Conceptual hurdles to the application of Atkins v. Virginia

Hastings Law Journal

Volumn 59, Issue 5, 2008, Pages 1203-1234

  Weithorn, Lois A ^a,b,c  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b STANFORD UNIVERSITY   (United States)

^c UNIVERSITY OF PITTSBURGH   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 49649111963     PISSN: 00178322     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (193)

1. 536 U.S. 304, 321 (2002).
2. 492 U.S. 302 (1989).
3. Atkins, 536 U.S. at 306-07, 311-21.
4. Id. at 307.
5. Id. at 311-12 (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958)).
6. Richard J. Bonnie & Katherine Gustafson, The Challenge of Implementing Atkins v. Virginia: How Legislatures and Courts Can Promote Accurate Assessments and Adjudications of Mental Retardation in Death Penalty Cases, 41 U. RICH. L. REV. 811, 815 (2007). Alternatively, Bonnie and Gustafson point out, the Court "might have chosen to embrace a principle of diminished responsibility as a constitutional culpability requirement in capital cases," articulating a standard against which the psychological functioning of individual allegedly "mentally retarded" offenders would be measured on a case-by-case basis. Id. at 814-15.
7. While the implementation of a "per se rule" excluding offenders from the death penalty on the basis of an easily-measured variable such as the defendant's age is relatively straightforward, see Roper v. Simmons, 543 U.S. 551 (2005) (holding unconstitutional the imposition of the death penalty on offenders who were under the age of eighteen at the time they committed the crime), applying a per se death penalty exclusion on the basis of a psychological diagnosis is far more complicated, Bonnie & Gustafson, supra note 6, at 814-15. As Bonnie and Gustafson point out: Whether an adolescent will be constitutionally eligible for the death penalty is easily ascertained by looking at the defendant's birth certificate. In contrast, the constitutionality of a death sentence under Atkins turns exclusively on a clinical diagnosis, thereby magnifying the importance, and the stakes, of the clinical assessments of mental retardation and the expert opinions based on those assessments. Id. at 815.
8. Atkins, 536 U.S. at 317.
9. See, e.g., People v. Superior Court, 155 P.3d 259, 259 (Cal. 2007); Commonwealth v. Miller, 888 A.2d 624, 629 (Pa. 2005); Ex parte Briseno, 135 S.W.3d 1, 1 (Tex. Crim. App. 2004).
10. See Gerald P. Koocher, IQ Testing: A Matter of Life or Death, 13 ETHICS & BEH. 1, 2 (2003).
11. Atkins, 536 U.S. at 308 n.3; see also infra notes 34-40 and accompanying text.
12. Atkins, 536 U.S. at 317.
13. For a superb examination of current conceptual debates and challenges, see generally WHAT IS MENTAL RETARDATION? IDEAS FOR AN EVOLVING DISABILITY IN THE 21ST CENTURY (Harvey N. Switzky & Stephen Greenspan eds., 2006) [hereinafter WHAT IS MENTAL RETARDATION?].
14. See also, Robert L. Schalock et al., The Renaming of Mental Retardation: Understanding the Change to the Term Intellectual Disability. 45 INTELL. & DEVELOPMENTAL DISABILITIES 116 (2007).
15. Press Release, Am. Ass'n of Mental Retardation, World's Oldest Organization on Intellectual Disability Has a Progressive New Name (Nov. 2, 2006), http://www.aamr.org/About_AAIDD/name_change_PRdreen.htm. The announcement of the organization's name change was followed by accompanying changes in the names of the two journals published by the newly-named American Association on Intellectual and Developmental Disabilities (AAIDD). See Press Release, Am. Ass'n on Intellectual & Developmental Disabilities, Mental Retardation Is No More - New Name Is Intellectual and Developmental Disabilities (Feb. 20, 2007), http://www.aamr.org/About_AAIDD/MR_name_change.htm.
16. See infra notes 41-49 and accompanying text.
17. RONALD L. TAYLOR ET AL., MENTAL RETARDATION: HISTORICAL PERSPECTIVES, CURRENT PRACTICES, AND FUTURE DIRECTIONS 36 (2005).
