For decades in the United States of America, concerns about the death penalty were comparatively hinged on philosophical and occasionally religious discourse over the morality of state-sanctioned execution of another human being. As demonstrated in the literature, public opinion ebbed and flowed for the capital punishment, residing as civil rights abuses became an issue of fundamental national concern in the 1960s and escalating along with a rapid ascend in violent transgressions in the 1980s (Marquis, 2005). But owing to mounting evidence of mentally retarded people on death row (Roberts, 2003), the focus of death penalty in America is increasingly shifting from the morality of executions to concerns about the fundamental fairness of the whole process leading up to a jury entering a verdict of death against the accused (Marquis, 2005). In this regard, the present paper attempts to discuss causes of wrongful conviction of capital offenders and the psychological assessment criteria that could be used by forensic psychologists to determine if such offenders are mentally retarded.
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Justifying the Problem
The 2002 Atkins v. Virginia case cited in the literature (e.g., Greenspan, 2009; Macvaugh & Cunningham, 2009) provides the framework by which to ground the issue of wrongful conviction of mentally retarded people and the cardinal roles that forensic psychologists can play in ensuring this group is not unjustly exposed to the verdict of death. In this particular case, the United States Supreme Court ruled that the execution of people with mental retardation is unconstitutional because it goes against the letter and spirit of the Eight Amendment, which explicitly prohibits cruel and unusual punishments (Greenspan, 2009). Although the Atkins ruling was to a large extent framed in the language of clinical and psychological diagnosis (Macvaugh & Cunningham, 2009), a major challenge with this case is that the category of individuals to be accorded the new protection was not exclusively defined, and it was up to each state legislature or court jurisdiction to specify the diagnostic criteria for use in convicting capital offenders within this group of the population (Greenspan, 2009).
To date, most states employ the diagnostic criteria that follow the definition of mental retardation contained in the Diagnostic and Statistical Manual (DSM-IV; revised text edition 2000) published by the American Psychiatric Association, while others emphasize the use of the ostensible “red book” published by the American Association on Mental Retardation (now the American Association of Intellectual and Developmental Disabilities; AAIDD) (Greenspan, 2009). As acknowledged by this particular author, the versions offer somehow different definitions and categorizations of mental retardation, only agreeing on three cardinal criteria namely: intellectual functioning, adaptive functioning, and the developmental onset.
This orientation presents challenges for forensic psychologists in assessing cases that pass the threshold of mental retardation, thus the need to clearly define and discuss the psychological assessment criteria to ensure people with mental retardation are not unjustly exposed to death penalty. However, it is generally felt that knowledge about the causes of wrongful conviction is critical in ensuring the full disclosure and discussion of the assessment criteria. Consequently, the present paper proceeds by first discussing the causes of wrongful conviction, before evaluating some important assessment criteria that could be used by forensic psychologists in ensuring a fair trial for people with mental retardation.
Causes of Wrongful Conviction of Capital Offenders
Extant literature demonstrates that the U.S. experience with the challenge of wrongful conviction extends throughout the nation’s history, as is the case for other countries globally, and predates the formation of the United States as an independent and sovereign country with a presumably functional criminal justice system (Huff, 2004). Although no systematic data on wrongful conviction are kept in the United States, seminal studies done over time have found serious, reversible flaws and miscarriages of justice in almost 70% of cases involving capital offenders (Roberts, 2003), and unlawful executions of dozens of people wrongly accused of capital offenses (Huff, 2004).
Research in the U.S. has time and again found that the primary factors contributing to wrongful conviction, particularly for capital offenders, include “…eyewitness error; over-zealous law enforcement officers and prosecutors who engage in misconduct, including withholding evidence; false or coerced confessions and suggestive interrogations; perjury; misleading lineups [and] inappropriate use of informants” (Huff, 2004 p. 110). Other factors include ineffective and often inappropriate assistance of counsel, forensic blunders, incompetent personnel, fraud, targeted interpretations of law to fit the interests of particular clients, and setting up of innocent people in a relentless attempt to win indictments (Felero & Wrightsman, 2009; Roberts, 2003).
The factors mentioned above affect the general population, hence the need to move further and evaluate particular factors that come into play to occasion wrongful conviction of capital offenders with mental retardation. The mainstream media is flooded with stories of men and women who have served years in death row, a few coming close to the reality of their arranged execution only to be let free due to their mental and psychological conditions (Marquis, 2005). While it is indeed true that a few individuals are let out of the hook as seen in the Atkins v. Virginia case, many more continue to languish in prisons for extremely long durations of time due to lack of standardized diagnostic criteria that could be used to evaluate if they are of sound mind (Greenspan, 2009).
