Evaluating Intellectual Disability: Clinical Assessments in Atkins Cases James W

Hofstra Law Review Volume 46 | Issue 4 Article 8 6-1-2018 Evaluating Intellectual Disability: Clinical Assessments in Atkins Cases James W. Ellis Caroline Everington Ann M. Delpha Follow this and additional works at: https://scholarlycommons.law.hofstra.edu/hlr Part of the Law Commons Recommended Citation Ellis, James W.; Everington, Caroline; and Delpha, Ann M. (2018) "Evaluating Intellectual Disability: Clinical Assessments in Atkins Cases," Hofstra Law Review: Vol. 46 : Iss. 4 , Article 8. Available at: https://scholarlycommons.law.hofstra.edu/hlr/vol46/iss4/8 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Review by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Ellis et al.: Evaluating Intellectual Disability: Clinical Assessments in Atkin EVALUATING INTELLECTUAL DISABILITY: CLINICAL ASSESSMENTS IN A TKINS CASES James W. Ellis * CarolineEverington ** Ann M Delpha *** ABSTRACTt The intersection of intellectual disability and the death penalty is now clearly established Both under the US. Supreme Court's constitutional decisions and under the terms of many state statutes, individual defendants who have that disability cannot be sentenced to death or executed. It now falls to trial, appellate, and post-conviction * James W. Ellis is a Distinguished University Professor and Professor of Law at the University of New Mexico School of Law. He has served as President of the American Association on Mental Retardation (now the American Association on Intellectual and Developmental Disabilities), and as Law Reporter for the American Bar Association's Criminal Justice Mental Health Standards project. He has represented national disability organizations in a number of cases before the United States Supreme Court, and argued the case for the Petitioner in Atkins v. Virginia. ** Caroline Everington, Ph.D., is Associate Dean and Professor of Special Education Emerita at Winthrop University. She is a Fellow of the American Association on Intellectual and Developmental Disabilities, and is a Past President of its Legal Process and Advocacy Division. For the past twenty-five years, she has served as a forensic expert in the diagnosis of intellectual disability, and has published articles on intellectual disability and the criminal justice system. She is also the author of the CAST-MR, an instrument designed to determine legal competency in people with intellectual disability. *** Ann M. Delpha is a Visiting Assistant Professor at the University of New Mexico School of Law. A member of the Bar of the Supreme Court of the United States, she has served as co- counsel to national disability organizations in cases before that Court. The authors wish to express our deep appreciation to the many law students and librarians, too numerous to name individually, who helped us find the sources presented in this Article. Even a cursory review of the footnotes will indicate the magnitude of their contribution. The authors also gratefully acknowledge the valuable contributions and suggestions of Dr. Karen Salekin, Associate Professor of Psychology at the University of Alabama. To increase the usefulness and readability of this Article for both legal and clinical readers, the authors have chosen to depart from the Bluebook's citation guidelines periodically. Specifically, the sequence of authorities, some abbreviations and shortened citations, and pinpoint page citations have been modified in some instances. All such deviations from customary citation rules have been adopted with the goal of making it easier for readers to find and use the cited sources. Published by Scholarly Commons at Hofstra Law, 2018 1 Hofstra Law Review, Vol. 46, Iss. 4 [2018], Art. 8 1306 HOFSTRA LA W REVIEW [Vol. 46:1305 courts to determine which individual criminal defendants are entitled to the law's protection. This Article attempts to assistjudges in performing that task. After a brief discussion of the Supreme Court's decisions in Atkins v. Virginia, Hall v. Florida, and Moore v. Texas, it analyzes the component parts and terminology of the clinical definition of intellectualdisability. It then offers more detailed discussion of a number of the clinical issues that arise frequently in adjudicating these cases. For each of these issues, the Article's text and the accompanying notes attempt to provide judges with a thorough survey of the relevant clinical literature,and an explanation of the terminology used by clinical professionals. Our purpose is to help those judges to become more knowledgeable consumers of the clinical reports and expert testimony presentedto them in individual cases, and to help them reach decisions that are consistent with what the clinical literature reveals about the nature of intellectual disabilityand best professionalpractices in the diagnosticprocess. TABLE OF CONTENTS I. Introduction ............................................................................ 