18. See WHAT IS MENTAL RETARDATION?, supra note 13, at xxiv.
19. See, e.g., HANDBOOK OF INTELLIGENCE (Robert J. Sternberg ed., 2000); HOWARD GARDNER, FRAMES OF MIND: THE THEORY OF MULTIPLE INTELLIGENCES (2d ed. 2004).
20. See infra notes 38-44 and accompanying text (discussing the two predominant definitions of "mental retardation").
21. For a recent examination of the concept and measurement of "adaptive behavior," see ADAPTIVE BEHAVIOR AND ITS MEASUREMENT: IMPLICATIONS FOR THE FIELD OF MENTAL RETARDATION (Robert L. Schalock & David L. Braddock eds., 1999) [hereinafter ADAPTIVE BEHAVIOR].
22. Atkins v. Virginia, 536 U.S. 304, 306 (2001).
23. Id. at 318.
24. Id. (footnotes omitted).
25. Id. at 319-20.
26. Id.
27. Id. at 320.
28. Id. at 320-21.
29. Id. at 306-07.
30. See, e.g., AM. ASS'N OF MENTAL RETARDATION, MENTAL RETARDATION: DEFINITION, CLASSIFICATION, AND SYSTEMS OF SUPPORTS 81-91 tbl. 7.3 (9th ed. 1992) [hereinafter 1992 AAMR Manual] (listing "disorders in which mental retardation may occur").
31. Professor J. David Smith characterizes "the universe of human conditions subsumed under the term 'mental retardation' [a]s overwhelming," and notes that the term mental retardation describes people "who are more different than they are alike." J. David Smith, Speaking of Mild Mental Retardation: It's No Box of Chocolates, or Is It?, 14 E XCEPTIONALITY 191, 201 (2006).
32. Stephen Greenspan, Functional Concepts in Mental Retardation: Finding the Natural Essence of an Artificial Category, 14 EXCEPTIONALITY 205, 207 (2006);
33. James R. Patton & Denis W. Keyes, Death Penalty Issues Following Atkins, 14 EXCEPTIONALITY 237, 237-38 (2006).
34. It is well beyond the scope of this Article to discuss these complex concepts in a comprehensive manner. Therefore, my goal here is to raise some of the current conceptual and practical issues surrounding these terms that have relevance for their application in the context of Atkins evaluations.
35. Atkins, 536 U.S. at 317.
36. See id. at 308 n.3.
37. 1992 AAMR Manual, supra note 29, at 5.
38. AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 49 (4th ed. text rev. 2000) [hereinafter DSM-IV-TR]. A third source influential among practitioners and researchers, but not mentioned by the Court, is published by the American Psychological Association's Division of Intellectual and Developmental Disabilities (Division 33). MANUAL OF DIAGNOSIS AND PROFESSIONAL PRACTICE IN MENTAL RETARDATION 13 (John W. Jacobson & James Anton Mulick eds., 1996) [hereinafter MANUAL OF DIAGNOSIS AND PROFESSIONAL PRACTICE].
39. 1992 AAMR Manual, supra note 29, at 5.
40. Id. The range of "approximately 70 to 75 or below" is cited to accommodate the "standard error of measurement," which will be discussed below. See infra note 79.
41. 1992 AAMR Manual, supra note 29, at 5-7, 23-49.
42. DSM-IV-TR, supra note 36, at 48-49. The primary difference in the language of the DSM-IV-TR and the 1992 AAMR Manual is that the former indicates that "significantly subaverage intellectual functioning" is demonstrated by "an IQ of . . . approximately 70 or below" rather than the 70-75 range set forth by the latter. See id. at 48; 1992 AAMR Manual supra note 29, at 5. As noted below, this distinction can have great practical import in the Atkins context. See infra notes 152-59 and accompanying text (discussing the rigidity with which Florida courts have interpreted a score of 70 as a fixed cut-off score).
43. See supra notes 13-17 and accompanying text.
44. AM. ASS'N OF MENTAL RETARDATION, MENTAL RETARDATION: DEFINITION, CLASSIFICATION, AND SYSTEMS OF SUPPORTS 8 (10th ed. 2002) [hereinafter 2002 AAMR Manual].
