Individuals with Disabilities and the Death Penalty
In the Supreme Court of Ohio
State of Ohio, Appellee v. Gregory Lott, Appellant
Case No. 89-846
Capital Case
Brief of The Arc of Ohio, Advocacy and Protective Services, Cerebral Palsy
Association of Ohio, Ohio Association of County Boards of Mental Retardation and
Developmental Disabilities, the Developmental Disabilities Planning Council, and Ohio
Legal Rights Service as Amici Curiae Supporting Neither Party
Jon W. Oebker
Assistant Prosecuting Attorney
Courts Tower - The Justice Center
1200 Ontario Street
Cleveland Ohio 44113
Attorney for Appellee
Betty D. Montgomery
Attorney General of Ohio
James V. Canepa
Chief, Capital Crimes Section
30 East Broad Street
Columbus, Ohio 43215
Attorneys for State of Ohio
Michael Kirkman (0009854)
Jane P. Perry (0029698)
Ohio Legal Rights Service
8 East Long Street, Suite 500
Columbus, Ohio 43215-2999
(614)466-7264
Attorneys for Amici Curiae
David H. Bodiker
Ohio Public Defender
Gregory W. Meyers
Chief Counsel, Death Penalty Unit
J. Joseph Bodine, Jr.
Assistant State Public Defender
8 East Long Street
Columbus, Ohio 43215
Attorneys for Appellant
Table of Contents
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Cases
- Atkins v. Virginia, 122 S. Ct. 2242 (2002)
- Board of Education of Austintown Local School District v. Mahoning County Board of Mental
Retardation and Developmental Disabilities, 66 Ohio St. 3d 355, 613 N.E. 2d 167 (1993)
- Cordrey v. Eukert, 499 U.S. 938 (1991), denying cert. Cordrey v. Eukert, 917 F.2d. 1460 (6th
Cir. 1990)
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)
- Ford v. Wainwright, 477 U.S. 399(1986)
- Heller v. Doe by Doe, 509 U.S. 312 (1993)
- Martin v. Voinovich, 840 F. Supp. 1175 (S.D. Ohio 1993)
- Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 687 N.E.2d 735 (1998)
- Murphy v. Oklahoma, 2002 Okla. Crim. App. LEXIS 37 (Sept. 4, 2002)
- State v. Nementh, 82 Ohio St. 3d 202, 694 N.E. 2d 1332 (1998)
Statutes
- 42 U.S.C. § 15021
- Ohio Revised Code § 5123.55
- 42 U.S.C. § 15002(8)
- 42 U.S.C. § 15041
- Ariz. Rev. Stat. Ann. § 13-703.02(J)(2)
- Ark. Stat. Ann. § 5-4-618 (a)(1)
- Colo. Rev. Stat. § 16-9-401 (2)
- Conn. Gen. Stat. § 1-1g (a)
- Fla. Stat. § 921.137 (1)
- Ga. Code § 17-7-131 (a)(3)
- Ind. Code. Ann. § 35-36-9-2 (Burns)
- Kan. Stat. Ann. § 76-12b01 (d)
- Ky. Rev. Stat. § 532.140 (1); Ky. Rev. Stat. § 532.130 (2)
- Md. Ann. Code art. 27 § 412(f)
- Mo. Rev. Stat. § 565.030.6
- N.C. Gen. Stat. § 15A-2005 (a) (1)a
- N.M. Stat. Ann. § 31-20A-2.1.A
- N.Y. Crim. Proc. Law § 400.27 (12)(c)(Consol.)
- N.Y. Mental Hyg. Law § 1.03 (21) (Consol.)
- Neb. Rev. Stat. § 28-105.01 (3)
- Ohio Revised Code § 5123.01(O)
- Ohio Revised Code § 5123.35
- Ohio Revised Code § 5123.60
- Ohio Revised Code § 5126.01
- Ohio Revised Code § 5126.01(M)
- S.D. Codified Laws Ann. §§ 23A-27A-26.1, 26.2
- Tenn. Code Ann. § 39-13-203 (a)
- Wash. Rev. Code § 10.95.030 (2) (a), (e)
Rules
- 42 C.F.R. § 435.1009
- Ohio Rule of Evidence 702
- Supreme Court Rule XIV
Other Publications
- American Heritage Dictionary (2d College Ed. 1985)
- Diagnostic and Statistical Manual (American Psychiatric Association, 4th ed. text revision 2000)
- International Classification of Diseases (ICD-10) (World Health Organization, 1993)
- International classification of Functioning, Disability, and Health (ICF) (WHO 2001)
- Mental Retardation: Definition, Classification, and Systems of Supports (AAMR 9th Ed. 1992)
- Mental Retardation: Definition, Classification, and Systems of Supports (AAMR 10th Ed. 2002)
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The Arc of Ohio (Arc Ohio) — Arc Ohio is a non-profit, 501(c)(3), corporation chartered in
the State of Ohio. The Arc is a statewide membership organization, whose members include people
with mental retardation or other developmental disabilities and their families. It is an advocacy
agency that works on behalf of the interests of people with mental retardation. Arc Ohio undertakes
systems advocacy and personal and citizen advocacy on behalf of Ohioans with mental retardation.
