Cornell University Law Professor Sherry F. Colb takes a skeptical look at adjusting IQ scores for purposes of execution. Below are some excerpts from the article posted at Verdict.
The Supreme Court in Atkins v. Virginia determined that executing an intellectually disabled person is unconstitutional, in part because of the disproportionality between the ultimate punishment and the necessarily diminished culpability of an intellectually disabled defendant. In the years following Atkins, the Court had occasion, in Hall v. Florida, to flesh out the meaning of intellectual disability and to clarify that it includes more than a simple IQ score. Nonetheless, IQ scores remain an important component of intellectual disability assessment, both clinically and for Atkins purposes.
An excellent article by Robert Sanger calls attention to a particular sort of challenge to IQ scores that has developed in the Atkins context. This challenge or critique provides that African Americans, Latinos, and Latinas are disserved by IQ tests, as life experiences of deprivation, for instance, produce artificially low scores on such tests, relative to the test-takers’ true ability. In some contexts, this critique could help minorities applying for jobs and educational opportunities. Here, however, the proposal is to give minority defendants a “bump up” on their IQ scores so that they qualify to be executed.
The first thing wrong with racially adjusting minority IQ scores upward for execution purposes is that it constitutes blatant and invidious race discrimination against minority individuals. It basically says that a person with an IQ test score of X will live if he is white but (potentially) die if he is black. And this result is not simply a matter of observed disparate impact but of intentional practice in the courtroom.
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