Testimony Before Texas State House of Representatives
Committee on Criminal Jurisprudence
Re: HB 614

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Chairman, I appear before you reflecting my experience and study and how it relates to Bill HB 614, in order that such legislation provide fairness, reflect our true scientific understandings of mental retardation, and solve the potential dilemmas of tomorrow's courts, rather than worsen them.

I was asked to consider two bills being considered by the Legislature, Representative Keel's and Senator Ellis' bills. I appreciate the invitation to address this distinguished body, and that's why I agreed to study and offer suggestions to both bills, and to offer my assessment to you in this proceeding.

Having reviewed these two bills, I offer my support for Representative Keel's bill. It has very important advantages over Senator Ellis' bill, which I will highlight for you.

I will also touch on a number of structural problems that remain. You, as representatives of the people of Texas, will need to address these shortcomings in a bill in the next session, in order that you have a bill that works effectively. For this reason, I am distributing a reference copy of these comments. If the concerns I note are unheeded in the next session, you will be spending your time responding to an aggrieved public after injustices have occurred.

As a point of acquaintance, I am a Board Certified psychiatrist and forensic psychiatrist, an Associate Professor of Psychiatry at New York University School of Medicine, and an Adjunct Professor of Law at Duquesne University in Pittsburgh. Currently based in New York City, my primary activities in a seven-day work week include treating patients (including the developmentally disabled), among them people who have offended and have lived in prisons, correction officers who have worked with perpetrators daily, and victims of violent crime.

Furthermore, I quite regularly examine psychiatric-legal questions at the request of criminal and civil attorneys, covering a broad range of questions before courts in jurisdictions all over America. In addition, I am responsible for supervising, as Chairman of The Forensic Panel, outstanding psychiatrists and psychologists who consult to courts on cases around the country.

In Texas, I consulted to the Polk County prosecutors' office on the case of John Penry, and my work included a pretty exhaustive review of his enormous file of records. My casework has spanned 24 states, and I am familiar with the intersection of local identity and culture with the science I greatly respect. And with that, let me say that while psychiatry in Texas is psychiatry in New York, when it comes to nuances and subtleties that distinguish normal from not, I long ago learned that the prevailing local culture makes a big difference in nuances of interpreting human behavior. Getting to know this area as my own is part of my responsibility as an examiner.

My research interest is in validating the Depravity Scale, a forensic assessment tool I developed for standardizing the definition of "evil, heinous atrocious" crimes to assist in sentencing decisions of criminal cases.

In the course of my forensic career, I have interviewed defendants; reviewed corrections, psychiatric, employment, school, social service, medical records, and other evidence; investigated crime scenes, and consulted family members, witnesses and acquaintances in connection with well over one hundred fifty individuals who have been charged with homicides. As part of that sample, I have, to date, consulted on seventeen capital eligible cases, in a total of ten states. Ten times at the request of prosecutors, seven times at the request of defense attorneys. And let me emphasize that working the cases provides an experience that does not neatly parallel my training, idealism, or clinical experiences treating patients.

The experiences I share reflect the demands and responsibilities of forensic assessment, current understanding of retardation in the forensic setting, the manner in which retardation questions currently are approached in capital cases, and the state of affairs of expert contributions to them, essentially, life in the real world.

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I've had the opportunity to ask attorneys, some of my psychiatrist and psychologist colleagues, from a forensic and criminal responsibility standpoint, what do they think retardation is? And they often answer something like our moral and wise President, "Well, how can you punish someone who doesn't know what he is doing?"

And so, I am reminded of a story from my earlier career of a 23 year-old man, living with his family, who had an IQ somewhere in the 20s. One day, he picked up his five month-old nephew, who was sitting nearby, and threw him out a five-story window. We were in no position to interview him about his motivation, or whether he knew what he was doing in clear consciousness, because he could only converse in grunts. He didn't appear to have any receptive language abilities beyond simple response to redirection. We were, as an evaluation team, comfortable in the conclusion that he did not grasp the significance of gravity causing his nephew to forever disappear, and the significance of his nephew's destruction.

That is an example, certainly, of someone who doesn't know what he is doing. And I was part of a team that routed this person to custodial care, as opposed to a prison setting.

Now consider the case of another person, who carries out several rapes before he is finally caught. After an incarceration, he is released, and lives with his family. He is seeing a counselor, to whom he expresses his desire to have sex with someone, but he recognizes that he is on parole and he is directed not to frequent prostitutes. He performs an errand with a friend in a woman's home, whom he finds attractive. Not long afterward one day, recalling where she lives, he travels across town to return to her home. There, he cases the area to ensure she is alone. Then, he attempts to gain entry to her home after knocking on her back door by offering her a story about something he needs to check. When the woman grows suspicious and tells him to take off, he forces his way into her home.

He attacks her until she stops struggling, and she submits to having sex. Then, concluding that she will tell police about him, he decides, after having raped her, that he will kill her, although she is no longer struggling. He stabs her, leaves the scene, goes to a neighbor, and asks that neighbor to care for a wound he sustained in the struggle; he explains to her that he fell off his bike. When police question him, he eventually admits responsibility and gives a full confession, including an explanation of how he sustained that wound.

His IQ is in the 60's. He has no substantive work history or academic achievement, and others have called him retarded in the past.