Arc Ohio sponsors "Choices," an Ohio initiative to place people with mental retardation in control
of their own lives. Arc Ohio remains closely and directly involved with issues that affect people
with mental retardation.
Advocacy and Protective Services, Inc. (APSI) — APSI is a non-profit corporation chartered
in the State of Ohio. It is a statewide agency that provides guardianship and protective services to
people with mental retardation and developmental disabilities under state law, Ohio Revised Code §
5123.55 et seq. As guardians, protectors, and trustees, APSI staff interacts on a daily basis with
thousands of people with mental retardation and developmental disabilities, the people who provide
them services, and Ohio's probate courts. APSI's board of directors is composed of people
knowledgeable in the area of mental retardation, including physicians, psychologists, lawyers, and
other professionals. As a result of these factors, APSI is fully aware of contemporary standards and
practice regarding evaluation of and services to people with mental retardation.
Cerebral Palsy Association of Ohio (CPO) — CPO is a 501(c)(3) non-profit corporation
chartered in the state of Ohio. CPO is a statewide organization dedicated to advancing the
independence of people with disabilities. CPO was founded in 1951 to promote the general welfare
of people affected by cerebral palsy and continues to achieve its mission today through informational
services that assist people with disabilities and their families in obtaining needed services,
educational events that empower and enhance the inclusion of people with disabilities in community
life, grant projects that demonstrate new and innovative ways of supporting people with disabilities
in the community, and advocacy with policymakers to ensure that a comprehensive, adequately
funded system of community-based supports exists for people with disabilities in Ohio.
Ohio Association of County Boards of Mental Retardation and Developmental Disabilities
(OACBMR/DD) — OACBMR/DD is a not for profit corporation chartered in the State of Ohio.
OACBMR/DD is a membership organization comprised of all 88 county boards of mental
retardation and developmental disabilities. See Ohio Revised Code §§ 5126.01, et seq. It provides
information, continuing education, and legislative liaison to Ohio's county boards, and ensures the
availability of programs, services, and supports that assist eligible individuals with mental
retardation in choosing and achieving a life of increasing capability such that they can live and work
in their communities. Its members are the primary providers of services, including education,
vocational, case management, and residential, to people with mental retardation and developmental
disabilities in Ohio.
Ohio Developmental Disabilities Council — The DD Council is chartered under both federal
and state law to conduct statewide planning and systems change activities for people with mental
retardation and other developmental disabilities. See O.R.C. § 5123.35; 42 U.S.C. § 15021. Its 28
members are appointed by the Governor based on their experience or expertise. By law its members
include representatives of the state departments of mental retardation and developmental disabilities,
mental health, jobs and family services, and the legal rights service. DD Council has primary
authority to develop Ohio's state plan for people with developmental disabilities, which includes the
areas of education and early intervention; child care; health; employment; housing; transportation;
and recreation.
Ohio Legal Rights Service — OLRS is an independent state agency designated by the
Governor as the federally mandated protection and advocacy system for people with mental
retardation and developmental disabilities. See O.R.C. § 5123.60; 42 U.S.C. § 15041 et seq. In
this respect, OLRS has litigated many questions regarding the rights of people with mental
retardation, including questions brought before this court, see Board of Education of Austintown
Local School District v. Mahoning County Board of Mental Retardation and Developmental
Disabilities, 66 Ohio St. 3d 355, 613 N.E. 2d 167 (1993)(IDEA requires county school to serve
children residing at developmental center), and the federal courts. See Heller v. Doe by Doe, 509
U.S. 312 (1993)(counsel for organizations of people with disabilities as amicus curiae)(civil
commitment rights of people with mental retardation); Martin v. Voinovich, 840 F. Supp. 1175
(S.D. Ohio 1993)(Title II ADA community integration / Olmstead and waiver waiting list case);
Cordrey v. Eukert, 499 U.S. 938 (1991), denying cert. Cordrey v. Eukert, 917 F.2d. 1460 (6th
Cir. 1990)(special education services for children who need an extended school year). Because of
this litigation, OLRS is familiar with contemporary standards for testing and services for people with
mental retardation.
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This case is before the Court on the defendant's "Motion to Vacate Death Sentence Pursuant
to Atkins v. Virginia," filed June 26, 2002. On September 6, 2002, this Court stayed the execution
of defendant and issued an order in this matter requiring oral argument on the following questions:
(a) The appropriate procedures to enforce the constitutional restrictions established
under Atkins [v. Virginia, 122 S. Ct. 2242 (2002)], including the procedure to be followed
when a defendant such as appellant has completed postconviction proceedings; and
(b) The appropriate substantive standard to be applied in adjudicating claims that a
defendant in a capital case is mentally retarded.
