In spite of Federal law and defying same, Alabama prepares to execute Eddie D. Powell on June 16. Although in
Atkins v. Virginia536 U.S. 304 (2002), the U.S. Supreme Court ruled on the matter, the following are noteworthy with regard to Powells's case:
From Project Hope to Abolish the Death Penalty (www.phadp.org)
"1. Under Supreme Court precedent (Atkins), people with mental retardation are supposed to be categorically spared from the death penalty. However, due to a procedural ruling during post-conviction proceedings in State court, Mr. Powell has never been given an evidentiary hearing on this issue beforeany court (State or federal). Alabama, therefore, stands poised to execute a man who was diagnosed with mental retardation in grade school, and remains a person with mental retardation to this day.
2. Ineffective assistance of counsel for failing to investigate the scope of Powell’s substance abuse prior to the crime.
3. Ineffective assistance of counsel during the penalty phase for failing to present a diagnosis of mild retardation dating back to the 5th grade; failing to present deprived background, intellectual and developmental impairments, multiple traumatic head injuries, early onset of substance abuse, parental neglect and abandonment, depression."
This is not an exeptional case in Alabama but characteristic of its history on the matter. Below please find the report from the American Psychiatric Association regarding mental retardation in response to
Atkins. It is copied in full for your information regarding the details:
Approved by the Joint Reference Committee, September 2003
Approved by the Council on Psychiatry and Law, May 2003
"In its recent decision in Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court ruled that the Eighth Amendment’s prohibition against “cruel and unusual punishments” bars execution of mentally retarded offenders. At the time of the Atkins decision, 18 states and the federal government had already adopted laws categorically excluding defendants with mental retardation from the class of offenders convicted of capital crimes who are punishable by death, and several additional states, including Virginia, have adopted such statutes in the wake of the Supreme Court’s decision. However, these statutes vary widely, and the Court’s opinion in Atkins gave the states little guidance about how to implement the ruling or about the features of the existing statutes that are either constitutionally required or constitutionally permissible. Legislatures throughout the country – or, more specifically, in the 38 states that enforce the death penalty -- are now reviewing their capital sentencing statutes in light of Atkins and a number of other recent Supreme Court rulings pertaining to capital sentencing procedures.
One of the striking aspects of the Atkins decision is that the constitutional prohibition appears to be framed in the language of a clinical diagnosis – “mental retardation” – and not in terms of a traditional legal concept, such as competence or responsibility. For this reason, state legislators can be expected to seek the guidance of psychiatrists and other mental health professionals in the drafting of post-Atkins statutes. This Resource Document aims to assist members of the APA’s district branches and other professional groups as they respond to legislative efforts to implement the Atkins decision in a way that is grounded in scientific knowledge and clinical experience and consistent with the Supreme Court’s ruling itself.
Many of the issues that need be resolved in drafting a post-Atkins statute are purely legal in nature and do not require or implicate psychiatric expertise. The two main legal issues are (1) who should bear the burden of persuasion on the issue of mental retardation and (2) whether an initial determination of the issue should be made in a pretrial hearing by the judge before the capital sentencing proceeding. Alternative approaches to these issues are reflected in the statutes of Virginia and New York, both of which are appended to this Resource Document.
This Resource Document addresses three issues of particular concern to psychiatrists and other mental health professionals:
1. the definition of mental retardation, and whether Atkins bars death sentences in a broader category of cases;
2. procedures to be followed by professionals who are charged with assessing whether capital defendants have mental retardation; and
3. qualifications of experts selected to conduct these evaluations and to offer expert opinion on the pertinent issues.
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Definition
A number of issues must be resolved in defining mental retardation, and state statutes reflect some variation on them.
1. The first issue is whether mental retardation in this context should be defined in terms of a clinical diagnosis or rather in terms of diminished capacity to engage in mental tasks thought to be especially relevant to the assessment of criminal responsibility. Almost every state statute takes the diagnostic approach rather than the diminished capacity approach, and the Council believes that a diminished capacity approach is inconsistent with the Supreme Court’s reasoning in Atkins. The Court’s opinion repeatedly describes its holding in terms of banning execution of “mentally retarded offenders,” and the excluded category is defined diagnostically (not in terms of diminished capacity) in 17 of the 18 state statutes (as well as the federal statute) to which the Court refers in concluding that a national consensus has emerged against execution of the mentally retarded. In a particularly pertinent passage, Justice Breyer noted that “[t]o the extent that there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded,” not whether defendants who are really retarded should be executed. In short, if a state were to define the excluded category in way that allowed a person with an undisputed diagnosis of mental retardation to be sentenced to death and executed, the Eighth Amendment would forbid the execution, and the statute would be unconstitutional as applied to that case.