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In deciding the Atkins v. Virginia case, Judge Stevens noted that not all individuals claiming to have a mental condition will as a matter of principle be so impaired as to fall within the category of mentally retarded offenders about whom a national consensus has been achieved in a number of states (30 states as at 2002) not to expose them to the death penalty (Duvall & Morris, 2006). It is important to note that the ruling neither provides an explicit definition of mental retardation, nor avails any terms or procedures that could be applied by different state legislatures or judges in determining which defendants fall into the category of “so impaired.”
Consequently, genuine mentally retarded people have continued to fall prey to wrongful convictions for capital offenses, in large part due to lack of psychological assessment procedures that could be applied not only to determine whether a defendant has mental retardation, but also to validate the death penalty against such individuals. These issues, according to Duvall & Morris (2006), continue to limit the psychology and psychological practices for those psychologists providing services in this area, not mentioning that the practitioners face additional ethical dilemmas and challenges if legal definitions of mental retardation and the authorized legal processes are inconsistent with the ethics code of the APA.
Psychological Assessment Criteria for Use by Forensic Psychologists
The societal implications for wrongful convictions of mentally retarded people cannot be underestimated, especially in the event that the penalty is death. Consequently, it is important to clearly define mental retardation and also to know which psychological processes can be used by forensic psychologists in determining whether the defendant in a capital offense is indeed mentally retarded (Duvall & Morris, 2006; Goldstein, 2005). To achieve these objectives, this section looks into the clinical definitions of mental retardation in addition to assessing the various psychological procedures that should and must be applied by forensic psychologists in determining whether offenders are mentally retarded.
Definitions of Mental Retardation
The 2002 Atkins v. Virginia case mentions two diverse clinical definitions of mental retardation, namely: (1) the 1992 definition published by the American Association on Mental Retardation (AAMR; now AAIDD) and (2) the 2000 definition as exclusively published by APA in the diagnostic and Statistical Manual of Mental Disorders (4th ed., text rev,; 2000). As acknowledged by Duvall & Morris (2006), the 1992 AAMR mental retardation definition requires significant limitations in the present functioning of an individual typified by considerably “…sub-average intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work” (p. 659). Additionally, the AAMR definition is clear that the symptoms leading up to mental retardation must manifest before the individual attains the age of 18. The APA formulation in DSM-IV employs the same features but categorizes them into Criterion A (substantial sub-average general intellectual functioning), Criterion B (substantial constraints in adaptive functioning, and Criterion C (onset of mental retardation must manifest before the age of 18).
It is of fundamental importance to note that the above features serve as benchmarks used by different states to determine mental retardation, implying that there exist some variations across states. For instance, some states are categorical that these features must manifest before the individual attains the age of 18 years, while others generalize that features may present at any stage in the course of development. Moreover, the IQ score needed to determine if capital offenders are indeed mentally retarded has not been standardized across all states (Duvall & Morris, 2006), not mentioning that some states are keen to address particular maladaptive skills areas than others (Goldstein, 2005).
These discrepancies, along with the subjective perception that psychological assessments must be conducted under culturally fair conditions, brings into the fore a fertile breeding ground for justice to be miscarried as witnessed in numerous cases of mentally retarded people who have actually being condemned to the death row as a direct result of wrongful conviction (Ellis, n.d.). Consequently, it is clear that psychological assessment criteria used by forensic psychologists in determining cases of mental retardation need to be standardized and strengthened to achieve fair trial of capital offenders perceived to be suffering from mental retardation.
Standardizing & Strengthening the Assessment Criteria: The Way Forward
The 2002 Atkins v. Virginia case recognizes that mental retardation is not only a clinical notion, but the contours of the category of individuals who exhibit mental retardation must consequently bear some correlation to a clinically acknowledged definition of mental retardation (Duvall & Morris, 2006). Yet, as opined by these authors, the Supreme Court of the United States declined to provide an explicit definition or to stipulate how the definition should be employed to identify the “protected category” of individuals that should not be condemned to the death row. In this light, it is only important for scholars and practitioners to develop mechanisms and procedures that could be used to strengthen and standardize the psychological assessment criteria that can then be used by forensic psychologists in determining mental retardation.
The first step in the development of these mechanisms and processes would be to put in place strategies that allow the prosecution to thoroughly investigate the defendant’s personal history and social interactions to ensure that all issues relating to the defendant’s intellectual, cognitive and adaptive functioning prior to committing the capital offense are laid bare (Goldstein, 2005). Thorough and sustained investigations on the defendant’s history and social interactions will ensure the achievement of the tenets outlining mental retardation as set out in the AAMR and APA definitions (Acker, 2009). In this light, the primal function of forensic psychologists should revolve around collecting and collating information about the capital offender’s background, history, circumstances leading to the offense, presence or absence of various psychological disorders such as battered spouse syndrome and post-traumatic stress disorder (PTSD), as well as presence or absence of mental conditions and mental retardation (Goldstein, 2005).