On September 24, 2002, amici curiae filed a motion with the Court requesting leave to file
a friend of the court brief on the second question in the Court's Order. The Court granted amici
curiae's motion in an Order issued on October 4, 2002, and this brief is timely filed pursuant to that
order and Supreme Court Rule XIV, §3(A).
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Proposition of Law No. 1:
Whether or not an Ohio capital defendant has mental retardation shall be evaluated and determined
consistent with current professional standards, as reflected in the publications of the American
Association of Mental Retardation, as adequately reflected in Ohio Revised Code § 5123.01(O).
In Atkins v. Virginia, 122 S. Ct. 2242 (2002), the United States Supreme Court found that
the execution of defendants with mental retardation violated the Eighth Amendment to the
Constitution of the United States. In its opinion, however, the Atkins Court expressed the view that
"[n]ot all people who claim to be mentally retarded will be so impaired as to fall within the range of
mentally retarded offenders about whom there is a national consensus." Id. at 2250. It left to each
state the task of "developing appropriate ways to enforce the constitutional restriction upon its
execution of sentences," Id., quoting Ford v. Wainwright, 477 U.S. 399, 405 (1986).
Amici urge on this Court that in fact there is a national, indeed international(1), consensus
among professionals, alluded to by the Atkins Court, regarding the standard to be used in
determining who is (or is not) mentally retarded. As with all standards that are based in scientific
theory and research, the standard may evolve over time as research provides new information and
empirical data. Nonetheless, for the purposes of this discussion, a basic tri-partite test for
retardation has held and continues to hold the center of any professional colloquy. That test,
combining as variables intelligence; functional or adaptive limitations; and the age of onset, is at the
core of any professionally accepted standard for determining who is mentally retarded.
This brief will present to the Court a survey of the contemporary professional specifications
for determining when a person is (or is not) mentally retarded. It will survey and analyze the legal
standards adopted by other states (both legislative and judicial) for determining mental retardation in
a capital context. Finally, the brief will suggest that qualification of witnesses to offer expert
opinion testimony in this area will require that the witness' methodology must be consistent with
these professional standards in order to be sufficiently reliable to allow the judge or trier of fact to
determine if the defendant in a capital case meets the standard.(2)
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There is a universal standard for determining mental retardation. It has three elements:
- Significant limitations in intellectual functioning
- that exist concurrently with significant limitations in adaptive behavior, and
- manifests or originates before adulthood.
Both the American Association on Mental Retardation (AAMR) and the American Psychiatric
Association (which bases its use on the AAMR standard) use these three components to determine
mental retardation.
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Founded in 1876, the AAMR is the country's oldest and largest interdisciplinary
organization of mental retardation professionals. It has had the responsibility for defining mental
retardation since 1921. AAMR is the leader in understanding, defining and classifying the condition
of mental retardation. The AAMR publishes two peer reviewed journals: "The American Journal on
Mental Retardation," a scientific, scholarly, and archival mulitdisciplinary journal for reporting
original contributions of the highest quality to knowledge of mental retardation, its causes,
treatment, and prevention; and "Mental Retardation," which is a journal of policy, practices and
perspectives in the field of mental retardation.(3)
The AAMR publishes its standard for mental retardation in its manual: "Mental Retardation:
Definition, Classification, and Systems of Supports." The ninth edition of the manual, current at
the time of the decision in Atkins, defined mental retardation as
- characterized by significantly subaverage 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; and
- manifesting before age 18.
Id, at 5 (9th ed. 1992).(4)
The manual emphasizes that each factor is to be given equal weight. In particular, no
specific intelligence level establishes mental retardation; rather, it is the combination of all three
factors that must be evaluated.
In June of this year, the AAMR published a new 10th edition of its Manual. AAMR, Mental
Retardation: Definition, Classification, and Systems of Supports (10th ed. 2002) (hereafter, "AAMR
10"). The Manual reflects a decade of study and review of the 1992 Manual. See AAMR 10,
Preface, xi - xiii.
As did the 1992 standard, the AAMR 10 relies on the three part definition. It defines mental
retardation as
- a disability characterized by significant limitations both in intellectual functioning; and
- in adaptive behavior as expressed in conceptual, social and practical adaptive skills; and
- originates before 18.
AAMR 10, p. 8 (emphasis supplied).
As the 2002 manual makes clear: "This definition, like the AAMR definition of mental
retardation of the recent past, includes the three broad elements of significant limitations in
intellectual functioning, concurrent with and related to significant limitations in adaptive behavior,
and manifested during the developmental period." AAMR 10, p. 8. Indeed, these three factors have
explicitly been stated in the AAMR's standard since 1941, and have been implicit in it since before
that time. See id., pp. 20-21, table 2.1.
Small changes in the AAMR 10 standard are designed to remedy practices that are not
supported by existing research. Thus, as emphasized above, the word "both" is added to insure that
practitioners not rely on IQ scores alone as a determinant. "[I]n practice IQ has typically dominated
and thus has been overemphasized both in terms of professional decision making and diagnosis...
