Being Mentally Retarded Is Now a Matter of Life and Death

January 1, 2003

Standardized test scores and adaptive functioning will now be used to determine who may be sentenced to death and who may not. Yet, legal and psychiatric experts continue to challenge each other to define mental retardation. Some say that retardation can be feigned and used to weaken the power of the death penalty. Others say the issue will not arise.

We'll never actually know what was in Daryl Renard Atkins' mind when he and an accomplice murdered and robbed Eric Nesbitt six years ago. But by emphasizing the eight bullets left smoldering in the victim and a history of violent crimes, a Virginia prosecutor convinced a jury to sentence Atkins to death based on the "vileness of the offense" and the prospect of future dangerousness.

By June of 2002, however, a divided U.S. Supreme Court took a different tack, saying that perhaps Atkins could not apply the "reasoning, judgment and control of [his] impulses" and did not commit his crime with the same "level of moral culpability that characterizes the most serious adult criminal conduct." The reason for the court's reluctance to uphold Atkins' death sentence was the evidence of his mild mental retardation and its assertion that executing him would violate the Eighth Amendment's prohibition against cruel and unusual punishment.

The ruling in Atkins v Virginia (536 U.S., 122 S. Ct. 2242; 153 L. Ed. 2d 535 [2002]) reversed a Supreme Court precedent set only 13 years earlier in Penry v Lynaugh, 492 U.S. 302 (1989), which held that executing mentally retarded individuals passed constitutional muster. But observing that the Eighth Amendment must "draw its meaning from the evolving standards of decency that mark the progress of a maturing society," Justice Paul Stevens, writing for a six-member majority, said in the recent decision "that death is not a suitable punishment for a mentally retarded criminal."

Rather than settling the issue, however, the decision set off a new debate because it failed to establish any criteria for who is mentally retarded. "To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded," Stevens wrote. "[W]e leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences."

That task is currently underway. But while the clinical standards for mental retardation are relatively clear, the political and legal complexities will mire the process in disputes over how much of the emphasis should be placed on IQ level and how much on the assessment of adaptive functioning.

In an acerbic dissent, Justice Antonin Scalia helped to muddy the waters by fueling what will likely be an ongoing legal fight over who escapes the executioner and who does not. "One need only read the definitions of mental retardation adopted by the American Association of Mental Retardation and the American Psychiatric Association to realize that the symptoms of this condition can readily be feigned," Scalia wrote. "And whereas the capital defendant who feigns insanity risks commitment to a mental institution until he can be cured (and then tried and executed), the capital defendant who feigns mental retardation risks nothing at all."

In another case, James Colburn was spared execution in Texas on Nov. 6, 2002, in light of his paranoid schizophrenia and hallucinations. Colburn has been convicted of stabbing a woman to death. His lawyers also claimed that he was heavily sedated with antipsychotic drugs during his trial.

Colburn's case went before the entire Supreme Court, which delayed the execution for 30 days, pending the filing of a petition for the court to hear the case. If the court denies the petition, Colburn's reprieve would be terminated.

Another inmate in Florida was not so lucky. On Dec. 9, 2002, Linroy Bottoson was executed for the robbery, kidnapping and murder of a postal worker. The Florida Supreme Court rejected two separate appeals arguing that Bottoson was mentally retarded and that he was incompetent to stand trial.

The difficulty in Colburn's case is that, unlike Atkins, he was not diagnosed with mental retardation. Although the Supreme Court's decision in Atkins clearly defines executing the mentally retarded as cruel and unusual punishment, it does not impose complete protection from the death penalty on defendants with other mental illnesses.

Carl B. Feinstein, M.D., professor of psychiatry at Stanford University School of Medicine and chair of the APA's committee on children with mental or developmental disorders, rejected Scalia's skepticism. "This is really not a battle about what the definition of mental retardation is, this is a battle about people who want to put other people to death," he told Psychiatric Times.

While acknowledging there will be some borderline cases over which experts may disagree, Feinstein said that the criteria for establishing mental retardation are actually more fact-based than other determinations the legal system makes.

"The criteria for mental retardation are a lot easier to reach agreement over than the criteria for psychiatric disorders," Feinstein said. "The fact is that there has to be a long track record that [points to mental retardation] and there have to be adaptive skills deficits."

While there are imperfections in all forms of assessments, Feinstein said that those related to mental retardation assessments are "hard science" when compared to other "vagaries in the legal system."

"People are all the time making decisions about whether a person did a crime with intent or without intent, or whether it was manslaughter or murder," Feinstein said. "There, the subjectivity involved is infinitely greater than it is in whether a person is mentally retarded or not."

The more complicated assessment will ultimately be the one that will be carried out by the states that must now decide on what criteria to adopt, a process more political than medical. Of the 38 states that currently allow capital punishment, 18 have legislation that prohibits the execution of the mentally retarded. The debates over standards are currently underway, according to Evan S. Nelson, Ph.D., a forensic psychologist from Midlothian, Va., who testified for the defense at the trial level in the Atkins case.

"This decision had no impact for people who are moderately or severely retarded because, in all reality, prosecutors were very unlikely to pursue the death penalty against the moderately or severely retarded," Nelson told PT. "And frankly, most of those defendants would have had problems being competent to stand trial anyway. So this only affects people who are either mildly mentally retarded or in the range of borderline intelligence, and in those cases there's a lot of room for debate."

