:Developments in Mental Health Law
Date:Jul 1, 2015
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