45. Id.
46. See WHAT IS MENTAL RETARDATION?, supra note 13, at xxi, xxiv. In the preface to the 2003 edition of this book, reprinted in the revised and updated 2006 edition, the authors note that the book was written because of the failure of the 2002 AAMR Manual to respond to important input from researchers and professionals regarding needed changes in the conceptualization of mental retardation. Id. at xxi-xxv. The various contributions to this edited volume address a range of concerns about the 1992 and 2002 AAMR Manuals. For additional discussion of the critiques of the 1992 definition and the AAMR response, see, for example, 2002 AAMR Manual, supra note 42, at 19-48; Stephen Greenspan, What Is Meant by Mental Retardation?, 11 INT'L REV. PSYCHIATRY 6, 6 (1999);
47. Stephen Greenspan et al., Everyday Intelligence and Adaptive Behavior: A Theoretical Framework, in MANUAL OF DIAGNOSIS AND PROFESSIONAL PRACTICE, supra note 36, at 127-35 [hereinafter Greenspan et al., Everyday Intelligence].
48. See supra note 14 and accompanying text.
49. Schalock et al., supra note 13, at 120. The AAIDD indicated that the new name "covers the same population of individuals who were diagnosed previously with mental retardation." Id.
50. Id. (emphasis added).
51. See, e.g., Greenspan et al., Everyday Intelligence, supra note 44.
52. Schalock et al., supra note 13, at 117 (emphasis added). For further discussion of the social-ecological perspective, see generally URIE BRONFENBRENNER, THE ECOLOGY OF HUMAN DEVELOPMENT: EXPERIMENTS BY NATURE AND DESIGN (1979);
53. JAMES GARBARINO, CHILDREN AND FAMILIES IN THE SOCIAL ENVIRONMENT (2d ed. 1992).
54. A humorous illustration of this concept can be found in a scene from the popular 1994 movie Forrest Gump. In one scene, the movie parodies the military as a setting in which unquestioning obedience to authority is valued above all. The lead character, Forrest Gump, who is portrayed as intellectually challenged in some contexts, such as in school, is judged to be intellectually gifted by his army drill sergeant: Drill Sergeant: "Gump! What's your sole purpose in this army?" Forrest Gump: "To do whatever you tell me, Drill Sergeant!" Drill Sergeant: "Gump! You're a . . . genius! This is the most outstanding answer I have ever heard. You must have [an] I.Q. of 160. You are . . . gifted. Private Gump." FORREST GUMP (Paramount Pictures 1994).
55. Greenspan distinguishes the frameworks most useful in conceptualizing two subgroups within the larger class of persons identified as intellectually disabled: (a) a smaller, more severely impaired sub-category, most of whose members have a known biological etiology and where the physical and behavioral signs of impairment are fairly obvious, and (b) a larger, less impaired sub-category, many of whom do not have clearly-established biological etiology and where the physical and behavioral signs of impairment are more subtle. Greenspan, supra note 31, at 206.
56. See supra notes 22-28 and accompanying text.
57. In the first of a series of articles by the AAIDD Committee on Terminology and Classification, which is responsible for revision of the AAID manual, the Committee implies that the new model will be influential as it "share[s] . . . thoughts and ask[s] for input from the field prior to the anticipated publication in 2009/2010 of the 1 ith edition." Schalock et al., supra note 13, at 116.
58. See infra notes 140-49.
59. See infra note 150 and accompanying text.
60. See supra notes 33-43 and accompanying text.
61. Robert J. Sternberg, The Concept of Intelligence, in HANDBOOK OF INTELLIGENCE, supra note 18, at 3, 3.
62. LEWIS R. AIKEN, ASSESSMENT OF INTELLECTUAL FUNCTIONING 1 (2d ed. 1996).
63. Nathan Brody, History of Theories and Measurements of Intelligence, in HANDBOOK OF INTELLIGENCE, supra note 18, at 16, 16.
