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

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I wish to communicate to the legislature, in strongest terms, that any effort to safeguard the intellectually vulnerable has to account for the completeness and legitimacy of the evidence. No two defendants are exactly the same, no two crimes, no two victims, and I'm not smart enough to divine the head and the heart of man without diligent review of history. Justice demands it.

History comes in a variety of forms, from school records to schoolmates, female neighbors, girlfriends, former victims, former friends, friends, family, in-laws who haven't the vested interest, priests, teachers, bosses, employment records, writings, medical and psychiatric records, diagnostic studies, and much much more.

I prefer to videotape my interviews to allow open access to both sides of the adversarial proceeding, not only to what I learn but also the ethics with which I conducted my questioning.

If the legislature does not, as soon as possible in future sessions, mandate qualitative guidelines for assessment of retardation, the flaws already afflicting the resolution of questions of retardation will only continue. The juncture presents the appropriate occasion to ensure that juries are given assessments of a level of integrity appropriate to the occasion of a capital proceeding. I will be happy to offer my assistance to you, free of charge, in enhancing the standards of such assessment.

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There's a lot, as scientists, that we don't know about retardation. There is no consensus within the professional community about resolving the reality that some who meet clinical criteria for mental retardation are nevertheless cunning and predatory. The concept of mental retardation never was developed with consideration of moral responsibility. Not surprisingly, all definitions used in clinical and community services include no attention to moral judgments and abilities.

What is the moral capability for decision making in the adult person with mild mental retardation? Never been studied for distinction.

The retarded have historically been a scientifically neglected population. Behavioral scientists aren't trained in special issues of the intellectually impaired, they have to take on special study. Only in recent decades have we evolved from mere clinical warehousing to developing more constructive protocols for treating the retarded.

Let's keep in mind what has always been the focus of refining diagnosis of retardation - namely, to define populations that need special community services. The cutoff point, therefore, was arbitrary to allow for budgets to have some threshold to plan for. But that's all.

That goal does not necessarily transfer to the incarcerated population, particularly one that demonstrates a capable adaptation to life behind bars, without additional assistance needed, but with poor intelligence testing abilities.

But there has never been a movement for forensic-oriented research of the retarded. Populations of retarded offenders are seldom studied, and most clinical research on the retarded is on clinical child and adolescent populations. Keep in mind that these individuals may mature as adults to no longer be retarded.

As an example of the huge knowledge void, only within the last decade, we have gained increasing appreciation for the "dually diagnosed" retarded. Dual diagnosis refers to those with intellectual deficiencies who may have other diagnoses - like antisocial personality disorder.

What is antisocial personality? Antisocial personality is the life pattern of incorrigible criminality, disregard for rules, exploitation of others, impulsivity, aggression, lack of remorse, and irresponsibility. Some retarded people exhibit antisocial behaviors which are not indicative of antisocial personality disorder. Some, however, meet criteria for both antisocial personality disorder and mental retardation. Those individuals are adaptively and intellectually impaired - but also have the antisocial streak of cunning parasitic badness.

A study of 42,479 persons with diagnosed mental retardation, for example, found that personality disorders were likely underdiagnosed, and that methods to diagnose them were not well developed.

Far more needs to be understood about forensic populations of the intellectually disabled. When are we seeing antisocial personality, and when are we seeing retardation? What aggressive and violent behaviors are related to intellectual disability, and which of these behaviors relate to other diagnoses? When are we seeing both? When is a sex offender predatory? When is that offending behavior part of the intellectual deficiency or retardation? When is it both? The first systematic studies of sex offending, on the intellectually disabled, were published only last year, and covered small sample sizes.

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Institutional psychiatry, psychology, and the organizations for the retarded fundamentally oppose criminal punishment for all classified as impaired. The use of criteria adapted specifically to increase the umbrella for capital-ineligible defendants is intellectual dishonesty, and part and parcel of what gets offered up to legislatures, without debate, in other states. Professionals are pressured to keep silent by the tacit organizational approval for the end that justifies the means.

Indeed, death penalty opponents already raise the issue that on the basis of equality, people with impaired intellect and amorphous deficits in skills who do not meet criteria for retardation should be exempt from capital punishment on the basis of "equality."

The implications? That the capital ineligible be expanded, by the law you pass, to include the head injured and the mentally ill. A concept worth considering - until you recognize that to do so will further flood the court with inveterate charlatans waving PET Scans just like Vincent Gigante's erudite defense team did, talking about a person falling off a swing at twelve and ergo becoming a brain injured killer, all the while the defendant completes a on-line degree in pre-law, in time away from court, from The University of Texas.

Or the concept of "mental illness:" With so many illnesses to choose from, the prevalence of psychiatric diagnosis of some kind in the capital defendant population is quite high. Again further leveraging distorted facts to eliminate the death penalty. And really, that's what this argument is all about. The aforementioned organizations oppose capital punishment as well, oppose it for anybody.

I personally agree that on a case by case basis, certain situations beg for compassion. I also feel, however, that a categorical approach to anything runs counter to everything I learned as a practicing physician and psychiatrist.

