The title of this post is the headline of this new Pacific Standard commentary. Here are excerpts:
The Supreme Court has slowly been carving out exemptions to the death penalty for people with intellectual disabilities. In 2002, the Supreme Court ruled in Atkins v. Virginia that people with intellectual disabilities could not be executed, but left it up to the states to determine who is or is not eligible for that protection. In 2014, in Hall v. Florida, the court ruled that a state can't use a simple IQ cut-off. Then, in last year's Moore v. Texas, the court ruled that states must consider the best psychiatric and medical information about disability when determining disabled status. Still, IQ testing continues to play a major role, with a threshold of around 70 serving as the cutoff score, below which a person cannot legally be executed.
Here's where "ethnic adjustments" come in. The practice, as documented by attorney Robert Sanger in a 2015 article in the American University Law Review [available here], adjusts IQ scores upward for people of color convicted of capital crimes. According to Sanger, prosecutors in Florida, Texas, Alabama, Tennessee, Missouri, California, Pennsylvania, and Ohio have all used ethnic adjustments to successfully impose the death penalty on people who otherwise might have been deemed exempt. In his article, Sanger works methodically through case after case, noting in particular the role played by expert witnesses for the prosecution, who testify to the racial biases of IQ testing. In most cases, these experts have never met the person convicted of the capital crime or assessed that person for disability, even as their testimony clears the way for execution.
At the end of his article, Sanger writes, "The idea of racially classifying a person and then using 'ethnic adjustments' to increase his or her IQ score, thereby qualifying that person for execution, is logically, clinically, and constitutionally unsound. In fact, when looked at more closely, it is a wonder how the practice has gone largely unchallenged over the last few years." When I spoke to him over the phone, Sanger confirmed to me that no clear constitutional challenge to the practice has emerged to his knowledge, and certainly not at the United States Supreme Court, or in California, where he practices law.
Comments
Post a Comment