Many people know that getting a psychiatric label referring to emotions or behavior exposes the labeled individual to a wide array of kinds of harm, the ultimate harm being death. What is less widely known is that one label in the Diagnostic and Statistical Manual of Mental Disorders that applies to cognitive abilities—“Intellectual Disabilities”—is crucial in determining whether people accused of crimes in some U.S. states will be executed. This interests me as a psychologist and as a filmmaker working on a documentary about this subject, “Execution by the Numbers.”
Like all psychiatric categories, “Intellectual Disabilities” (I.D.) is not scientifically derived. Decades ago, when I was a naive advocate of psychiatric diagnosis generally, I was shocked to discover that what was then called “Mental Retardation” (now called “I.D.”) appeared in the handbook of psychiatric disorders, although it was about cognition, not emotions!
It’s alarming and reprehensible enough that those who write and market the DSM and the International Classification of Diseases (the latter’s psychiatric section is similar to the DSM) have acquired so much power to decide who is “normal” and who has a “psychiatric disorder,” and many of us for decades have been warning of the harm that can result from getting any of those labels—the harm can range from plummeting self-confidence to loss of jobs, child custody, the whole variety of human rights, and even loss of life, this last usually from drug effects. But the path from diagnosis of “I.D.” to execution by states that have the death penalty is direct and spelled out in the laws of those states.
What actually happens? When a person is (accurately or falsely) accused of committing a crime that is considered a capital crime in that state, that means they are eligible for the death penalty. Different states have different criteria for deciding what is a capital crime, such as the degree to which it is “heinous.” But the key point for this essay is that in 2002 the U.S. Supreme Court in Atkins v. Virginia ruled that people with (what was then called) “Mental Retardation” must not be executed, such executions being cruel and unusual punishments and thus, according to the Eighth Amendment, unconstitutional.
Writing for the majority in Atkins, Justice John Paul Stevens gave as reasons for the ruling the following:
[people with “MR”] have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others…
“…they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.”
Justice Stevens further wrote that the two presumed aims of the death penalty—retribution (getting their “just deserts”) and deterrence (preventing them from causing future harm)—do not apply to such people. Retribution should only apply to the most culpable, and he felt that they were less culpable due to their impairments. As for deterrence, he said that because such people were more likely to act on impulse than were other people, the death penalty’s existence was less likely to come to their minds to inhibit them from committing capital crimes.
Death penalty retributivists (proponents for purposes of punishment) like New York Law School Emeritus Law Professor Robert Blecker argue that Stevens’ reasoning treats people with limited intelligence as having less humanity than other people. He says if we credit them for good behavior for running into a burning building to save children, we cannot suddenly excuse them when they commit harmful behavior. That subject warrants extensive discussion beyond the scope of this essay but is an important one to raise.
A major problem with the Atkins ruling was that each state was left to decide how to define and determine “Mental Retardation” (“M.R.”), although Atkins included a reference to the crucial I.Q. cutoff point of 70. There causes a host of problems. One is that some people who “qualify” to be executed in a particular state would not meet the criteria in another. Further, readers of Mad in America will not be surprised that the whole business of deciding how to define and evaluate “M.R.”—currently called “I.D.”—is not an objective, hard-and-fast matter.
The two criteria lists most widely used appear in successive editions of the DSM and in publications of the organization that, at the time of the Atkins decision, was called the American Association for Mental Retardation and is now called the American Association on Intellectual and Developmental Disabilities (AAIDD).
Debates about how to define “intelligence” have raged for well over a century, because the concept is a construct, like “love,” in that different people can define it in different ways. Both the AAIDD and the DSM descriptions list three factors—(1) intellectual functioning (conventionally measured by a standard I.Q. test), (2) deficits/limitations in adaptive functioning (such as holding a job, social judgment, making friends, finding one’s way on public transportation, feeding and clothing oneself, etc.), and (3) present before age 18. The AAIDD description includes somewhat less emphasis on I.Q. test scores than does the DSM one, which latter at the time of Atkins included specifying that the I.Q. score needed to be 70 or below.