1307 II. The Supreme Court's Decisions in Atkins, Hall, and Moore. 1310 III. Notes on Changing Terminology ........................................... 1316 A. The Change from "Mental Retardation" to "Intellectual D isability" ........................................................ 1316 B. Terminology Regarding the Extent of Disability ............ 1318 IV. The Definition of Intellectual Disability: An Overview ........ 1323 A . Intellectual Functioning ................................................... 1326 B. Deficits in Adaptive Behavior ......................................... 1329 C . A ge of O nset ................................................................... 1336 V. Defendants with Multiple Disabilities ................................... 1340 VI. Issues in Evaluating Intellectual Functioning ........................ 1347 A. Commonly Used IQ Tests ............................................... 1347 B. Short Forms and Group Tests .......................................... 1354 C. Standard Error of Measurement for IQ Testing .............. 1357 D. Factors Affecting the Accuracy of IQ Scores: The Practice Effect and the Norm Obsolescence ("Flynn") E ffect .............................................................. 1360 E. Motivation and Claims of Malingering ........................... 1366 VII. Issues in Evaluating Adaptive Behavior ................................ 1374 A. Measurement: AB Scales and Other Information ........... 1374 https://scholarlycommons.law.hofstra.edu/hlr/vol46/iss4/8 2 Ellis et al.: Evaluating Intellectual Disability: Clinical Assessments in Atkin 2018] EVALUATING INTELLECTUAL DISABILITY B. Challenges of an Accurate Retrospective Diagnosis ....... 1385 C. Strengths and Weaknesses .............................................. 1393 D. Relevance of the Facts of the Crime ............................... 1395 E. Stereotypes about People with Intellectual Disability ..... 1399 VIII. Process of Judicial Evaluation ............................................... 1413 A. Qualifications of Evaluators ............................................ 1413 B . Clinical Judgm ent ............................................................ 1416 C. Codes and Standards of Ethics ........................................ 1417 IX . C onclusion ............................................................................. 14 19 I. INTRODUCTION The Supreme Court's decision in Atkins v. Virginia' requires courts to make determinations about whether individual capital defendants have intellectual disability ("ID"), also known as mental retardation.2 In a number of states, there are also statutory provisions protecting capital defendants with intellectual disability.' Both trial courts in the first instance, and reviewing courts in appellate and post-conviction cases, must therefore address the task of weighing and assessing clinical evaluations and clinical testimony about a defendant's claim to Atkins relief. This Article seeks to offer some assistance to those courts in considering these cases. There is a sense in which this subject is not unfamiliar territory for judges. The question of whether a criminal defendant might have a significant mental disability has long been a concern for criminal courts.4 On subjects as diverse as criminal responsibility,5 competence in 1. 536 U.S. 304 (2002). Background on the Atkins case can be found in THOMAS G. WALKER, ELIGIBLE FOR EXECUTION: THE STORY OF THE DARYL ATKINS CASE (2009). 2. Clinicians and other professionals in the field of mental disability now use the term "intellectual disability" in place of "mental retardation." While the terminology employed by many in the field has shifted to "intellectual disability," in large part due to the stigma attached to "mental retardation," this Article uses the two terms interchangeably as necessary for clarity when discussing historical context, and statutes and case law that use the older term. For a fuller discussion of the change in terminology, see infra Part III.A. 3. Eighteen states and Congress had enacted such statutes prior to the Atkins decision. See Atkins, 536 U.S. at 313-15. Many (but not all) of the remaining states with capital punishment enacted statutes to implement the Supreme Court's decision. See, e.g., CAL. PENAL CODE § 1376 (West 2011 & Supp. 2018) (enacted in 2003); see also James W. Ellis, Mental Retardation and the Death Penalty: A Guide to State Legislative Issues, 27 MENTAL & PHYSICAL DISABILITY

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