64. Id.
65. Id. at 17-19.
66. Id. at 18.
67. AIKEN, supra note 58, at 11.
68. John F. Kihlstrom & Nancy Cantor, Social Intelligence, in HANDBOOK OF INTELLIGENCE, supra note 18, at 359, 359.
69. See AIKEN, supra note 58, at 19-20; Brody, supra note 59, at 30.
70. AIKEN, supra note 58, at 20.
71. Id. at 12-13.
72. Id. at 13.
73. Id. at 13-16.
74. ANNE ANASTASI, PSYCHOLOGICAL TESTING 238-48 (6th ed. 1988).
75. The current version of the test is described at the website of its publisher. See Riverside Publishing, Stanford-Binet Intelligence Scales (SB5), Fifth Edition, http://www.riverpub.com/products/sb5/details.html (last visited Apr. 20, 2008); see also GALE H. ROID ET AL., ESSENTIALS OF STANFORD-BINET INTELLIGENCE SCALES (SB5) ASSESSMENT (2004).
76. Alan S. Kaufman, Tests of Intelligence, in HANDBOOK OF INTELLIGENCE, supra note 18, at 445, 448.
77. AIKEN, supra note 58, at 19; ANASTASI, supra note 70, at 248-63.
78. Kaufman, supra note 72, at 446-47.
79. The website of the publisher of WAIS-III, Pearson, offers a description of the test. See Pearson, Wechsler Adult Intelligence Scale - Third Edition (WAIS-III), http://harcourtassessment.com/HAIWEB/Cultures/en-us/ Productdetail.htm?Pid=015-8980-727&Mode=summary (last visited Apr. 20, 2008); see also ALAN S. KAUFMAN ET AL., ESSENTIALS OF WAIS-III ASSESSMENT (1999).
80. The website of the publisher of WISC-IV, Pearson, offers a description of the test. See Pearson, Wechsler Intelligence Scale for Children - Fourth Edition (WISC-IV), http://harcourtassessment.com/HAIWEB/Cultures/en-us/ Productdetail.htm?Pid=015-8980-727&Mode=summary (last visited Apr. 20, 2008); see also ALAN S. KAUFMAN ET AL., ESSENTIALS OF WISC-IV ASSESSMENT (2004).
81. See ANASTASI, supra note 70, at 245-46, 252, 258.
82. Id. The Wechsler tests are comprised of individual subtests, each of which focuses on a more narrow set of abilities. More recent editions of the tests allow for the calculation of several "index" scores, based on individuals' performance on particular clusters of subtests. All of these scores are converted into "standard scores" so that the evaluator can compare the scores to general population norms. See, e.g., PAUL E. WILLIAMS ET AL., WISC-IV TECHNICAL REPORT#1: THEORETICAL MODEL AND TEST BLUEPRINT (2003), available at http://harcourtassessment.com/hai/Images/pdf/wisciv/ WISCIVTechReport1.pdf.
83. See supra notes 35-43 and accompanying text.
84. See supra notes 38-40 and accompanying text.
85. Kaufman, supra note 72, at 448.
86. See, e.g., Sternberg, supra note 57, at 46.
87. See, e.g., Etienne Benson, Intelligent Intelligence Testing, MONITOR ON PSYCHOLOGY, Feb. 2003, at 48, available at http://www.apa.org/monitor/febo3/intelligent.html.
88. Robert J. Sternberg & James C. Kaufman, Human Abilities, 49 ANN. REV. PSYCHOL. 479, 491 (1998) (discussing critiques of the controversial book by RICHARD J. HERRNSTEIN & CHARLES MURRAY, THE BELL CURVE: INTELLIGENCE AND CLASS STRUCTURE IN AMERICAN LIFE (1994)).
89. See supra note 65 and accompanying text.
90. WHAT IS INTELLIGENCE?: CONTEMPORARY VIEWPOINTS ON ITS NATURE AND DEFINITION, at vii (Robert J. Sternberg & Douglas K. Detterman eds., 1986). The symposium papers are compiled and published in this book.
