Intelligence testing and Atkins: considerations for appellate courts and appellate lawyers.

• Author: Davis, LaJuana

1. INTRODUCTION

   In Atkins v. Virginia (1) the Supreme Court held that the execution of any individual with mental retardation violates the Eighth Amendment's prohibition on cruel and unusual punishment. The holding of Atkins is straightforward: Persons with mental retardation cannot be subject to the death penalty. In keeping with its tradition of allowing the lower courts to determine how new constitutional rules will be implemented, however, the Atkins Court intentionally gave them little direction on how to apply that apparently simple, but profoundly important, prohibition. As the Atkins ruling passes its one-year anniversary, the decision has in consequence presented a number of challenges for the legal community, especially for the appellate courts that will be charged with establishing the procedures used to give effect to its rule.

   For states like Alabama, which currently has no statute addressing capital defendants with mental retardation and a legislature that will not reconvene for its regular session until the spring of 2004, appellate courts are likely to make the initial determinations about Atkins and its implications. However, determining mental retardation will require appellate courts to undertake a more complicated analysis than that required by cases like Thompson v. Oklahoma (2) and Coker v. Georgia, (3) which addressed other Eighth-Amendment concerns. This Article explores some of the considerations and challenges that appellate courts and the lawyers that practice before them will face in undertaking the complicated analysis that Atkins requires: What are the constitutional limits on defining mental retardation, how can the legal system avoid the pitfalls inherent in seeking a definitive answer to a fluid concept such as intelligence, and how does the history of mental retardation inform the appellate courts' assessment of mental retardation?

   The Atkins Court extended the exemption from execution to all capital defendants who "fall within the range of mentally retarded offenders about whom there is a national consensus," (4) effectively reminding courts that the states cannot create laws to deprive mentally retarded defendants of an exemption guaranteed by the Eighth Amendment; whatever procedures they use to define and prove mental retardation, those procedures must satisfy the Constitution. (5)

   However, because the Constitution "'places a substantive restriction on the state's power to take the life' of a mentally retarded offender," (6) the Eighth Amendment also restricts states' ability to stray from the accepted mental-retardation definitions or to establish procedures that restrict advocates' abilities to present evidence of mental retardation. If states deviate significantly from national standards of defining mental retardation, they risk higher courts' concluding that their definitions are outside the national consensus.

2. IQ SCORES AND MENTAL RETARDATION

   In fashioning a legal definition of mental retardation, the Atkins Court recognized that state statutory definitions generally conform to the clinical definitions set forth by the American Association on Mental Retardation (AAMR) and the American Psychiatric Association (APA), the two leading organizations that set definitions and standards for determining mental retardation. The three core components of these definitions are (1) significantly subaverage general intellectual functioning (2) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety, and (3) onset of the condition prior to 18 years of age. (7) Intellectual functioning is weighed equally with adaptive behavior in determining mental retardation. (8)

   The APA describes the "significantly subaverage general intellectual functioning" associated with an IQ in the range that includes a score of 70 as "approximately two standard deviations below the mean [score of 100]." (9) In accordance with that definition, the Atkins Court identified an IQ between 70 and 75 or lower as "significantly subaverage general intellectual functioning." (10) The Court noted that only an estimated one to three percent of the population would have an IQ score at 70 or below. (11)

   In the past, persons within this range would have been categorized as having "mild" mental retardation, but the "mild" label is being reconsidered in the psychological community today. In 1992, the AAMR dropped the terms classifying persons with mental retardation by levels of severity (profound, severe, moderate, and mild) from its definition. The AAMR cited two major reasons for this move: that the "mild" designation was based only on IQ while an assessment of mental retardation must include adaptive functioning, and that the term "mild" was at times a misnomer for "a condition that represents a considerable disadvantage." (12) However, levels of severity are still used in the current version of the DSM-IV. (13)

   In the summer of 2002, after Atkins was decided, the AAMR announced a new definition of mental retardation: "Mental retardation is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18." (14) While statutory definitions of mental retardation may continue to reflect that cited in Atkins, then, appellate courts and appellate attorneys should be aware that psychologists and other mental health professionals may use the updated definition.

   Both of the most accepted clinical definitions of mental retardation cited in Atkins place the IQ cutoff for mental retardation between 70 and 75. (15) Although the Court did not mandate that states use a particular definition of mental retardation, the states that have definitions of mental retardation prohibiting imposition of capital punishment generally fall within that outlined in Atkins: Arkansas, (16) Arizona, (17) Colorado, (18) Connecticut, (19) Delaware, (20) Florida, (21) Georgia, (22) Idaho, (23) Indiana, (24), Kansas, (25) Kentucky, (26) Louisiana, (27) Maryland, (28) Missouri, (29) Nebraska, (30) Nevada, (31) New Mexico, (32) New York, (33) North Carolina, (34) South Dakota, (35) Tennessee, (36) Utah, (37) Virginia, (38) and Washington (39) are all in this category. Arkansas's statute has a rebuttable presumption of mental retardation when there is an I.Q. score of 65 or below. (40) South Dakota employs a presumption that a capital defendant with an IQ over 70 is presumed not to meet the definition of "significant subaverage general intellectual functioning." (41) The remaining states that have capital punishment statutes but have not yet enacted statutes exempting persons with mental retardation from the death penalty (as of September 2003) are Alabama, California, Illinois, (42) Iowa, Mississippi, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, and Wyoming. (43)

   Despite some state legislative efforts to nail down a definitive IQ score to define subaverage intellectual functioning, the psychological community recommends a more flexible approach. Clinical psychology takes into account a standard error of measurement of plus or minus five for an IQ score on a standardized IQ test. (44) Thus clinical measurement of IQ scores is properly viewed as within a range, rather than as a rigid single number. (45) The DSM-IV-TR requires that any intelligence test used to measure intellectual functioning must be "standardized" and "individually administered." (46) IQ tests that are given in groups, therefore, are considered unreliable to establish a valid IQ score.

   The AAMR cautions that determinations of mental retardation cannot be based solely on the results of an IQ test. (47) While a bright-line IQ score cutoff may appear to be a neat and quick solution for appellate courts facing these difficult cases, the Supreme Court has indicated that wholesale rejection of Atkins claims is inappropriate when the decisions are based solely on defendants' IQ scores. In fact, in the wake of Atkins, the Court remanded several cases in which the defendants' reported IQ scores were above 75. (48)

   Psychology's definition of mental retardation has been the foundation of the corresponding legal definitions. However, the definition of mental retardation will continue to change within the psychological community and may leave some states with outdated statutory definitions of mental retardation that may be no longer relevant to advancing psychological measurements. Although states with outdated definitions of mental retardation could alter their statutes to comport with new mental retardation definitions, given the difficulty of passing new bills in the state legislatures, those--including appellate judges--who are crafting new statutes, court rules, and procedures to give effect to Atkins should strive to create definitions and to implement processes broad enough to last through changing definitions.

3. SPECIAL AREAS OF INTEREST FOR APPELLATE COURTS AND APPELLATE LAWYERS

   1. Adaptive Functioning

      A key factor in Atkins was the component of adaptive functioning--that while mentally retarded persons "frequently know the difference between right and wrong and are competent to stand trial," because of their impairments,

      by definition they 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. (49) While not warranting an exemption from criminal sanctions, the Court found that these deficiencies do "diminish [mentally retarded persons'] personal culpability." (50) As one team of...