2. Assuming that a diagnostic approach is taken, there are two main sources of definitional guidance– the Manual of the American Association of Mental Retardation and the APA’s Diagnostic and Statistical Manual. Although these two manuals use somewhat different language, they are conceptually equivalent; each requires significant limitations in intellectual functioning and in adaptive behavior as well as developmental onset before the age of 18.
• In DSM-IV, mental retardation is defined as a disorder, with an onset before 18 years, characterized by “significantly subaverage intellectual functioning” and “concurrent deficits or impairments in present adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety.”
• In the 2002 AAMR Manual, mental retardation is defined as a disability originating before age 18, “characterized by significant limitations both on intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills.”
The AAMR Manual was revised in 2002 and is the more recent of the two definitions. A state statute would be on safe ground in using either of these definitions, or some interweaving of the two. The Council has proposed alternative definitions, using the operative language of each of these two definitions in this Resource Document.
3. A key issue in legislative drafting has been whether “significant limitation in intellectual functioning” should be defined in terms of performance on so-called “IQ” tests and, if so, whether the definition should include specific reference to a cut-off score, as some state laws do. In the Council’s view, incorporation of a specific cut-off score is inappropriate, not only because different tests have different scoring norms, but also because designating a specific score ignores the standard error of measurement and attributes greater precision to these measures than they can support. The Council has defined a “significant limitation in intellectual functioning” as performance at least two standard deviations below the mean on an approved test rather than as a specific cut-off score.1
1. The most challenging issue is the definition of a “significant limitation in adaptive behavior” because the DSM and AAMR definitions use different language to operationalize the concept of adaptive functioning in terms of specific adaptive tasks. Because the concept is still being elaborated by experts in the field, standardized instruments are in a continuing process of development. It should be noted that the AAMR definition reflects the most recent scientific understanding of the concept of adaptive behavior. Under this conceptualization, explained in the AAMR Manual, the various skill areas mentioned in the previous AAMR definition and in the DSM-IV definition exemplify three basic domains of adaptive functioning (conceptual, social and practical). The Manual includes tables that sort various skills into these three domains, and explains how currently available instruments operationalize and measure adapative behavior.
2. Following the diagnostic approach endorsed in Atkins, the Council includes developmental origin in the definition (thereby excluding conditions involving deficits in intellectual and adaptive functioning acquired due to trauma or disease after age 18) on the ground that the Supreme Court’s decision to bar death sentences for persons with mental retardation is grounded in presumed deficits in moral reasoning arising from disordered development. None of the statutes upon which the Supreme Court relied in Atkins includes conditions acquired during adulthood, and such cases do not often arise. For anyone concerned that requiring developmental onset could lead to unfair treatment of defendants with adult-onset intellectual and adaptive deficits, it must be remembered that an individualized determination of diminished capacity at the time of the offense is still required for cases in which persons with subaverage intellectual functioning have not been categorically excluded under Atkins.
Statutory language for the two alternative definitions follows:
Based on AAMR Definition
Definition. -- Mental retardation is a disability, originating before the age of 18, characterized concurrently by (1) significant limitations in intellectual functioning, and (2) significant limitations in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. “Significant limitations in intellectual functioning” means performance that is at least two standard deviations below the mean, considering the standard error of measurement for the specific instruments used, as well as their strengths and limitations in the context of the particular assessment.