91. Sternberg, supra note 57, at 46.
92. Id.
93. Id.
94. Sternberg & Kaufman, supra note 84, at 494. Sternberg & Kaufman elaborate on the three components of what they refer to as "successful intelligence": Analytical abilities are required to analyze and evaluate the options available to oneself in life. They include things such as identifying the existence of a problem, defining the nature of the problem, setting up a strategy for solving the problem, and monitoring one's solution processes. Creative abilities are required to generate problem-solving options in the first place. . . . Research shows that these abilities are at least partially distinct from conventional IQ, and that they are moderately domain-specific, meaning that creativity in one domain (such as art) does not necessarily imply creativity in another (such as writing). Practical abilities are required to implement options and to make them work. Practical abilities are involved when intelligence is applied to real-world contexts. A key aspect of practical intelligence is the acquisition and use of tacit knowledge, which is knowledge that is not explicitly taught and that usually is not verbalized. Research shows that tacit knowledge is acquired through mindful utilization of experience that is relatively domain specific . . . . Id.
95. Stephen Greenspan, Mental Retardation in the Real World: Why the AAMR Definition Is Not There Yet, in WHAT IS MENTAL RETARDATION? supra note 13, at 165, 172.
96. Id.
97. GARDNER, supra note 18.
98. Id. at 60-61. In Frames of Mind, Gardner delineated several different categories of intelligence, referred to as linguistic, musical, logical-mathematical, spatial, bodily-kinesthetic, and two personal intelligences. Id. at 73-76. While some of these areas of intellectual functioning - such as musical intelligence - are unlikely to be relevant to the death penalty context. Gardner's writings underscore that discussions of intelligence as a single global trait may be inaccurate. Gardner's writings on the personal intelligences, and particularly interpersonal intelligence (which involves one's ability to perceive, notice, and make distinctions about the moods, temperaments, motivations, and intentions of others), id. at 239, are not unrelated to the Court's. See supra note 22 and accompanying text; see also supra notes 124-29 and accompanying text (discussing Professor Greenspan's concerns about the social vulnerability of intellectually disabled individuals). Gardner's notions of intelligence were updated in 1999. HOWARD GARDNER, INTELLIGENCE REFRAMED: MULTIPLE INTELLIGENCES FOR THE 21ST CENTURY 47 (1999).
99. DANIEL GOLEMAN, EMOTIONAL I NTELLIGENCE: WHY IT CAN MATTER MORE THAN IQ (10th anniv. ed. 2005).
100. DANIEL GOLEMAN, SOCIAL INTELLIGENCE: THE NEW SCIENCE OF HUMAN RELATIONSHIPS (2006).
101. See, e.g., Kaufman, supra note 72, at 462-70 (discussing the Woodcock Johnson, Kaufman, and Das-Naglieri assessment tools).
102. Robert J. Sternberg et al., Intelligence, Race, and Genetics, 60 AM. PSYCHOLOGIST 46, 47 (2005).
103. Sternberg & Kaufman, supra note 84, at 481-84.
104. Stephen Greenspan asserts that the crux of the vulnerability of intellectually disabled persons in the context of capital offending is grounded in the naiveté and gullibility they bring to social situations. Stephen Greenspan, Execution Exemption Should Be Based on Actual Vulnerability, Not Disability Label, 13 ETHICS & BEHAV. 19, 23 (2003);
105. Stephen Greenspan & Harvey N. Switzky, Lessons from the Atkins Decision for the Next AAMR Manual, in WHAT IS MENTAL RETARDATION?, supra note 13, at 281, 300; see also infra notes 129-31 and accompanying text.
106. See 1992 AAMR Manual, supra note 29 and accompanying text.
107. The Manual states: "Evidence of adaptive skill limitations is necessary because [the] impact on functioning of these limitations must be sufficiently comprehensive to encompass at least two adaptive skill areas, thus showing a generalized limitation and reducing the possibility of measurement error." 1992 AAMR Manual, supra note 29, at 6.