This imbalance between intelligence and adaptive behavior does not represent the current
conceptualization of mental retardation." AAMR 10, at 80.
Along the same lines, the manual also recognizes that IQ scores can be imprecise:
[A]n IQ standard score is best seen as bounded by a range that would be approximately three
to four points above and below the obtained score. This range can be considered as a "zone
of uncertainty." Therefore, an IQ of 70 is most accurately understood not as a precise score,
but as a range of confidence with parameters of at least one SEM (standard error of
measurement)... . or parameters of two SEMs. This is a critical consideration that must be
part of any decision concerning a diagnosis of mental retardation.
AAMR 10, at 57.
Adaptive behavior skill is broken into three broad areas:
- conceptual skills, that is, skills involving language, reading and writing, money concepts
and self-direction;
- Social skills, that is, interpersonal skills, self-esteem, gullibility, ability to follow rules
and obey laws; and
- Practical skills, that is, skills involving daily living activities, job skills and ability to
maintain a safe environment.
AAMR 10, at 82.
Assessing adaptive behavior is not guess-work. It must be measured with testing
instruments: "For diagnosis, significant limitations in adaptive behavior should be established
through the use of standardized measures normed on the general population, including people with
disabilities and people without disabilities." AAMR 10, at 91. A number of well-validated
professional instruments have been developed to measure adaptive behavior skill areas. AAMR 10,
at 87 - 89. A significant limit in adaptive behavior is shown when a person scores "at least two
standard deviations below the mean on one or more scores representing conceptual, social or
practical skills on a standardized measure of adaptive behavior or on the total score, taking the
standard error of measurement into account." AAMR 10, at 79.
As will be discussed further infra, there is a tendency in state statutes and post Atkins
decisional law to focus on a capital defendant's IQ scores to the exclusion of other factors. The
AAMR manuals, both 9 and 10, would caution strongly against this, recognizing that IQ is simply
one of three factors to be given equal weight in evaluation.
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Related to and in general accord with the AAMR definition, but not as centrally utilized by
mental retardation professionals, is the Diagnostic and Statistical Manual, published by the
American Psychiatric Association (hereinafter "DSM"). The DSM is the standard classification of
mental disorders used by psychiatrists and others qualified by experience and licensure to diagnose
psychiatric and psychological disorders. It systematically sets out the diagnostic criteria for each
disorder. The last major DSM revision, the DSM-IV, was published in 1994 (4th ed. 1994). The
next major revision, the DSM-V, is not expected until 2010. In the interim, the American
Psychiatric Association has published a text revision of the DSM-IV in July, 2002 called the DSM-IV-TR (4th ed. text revision 2000). The DSM-IV-TR contains minor revisions to the "descriptive
text" accompanying each disorder.
The DSM-IV-TR definition of mental retardation mirrors that of the 1992 AAMR Manual:
The essential feature of Mental Retardation is significantly subaverage general intellectual
functioning (Criterion A) that is accompanied by significant limitations in 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 (Criterion B). The onset must occur before
age 18 years (Criterion C).
DSM-IV-TR at 41 (emphasis supplied).
The DSM uses a "multiaxial system" of classification. Mental retardation is characterized
by the DSM as an "Axis II" disorder. DSM-IV-TR at 42. This means that it is not a clinical
disorder (Axis I) or a general medical condition (Axis III). DSM-IV-TR at 25. This is consistent
with the view that mental retardation is not clinical pathology but represents limitations for which
supports must be provided. AAMR 10, p. 8-9.
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Ohio has already adopted the three elements contained in the AAMR and DSM standards to
define mental retardation, albeit not in the context of a capital case. Rather, two similar definitions
exist. The first is in the context of defining the class of persons eligible to be served by Ohio's
Department of Mental Retardation and Developmental Disabilities and county boards of mental
retardation and developmental disabilities. According to Ohio Rev. Code Ann. § 5123.01(O), a
mentally retarded person is "a person having significantly subaverage general intellectual
functioning existing concurrently with deficiencies in adaptive behavior, manifested during the
developmental period." This Ohio statute is nearly identical to the 1992 ninth edition of the AAMR
Manual and the DSM-IV, and remains compatible with the AAMR standard adopted this year.
Ohio Revised Code § 5126.01(M) defines mental retardation for the purposes of the county
boards of mental retardation and developmental disabilities. It states: "'Mental retardation' means a
mental impairment manifested during the developmental period characterized by significantly
subaverage general intellectual functioning existing concurrently with deficiencies in the
effectiveness or degree with which an individual meets the standards of personal independence and
social responsibility expected of the individual's age and cultural group."(5) It is similar to §
5123.01(O), but as a later statute reflects the professional recognition of age and cultural context to
the evaluation and determination of mental retardation. By recognizing cultural context as
significant to the evaluation process § 5126.01(M) anticipates the AAMR 10 standard.
