Featured Article
Article Title
Following Up After Moore and Hall: A National Survey of State Legislation Defining Intellectual Disability
Authors
Daniel Flack - Department of Psychological & Brain Sciences, Drexel University; Thomas R. Kline School of Law, Drexel University
Sarah Fishel - Department of Psychological & Brain Sciences, Drexel University; Thomas R. Kline School of Law, Drexel University
Kellie Wiltsie - Department of Psychological & Brain Sciences, Drexel University; Thomas R. Kline School of Law, Drexel University
Alexandra Kudatzky - Thomas R. Kline School of Law, Drexel University
David DeMatteo - Thomas R. Kline School of Law, Drexel University
Abstract
Since the Supreme Court’s decision in Atkins v. Virginia (2002), state legislatures have struggled to define intellectual disability as it relates to death penalty eligibility. In Hall and Moore, the Court rejected brightline cutoffs based on IQ score and suggested that medical definitions of intellectual disability should be consulted. With limited guidance from the Supreme Court, state definitions of intellectual disability can vary considerably. This study identified the legislative definitions of intellectual disability in all 50 states and reviewed relevant case law when applicable. Results show that definitions of intellectual disability significantly vary by state, and few states with active death penalty statutes comply with the accepted medical definitions for intellectual disability. These results have significant clinical and policy implications for defendants with intellectual disability, as well as practical implications for forensic mental health professionals who conduct evaluations of individuals facing the death penalty.
Keywords
Atkins, forensic mental health assessment, intellectual disability, death penalty
Summary of Research
“...In Atkins v. Virginia (2002), the Supreme Court held that the execution of justice-involved individuals who are intellectually disabled violates the Eighth Amendment protection against cruel and unusual punishment. The Court reasoned that the purposes of the death penalty, specifically retribution and deterrence, would not be served in executing justice-involved individuals who are intellectually disabled because of their reduced culpability” (p. 460).
“Since Atkins was decided in 2002, state legislatures and lower courts have struggled with how to define intellectual disability. In [Hall v. Florida (2014)], the Court reasoned that although the Florida statute that defined intellectual disability was constitutional on its face, Florida courts had interpreted the statute too narrowly by relying only on an IQ test score… because the IQ test score in question was near the diagnostic cutoff threshold, the court must look at other evidence due to the margin of error of the testing. The Court held that a bright-line cutoff IQ score of 70 violates the Eighth Amendment… when other evidence about intellectual disability is not allowed to be introduced…
In [Moore v. Texas (2017)], the Court held that the use of an outdated medical definition of intellectual disability violated the Eighth Amendment’s prohibition against cruel and unusual punishment as well as Supreme Court precedent. The Court reasoned that state standards for determining when a person is exempt from the death sentence because of an intellectual disability cannot ignore current medical standards defining intellectual disabilities…
After identifying legislative definitions of intellectual disability, we performed a case law search in July 2020 to explore court interpretations or findings of unconstitutionality of legislative definition. A limitation of focusing exclusively on statutes is that court decisions interpreting those statutes are not being considered... Examining case law interpreting the statutes provides a more complete picture of how the law is applied in each jurisdiction… we searched for case law decided after the Moore opinion was issued as we would not expect to find case law specific to medically and scientifically acceptable definitions of intellectual disability before the Moore decision” (p. 461).
“In the 2 decades since Atkins was decided, courts have struggled to define and identify instances where the Eighth Amendment’s protection against cruel and unusual punishment applies to defendants with intellectual disabilities… Our statutory review found that almost every state (49) has some general statute or case law defining intellectual disability. However, only one state (LA) uses the current DSM–5 definition of intellectual disability, and no states have adopted the most recent change to the AAIDD definition” (p. 475- 476).
“...Our statutory review demonstrated a discordance between the spirit of Atkins and its progeny and present-day compliance. The Supreme Court’s latest opinion on the death penalty and intellectual disability in Moore still fails to offer an explicit definition for intellectual disability…
This study has demonstrated that despite the guidance provided by the Court, the vast majority of state DPS are out of compliance with the holding in Moore… By ensuring that the definition of intellectual disability did not vary widely by state, the Court created more consistency among the class of individuals excluded from the death penalty. This decision also prevents two similarly situated criminal defendants with intellectual disability from obtaining vastly different outcomes simply based on the state where they are located….
Our results indicate that only one state, Louisiana, has a statutory definition that is in compliance with current, clinical definitions of intellectual disability. Four states (two DPS, two non-DPS) would have met the AAIDD definition of intellectual disability until the age of onset was changed in 2021… Given the 27 states with active DPS, this means only 11% of all DPS states have statutes that comply with the medical definitions of intellectual disability… substantive differences in frequency of utilization of medical definitions between DPS states and non-DPS states were observed, with nonDPS states utilizing medical standards about 9% of the time” (p. 476).
“Given the Supreme Court’s exclusion of justice-involved individuals with intellectual disability from the death penalty (per Atkins) and the Court’s subsequent decisions in Moore and Hall that provide guidance… regarding how courts make determinations about whether a particular defendant is intellectually disabled, forensic mental health professionals will inevitably be involved in a subset of cases in which there are concerns about whether application of the death penalty is constitutionally appropriate. As such, we believe the results of this study will be informative for those forensic mental health professionals…
The decision to impose a death sentence is one of the most important determinations made in the criminal justice system. When the determination hinges on whether a justice-involved individual is intellectually disabled, states would ideally use scientifically based definitions. Unfortunately, as demonstrated in this study, there is considerable heterogeneity in state definitions of intellectual disability in capital contexts. We hope this study will add to the ongoing dialog about the constitutional appropriateness of imposing the death penalty on those with demonstrated deficits in intellectual functioning” (p. 477).
Translating Research into Practice
“...Clinicians need to know not only local statutory law but also modifications to that law via case law. The issue of remaining current on legal standards remains a long-standing point of criticism against the field of forensic mental health assessment… Ignorance of applicable statutory schemes and how they are modified by case law can prevent forensic mental health evaluators from properly accounting for relevant factors in their evaluations. This ignorance is particularly concerning in capital cases where the stakes are higher for criminal defendants” (p. 476).
“A straightforward approach that would likely satisfy the Moore requirements would be to ensure that legislation is changed every time a new medical/diagnostic definition is issued by the AAIDD or DSM. Given the difficulties inherent in guaranteeing periodic passage of legislation tied to medical and scientific publications, lawmakers could also consider simply writing statutes that refer to the “most recently published AAIDD or DSM definitions,” negating the need for new statutes…
Alternatively, legislators who may wish to retain their discretion instead of deferring to medical or psychological professional organizations in perpetuity may consider sundown provisions for their state statutes, requiring reexamination or updates to the statute at a given expiration date, ensuring semicontinuous monitoring, and minimizing the likelihood of large gaps in compliance with updates” (p. 477).
Other Interesting Tidbits for Researchers and Clinicians
“...The vast majority of states, particularly those who are still imposing the death penalty, are falling woefully behind the evolving standards of the medical community. Not only do some still use the language of “mental retardation,” which the APA moved away from in 2013, but even those with the intention of adhering to medical definitions set forth by the APA and AAIDD also quickly became outdated as the definitions evolved…
Consistency in outcomes constitutes the heart of the Due Process Clause of the Fourteenth Amendment and the equal protection rights afforded to U.S. citizens. The goal for the Court’s discussion of intellectual disability should be to strike a balance between increased legal precision and flexibility that allows for scientific concepts such as standard error of measurement for IQ scores and individualized assessments of adaptive functioning” (p. 476).
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