108. See 2002 AAMR Manual, supra note 42, at 23.
109. Greenspan, supra note 91, at 177.
110. Id. at 172.
111. Id. at 172-73.
112. Id. at 173-79.
113. Id. at 177.
114. The AAMD was the name of the AAMR prior to its 1987 name change.
115. Kazuo Nihira, Adaptive Behavior: A Historical Overview, in ADAPTIVE BEHAVIOR, supra note 20, at 7, 7. It is noteworthy that Nihira refers to 1959 as the date on which this version of the AAMD Manual was published. Greenspan, however, indicates that the Manual was published in 1961, and that while "a preliminary draft of the manual was first published in 1959" and is often cited by authors, that preliminary draft did not refer to adaptive behavior. Greenspan, supra note 31, at 213.
116. James R. Thompson et al., Adaptive and Maladaptive Behavior: Functional and Structural Characteristics, in ADAPTIVE BEHAVIOR, supra note 20, at 15, 16.
117. 2002 AAMR Manual, supra note 42, at 73.
118. Robert L. Schalock, The Merging of Adaptive Behavior and Intelligence: Implications for the Field of Mental Retardation, in ADAPTIVE BEHAVIOR, supra note 20, at 43, 45.
119. Id. at 51.
120. Id. at 45.
121. Id. at 51.
122. Id. at 45.
123. Id. at 51.
124. Sharon A. Borthwick-Duffy, Adaptive Behavior, in HANDBOOK OF INTELLECTUAL AND DEVELOPMENTAL DISABILITIES 279, 286 (John W. Jacobson et al. eds., 2007).
125. 2002 AAMR Manual, supra note 42, at 87.
126. For a discussion of reliability and validity, see infra Part III.A and accompanying text.
127. 2002 AAMR Manual, supra note 42, at 87.
128. Id. at 88-90.
129. Greenspan, supra note 31, at 214; see also Stephen Greenspan, A Contextualist Perspective on Adaptive Behavior, in ADAPTIVE BEHAVIOR, supra note 20, at 64 [hereinafter Greenspan, Contextualist Perspective].
130. Greenspan, supra note 31, at 214.
131. Id.
132. Id. at 215.
133. Greenspan, Contextualist Perspective, supra note 124, at 69.
134. Id. at 67-71; see also Greenspan, supra note 31, at 215.
135. Patton & Keyes, supra note 31, at 241.
136. Id.
137. DAVID MAGNUSSON, TEST THEORY 59 (1967) (emphasis added).
138. AM. EDUC. RESEARCH ASS'N ET AL., STANDARDS FOR EDUCATIONAL AND PSYCHOLOGICAL TESTING 9 (1999) [hereinafter AERA STANDARDS] (emphasis added).
139. Id.
140. Id.
141. Lee J. Cronbach & Paul E. Meehl, Construct Validity in Psychological Tests, 52 PSYCHOL. BULL. 281, 291 (1955).
142. Lee Anna Clark & David Watson, Constructing Validity: Basic Issues in Objective Scale Development, in METHODOLOGICAL ISSUES & STRATEGIES IN CLINICAL RESEARCH 215-17 (Alan E. Kazdin ed., 2d ed. 1998).
143. For further discussion of Cronbach and Meehl's legacy and subsequent development of concepts of construct validity, see Gregory T. Smith, On Construct Validity: Issues of Method and Measurement, 17 PSYCHOL. BULL. 396 (2005).
144. Samuel Messick, Validity of Psychological Assessment: Validation of Inferences from Persons' Responses and Performances as Scientific Inquiry into Score Meaning, 50 AM. PSYCHOLOGIST 741, 742 (1995). In the death penalty context, it is difficult to apply traditional notions of criterion validity. Criterion-relevant evidence can be concurrent or predictive. See AERA STANDARDS, supra note 133, at 14-15. Concurrent methods compare the findings of the measure in question with findings obtained by another test deemed to assess the same construct. Id. If the results of both tests are highly correlated, that correlation provides support for the validity of the new measure. Predictive methods evaluate the degree to which the measure in question accurately predicts some future aspect of performance or functioning. Id. Thus, for example, studies of how well college admission examinations (such as the SAT) predict grade point averages provide evidence for the validity of the SAT as a test used to predict success in college. In the Atkins context, however, criterion comparisons are difficult. One might view the 1992 AAMR Manual's reference to adaptive behavior measures as a check on the concurrent validity of the IQ scores used to diagnose mental retardation. See supra note 102 and accompanying text. But, as noted above, it is not clear that either traditional IQ measures or standardized scales of adaptive behavior tap some of the most central ways in which intellectually disabled capital defendants might be impaired. Thus, there really are no suitable concurrent measures or predictive outcomes against which to evaluate any proposed assessment methods.
