In 2002, in Atkins v. Virginia, the U.S. Supreme Court held that executing an intellectually disabled (formerly called mentally retarded) individual violates the Eighth Amendment ban on cruel and unusual punishments. Since then, a number of experts have come forward with the following claim: IQ tests, used as a component of assessing intellectual disability for Atkins purposes, are biased against minorities, whose scores should accordingly be upwardly adjusted for a more accurate picture of their intelligence. Some state prosecutors and courts, moreover, have been friendly audiences to this line of argument. In this column, I will consider the argument along with how it ought to fare in the U.S. Supreme Court.
The Atkins Case
The Supreme Court in Atkins determined that executing an intellectually disabled person is unconstitutional, in part because of the disproportionality between the ultimate punishment and the necessarily diminished culpability of an intellectually disabled defendant. In the years following Atkins, the Court had occasion, in Hall v. Florida, to flesh out the meaning of intellectual disability and to clarify that it includes more than a simple IQ score. Nonetheless, IQ scores remain an important component of intellectual disability assessment, both clinically and for Atkins purposes.
An excellent article by Robert Sanger calls attention to a particular sort of challenge to IQ scores that has developed in the Atkins context. This challenge or critique provides that African Americans, Latinos, and Latinas are disserved by IQ tests, as life experiences of deprivation, for instance, produce artificially low scores on such tests, relative to the test-takers’ true ability. In some contexts, this critique could help minorities applying for jobs and educational opportunities. Here, however, the proposal is to give minority defendants a “bump up” on their IQ scores so that they qualify to be executed.
My first reaction, upon considering this phenomenon, was to imagine a story in The Onion (a satirical online magazine) titled “Ku Klux Klan Acknowledges Racial Bias in IQ Tests; Seeks to Remedy By Executing More Minorities.” In the “What Do You Think?” section of The Onion, one African American’s reaction could be, “Finally, the Klan recognizes that standardized IQ tests are unfair to us. And if I’m not good enough for Harvard, at least I might be good enough for death row; it’s a first step.” Jonathan Swift might have had fun with this very different kind of “modest proposal.”
These arguments, however, are not jokes and must therefore be taken seriously, notwithstanding their vulnerability to satire. According to Sanger, the highest courts of several states, including Alabama, have allowed the proposed racial IQ adjustments. So what is wrong with this practice?
The first thing wrong with racially adjusting minority IQ scores upward for execution purposes is that it constitutes blatant and invidious race discrimination against minority individuals. It basically says that a person with an IQ test score of X will live if he is white but (potentially) die if he is black. And this result is not simply a matter of observed disparate impact but of intentional practice in the courtroom.
Sanger does an admirable job of arguing that racially adjusting IQ scores is a scientifically unsupported and invalid project. The correct comparison for an individual IQ, he contends, is the larger community’s IQs.
But even if there is some validity to discounting or elevating IQ test scores based on race, one needs to ask when such a move is constitutionally—not just scientifically—valid. And Sanger addresses this issue thoroughly as well, explaining that race-based adjustments are subject to—and handily fail—strict scrutiny, under the Equal Protection Clause of the Fourteenth Amendment.
For our limited purposes here, retaining a healthy skepticism toward the Supreme Court’s stingy attitude toward race-based assistance to minorities, consider that upwardly adjusting minority test scores sounds like a form of state-sponsored affirmative action, something to which the Supreme Court has arguably been too hostile. Generally, affirmative action at its best is aimed at either rectifying specific racial injustices or at fostering a needed diversity in such venues as educational environments.
Neither of these justifications has any purchase in the death penalty context. We do nothing to rectify past racial injustices by rendering more minority defendants eligible for execution. Indeed, we arguably do just the opposite, given the existing overrepresentation of minorities within the criminal justice system and the complex history of discrimination within the death penalty itself.
On the diversity front, there is no need for racial diversity on death row that we would foster by permitting the execution of minority defendants who would otherwise qualify as intellectually disabled. It is indeed bizarre to suggest that we might “enrich” the environment of death row by adding racial diversity, and I cannot imagine anyone even articulating this argument with a straight face.
The Supreme Court has made clear, in Atkins and Hall, that executing the intellectually disabled is constitutionally unacceptable and that care must be taken to avoid the risk of such executions, such as by attending to the imprecision of IQ tests and the standard error of measurement (SEM). If it were not truly happening, we could find funny the notion of admitting minority candidates to execution “under the wire” despite their disqualifying IQ scores. But because it is actually going on, the Supreme Court must step in and for once display a completely well-founded opposition to a benighted form of affirmative action, one that would give minority candidates with prima facie intellectual disability a “leg up” to a lethal injection.
Maybe it’s time we looked at affirmative action, this is a logically consistent application of it, and a fine example of the law of unintended consequences.
Well reasoned. It presents the fallacy of reasoning from the general to the particular; for a given individual the IQ score may be accurate and any adjustment- up or down would be improper. This does not undo the general bias of the testing to the aggregate. This requires more complex reasoning than the proponents bring to this analysis. It seems to me to pose the question of whether the proponents are internally honest or is this a thinly veiled discrimination in action.
Well done. This stretches SCOTUS cynicism to the breaking point of disingenuousness.
Good handling of the topic except for the overused and bias inducing comment about “existing overrepresentation of minorities in the criminal justice system”. It is high time that those who do not have first hand experience as a victim of crime, nor seems to live or ever have lived, nor read the daily papers for any of the metropolitan crime infested areas of America, do their homework. They are minority ONLY if one views the demographic data at a National level which is a statistically erroneous approach (bad data). We do not “average” the weather in America as that would be useless and dangerous, in fact. Stop doing it with race. For example, nationally, Blacks make up 13% of the population but in urban areas make up the MAJORITY. Often 80% of the overall population or higher. So no, when they finally get busted, and are busted for the 19th time (priors), in an area that is 80% Black (for example) it IS justice. Yet the uninformed and the biased media of all stripe want to lament on the average (13%) and throw out applying it to the specific demographic area for which they are the majority. Truth will keep us free (and safe). Not all people behave the same either. High time we stopped applying white-middle-class suburban ideology to the feral urban violent thugs.
One of most fascinating things to watch unfold in society is to watch is this paradox we have created for ourselves where while the base assumptions of the racists are factually correct, they are not politically correct or fathomable at all. Occam’s razor. Blacks have been measured as less intelligent in every neighborhood, every city, every state, and every nation on the planet going back as long as they’ve had tests for such things as compared to whites. It’s not a huge difference and of course individual differences are greater yet still the aggregate difference remains. This difference leads to different levels of eduction, poverty, crime, etc. etc. This will never change except by mixing of genes or artificial manipulation by technology. This is also to be expected in the concept of evolution. Why would people different groups be exactly equal in abilities? We’re not equal in hair or skin or height or anything else so why would out intelligence be exactly equal? Now where tragedy turns to comedy, instead of accepting the unacceptable we try to pretend reality isn’t reality and instead blame racism. And we can’t find enough real racism so we have to invent microagressions and institutional racism and privilege to fill the gaps and build single words up imagining an epithet alone can crush the intellect of an entire race… Its laughable. Racist mind bullets from southern trailer parks must be the answer to why blacks in all black neighborhoods with all black teachers can’t graduate in liberal Utopias up north. The interesting part will be to see how long this charade can go on… I imagine technology and gene therapy will start to equal us out before we can accept the unacceptable. Until then, enjoy the witch hunt!
A chance to combine the principle of individualized sentencing required in death penalty cases with the principle of individualized allotment of benefits/burdens required under current affirmative action law.
“I’m opposed to race-based preferences unless they help me keep you in bondage.”