Last week, the Supreme Court of the United States decided Moore v. Texas, the third major case the Court has decided about intellectual disability (formerly, mental retardation) and the death penalty. This post summarizes the case and considers its impact on North Carolina. Continue reading
Tag Archives: mental retardation
Moore v. Texas: The Supreme Court Presses States to Comport with the Evolving Medical Understanding of Intellectual Disability
The United States Supreme Court just decided a capital case about intellectual disability, formerly known as mental retardation. In some ways, it’s an “error correction” case that doesn’t break new doctrinal ground. But it stands out for two reasons. First, it may be indicative of the current Court’s attitude towards the death penalty. And second, Justice Thomas wrote a dissenting opinion focused in large part on former professional football player Warrick Dunn. Continue reading →
Yesterday, the United States Supreme Court decided Hall v. Florida, a case about the death penalty and intellectual disability. It’s an important case with implications for North Carolina.
Background. In Atkins v. Virginia, 536 U.S. 304 (2002), the Court prohibited the imposition of the death penalty on mentally retarded defendants. The Court indicated that it would leave the details of the prohibition to the states, but suggested in a footnote that states should “generally conform to the clinical definitions” of mental retardation when deciding which defendants are eligible for capital punishment.
Since Atkins, the term “mental retardation” has given way to “intellectual disability.” Generally, the condition is present when, prior to age 18, an individual manifests both (1) significantly below average intellectual functioning, generally indicated by low IQ score, and (2) significant limitations in “adaptive functioning,” i.e., difficulty with everyday activities. Different states have adopted slightly different formulations of the condition, and defense attorneys have challenged the most restrictive definitions as inconsistent with Atkins and with accepted clinical practice.
Facts and procedural history of Hall. In 1978, the defendant and an accomplice raped and murdered a young woman and killed a law enforcement officer. The defendant was sentenced to death. After Atkins, the defendant alleged that his intellectual disability rendered him ineligible for execution. He offered evidence of an IQ score of 71 (and other scores, less relevant here but discussed in the Court’s opinion), as well as evidence of difficulty in adaptive functioning. The Florida Supreme Court ruled that an IQ score of 70 or below was indispensable to a claim of intellectual disability under the state’s statute, and that such a hard cutoff was constitutional. The United States Supreme Court agreed to review the case.
The majority opinion. The Court reversed, 5-4. Justice Kennedy wrote the majority opinion. He reviewed the medical community’s current approach to intellectual disability. Prominent sources such as the DSM-V allow for a diagnosis of intellectual disability even when a person’s IQ is above 70, if the person has sufficient difficulty in adaptive functioning. Further, medical experts generally view an IQ score as a range, rather than a precise figure, given the inherent measurement error in IQ tests. Justice Kennedy wrote that “[a] score of 71, for instance, is generally considered to reflect a range between 66 and 76 with 95% confidence.”
Justice Kennedy then turned to state laws, finding that “at most nine States” impose a strict cutoff like Florida’s. He reasoned that the remaining states either do not employ the death penalty or define intellectual disability more flexibly. Further, Justice Kennedy stated that the trend since Atkins has been away from a strict IQ cutoff. He viewed these facts as evidence of an emerging consensus against the use of a strict cutoff.
Finally, acknowledging that Atkins promised to give the states the power to implement its mandate, Justice Kennedy wrote that the states’ discretion was not unfettered and that Florida had overstepped its authority by adopting and unreasonably restrictive test. Ultimately, the Court concluded, “[i]ntellectual disability is a condition, not a number. . . [and] when a defendant’s IQ test score falls within the test’s acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.”
The dissent. Justice Alito wrote the dissent for the Court’s four most conservative Justices. First, he tallied the states differently than Justice Kennedy, finding that among death penalty states, about equal numbers allow consideration of measurement error in IQ tests; do not allow it; and have not addressed the issue. Thus, he saw no consensus among the states. Second, he argued that the views of “a small professional elite” – that is, the medical community – do not necessarily reflect the views of society as a whole and should not be viewed as dispositive on the Eighth Amendment issue. Third, he foresaw practical difficulties with depending on mental health professionals’ views when interpreting the Eighth Amendment: what happens if the professionals’ definition of intellectual disability changes in the future, as it has done in the past? What if the professionals disagree with one another about the proper definition? Fourth, and finally, even assuming that the medical community’s views are authoritative, Justice Alito suggested that Justice Kennedy misunderstood measurement error and had confused the two prongs of the clinical definition of intellectual disability.