As noted above, amici contend that it is important that the Court not deviate from existing
standards in its ruling in this matter. Amici are concerned that there should not be a multiplicity of
standards against which people with mental retardation are held. As Ohio has adopted statutory
language that reflects professional standards, Amici suggest that the Court may properly decide this
case by adopting the substantive standard found in section 5123.01(O).
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Eighteen states proactively banned execution of people with mental retardation before the
Supreme Court announced the Constitutional proscription in Atkins. Every one of the states that
enacted a pre-Atkins ban incorporated the three elements of (1) significant limits in intelligence (2)
significant limits in adaptive behavior (3) manifested before adulthood, usually (but not always)
defined as age 18. Virtually all of the pre-Atkins legislative bans were enacted prior to the
publication of the AAMR 10 and thus reflect the language defining mental retardation from the
previous 1983 or 1992 AAMR Manual. Few use a mandatory IQ cut off which, as described more
fully below, is inconsistent with current and historical professional standards for mental retardation.
Arizona's pre-Atkins statute defined mental retardation as "a condition based on a mental
deficit that involves significantly subaverage general intellectual functioning, existing concurrently
with significant impairment in adaptive behavior, where the onset of the foregoing conditions
occurred before the defendant reached the age of eighteen." Ariz. Rev. Stat. Ann. § 13-703.02(J)
(2). Arkansas' law defined mental retardation as "significantly subaverage general intellectual
functioning accompanied by significant deficits or impairments in adaptive functioning manifest in
the developmental period, but no later than age eighteen ... and deficits in adaptive behavior." Ark.
Stat. Ann. § 5-4-618 (a) (1). Likewise, Colorado's statute defined mental retardation as
"[s]ignificantly subaverage general intellectual functioning accompanied by significant deficits or
impairments in adaptive functioning manifest in the developmental period, but no later than age
eighteen ... and [d]eficits in adaptive behavior." Colo. Rev. Stat. § 16-9-401 (2).
Connecticut's legislation to ban execution of mentally retarded defendants defined mental
retardation as "significantly subaverage intellectual functioning existing concurrently with deficits in
adaptive behavior and manifested during the developmental period." Conn. Gen. Stat. § 1-1g (a).
Florida defined mental retardation as "significantly subaverage general intellectual functioning
existing concurrently with deficits in adaptive behavior and manifested during the period from
conception to age 18." Fla. Stat. § 921.137 (1). Georgia's statute provided that mentally retarded
means "having significantly subaverage general intellectual functioning resulting in or associated
with impairments in adaptive behavior which manifested during the developmental period." Ga.
Code § 17-7-131 (a) (3).
Indiana's criminal code defined a person with mental retardation as "an individual who,
before becoming twenty-two (22) years of age, manifests: [s]ignificantly subaverage intellectual
functioning; and [s]ubstantial impairment of adaptive behavior... ." Ind. Code. Ann. § 35-36-9-2
(Burns).(6) The Kansas ban on execution for a person with mental retardation defined mentally
retarded as "significantly subaverage general intellectual functioning existing concurrently with
deficits in adaptive behavior and manifested during the period from birth to age 18." Kan. Stat.
Ann. § 76-12b01 (d). Kentucky banned execution of a "seriously mentally retarded offender" and
defined a seriously mentally retarded defendant as "a defendant with significant subaverage
intellectual functioning existing concurrently with substantial deficits in adaptive behavior and
manifested during the developmental period... ." Ky. Rev. Stat. § 532.140 (1); Ky. Rev. Stat. §
532.130 (2).
Maryland defined mental retardation as "significantly subaverage intellectual functioning as
evidenced by an intelligence quotient of 70 or below on an individually administered intelligence
quotient test and impairment in adaptive behavior, and the mental retardation is manifested before
the individual attains the age of 22." Md. Ann. Code art. 27 § 412(f) (3). Missouri's ban defined
mental retardation as "a condition involving substantial limitations in general functioning
characterized by significantly subaverage intellectual functioning with continual extensive related
deficits and limitations in two or more adaptive behaviors... which conditions are manifested and
documented before eighteen years of age." Mo. Rev. Stat. § 565.030.6.
Nebraska's ban on execution of people with mental retardation similarly defined mental
retardation as "significantly subaverage general intellectual functioning existing concurrently with
deficits in adaptive behavior." Neb. Rev. Stat. § 28-105.01 (3). New Mexico's law used the same
standard, defining mental retardation as "significantly subaverage general intellectual functioning
existing concurrently with deficits in adaptive behavior." N.M. Stat. Ann. § 31-20A-2.1.A. New
York prohibited the execution of a person with mental retardation, N.Y. Crim. Proc. Law § 400.27
(12)(c)(Consol.), defined as "subaverage intellectual functioning which originates in the
developmental period and is associated with impairment in adaptive behavior." N.Y. Mental Hyg.
Law § 1.03 (21) (Consol.) North Carolina's recent legislation barring execution of people with
mental retardation defined mental retardation as "significantly subaverage general intellectual
functioning, existing concurrently with significant limitations in adaptive behavior, both of which
were manifested before the age of 18." N.C. Gen. Stat. § 15A-2005 (a) (1)a.
