The U.S. Supreme Court’s 2002 deci­sion in Atkins v. Virginia cat­e­gor­i­cal­ly bars states from exe­cut­ing any per­son who has Intellectual Disability. (Daryl Atkins is pic­tured.) However, as report­ed in recent sto­ries in Pacific Standard Magazine and the news­pa­per, The Atlanta Black Star, some states have attempt­ed to cir­cum­vent the Atkins rul­ing by using social stereo­types and race as grounds to argue that defen­dants of col­or are not intel­lec­tu­al­ly disabled.

Prosecutors in at least eight states have pre­sent­ed opin­ions from expert wit­ness­es that eth­nic adjust­ments” should be applied to IQ tests and tests of adap­tive func­tion­ing that would deny an intel­lec­tu­al dis­abil­i­ty diag­no­sis to Black or Latino defen­dants who, if they were White, would be con­sid­ered intel­lec­tu­al­ly dis­abled and inel­i­gi­ble for the death penal­ty. Ethnic adjust­ments” typ­i­cal­ly take one of two forms. One adjust­ment pur­ports to com­pen­sate for per­ceived racial bias in IQ test­ing by boost­ing the defen­dan­t’s IQ scores. A sec­ond form of adjust­ment is deter­min­ing, based upon the expert wit­ness’s sub­jec­tive views about a defen­dan­t’s social con­di­tions and cul­ture, that impair­ments in day-to-day func­tion­ing that would be con­sid­ered adap­tive deficits for White defen­dants are not as rare for a per­son with the defen­dan­t’s racial, eth­nic, and socio-eco­nom­ic back­ground, and so are not evi­dence of intel­lec­tu­al disability. 

Robert M. Sanger, a tri­al lawyer and pro­fes­sor of law and foren­sic sci­ence at Santa Barbara College of Law in California who wrote the 2015 law review arti­cle IQ, Intelligence Tests, Ethnic Adjustments’ and Atkins called the use of these adjust­ments out­ra­geous.” What these so-called experts do,” Sanger says, is say that, because peo­ple of col­or are not as like­ly to score as well on IQ tests, you should, there­fore, increase their IQ scores from 5 to 15 points to make up for some unknown or unde­scribed prob­lem in the test.” 

Sanger has doc­u­ment­ed the use of eth­nic adjust­ments by pros­e­cu­tors in Florida, Texas, Alabama, Tennessee, Missouri, California, Pennsylvania, and Ohio. The idea of racial­ly clas­si­fy­ing a per­son and then using eth­nic adjust­ments’ to increase his or her IQ score, there­by qual­i­fy­ing that per­son for exe­cu­tion, is log­i­cal­ly, clin­i­cal­ly, and con­sti­tu­tion­al­ly unsound,” Sanger wrote. IQ scores, he says, are affect­ed by a vari­ety of envi­ron­men­tal fac­tors such as child­hood abuse, pover­ty, stress, and trau­ma[, that] can cause decreas­es in actu­al IQ scores.” Because peo­ple who expe­ri­ence these envi­ron­men­tal fac­tors dis­pro­por­tion­ate­ly pop­u­late death row, eth­nic adjust­ments make it more like­ly that indi­vid­u­als who are actu­al­ly intel­lec­tu­al­ly dis­abled will be put to death.” 

Moreover, the courts have repeat­ed­ly reject­ed the adjust­ing of test scores on the basis of race in cas­es that would ben­e­fit racial minori­ties, Sanger said, most promi­nent­ly in cas­es in which African-American appli­cants for police or fire­fight­ing jobs had alleged that cities were using racial­ly dis­crim­i­na­to­ry tests. Sanger says it’s sort of out­ra­geous that you can adjust scores upward so you can be killed, but not so you can get a job.” 

In 2011, the Texas State Board of Examiners of Psychologists rep­ri­mand­ed psy­chol­o­gist Dr. George Denkowski for his mis­use of eth­nic adjust­ments in death-penal­ty cas­es. As part of an agree­ment dis­miss­ing dis­ci­pli­nary charges against him, Denkowski — who tes­ti­fied against six­teen Texas death-row pris­on­ers, sev­er­al of whom have been exe­cut­ed — was fined $5,500 and agreed that he would nev­er again con­duct intel­lec­tu­al dis­abil­i­ty eval­u­a­tions in crim­i­nal cas­es. On January 4, 2018, Philadelphia pros­e­cu­tors, who had used Denkowski’s eth­nic adjust­ments as part their argu­ment that Pennsylvania death-row pris­on­er Jose DeJesus was not intel­lec­tu­al­ly dis­abled, agreed that DeJesus should be resen­tenced to life. 

Ethnic adjust­ments are only some of the non-sci­en­tif­ic bar­ri­ers states have erect­ed to avoid com­pli­ance with Atkins. In 2014, the U.S. Supreme Court ruled in Hall v. Florida that Florida had uncon­sti­tu­tion­al­ly employed an IQ cut-off score to reject claims of intel­lec­tu­al dis­abil­i­ty. In 2017, in Moore v. Texas, the court reject­ed the state’s use of a set of unsci­en­tif­ic lay stereo­types to claim that a defen­dant did not have the adap­tive deficits nec­es­sary to be con­sid­ered intel­lec­tu­al­ly dis­abled. The Court called Texas’s approach an out­lier” that, “[b]y design and in oper­a­tion, … create[s] an unac­cept­able risk that per­sons with intel­lec­tu­al dis­abil­i­ty will be exe­cut­ed.” Moore reit­er­at­ed that a court’s deter­mi­na­tion of intel­lec­tu­al dis­abil­i­ty in a death-penal­ty case must be informed by the med­ical community’s diag­nos­tic framework.”

Citation Guide
Sources

D. Amari Jackson, How Prosecutors are Making Intellectually-Disabled African-Americans on Death Row Smart Enough to Kill, Atlanta Black Star, February 8, 2018; David M. Perry, HOW IQ TESTS ARE PERVERTED TO JUSTIFY THE DEATH PENALTY, Pacific Standard, January 25, 2018; Brandi Grissom, Psychologist Reprimanded in Death Penalty Cases, The Texas Tribune, April 152011.