Effect on North Carolina. North Carolina’s mental retardation statute is G.S. 15A-2005. It defines “significantly subaverage general intellectual functioning” as “[a]n intelligence quotient of 70 or below.” Such language is consistent with the idea of a strict cutoff. Justice Kennedy observed that “Arizona, Delaware, Kansas, North Carolina, and Washington have statutes which could be interpreted to provide a bright-line cutoff leading to the same result that Florida mandates in its cases.” However, Justice Kennedy also noted that some states’ courts have interpreted apparently strict cutoffs to allow consideration of measurement error. Our state supreme court hasn’t considered the issue. The closest it seems to have come is in State v. Locklear, 363 N.C. 438 (2009), where it simply recited the statute in the course of a discussion of the procedural requirements for determining mental retardation.
Perhaps our courts will interpret G.S. 15A-2005 in a way that is consistent with Hall. Even if they don’t find the statute amenable to such an interpretation, of course, Hall trumps the statute and capital defendants must be given the requisite leeway regarding IQ scores. The General Assembly could also weigh in, revising the statute in accordance with its understanding of Hall.
If you have additional or different thoughts about Hall and the litigation of intellectual disability claims under it, please send me an email or post a comment.
The DSM V
The American Psychiatric Association is about to release the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, commonly abbreviated DSM-V and pronounced “DSM five.” This is important to criminal lawyers because mental health issues are litigated in so many criminal cases, and the DSM is the generally accepted authority on mental health diagnoses. By all accounts, the new DSM will be a significant departure from prior editions. There are several implications of interest to criminal lawyers:
- The new DSM is controversial. While previous editions of the DSM have been widely accepted, the new version has received considerable criticism. Dr. Allen Frances, a Duke psychiatry professor who chaired the committee that produced the previous edition of the DSM, wrote in Psychology Today that the approval of the DSM-V was the saddest moment in his professional career. He views the DSM-V as “deeply flawed . . . unsafe and scientifically unsound.” In his view, the new DSM paves the way for overdiagnosis and overmedication by creating new disorders and expanding existing ones without justification. Furthermore, the National Institutes of Mental Health, which administers federal grants for research into mental illness, has announced that it will be “re-orienting its research away from DSM categories,” because of the manual’s “lack of validity” and the fact that DSM diagnoses are not “based on any objective laboratory measure,” but instead reflect the collective judgment of a group of practitioners. Scientific American reports on NIMH’s stance here. The President of the APA argues for the excellence of the new DSM here. NPR has a terrific 8-minute report on the new DSM here.
- The controversy may spill over into criminal cases. Whether a defendant suffers from a particular mental disorder, and if so, how that relates to his or her sanity, capacity, or appropriate sentencing, are familiar issues in criminal cases. But they have generally been litigated within the framework established by the DSM. The disagreement about the validity of the new DSM may result in an increasing number of disputes about whether a particular mental disorder listed in the book even exists, or whether the diagnostic criteria in the DSM properly define the disorder. These would largely be new frontiers. (Of course, it is also possible that the controversy will blow over and the book will continue in its role as “the Bible” of the mental health community.)
- More mental illnesses may mean more litigation about mental illness. Because it expands the number and scope of diagnoses, more people, including more criminal defendants, will be classified as mentally ill. This will lead to more disputes about sanity, capacity, and mitigation, including whether a defendant is eligible for the mitigating circumstance set forth in G.S. 15A-1340.16(e) (“suffering from a mental or physical condition [that] . . . significantly reduced the defendant’s culpability”). In other words, mental health concerns likely will play an ever-larger role in criminal litigation.
- The new definition of mental retardation may impact capital cases. The DSM-V changes the definition of intellectual disability, the disorder formerly called mental retardation. Reuters summarizes: “Earlier editions of the DSM defined mental retardation as an IQ score below 70 accompanied by an inability to meet certain developmental norms . . . . Based on that IQ benchmark, the . . . Supreme Court ruled in Atkins v. Virginia . . . that it is illegal to execute a mentally handicapped person. But the editors of DSM-V have dropped the 70 IQ score as an indicator of mental retardation and instead recommend that clinicians consider IQ scores while analyzing an individual’s behavior to determine if he or she meets the developmental standards.” Litigation over mental retardation in North Carolina capital cases has focused heavily on IQ scores. Because G.S. 15A-2005(a)(1) defines mental retardation for purposes of the state’s statutory ban on executing the mentally retarded as an IQ of 70 or below plus limitations in “adaptive functioning,” that strain of litigation will continue. But the more flexible definition in the DSM-V may make it easier for defense attorneys to argue that a defendant with an IQ above 70 is still mentally retarded for purposes of the Supreme Court’s constitutional prohibition on executing the intellectually disabled. And that argument may find some support in the current definition of intellectual disability adopted by the American Academy of Intellectual and Developmental Disability. As explained here, the Academy believes that “[g]enerally, an IQ test score of around 70 or as high as 75 indicates a limitation in intellectual functioning.”
I’m sure that others are more versed on the intersection of criminal law and mental health than I am, may have followed the evolution of the new DSM more closely than I have, and may have additional or different thoughts about the issues presented by the new edition. If so, please post a comment about the significance of the new manual.