145. See GARY B. MELTON ET AL., P SYCHOLOGICAL EVALUATIONS FOR THE COURTS: A HANDBOOK FOR MENTAL HEALTH PROFESSIONALS AND LAWYERS 43 (3d ed. 2007);
146. see also KIRK HEILBRUN, PRINCIPLES OF FORENSIC MENTAL HEALTH ASSESSMENT 3 (2001).
147. THOMAS GRISSO, EVALUATING C OMPETENCIES: FORENSIC ASSESSMENTS AND INSTRUMENTS 12 (2d ed. 2003).
148. See, e.g., RONALD ROESCH & STEPHEN L. GOLDING, COMPETENCY TO STAND TRIAL 69-82 (1980) (discussing diagnostically-oriented testimony).
149. Id. at 10-43.
150. MELTON ET AL., supra note 140, at 127-28 (citing Dusky v. United States, 352 U.S. 402 (1960)).
151. GRISSO, supra note 141, at 13 (emphasis added).
152. Id. at 22.
153. Id. at 23.
154. See generally THOMAS GRISSO & PAUL APFELBAUM, ASSESSING COMPETENCE TO CONSENT TO TREATMENT: A GUIDE FOR PHYSICIANS AND OTHER HEALTH PROFESSIONALS (1998);
155. THOMAS GRISSO, CLINICAL EVALUATIONS FOR JUVENILES' COMPETENCE TO STAND TRIAL: A GUIDE FOR LEGAL PROFESSIONALS (2005); GRISSO, supra note 141;
156. THOMAS GRISSO, EVALUATING JUVENILES' ADJUDICATIVE COMPETENCE (2005);
157. JOHN MONAHAN ET AL., RETHINKING RISK ASSESSMENT: THE MACARTHUR STUDY OF MENTAL DISORDER AND VIOLENCE (2001);
158. NORMAN G. POYTHRESS, JR. ET AL., ADJUDICATIVE COMPETENCE: THE MACARTHUR STUDIES (2002); ROESCH & GOLDING, supra note 142;
159. Lois A. Weithorn & Susan B. Campbell, Children's Capacities to Render Informed Treatment Decisions, 53 CHILD DEV. 1589 (1982);
160. Lois A. Weithorn & Thomas Grisso, Psychological Evaluations in Divorce Custody: Problems, Principles, and Procedures, in PSYCHOLOGY AND CHILD CUSTODY DETERMINATIONS: KNOWLEDGE, ROLES, AND EXPERTISE 157 (Lois A. Weithorn ed., 1987).
161. It is not always clear precisely what psychological constructs guide the Court's (or any other legal body's) decisions regarding psycholegal phenomena. Perhaps the Court (or legislature) did not articulate the underlying constructs clearly (or at all). Thus, the process of determining which aspects of psychological functioning are at the core of the inquiry may require substantial analysis and inference. In the absence of evidence as to what psychological concepts guided the relevant legal body, one can look elsewhere for guidance, such as to scholarly or other sources.
162. FLA. STAT. ANN. § 921.137(1) (West 2008) reads: As used in this section, the term "mental retardation" means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18. The term "significantly subaverage general intellectual functioning," for the purpose of this section, means performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the Agency for Persons with Disabilities. The term "adaptive behavior," for the purpose of this definition, means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community.
163. CAL. PENAL CODE § 1376(a) (West 2008).
164. 959 So. 2d 702 (Fla. 2007). The Florida Supreme Court also upheld lower courts' denials of defendants' petitions for post-conviction relief in Brown v. State, 959 So. 2d 146 (FIa. 2007), and Jones v. State, 966 So. 2d 319 (2007).