Is this man, John Penry, the typical case for forensic retardation? A jury said he wasn't. Three times. This is far more likely to be the type of case courts encounter when prosecution and defense cannot plea out a case, compared to the earlier case I presented of the young man who threw his nephew out the window. And without the facts of the crime available, it is very difficult to appreciate whether he is limited, or limited to the point of retardation, and how it relates to the case.

Sometimes retardation relates to culpability - and sometimes it does not. Long ago, in my forensic experience, I came to appreciate that infirmity sometimes causes the crime, and sometimes coincides with a rational, bad or selfish motive for a crime. You can't tell the difference without examining the matter on a case by case basis. And for this reason, an examiner and decision maker has to consider the facts and circumstances of the crime in arriving at his opinion. In my professional opinion, considering the unique features of each case, and its crime, reflects the standards of the field for forensic evaluation of defendants.

Representative Keel's bill draws my support, in part, because assessment of the facts of the crime is essential to the forensic assessment of retardation. Senator Ellis' does not, and is therefore irrelevant to assisting, meaningfully, in the forensic determination of retardation.

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The Keel Bill defines retardation as "Subaverage general intellectual functioning … measured intelligence on standardized psychometric instruments of two or more standard deviations below the age-group mean for the tests used," along with "significant deficits in adaptive behavior," present from developmental stages.

The Ellis bill defines retardation as IQ below 70, with no more specificity in problems with adaptive function, or in age of onset. There are a number of other guidelines in these bills, with respect to who makes the determination, and what evidence is available to them. I'd like to comment for a moment on testing intellectual function, determination, the loopholes, and how things really happen at street level in actual cases and within this national discussion.

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In adults, IQ is measured most frequently by the Wechsler Adult Intelligence Scale-Revised, or WAIS-R. Who has a low IQ? The retarded, the head injured, the uneducated, and those who perform poorly on the day of taking the test. Again, not only the retarded.

IQ, as measured by the WAIS, is also vulnerable to certain inaccuracies:
1) Examinees with poor verbal skills may perform poorly on timed tasks
2) Institutionalized mentally retarded were never included in the standardization sample of the WAIS-R. Those institutionalized are so housed not because of the numerical score they achieved on a test, but because their behavioral problems in the community warrant close management and supervision. Basically, because they can't control themselves.
3) WAIS-R IQ results have never been standardized among corrections populations, so there is no comparison of one inmate to others. Rather, it is a curve of mathematical results normed on a general population sample.
4) Performance on the WAIS-R is influenced by cultural factors.
5) Performance can be affected by failure to understand instructions of the examination.
6) Performance can be affected by anxiety and fatigue during the examination.
7) Performance can be affected by antagonism to the examiner played out over the administration of the exam.
8) Performance can be affected by faking stupidity.
9) Performance can be affected by examiners who, intentionally or unintentionally, administer or score the examination in a non-standard manner.
10) The moderately and severely retarded may appear to be more intelligent, because of an inadequate statistical floor.

Furthermore, it may be difficult to detect, from the WAIS alone, a defendant who is faking. Research has shown, for example, that the best way to detect faked retardation is through utilizing multiple psychological tests. That, and confirmed history. From a variety for sources. Covering a period of a number of years. Otherwise, the detection of faking in the mentally retarded is sometimes more difficult than the detection of faking in the mentally ill.

That said, the wording of Senator Keel's bill, with respect to "subaverage general intellectual functioning… measured intelligence on standardized psychometric instruments of two or more standard deviations below the age-group mean for the tests used," is correct, academically honest, and another reason why, as a psychiatrist and forensic psychiatrist, I support its passage.

Sen. Ellis' bill uses a number of 70 on IQ testing, which does not reflect other testing measures which may be preferred for those who cannot and should not take the WAIS. If you administer the WAIS to someone for whom the WAIS has not been standardized, such as an uneducated or unacculturated person, you will get a defendant who scores below 70 but is definitely not retarded. The very language in detailing intelligence testing threshold is an important distinction in validating the integrity of the Keel measure, vs. the inadequacy of the Ellis bill.

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Individuals who exhibit signs of retardation in adulthood, but not in earlier development, are not retarded. Retardation, by established criteria, is a developmental disability that is, as such, first diagnosed during development through careful evaluation and standardized, appropriately administered testing. The APA requires that these problems manifest before age 18.

Legislation that does not include the stipulation that mental retardation have been diagnosed by appropriate assessment prior to age 18 allows for faking defendants to claim retardation because of "manifestations", whatever that actually means, of mental disability. There is no support in the scientific community for expanding the concept of retardation thusly.

Therefore, in my professional opinion, the wording of the Keel bill to distinguish early onset of symptoms of significant adaptive and intellectual difficulties is consistent with scientific standards.

The Ellis bill, on the other hand, makes no such distinctions. It allows for anyone who scores below an IQ of 70, at any age. All of science is in agreement that significant intellectual difficulties that do not manifest during early development, or at least before age 18, is not retardation.

Here, the Ellis bill transparently exposes itself as a measure that will include the head injured and the mentally ill. Therefore, it is a bill written to expand beyond retardation to include many others who have never been given the exemption by the US Supreme Court for having to answer for their crimes.

Yet another reason why the Keel bill reflects the scientific consensus, and the Ellis bill reflects a political agenda to exclude as many from capital eligibility as possible.

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Now, in the standards of the American Psychiatric Association, retardation is diagnosed in those with significantly subaverage performance on intelligence testing, and in those with significant problems in adaptive functioning, with problems manifesting before age 18.

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