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I have an obligation to comment for a moment on the moral high ground here. As far as I am concerned, there is no moral high ground on this issue, with respect to the intellectually deficient or with respect to the death penalty. I've interviewed enough victims who feel betrayed that the killer of a loved one can live another day, and those who feel satisfaction that the state has given the death penalty to the persons responsible for destroying their lives. In Illinois, for example, there are many victims who feel great betrayal at the wholesale pardoning last year, by a Governor they elected, of people who brought them terror. I never read about them in The New York Times, the same publication that writes sensitive humanizing magazine pieces about suicide bombers.

On the other hand, I've interviewed or treated plenty of killers who wish they could get another chance at life. And who have learned from their mistakes. I am a physician, and my inclination is to heal, not to give up on someone.

On the other hand, I've interviewed or treated plenty of correction officers who live in fear of inmates who have been sentenced to life and know they can not be punished anymore - so the prisoners run the prisons. And I've worked on cases involving inmates victimized by other predatory inmates who themselves have already earned mandatory life sentences and feel they can no longer be punished, so anything goes.

No person saved from death row ever moves into Barry Scheck's guestroom. But they go back to their communities of prisons, next to people who are doing their time, or watching them do their time, and have a right to live without fear of attack and predation.

On the other hand, I've interviewed plenty of families of killers who want to be able to visit their loved one, and to keep him in their lives.

On the other hand, there's Tim McVeigh, Eileen Wournos, Gary Gilmore, and many others who say they would rather die and move onto the next stage, rather than rot in prison. There are many considerations about what is humane, what serves public health, and what serves the prevention of mental illness.

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Be aware a natural conflict of interest for organizations such as the American Association of Mental Retardation (AAMR) in resolving the reality of criminal personality types who display cunning, yet who perform poorly on the WAIS, or exhibit trouble in their adaptive functions.

Specifically, the legacy of the mentally retarded is one of scorn, stigma, and harsh value judgments. In recent decades, sensitivity to the retarded has repudiated the common practice of over-attributing retardates' misbehavior as antisocial personality. Years ago, diagnoses of antisocial personality all too often reflected the disdain of the examiner for the inscrutable retarded examinee, rather than the prevailing personality style of the individual.

Treatment of antisocial personality is rarely successful. Therefore, such a diagnosis stigmatizes a person as that much less treatable or manageable, and more undesirable. Given the health care community's natural inclination to avoid being the vehicle for casting off hope, the practice of diagnosing antisocial personality in the retarded has been overtly and covertly discouraged. It is, however, fitting when the facts and history warrant.

This trend against diagnosing antisocial personality in the retarded is further fueled by the great sensitivity of the organizations against criminalization of the mentally retarded. Attentive to the phenomenon of the intellectually disabled who end up in jail instead of institutions for their lawbreaking, these organizations strongly support a criminal justice system in which crimes of all ranges of severity are handled by behavioral treatment strategies rather than punishment of cold confinement. Capital punishment is the polar end of that spectrum, and draws the most emotional responses from the organizations.

Perhaps this explains why, were an intellectually disabled person to target and murder a person simply because of the vulnerability of the victim's retardation, organizations such as the AAMR, AAPL, and APA, would devote their resources to the defense of the rights of the killer, and virtually ignore the victim. Such disparity of attention is reflected in the published position statements of the organizations; their political priorities are unambiguous, and not concealed.

The mingling of politics with scientific definitions may trouble you well, but recognizing it is essential to appreciating the bias and disqualification of professional associations in the resolution of legislation that responds to the public interest.

The "adaptive" behavior arm of retardation definition no longer enjoys consensus agreement among the organizations serving these populations. Why?

The AAMR has used three different definitions of retardation in the past twelve years, most recently in 2002, when the AAMR's primary political agenda related to the capital punishment issue. The specific criteria from its earlier definition of deficits in adaptive function were eroded from the eleven ("specifically, self-care, communication, home living, making use of resources, work, social skills, academic achievement, attending to health and safety, self-direction, and leisure.") criteria to problems in "conceptual, social and practical adaptive skills."

Really, now, what is a deficit in a "conceptual skill"? What is a significantly subaverage "practical skill"? The possibilities are endless. Which is the idea, you see. This amorphous categorization, going from the more defined to less defined, simply creates a wider net with which to capture potential clients as "mentally retarded."

There are no practice parameters to ensure that any consensus could be arrived, between raters, of what a problem in a "practical skill?" Frankly, we all have a deficit in a practical skill.

Such curiously-timed revised criteria, coming five days before the Atkins ruling, may suit the stated aims of those who seek to create as large a class of death-penalty ineligible as possible, but four facts are clear:

1) The frequency with which the definition of retardation is changed by the AAMR reflects that the very organization that supposedly "advocates" for the needs of the retarded has not established criteria for a condition that can withstand time.
2) These criteria are not modified by advances in research.
3) The trend of modifying these criteria, by the AAMR, reflects a trend toward less specificity rather than greater specificity, allowing for greater likelihood of erroneously overinclusive classification.
4) There is no longer a consensus within the professional community as to the criteria of mental retardation, as the APA, a research based diagnostic classification system, does not subscribe to these AAMR definitions.

By the way, not one of those APA or AAMR criteria, written as they are for clinical use and disposition of community resources, addresses the question of whether this individual can even generally tell right from wrong.

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