U.S.: Executions of intellectually disabled continue

In the United States, it's believed those with intellectual abilities far below average aren't executed. In 2002, the Atkins v. Virginia decision, ruled it unconstitutional to carry out death sentences against the intellectually disabled. However, the practice continues, revealing a pattern characterizing many cases in the justice system.

How can an unconstitutional practice continue? Just as it happened in a pivotal case in 1986, by treating a psychologist's evaluation of the prisoner as though it were free from bias, totally objective, when that was simply not the case. In that instance, the Georgia Board of Pardons and Paroles, which heard the final appeal to reverse the death sentence of Jerome Bowden, the Board ignored the perfectly valid intelligence test showing Bowden at age 14 to had an I.Q. of only 59. They brought in a psychologist of their choice, Dr. Irwin Knopf, had him evaluate the I.Q. of Bowden, who was poor, African American, and a gentle soul with no history of violence.

The board heard Knopf's report in closed session, after which the board's chair and other members spoke freely to the press about what Knopf had said, which amounted to the claim that Bowden's I.Q. was not low enough to warrant removing his death sentence. Their comments revealed serious problems with Knopf's conclusion. Bowden's attorneys immediately asked for a copy of the evaluation results, the Board said they would put them in the mail, and the lawyers replied that Bowden would be dead by the time they received them. Indeed, Bowden was killed the next morning, even before his beloved sisters had been notified. They heard about it from strangers.

There are at least 2 major limitations of the Atkins decision. The Bowden case reflects that administering and scoring of I.Q. tests is far from objective. Rules about how many correct answers yield a particular I.Q. score are based on tests of thousands of people throughout, but those have not included inmates of maximum security prisons where they eat terrible food, rarely see the sun, and have every reason to believe they will die there. To assign an inmate a number representing their intelligence with formulae derived from people in vastly different circumstances makes neither scientific nor moral sense.

The scoring booklet specifies which answers warrant 2 points, which only one, and which zero; but giving an I.Q. test requires judgment calls about responses that fail to fall clearly into any point-category. And instruction booklets prescribe test administration using specific words in a standardized way, but variations in a psychologist's voice, facial expressions, or tension can enhance or impede the prisoner's performance.

A psychologist's feelings about the death penalty can introduce distortions, as can whether the psychologist is an advocate or opponent of the death penalty, is racist or not (people condemned to death come disproportionately from racialized groups), is biased against poor people (the condemned are likely to be poor), is skilled at test procedure and interpretation, and likes or dislikes the prisoner. Psychologists favoring the death penalty can conceivably be so warm, supportive, and patient when administering the test and generous in their scoring that prisoners' scores will be overestimates of their pre-prison functioning, when few on death row had people treat them that way. Psychologists opposed to the death penalty might make prisoners uncomfortable to ensure they score low, but those whose reports always read, "The prisoner's I.Q. is below 70" won't keep their jobs for long and could lose their licenses.

Another life-or-death limitation of the Atkins decision is that different states set different criteria for classifying people "intellectually disabled," so there is a significant lack of equal protection under the law. A condemned person with a 67 I.Q. score qualifies for execution in a state with a cutoff point of 65 but not in a state with a cutoff of 70. For other criteria that may be taken into account - such as areas of difficulty in "adaptive functioning" - the room for subjective conclusions is even greater. Furthermore, many factors can lead to an individual's scoring 73, whereas taking the same test one day later or while hungry, they might have scored 68.

Few, if any, judges enjoy making life-altering decisions - whether in capital cases or child custody disputes in which young people's emotional, physical, and sexual welfare can be jeopardized by the biases of psychiatrists, psychologists, and social workers who do the "psych evals." What is alarming is the increasing trend for judges, traditionally and rightly skeptical people, to transfer the weighty burdens of making decisions from their own shoulders onto to those of mental health researchers and practitioners, whom they mistakenly treat as objective individuals who use behavioral sciences and psychological assessment to arrive at the Truth.

Source: Argus Leader, Paula J. Caplan, October 4, 2017. Paula J. Caplan Ph.D., a clinical and research psychologist, expert on psychological assessment and methodology, author of 11 nonfiction books, winner of 3 top awards for nonfiction writing, and filmmaker, is an associate at the Hutchins Center for African and African American Research, Harvard University.

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