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Hall v. Florida and Defining Mental Retardation

Update (12/13):  The article noted below was updated today to respond to the criticisms in this post.  The corrections do not go as far as I would like, but it is a large improvement over the original.  I appreciate the willingness of Ms. Clarke and her editor to discuss the issue and revise the article.


Maggie Clark has this article in Stateline.  The article has been reprinted in other outlets, including USA Today.  Unfortunately, the article is seriously flawed.

In Atkins v. Virginia, the Supreme Court added mental retardation to the list of absolute exclusions from the death penalty.  The trend, including the DSM-5, is to substitute the term "intellectual disability."  For this post, I will use the terminology that was current when Atkins was decided.  The article says this about the issue in the case:

After the decision, most states stuck with the three-pronged clinical definition, but Florida, Georgia, Mississippi and Texas set their own standards. Under Florida's law, if you have an IQ over 70, you're eligible for execution regardless of intellectual function or adaptive behavior. 
That significantly overstates the difference between Florida's standard and clinical practice.  Atkins noted the clinical definitions in the AAMR definition and the DSM-IV, which are largely the same.  Both are three-part conjunctive tests.  To be classified retarded, a person must have "significantly subaverage intellectual functioning" and deficits in adaptive functioning and the condition must have onset before age 18.  As with any conjunctive ("and") test, as soon as one criterion is found false, there is no need to evaluate the others.  Any test with "logical and" criteria is known to be false as soon as one criterion is known to be false.  When Florida says that a failure on the intellectual function prong ends the question no matter what is shown on the other prongs, that is not inconsistent with the standard definition.  IQ above 70 is not "regardless of intellectual function"; it is the measurement of intellectual function. 

Although not at issue in the Hall case, the article also has this gem about Texas.
In Texas, where the courts use an anecdotal seven-part test largely based on the characteristics of the fictional character Lennie from John Steinbeck's novel "Of Mice and Men" to determine intellectual disability, multiple prisoners have been executed in recent years even when they've scored well below 70 on IQ tests.
The link in the word "test" takes you to the opinion of the Texas Court of Criminal Appeals in Ex parte Briseno.  Reading the opinion, we see a mere passing reference to the Steinbeck novel as a literary flair.  Neither the novel nor Lennie is mentioned again in the opinion.  The actual holding on the test to be used is this:

This Court has previously employed the definitions of "mental retardation" set out by the American Association on Mental Retardation (AAMR), and that contained in section 591.003(13) of the Texas Health and Safety Code.  Under the AAMR definition, mental retardation is a disability characterized by: (1) "significantly subaverage" general intellectual functioning; (2) accompanied by "related" limitations in adaptive functioning; (3) the onset of which occurs prior to the age of 18. As noted above, the definition under the Texas Health and Safety Code is similar: "'mental retardation' means significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period."
Some might question whether the same definition of mental retardation that is used for providing psychological assistance, social services, and financial aid is appropriate for use in criminal trials to decide whether execution of a particular person would be constitutionally excessive punishment. However, that definitional question is not before us in this case because applicant, the State, and the trial court all used the AAMR definition. Until the Texas Legislature provides an alternate statutory definition of "mental retardation" for use in capital sentencing, we will follow the AAMR or section 591.003(13) criteria in addressing Atkins mental retardation claims.
The court notes seven factors that may be considered in evaluating the highly subjective adaptive behavior prong, but there is no connection to Lennie.  The factors make the obvious, but too often overlooked, point that the commission of the crime itself may demonstrate adaptive abilities.  John Penry, for example, successfully deceived adult women of normal intelligence in order to rape them.  He did it three times.

Continuing with the bash-Texas theme:

Last year, Texas executed Marvin Wilson, who was convicted of murder in 1994; his IQ ranged from 61 to 79 on tests.
Ranged?  Why not tell the readers the actual scores?  As I explained in this post last year,  Wilson had five scores, four of which were outside the retarded range.  A conclusion that the one outlier is faulty and the other four accurately show he was not retarded is an entirely reasonable one.

Is the reporter actually trying to deceive the public?  More likely she is just taking the propaganda dished out by the anti-death-penalty side and printing it as fact without checking.  That is a thoroughly bad idea.


Kent, what are the odds that five justices simply hold that the DSM-5 definition of "intellectual disability" is the new Atkins standard that must be adhered to by all capital punishment states?


It was even worse than that.

Clark only listed Wilson's 61 IQ, originally.

After a couple of tries, I convinced Stateline's Executive Editor to change the story, for which they used that range, which, I agree, is also misleading.

I also asked that she look at the Lennie reference, as it was misleading, as well.

Evidently, she either didn't or she disagreed.

My second note to

Dear Ms. Johnson:

The only relevant issue was that Ms. Clark only listed the 61 IQ of Wilson, when 4 out of the 5 IQ results were from 73-79. brining into question why she would only use the outlier and exclude all others.

As an editor, surely you can see the problem and wonder did that happen in any of the other cases from that article.

I would ask that you read the appellate record and decide how much influence "Lennie" had, if any, as per your comment, below.

Sincerely, Dudley Sharp

Paul, I will beg off on that question for now. I will get deeper into this case later.

Thank you Kent for these corrections and sharing your perspective.

--G. Oden

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