While Virginia debates which standards it will adopt to conform to the Supreme Court's mandate, Atkins lies in legal limbo. He awaits a decision by the prosecution to either agree to spare him for a life's jail sentence or to pursue yet another assessment under whatever legislative scheme the state adopts.

Ultimately, IQ and adaptive functioning criteria will be adopted, but Nelson concedes that some of the traditional measures may not always work in cases where a person has been living a criminal lifestyle. The two standard tests for assessing adaptive functioning are the Vineland Adaptive Behavior Scales and the Adaptive Behavior Scales. But those measures were normed on youngsters and rely heavily on the reports of caregivers, Nelson explained to PT. They are both best for people who are moderately or severely retarded; they are less effective in identifying people who are mildly retarded.

"When you look at those in the context of capital defendants, who generally have lived criminal lifestyles, the items in these scales simply don't have much relevance," Nelson explained to PT. "Another problem is that many of these folks don't have the traditional set of records that one looks for when diagnosing mental retardation when in the non-criminal population."

For any number of reasons, offenders may not have accumulated educational and vocational records that would have documented deficiencies, Nelson said. They may have shown such severe behavior problems in school, for instance, there was not much attention paid to accurate IQ testing. Meanwhile, many have limited work histories, and it may be difficult to discern whether that is because they lack the intellectual capacity and social skills necessary to succeed or because they were criminals who were looking for parasitic ways to live or both.

"The problems are going to be less about IQ testing and much more about arguments involving adaptive functioning," Nelson said.

Malingering and faking test results or behaviors are nearly impossible, because of controls that prevent manipulation of evaluation instruments and the length of time over which evaluation occurs, Nelson said. More problematic than feigning mental retardation will be the uncertainties created by people who have failing grades and failing achievement test scores because of low motivation, although in hindsight, those records may be cast as evidence of mental retardation when in fact they may not be.

Despite that possibility, Nelson said the numbers are very small for cases in which legitimate differences of opinion may arise, because prosecutors will have already winnowed out those cases of moderate or severe mental retardation at the competency phase. "I've done 150 capital murder cases and have put forward mental retardation as a mitigating factor in only three of them," Nelson said. "And that's not a surprise...Mental retardation is [present in] only about 1% of the general population, so even if it's 3% of capital murder defendants, that's still a small percentage."

But even that small percentage is too high for Abraham L. Halpern, M.D., professor emeritus of psychiatry at New York Medical College, past president of the American Academy of Psychiatry and the Law, and past president of the International Academy of Law and Mental Health. He insists that participation in the evaluation process when it comes to death penalty cases violates ethical strictures against harming patients.

In addition to artificial battles that occur over IQ level, he also believes that assessments of adaptive function can create problems, particularly when someone has worked to make adjustments despite a low IQ. These machinations, particularly when a life is at stake, are an abuse of psychiatry, according to Halpern.

"The criteria [for evaluating who is mentally retarded] from my perspective? Psychiatrists should not be involved in examining people for competency to be executed," Halpern told PT. "The whole system is doomed to failure and it's just a matter of misusing psychiatry. The people who want to execute will simply get a psychiatrist to give an opinion that conforms with their desire."

That view may not be far off the mark, according to Richard G. Rappaport, M.D., a forensic psychiatrist and associate clinical professor of psychiatry at the University of California, San Diego, School of Medicine. Confirmatory bias, an inclination to perceive in ways that support one's point of view, pervades every aspect of criminal proceedings and affects all participants. It is a phenomenon that will not change, he said, and it will have an impact on assessments of those individuals who are in the gray zone of mental retardation.

"One of the things I experience the most as a forensic psychiatrist is the criticism that it's not a science, that it's an art, and that's why there are people testifying on both sides, there are different opinions, and there's no objective truth," Rappaport told PT. "I usually respond that there are gray areas in every science."

In an amicus curiae brief filed jointly by the APA and the American Psychological Association, the groups explained to the Supreme Court that most of the time the issue of whether someone is mentally retarded is not controversial, said Jeffrey L. Metzner, M.D., clinical professor of psychiatry at the University of Colorado Health Sciences Center in Denver and chair of the APA's Council on Psychiatry and the Law. Although he does not agree with Justice Scalia's statement that mental retardation is easily feigned, he understands what may have generated the comment.

"I can understand why the dissent might have said what he said when he looks at transcripts where you have professionals arguing about whether someone is mentally retarded or not," Metzner told PT. "But I think more often than not there is no controversy in making that diagnosis."

With the high stakes in death penalty cases, however, there is bound to be additional controversy, Renee L. Binder, M.D., clinical professor of psychiatry at the University of California, San Francisco, School of Medicine, said in an interview with PT. In some cases, defense lawyers may attempt to shift diagnoses from other mental illness toward mental retardation because it will more readily exclude a person from entering death row.

"The question is, is that a good thing?" added Binder, who is also the president of the California Psychiatric Association and chair of the APA's commission on judicial action. "It gets into the issue about who should receive the death penalty. If anyone is on death row, they're going to try to claim whatever they can. That's not surprising. Maybe they do have mental retardation, and maybe it wasn't taken into account. It's not necessarily bad to get people off death row."