Based on DSM Definition
Definition. -- Mental retardation is a disorder, with an onset before 18 years, characterized by significantly subaverage intellectual functioning and concurrent deficits or impairments in present adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety. “Significantly subaverage intellectual functioning” means performance that is at least two standard deviations below the mean, considering the standard error of measurement for the specific instruments used, as well as their strengths and limitations in the context of the particular assessment. 2
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Assessment
In light of the “heightened need for reliability” in capital sentencing, it is particularly important to promote the highest quality of assessment and to minimize unnecessary variation from accepted professional standards. The diagnosis of mental retardation lends itself to greater specification of practice standards than other forensic assessments, and the Council has embraced the approach taken in the Virginia statute. Specifically, state laws should:
• require use of at least one standardized test for measuring intellectual functioning, administered in conformance with accepted professional practice by a person skilled in the administration, scoring and interpretation of such tests;
• encourage use of at least one standardized measure of adaptive behavior while recognizing ultimate need for clinical judgment;
• require efforts to obtain pertinent written records and to conduct interviews with people who have interacted with the defendant; and
• permit, but not require, the assessment of mental retardation to be combined with other mental health assessments conducted in the case and should provide all of the procedural protection applicable to other forensic mental health assessments in capital cases.
Assessment. – Assessments of mental retardation under this section shall conform to the following requirements:
(1) Assessment of intellectual functioning shall include administration of at least one standardized measure generally accepted by the field of mental health assessment and appropriate for administration to the particular person being assessed, taking into account cultural, linguistic, sensory, motor, behavioral and other individual factors. Testing of intellectual functioning should be carried out in conformity with accepted professional practice by a person skilled in the administration, scoring and interpretation of such tests, and, whenever indicated, the assessment should include information from multiple sources.
(2) Assessment of adaptive behavior shall be based on multiple sources of information, including clinical interview, psychological testing and educational, correctional, and vocational records, and shall include, whenever feasible, at least one standardized measure for assessing adaptive behavior, administered by a person skilled in the administration, scoring and interpretation of such instruments in accordance with methods generally accepted by the field of mental health assessment and appropriate for administration to the particular person being assessed, taking into account the environments in which the person has lived as well as cultural, linguistic, sensory, motor, behavioral and other individual factors. In reaching a clinical judgment regarding whether the person exhibits significant limitations in adaptive behavior, the examiner shall give performance on standardized measures whatever weight is clinically appropriate in light of the person’s history and characteristics and the context of the assessment.
(3) Assessment of developmental origin shall be based on multiple sources of information generally accepted in the field of mental health assessment, including, whenever available, educational, social service, medical records, prior disability assessments, parental or caregiver reports, and other collateral data, recognizing that valid clinical assessments conducted during the person’s childhood may not have conformed to current practice standards.
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Qualifications of Experts
The expert selected or appointed to conduct mental retardation evaluations in capital cases should be a psychiatrist or psychologist who is qualified by training and experience to make a diagnosis of mental retardation. The testing of intellectual functioning and adaptive behavior should be carried out by clinicians who have the necessary skill and experience. Finally, if the expert appointed or selected lacks training and experience in conducting forensic assessments and testifying in criminal adjudications, he or she should obtain a consultation with a psychiatrist or other qualified professional with such experience.
Qualifications of Experts – An expert appointed by the court to assess whether a capital defendant has mental retardation, or whose opinion is admitted into evidence on this issue, should be a psychiatrist or clinical psychologist who is qualified by training and experience to make a diagnosis of mental retardation. Standardized testing required under this section and relied upon by the appointed or testifying expert shall be carried out by a mental health professional skilled in the administration, scoring and interpretation of intelligence tests and measures of adaptive behavior. If the expert lacks training and experience in conducting forensic assessments and testifying in criminal adjudications, he or she should obtain a consultation with a psychiatrist or other qualified professional with such experience.
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1The DSM diagnostic criteria define significantly subaverage interllectual functioning as “an IQ of approximately 70 or below on an individually administered IQ test” (emphasis added). The accompanying text makes it clear that the score of 70 is meant to be an approximation of a score two standard deviations below the mean, taking into account the standard error measurement, for the particular instrument being used.
The Atkins rationale also extends, in the Council’s view, to some conditions in the category of “pervasive developmental disorders,” especially autism (DSM 299.00). Ideally, an exclusionary provision should include these disorders, and eventually the Council will attempt to develop appropriate statutory language. However, because these disorders are usually accompanied by mental retardation, none of the exclusionary statutes cover them, and no prosecutions appear to have been brought such cases, the Council concluded that proposing additional language at this time would unnecessarily complicate legislative efforts to respond to the Atkins decision in an expeditious manner.
2While otherwise adopting the AAMR definition, the Virginia legislature chose to use the DSM-IV language “significantly subaverage” intellectual functioning rather than “significant limitation in” such functioning, as used in the AAMR."
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