This information is of critical importance in determining whether the defendant passes the psychological threshold of mental retardation as spelt out in the AAMR and APA definitions. It is important to note that many mentally retarded people have been wrongly convicted and subjected to the death row due to the prosecution’s inability to employ the capacity provided by forensic psychologists in evaluating the defendant’s past history, adaptive and intellectual functioning, as well as social interactions (Felero & Wrightsman, 2009).
The second and undoubtedly the most important area would involve addressing standards for identifying and evaluating mental retardation that may substantially influence the decision to enter a guilty verdict for persons who have committed capital offenses and are therefore exposed to death penalty. It is clear from the Atkins v. Virginia case that the death penalty is not an appropriate punishment for a mentally retarded criminal as it contravenes key tenets of the Eighth Amendment (Ellis, n.d.), but it remains unclear what provisions may be used by the jury to decide beyond any reasonable doubt that the accused is in the category of the “so impaired” group of the population (Duvall & Morris, 2006).
To answer the above concern, it would be plausible to discuss briefly the three elements common to all the clinical definitions of mental retardation, namely intellectual functioning, adaptive functioning, and developmental onset.
Inhibited intellectual functioning is the fundamental element of any person’s diagnosis, hence obliges that the individual must demonstrate impairment in general intellectual functioning that locates him or her in the lowest class of the general population (Duvall & Morris, 2006). As evaluated by standardized IQ tests, this requires a person’s measured intelligence to be two standard deviations lower than the statistical mean of any given population, implying that the individual in question scores in approximately the bottom two percent of the population (Ellis, n.d). Nonetheless, IQ scores alone fail to explicitly identify the upper boundary of mental retardation, hence the need for forensic psychologists and other interested parties to standardize the measure that mental retardation encompasses everyone with an IQ score of 70 or below (Duvall & Morris, 2006; Macvaugh & Cunningham, 2009). It is of critical importance that these intellectual assessments be undertaken by experienced diagnosticians to avoid wrongful convictions of capital offenders and also to ensure that those who are criminally and morally culpable are not easily left off the hook.
In using the adaptive behavior component, forensic psychologists must always ensure that the intellectual impairments demonstrated by capital offenders have indeed generated real-world and observable disabling effects on their lives, and that they are truly disabled (Ellis, n.d.). Forensic psychologists must not only demonstrate that capital offenders exhibit concurrent deficits in adaptive behavior, but must also pinpoint and provide a list of such social skills areas, with the overarching requirement that these offenders face constraints in at least two of the listed areas (Duvall & Morris, 2006). To address the principal concerns of the criminal justice system in dealing with capital offenses that expose defendants to eligibility for the death penalty, it is important to standardize the element that these offenders must exhibit a disability typified by substantial constraints in intellectual development and functioning, and also in adaptive behavior as articulated in theoretical, social, and adaptive skills (Ellis, n.d.).
The last element revolves around the age of onset of the mental retardation. Both the AAMR and DSM-IV definitions of mental retardation are clear that the disability should manifest during the developmental phase, with most states in the United States identifying the developmental phase as encompassing 0-18 years (Duvall & Morris, 2006; Ellis, n.d.). Although this element is helpful in separating mental retardation cases from other mental impairments that may occur later in life resulting from triggers such as traumatic head injury, dementia and other similar conditions, it fails to take into consideration other later-occurring disabilities that develops during adulthood and that have significant impact on an individual’s capacity to demonstrate effective adaptive behavior in key areas of their social life.
Many states do actually consider these later-occurring disabilities in deciding the offender’s culpability for any capital offence that make them eligible for the death penalty. However, as mentioned by Allen & Shavell (2005), more needs to be done to outline and include the specific disorders that may occur in adulthood and force an individual to engage in criminal acts, including murder. Indeed, there exists scientific evidence to demonstrate that a considerable number of disabilities having the capacity to adversely affect an individual’s social, psychological and mental functioning occur in adulthood (Felero & Wrightsman, 2009; Macvaugh & Cunningham, 2009). Consequently, it should be desirable for forensic psychologists and other investigators to evaluate an individual’s lifespan and history instead of putting much weight on the developmental phases up to the age of 18.
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The present paper has comprehensively addressed the twin issues of causes of wrongful convictions of capital offenders and the psychological assessment criteria that can be used to determine if these offenders are indeed mentally retarded. Indeed, the author has stressed the importance of thoroughly investigating the defendant’s personal history and social interactions, but also the overarching significance of addressing the standards for identifying and evaluating mental retardation, with the view to avoiding wrong convictions of capital offenders with mental conditions. Many individuals support the death penalty from a sense of justice; however, it is clear from the discussion that the same sense of justice would cause them to oppose wrongful conviction leading up to death penalty if the capital offender in question is mentally retarded.
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