Passing Judgment

Psychologists’ testimony has long played a role in death-penalty sentencing. But since 2002, when the Supreme Court ruled in Atkins v. Virginia that executing defendants with “mental retardation” — now called “intellectual disability” after the 2010 passage of Rosa’s Law — is unconstitutional, this role has increased significantly.

Granted, barring defendants with intellectual disabilities from receiving the death penalty lessens the number of executions. But because psychologists now routinely provide judgments on defendants’ intellectual ability, they have been drawn deeper into the practice of state-sanctioned execution than ever before.

This effectively means that psychologists — despite being members of a healing profession — play an active role in determining who lives and who dies.

A psychologist’s testimony that a defendant does not have an intellectual disability can lead to that person’s death. Even with the best intentions, psychologists are once again systematically violating their ethical code to “do no harm.”

The Fine Line

The way intellectual ability is determined in the United States highlights how psychology and criminal justice intersect on a landscape shaped by persistent inequality. The term “intellectual disability” itself is a catch-all that, like many other recognized psychiatric disorders, lumps together individuals who have varying abilities in terms of judgment, reasoning, and maturity.

On top of this, the Atkins v. Virginia ruling left it to individual states to define intellectual disability. In effect, there is no standard criteria in either the mental health or the legal field that determines intellectual disability. Different states have different rules for who is deemed disabled — and thereby spared from death.

Many states rely on the defendant’s IQ score and designate a single-score cut-off (e.g., a defendant’s IQ score has to be 70 or less) to determine whether the defendant has an intellectual disability.

The “tyranny of the single score,” as psychologists have called it, is highly problematic because it averages a person’s performance across multiple verbal and nonverbal sections of the test, vastly oversimplifying the overall picture of the defendant’s abilities. Indeed, psychologists rarely use the single score to determine ability outside of the legal system.

Moreover, IQ scores are plotted on a continuous scale, which makes any cut-off score arbitrary. An IQ score of 70 or less only indicates that one tested lower than 97.5 percent of the population.

In other words, there is no “natural” delineation between “disability” and “ability.”  The difference between an IQ of 70 and 71 doesn’t reflect a meaningful difference in cognitive ability, yet a one-point difference can mean life or death for a prisoner.

IQ tests also bring their notorious history of racial bias into the courtroom. Psychologists have long been aware that black, Latino, and Native American test-takers score on average lower than white test-takers, attributing the gap to broader disparities in household income and educational resources and the tests’ preference for certain forms of (Western, white, middle-class) knowledge.

These flaws haven’t stopped IQ scores from being used to prop up scientific racism (a recent example is Nicholas Wade’s A Troublesome Inheritance). And rather than address the fundamental limitations of the test, psychologists instead make post-test changes to correct for these biases, essentially raising black and Latino test-takers’ scores by using discrete scoring systems for each group.

Psychologists defend this quick fix, arguing that adjusting IQ scores shields the test-taker from the consequences of the current tests’ inherent limitations. But these corrections — called “ethnic adjustments” in the legal field — can turn deadly when brought into the courtroom because they make it easier for courts to give disadvantaged minorities the death penalty.

For example, after being convicted of murder in Texas, Ramiro Hernandez underwent testing to determine whether he would be eligible for the death penalty. His raw IQ score was 62, well in the range of intellectual disability, but after an “ethnic adjustment” — Hernandez was born and raised in Mexico — his score jumped to 70. The court opted to use his ethnic adjustment score, and he was executed soon afterwards.

Hernandez’s case is not isolated. Revising IQ scores based on the defendant’s race or ethnicity is becoming a widespread practice in courts nationwide, making it substantially more difficult to exempt minority defendants from the death penalty.

Many psychologists raise these concerns during their testimony, but not all. In fact there have been cases of psychological assessments’ misuse. In 2011, Texas reprimanded psychologist George Denkowski for using improper methods to assess the intellectual ability of at least twenty-five death row prisoners.

Prior to the reprimand Denkowski’s expert testimony put at least fourteen defendants on death row, two of whom were later executed. Disturbingly, while Denkowski has been barred from assessing criminal defendants, he has escaped censure and retains his license to practice as a psychologist.

The “Greater Good”

Psychologists’ increased role in the judicial sphere makes IQ testing’s limitations more than a mere academic issue as their decisions increasingly have life-or-death consequences. Although psychologists are ethically bound to use the most reliable and valid measures available, there is no such thing as a perfect assessment. Mistakes are unavoidable and are often compounded by the deep inequalities that characterize US society.

As Lily Hughes writes, “the death penalty is but the sharpest edge of a justice system that oppresses the poor and people of color.” Black defendants are three times more likely to receive the death penalty than white defendants, and around 90 percent of all defendants sentenced to death are too poor to afford their own attorney.

Psychologists who participate in death-penalty sentencing are, at the very least, participating in a racist and classist criminal justice system with lethal consequences. To its credit, the APA called for a moratorium on all executions in 2001, citing the vast literature on how the death penalty is disproportionately applied to defendants of color. So why does it still allow psychologists to participate in the death-penalty process?

The answer appears to be ideological. Psychologists often justify actions that have the potential to cause immediate harm by claiming they are in the service of a “greater good.” They warrant their participation in the sentencing process as expert witnesses by concluding that if they refused, courts would replace them with less-qualified individuals or no one at all.

This argument echoes those made by people like Bryce Lefever, a member of the APA Presidential Task Force on Psychological Ethics and National Security, in support of psychologist interventions in “detainee interrogations” as “vital, necessary, good, and for the greater good” and as doing “the most good for the most people.”

This ideological justification for psychologists’ involvement in detainee torture is utilitarian. As Stephen Soldz from Psychologists for Social Responsibility summarizes the position: “if causing pain will reduce the total harm in the world, then it is the only ethical way to go.”

But utilitarian arguments like these do not justify violating the ethical code to do no harm. The medical profession has acknowledged its disturbing history of doing harm for “the greater good.”

Psychology must do the same.  All healing professions, psychology included, are responsible within the limits of their expertise to care and advocate for the person in front of them, whether it be a medical patient, a research participant, or a legal defendant.

As Widney Brown of Physicians for Human Rights aptly states:

That is why [medical] doctors do not engage and monitor to keep torture victims alive, why they do not engage in helping with executions . . . And it is critically important that no one in a health professional engage in that.

Psychologists should not only refuse to participate in death-penalty sentencing but also actively communicate their dissent to the public. In doing so they can help reposition the field’s broader contributions and commitments away from reinforcing social order and toward increasing social justice.