The complex issues in MR/ID Atkins death penalty cases: APA Div 33 Ad Hoc Committee on Mental Retardation 2006 list

As I continue to manage this blog, it has become increasingly clear that the psychological and legal issues involved in Atkins MR/ID death penalty cases are very lenghty and complex.  Last night I skimmed a Div 33 Newsletter article (Vol 31, Issue 2, 2006 - click here to find way to obtain copy) that had an article that described the role and function of the Ad Hoc Committee on Mental Retardation and the Death Penalty.  Although the list of issues was generated in 2006, most all still seem pertinent today.  I've reproduced the list of issues below.  Of course, the 1992 AAMR manual mentioned has since been replaced by the 2002 10th and just recently the 2009 11th edition.

Clearly there is much to address, discuss, research, resolve.  I get tired and overwhelmed just reading the list.  I can only hope that the ICDP blog contributes in some small way to the resolution of some of these issues:
 
Qualifications of experts

• Qualifications of psychologists (Licensure? Experience in mental retardation? Forensic training?)
• Qualifications of other experts (In the Atkins trial in Virginia, only a psychologist could testify regarding diagnosis, although other experts testified about other issues.)
• Use of lay experts (How do psychologists obtain and use information from lay persons who know the defendant?) with a background in mental retardation and little forensic experience.)
• Protection of raw test data and test protocols (Ethical principles 9.04 and 9.11)

Issues related to definition of mental retardation

• The Supreme Court used the 1992 American Association on Mental Retardation definition. Should a psychologist offer best interpretation and application of that definition or make suggestions to states for new definitions that are congruent with Atkins?
• Since the 1992 definition is widely used in Atkins hearings, is there consensus on the meaning of the 10 areas of adaptive behavior as they apply to forensic circumstances? (They are only briefly described in the 1992 AAMR manual.) Is a new manual needed that addresses forensic procedures?
• Use of terms: mild, moderate, severe, borderline
• Use of the mental age concept
• Times at which mental retardation must be determined: childhood, time of the crime, present (This question will be determined differently by different courts.)
• Issue of taking an isolated example of high skill to show no mental retardation (e.g., language use, driving a car)

Issues Related to Retrospective Diagnosis

• Role of archival information
• School records; missing or incomplete records; problems in interpretation of old school records
• Lack of Special Education documentation in some records (It is policy for some school systems to delete this information.)
• Interpretation of past testing reports
• Standards for interpretation of old tests (Are they interpreted by the norms of their time, or can they be re-interpreted based on more contemporary psychometric methods?)
• Proper methods to obtain information from informants
• Possible biases in the memories of informants Ethical/Professional Issues
• Independence of the evaluation vs. advocacy role (This is not unique to Atkins cases, but it may be a confusing issue for psychologists Measurement of Intelligence
• Choosing a proper test
• Qualifications of tester
• Firm IQ cutoffs vs. ranges (Law may make no mention of range or variability of scores.)
• Global IQ vs. subtest scores (Are subtest scores or Verbal or Performance IQs relevant?)
• Interpretation of group tests and short forms. Should they be considered at all?
• Attempts to alter or reinterpret IQ scores after the fact (e.g., He had higher potential. He could have done better. His “true” IQ is 5 points higher.). Invalid score vs. altered or reinterpreted score.
• Interpretation of variability of scores with repeated testing.
• Flynn effect (Does it apply to individual scores?)
• Practice effect Adaptive Behavior
• Is adaptive behavior measured solely by functioning, or can potential be considered?
• Interpretation of cultural factors
• Value of multiple respondents
• Value of multiple sources and types of information (e.g., archival, anecdotal, standardized instruments, direct observation)
• Is it valid to use the events of the crime to show adaptive behavior?
• Problems assessing adaptive behavior in prison.
• Role of clinical interview and observation in prison
• Is it valid to use maladaptive behavior as evidence of adequate adaptive behavior?
• Is it valid to argue against a diagnosis of mental retardation by interpreting low adaptive behavior as a behavior disorder, not retardation? (“It’s not mental retardation; it’s a conduct disorder.”)
• Is reliance on others or need for support a key characteristic of mental retardation in adults? (This factor is only indirectly assessed in tests of adaptive behavior.)
• Is naïveté or gullibility or susceptibility to undue influence of others a critical characteristic of mental retardation? This factor is emphasized in the literature on mental retardation (e.g., Greenspan, 1999) but not in tests of adaptive behavior.
• Role of standardized tests of adaptive behavior
• Can standardized tests of adaptive behavior (e.g., SIB-R, ABAS-II) be given retrospectively? What adaptations are acceptable?
• Is client self-report of adaptive behavior valid (either anecdotally or in response to the ABAS)?
• Is the Street Survival Skills Questionnaire a valid instrument for diagnosing mental retardation?
• Role of anecdotal information from informants
• Bias in information from informants (possible bias in either direction)
• Lack of visible stigmata
• Association with conditions of poverty
• Heritable component Responsibility of psychologist in educating the court about characteristics of mild mental retardation
• Variability in skills
• “Cloak of Competence” - influence of trying to look good
• Mental retardation vs. mental illness
• Mental retardation not defined by etiology but by functioning Assessing malingering
• Appropriate methods and instruments

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