165. Cherry, 959 So. 2d at 711.
166. Id.
167. Id.
168. Id. at 711-12.
169. Id. at 712.
170. Id. at 713.
171. Id. at 714.
172. 105 P.3d 552, 557 (Cal. 2005).
173. Id. at 557-58,
174. Id. at 559.
175. 155 P.3d 259 (Cal. 2007).
176. Id. at 261.
177. Id.
178. Id.
179. Id.
180. Id. at 263 (citation omitted).
181. The rules versus standards debate has been the subject of much scholarly commentary. See, e.g., Eric A. Posner, Standards, Rules, and Social Norms, 21 HARV. J.L. & PUB. POL'Y 10 (1997);
182. Pierre Schlag, Rules and Standards, 33 UCLA L. REV. 379 (1985);
183. Kathleen M. Sullivan, The Supreme Court 1991 Term: Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22 (1992).
184. For example, Professor Kathleen Sullivan identifies some of the distinguishing features of rules versus standards: Rules, once formulated, afford decisionmakers less discretion than do standards . . . . (a) Rules. - A legal directive is "rule"-like when it binds a decisionmaker to respond in a determinate way to the presence of delimited triggering facts. Rules aim to confine the decisionmaker to facts, leaving irreducibly arbitrary and subjective value choices to be worked out elsewhere. . . . A rule necessarily captures the background principle or policy incompletely and so produces errors of over- or under-inclusiveness. But the rule's force as a rule is that decisionmakers follow it, even when direct application of the background principle or policy to the facts would produce a different result. (b) Standards. - A legal directive is "standard"-like when it tends to collapse decisionmaking back into the direct application of the background principle or policy to a fact situation. Standards allow for the decrease of errors of under- and over-inclusiveness by giving the decisionmaker more discretion than do rules. Standards allow the decisionmaker to take into account all relevant factors or the totality of the circumstances. Thus, the application of a standard in one case ties the decisionmaker's hand in the next case less than does a rule - the more facts one may take into account, the more likely that some of them will be different the next time. Sullivan, supra note 169, at 57-59 (footnotes omitted).
185. For a further discussion of Hawthorne, see Christopher Scott Tarbell, Note, Implementing Atkins: The Strengths and Weaknesses of Hawthorne, 56 HASTINGS L.J. 1249 (2005).
186. See James R. Flynn, Tethering the Elephant: Capital Cases, IQ, and the Flynn Effect, 12 PSYCHOL. PUB. POL'Y & L. 170 (2006);
187. see also Tomoe Kanaya et al., The Flynn Effect and U.S. Policies: The Impact of Rising IQ Scores on American Society via Mental Retardation Diagnoses, 58 AM. PSYCHOLOGIST 778 (2003).
188. See LaJuana Davis, Intelligence Testing and Atkins: Considerations for Appellate Courts and Appellate Lawyers, 5 J. APP. PRAC. & PROCESS 297, 309-10 (2003);
189. Julie C. Duvall & Richard J. Morris, Assessing Mental Retardation in Death Penalty Cases: Critical Issues for Psychology and Psychological Practice, 37 PROF. PSYCHOL.: RES. & PRAC. 658, 663 (2006).
190. See Greenspan & Switzky, supra note 100, at 294-95; see also Bethany Young et al., Four Practical and Conceptual Assessment Issues That Evaluators Should Address in Capital Case Mental Retardation Evaluations, 38 PROF. PSYCHOL.: RES. & PRAC. 169, 171, 174-75 (2007).
191. Of course, those practitioners performing Atkins evaluations with only the tools presently available should heed the advice of those writers who have identified the most responsible methods of administering and interpreting currently available measures. For thoughtful analyses addressing these issues, see Bonnie & Gustafson, supra note 6; Richard J. Bonnie, The American Psychiatric Association's Resource Document on Mental Retardation and Capital Sentencing: Implementing Atkins v. Virginia, 32 J. AM. ACAD. PSYCHIATRY & L. 304 (2004); Duvall & Morris, supra note 173; Young et al., supra note 174.
192. See, e.g., supra notes 33-39.
193. The challenged testimony in Vidal, see supra notes 163-68, provides an example of an "alternative interpretations of data."