That number 70 has held great sway over the decades, as defense and prosecution attorneys have argued about whether someone with an I.Q. score of 73 “really” had I.D. because their 73 indicates a range going as low as 68 to 70 and thus they should not be executed…and whether someone with a score of 68 “really” did NOT have I.D. but was not trying their hardest when tested and thus probably qualified for execution.
Every one of the three usual criteria for “I.D.” is problematic, for reasons we recount in our film-in-progress, “Execution by the Numbers,” and I will address these, but first I want to highlight other compelling concerns.
First, the public generally believes that the decision to sentence someone to death is made by judges and juries. In fact, however, enormous weight is placed on what psychologists tell judges and juries, to the extent that it’s not much of a stretch to say that the psychologists are making the life-or-death decisions. This granting of so much power to psychologists is done to a great extent under two fictions: (1) that psychologists are unlike other humans in that psychologists are strictly objective, and (2) that I.Q evaluations are strictly scientific and not subject to bias.
That (1) is a fiction is reflected in the facts that some psychologists are known to be hired guns for the prosecution (one in Texas was called “Dr. Death”) and that even the best of psychologists, being human, likely have some conscious or unconscious attitude toward the death penalty that could affect their choice, administration, and interpretation of I.Q. evaluation instruments in either direction.
That (2) is a fiction is reflected in the very instructions of standard I.Q. tests, which reflect that the psychologist often has to judge whether a person’s answers merit 2 points, 1 point, or 0 points, and sometimes those judgements are hard to make. Furthermore, it can be a matter of judgement how many adaptive functioning limitations a person has, whether they are substantial enough to be called limitations (when life itself is at stake), and whether to take into account any strengths they have in adaptive functioning.
In a recent case coming from Texas, prosecutors were using the fact that a person on trial had any strengths in adaptive functioning to claim that the person did not have “I.D.” and thus could be executed. The Texas Court of Criminal Appeals cited the character Lennie in Of Mice and Men as an example of someone who should not be executed because of his limitations. However, that character represents one stereotype of people with “I.D.” that many intellectually limited people fail to fit.
The Briseno Factors used in Texas included such questions as whether the person had formulated plans and carried them through and whether they responded rationally to questions. If the answer was “yes,” prosecutors had an easier time arguing that the person couldn’t possibly have an “I.D.,” no matter how many limitations they did have. Of course, it is hard to find someone with an I.Q. score between, say, 60 and 70 who has never formulated plans and carried them through, and many people with intellectual limitations have put a lot of energy into learning how to act “rationally” or in socially acceptable ways that can mask those limitations. Fortunately, a SCOTUS ruling recently was aimed to end use of the Briseno Factors.
As for the criterion that the person had to have “I.D.” before age 18, that makes no sense to me, because to the extent that I.Q. is considered relevant in death penalty cases, surely what matters is the person’s cognitive capacities at the time they either committed a crime or falsely confessed to one. I think of a case a few years ago in which a man had above average intelligence and no criminal history, then suffered a brain injury when he was trimming a tree, and a chainsaw entered his skull. His test results were certainly lower than before the accident, when he was decades older than 18, and the crime was committed afterward.
In addition, although I am grateful that the Atkins decision has saved many people from execution, I think it is not ideal. Why? Because the elements of an I.Q. evaluation do not correspond for the most part to what is relevant for the court cases. What does a person’s ability to answer math problems or learn a nonverbal code have to do with these questions: Did they think about the consequences when deciding to commit the crime (IF they committed a crime)?
If their Miranda rights were read to them or they were asked to read them aloud, did they understand them? Were they easily led to sign a false confession? Did they understand the confession they were asked to sign? Were they easily led into participating in a crime? Can they participate in their own defense?
(Samuel Oates, defense attorney in a case that made legal history, said in his interview for our film that at the end of the first day he spent with Jerome Bowden, he realized Jerome had no more idea what he was being asked than at the beginning, so he could not help with such things as recalling whether,
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