South Dakota, Tennessee and Washington also acted prior to Atkins in banning execution of
a mentally retarded defendant. These states, as with all the others previously discussed, incorporated
the same three basic elements defining mental retardation. South Dakota defined mental retardation
as "significant subaverage general intellectual functioning existing concurrently with substantial
related deficits in applicable adaptive skill areas." This must be "manifested and documented before
the age of eighteen years." S.D. Codified Laws Ann. §§ 23A-27A-26.1, 26.2. Tennessee's statute
provided that mental retardation means "[s]ignificantly subaverage general intellectual functioning
as evidenced by a functional intelligence quotient (I.Q.) of seventy (70) or below; deficits in
adaptive behavior; and the mental retardation must have been manifested during the developmental
period or by eighteen (18) years of age." Tenn. Code Ann. § 39-13-203 (a). Washington's code
defined mentally retarded with the same three-part standard: "(i) Significantly subaverage general
intellectual functioning, (ii) existing concurrently with deficits in adaptive behavior; and (iii) both
significantly subaverage general intellectual functioning and deficits in adaptive behavior were
manifested in the developmental period," that is, "the period of time between conception and the
eighteenth birthday." Wash. Rev. Code § 10.95.030 (2) (a), (e).
These statutory definitions, all from states like Ohio that have active capital punishment
statutes, demonstrate two points. The first is the almost complete consistency of language utilized
by state legislatures, and the fact that this language is consistent (and in some cases quoted from) the
AAMR 9 test for mental retardation. This reinforces the notion that a consensus definition exists.
Secondly, a very few states attempted to narrow the definition by including specific IQ
scores. Some, like Arizona, simply create procedural presumptions based on the score, thus
allowing for individual assessments to predominate. See A.R.S. § 13.703.02(B). Others, like
Maryland and Tennessee, attempt to limit the definition based on a specific number. As will be
discussed more thoroughly below, this ignores the potential for significant error in these tests, and
the consensus requirement that IQ only be considered in conjunction with adaptives and age of
onset, rather than as the sole determinant.
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At the September 25, 2002 oral argument in this matter members of the Court discussed a
very recent decision, Murphy v. Oklahoma, 2002 Okla. Crim. App. LEXIS 37 (Sept. 4,
2002)(appendix), in which the Oklahoma Court of Criminal Appeals announced a post-Atkins
standard for mental retardation to be used in that state's capital cases. The Oklahoma court's
mental retardation standard incorporated the three basic elements of significant limits in intellectual
functioning, significant limits in adaptive functioning, manifested before age 18 that have been
urged on this Court by amici. The Oklahoma court went beyond the accepted professional
standards, however, to announce as follows: "[N]o person shall be eligible to be considered
mentally retarded unless he or she has an intelligence quotient of seventy or below, as reflected by at
least one scientifically recognized, scientifically approved, and contemporary intelligent (sic)
quotient test." Murphy v. Oklahoma, 2002 Okla. Crim. LEXIS at ** 28 - 29.
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Both a minority of state statutes and the Murphy decision take the approach of setting an IQ
threshold in defining mental retardation. Amici are concerned that the Court may be persuaded by
the seeming ease or clarity of this approach. This approach is inconsistent with the AAMR Manual
and the DSM-IV, and therefore ignores appropriate professional standards in defining mental
retardation. Additionally, it ignores current Ohio definitions. Thus, use by this Court of a specific
cut off would mean a different and more restrictive definition of mental retardation for capital cases
than in every other aspect of state law.
As noted above, a particular IQ score alone does not establish or disprove mental
retardation. Standards dating back to the early 20th century acknowledge that IQ tests have a margin
of error or, as the AAMR 10 characterizes it, "standard error of measurement." "[A]n IQ standard
score is best seen as bounded by a range that would be approximately three to four points above and
below the obtained score. This range can be considered as a 'zone of uncertainty.' ... This is a
critical consideration that must be part of any decision concerning a diagnosis of mental
retardation." AAMR 10, at 57 (emphasis added). In practical terms, "this expands the operational
definition of mental retardation to 75, and that score of 75 may still contain measurement error.
Any trained examiner is aware that all tests contain measurement error; many present scores as
confidence bands rather than finite scores." AAMR 10, at 59. As the AAMR puts it, "[i]n the 2002
AAMR system, the 'intellectual functioning' criterion for diagnosis of mental retardation is
approximately two standard deviations below the mean, considering the SEM for the specific
assessment instruments used and the instruments' strengths and limitations." AAMR 10, at 58
(emphasis added).
The DSM-IV similarly recognizes that there is a measurement error of approximately five
points in assessing IQ, which can vary from instrument to instrument, and uses the example that a
score of 70 on the Wechsler IQ test is considered to represent a range of 65 - 75. DSM-IV-TR, at
41-42.
The Oklahoma court's conclusive presumption of an IQ score of 70 for determining mental
retardation is a departure from the AAMR and DSM-IV standard. The AAMR 10 and the DSM-IV
make clear that the professionals in the field do not intend use of a fixed cutoff point for making the
diagnosis of mental retardation because this "cannot be justified psychometrically." AAMR 10 at
58 (emphasis added).(7)
It would be unwise for this Court to insist on a cutoff IQ score in the standard it issues for
Ohio. Instead, the Court should follow the AAMR and DSM-IV provisions, which recognize the
standard error of measurement in psychometric testing, and the need for individualized assessment in
order to appropriately assess the intellectual functioning component of a diagnosis of mental
retardation.
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As with any diagnosis, the evaluation of mental retardation involves some level of clinical
judgment. According to the AAMR, clinical judgment is based on a clinician's "training, direct
experience with people who have mental retardation, and familiarity with the person and the
person's environments... ." Those "clinicians who have not gathered extensive relevant assessment
data should not claim clinical judgment." AAMR 10, at 95. A diagnosis of mental retardation must
be based on "competent and thorough analysis that is rooted in data and observations and avoids
pitfalls, such as shortcuts and stereotypes." AAMR 10, at 96.
A witness must be qualified to provide expert opinion testimony under the Ohio Rule of
Evidence 702. In particular, the
witness' testimony is based on reliable scientific, technical, or other specialized information.
To the extent that the testimony reports the result of a procedure, test, or experiment, the
testimony is reliable only if all of the following apply:
(1) The theory upon which the procedure, test, or experiment is based is objectively
verifiable or is validly derived from widely accepted knowledge, facts, or principles;
(2) The design of the procedure, test, or experiment reliably implements the theory;
(3) The particular procedure, test, or experiment was conducted in a way that will yield an
accurate result.
Ohio Rule of Evidence 702(C).
Particularly in regard to paragraph (C), trial judges have substantial latitude ( and
conversely, a duty) to regulate the admission of opinion testimony. See Miller v. Bike Athletic Co.,
80 OhioSt.3d 607, 687 N.E.2d 735 (1998); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993). This Court has recognized four factors in determining the reliability of such
testimony: (1) whether the theory or technique has been tested, (2) whether it has been subjected to
peer review, (3) whether there is a known or potential rate of error, and (4) whether the methodology
has gained general acceptance. Miller, supra; State v. Nementh, 82 Ohio St. 3d 202, 694 N.E. 2d
1332 (1998).
The standard discussed throughout this brief meets these four criteria. As noted previously,
it is based on empirical data and experience of over half a century, and has gained universal
acceptance.
Amici note that there is little room in assessing mental retardation for a "battle of the
experts." Unlike some other areas of clinical judgment, which rely heavily on the evaluator's
subjective observations, a proper evaluation of mental retardation is based on objective
psychometric and other testing. Disagreements may arise regarding test interpretation, but these
occur at the margins, not in the core of the evaluation process. This Court can ensure that expert
differences will be limited to those good faith interpretive disputes by adopting a standard of mental
retardation that will facilitate testimony by qualified experts with training and experience in
applying appropriate professional standards to the evaluation of people with mental retardation. As
noted above, a full review of available records and collateral information should occur; appropriate
psychometric testing should be done by the evaluator; and professional instruments for assessing
adaptive behavior should be employed. Only then will the expert be qualified to provide testimony
under Rule 702.
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Amici curiae greatly appreciate the opportunity to appear before the Court as it makes this
important decision. This case presents this Court with a daunting challenge: the determination and
application of an appropriate clinical standard for mental retardation in the highly polarized context
of death penalty litigation. The Court's burden is eased, however, by the clear consensus that exists
regarding that standard. The three-part mental retardation definition articulated in both the AAMR
and the DSM-IV — (1) significant limits in intellectual functioning (2) existing concurrently with
significant limits in adaptive behavior and (3) manifested prior to adulthood — is an objective
professional standard whose reliability and validity have been determined and measured through
years of extensive analysis.
These three elements make up the standard Ohio already uses to determine those persons
who can be served by the Ohio Department of Mental Retardation. Additionally, of the states that
enacted a pre-Atkins ban on executing people with mental retardation, and the one post Atkins
judicial determination, all incorporate the three elements into the definition of mental retardation.
The Court should adopt this standard for adjudicating claims that a defendant in a capital case is
mentally retarded.
In doing so, the Court should reject an arbitrary cutoff IQ score. Such a definition does not
account for the standard error of measurement and thus is not justified psychometrically. It
disregards that fact that an assessment of a defendant's adaptive behavior skills is of equal
importance to the mental retardation determination as is IQ, as is emphasized in AAMR 9 and 10, as
well as the existing Ohio statutes.
Ohio's standard should ensure that professionally valid and appropriate instruments are used
to measure adaptive behavior skills. Thus, consistent with the professional literature and present
practice, the Court should also require that the diagnosis of mental retardation in a capital case be
made by a clinician with training and experience in the field of mental retardation, and that the
diagnosis be based on a competent and thorough analysis of the relevant assessment data.
Respectfully submitted,
Michael Kirkman (0009854)
Jane P. Perry (0029698)
Ohio Legal Rights Service
8 East Long Street, Suite 500
Columbus, Ohio 43215-2999
(614)466-7264
fax (614)6441888
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This certifies that a copy of this brief of Amici Curiae was sent by ordinary U.S. mail to
counsel of record for all parties, to wit:
J. Joseph Bodine, Jr.
Office of the Ohio Public Defender
8 East Long Street
Columbus, Ohio 43215
James V. Canepa
Chief, Capital Crimes Section
30 East Broad Street
Columbus, Ohio 43215
Jon W. Oebker
Assistant Prosecuting Attorney
Courts Tower - The Justice Center
1200 Ontario Street
Cleveland Ohio 44113
[signed by Michael Kirkman]
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1. See International Classification of Diseases (ICD-10) (World Health Organization,
1993); International classification of Functioning, Disability, and Health (ICF) (WHO
2001). Amici suggests that these international standards, while consistent with standards in
the United States, are not routinely part of the professional dialogue. Accordingly, this brief
will not address them at length. A comparison of these standards to the AAMR standard is
found at pp. 101-112 of the Mental Retardation: Definition, Classification, and Systems of
Supports (AAMR 10th Ed. 2002). [Return to text]
2. Amici take no position on the first question posed by the Court, to wit the procedural
mechanism to be used in post trial proceedings or in a new trial level case where this issue is
raised. [Return to text]
3. Additional information on AAMR may be found at http://www.aamr.org. [Return to text]
4. The Atkins Court references AAMR 9 definition of mental retardation as the prevailing
standard. Atkins, 122 U.S. at 2245, n. 3; Atkins, 122 U.S. at 2250. [Return to text]
5. For the purposes of Chapter 5126, the developmental period is defined consistently with the
definition of a developmental disability, or prior to age 22. This is also the age used by
federal law to define the developmental period. See 42 U.S.C. § 15002(8). While a person
with mental retardation will almost always meet the criteria for having a developmental
disability, mental retardation continues to have its own, more specific, clinical definitions, as
reflected by the AAMR manual and the DSM. The major differences, as evident from the
statute, are 1) that developmental disabilities are evaluated without regard to an individual's
IQ, and 2) the developmental period extends through age 21, rather than to age 18.
Additional program specific definitions of this nature can be found in federal Medicaid law.
E.g. 42 C.F.R. § 435.1009 ("related condition" for the purpose of Intermediate Care
Facilities for the Mentally Retarded). [Return to text]
6. Indiana and Maryland define the "developmental period" as up to and including age 22. Burns
Ind. Code. Ann. § 35-36-9-2; Md. Ann. Code art. 27, § 412(f) (3). The other states banning
execution mentally retarded defendants use age 18 as the developmental period. [Return to text]
7. "Psychometrics" is "the measurement of psychological variables, such as intelligence,
aptitude, and emotional disturbance. . . .The mathematical and especially statistical design of
psychological tests and measures." American Heritage Dictionary (2d College Ed. 1985) [Return to text]
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- Order Granting Leave to File Brief of Amici Curiae
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- Murphy v. Oklahoma, 2002 Okla. Crim. App. LEXIS 37 (Sept. 4, 2002)
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- 42 U.S.C. § 15021
- 42 U.S.C. § 15002(8)
- 42 U.S.C. § 15041 A-32
- Ariz. Rev. Stat. Ann. § 13-703.02
- rk. Stat. Ann. § 5-4-618
- Colo. Rev. Stat. § 16-9-401
- Conn. Gen. Stat. § 1-1g
- Fla. Stat. § 921.137
- Ga. Code § 17-7-131
- Ind. Code. Ann. § 35-36-9-2 (Burns)
- Kan. Stat. Ann. § 76-12b01
- Ky. Rev. Stat. § 532.140
- Ky. Rev. Stat. § 532.130
- Md. Ann. Code art. 27 § 412
- Mo. Rev. Stat. § 565.030
- Neb. Rev. Stat. § 28-105.01
- N.M. Stat. Ann. § 31-20A-2.1
- N.Y. Crim. Proc. Law § 400.27(Consol.)
- N.Y. Mental Hyg. Law § 1.03 (Consol.)
- N.C. Gen. Stat. § 15A-2005
- Ohio Revised Code § 5123.01(O)
- Ohio Revised Code § 5123.35
- Ohio Revised Code § 5123.55
- Ohio Revised Code § 5123.60
- Ohio Revised Code § 5126.01
- S.D. Codified Laws Ann. §§ 23A-27A-26.1
- S.D. Codified Laws Ann. §§ 23A-27A-26.2
- Tenn. Code Ann. § 39-13-203
- Wash. Rev. Code § 10.95.030
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- 42 C.F.R. § 435.1009
- Ohio Rule of Evidence 702
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