Saturday, December 6, 2014

Supreme Court Takes Case on Evidence of Intellectual Disability [feedly]



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Supreme Court Takes Case on Evidence of Intellectual Disability
// Crime and Consequences Blog

Kevan Brumfield murdered Police Corporal Betty Smothers in Baton Rouge, Louisiana in 1993.  He went on trial in 1995.  Six years earlier the Supreme Court decided in Penry v. Lynaugh that mental retardation (now called intellectual disability) is a mitigating factor that the jury must be allowed to consider but not a categorical exclusion.  Brumfield's lawyers put on no evidence of retardation, instead arguing other factors as mitigation, and he was sentenced to death.

Seven years after the trial, the Supreme Court decided in Atkins v. Virginia that retardation would be a categorical exclusion after all.  The high court did not apologize for its flip-flop.  On state collateral review, the trial judge denied the petition on the basis of the trial record.

What to do on federal habeas?  The deference standard of 28 U.S.C. §2254(d) allows a federal court to grant relief despite a state court's denial on the merits if the state court's "adjudication of the claim ... (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 

But what if the argument is that the state court's unreasonableness was in not allowing evidence, rather than assessment of evidence?  Can a rule to deal with that issue be crafted without opening the door to federal micromanagement of state collateral review or the wholesale relitigation that the AEDPA reforms were enacted to prevent?
And was the state court unreasonable in this case?  Brumfield's attorneys tell the Supreme Court, "defense counsel had no reason to argue mental retardation, particularly given that the trial took place before Atkins ...."  Nonsense.  Penry was the law at the time of trial, they had the right to put on mental retardation evidence as a mitigating circumstance, and retardation is a powerful mitigator.  (If it isn't, then Atkins was wrongly decided.)  There is language in some Supreme Court cases to the effect that retardation evidence can sometimes be a "two-edged sword," but it's hard to see that in this case.  Retardation is surely a more powerful mitigator than the stuff he was arguing.  From the certiorari petition for Brumfield:

Dr. Bolter concluded that, as a child, Petitioner appeared to have a conduct disorder, educational problems, and attention deficit disorder, and, as an adult, had more of an antisocial or sociopathic personality, continued attention difficulty, and a rapid rate of forgetting. See Pet. App. 122a-23a. Dr. Guin concluded that Brumfield's childhood was "very chaotic, [and] very complicated" and he had a non-supportive environment at home. See Pet. App. 124a.
Trial counsel passed on the powerful mitigator of retardation to avoid undercutting his "mitigating" evidence of "antisocial or sociopathic personality"?  Come off it.  Sociopathy is aggravating!

Even so, Atkins is different from Penry, and state collateral review courts should allow evidence of retardation in pre-Atkins cases when a sufficient preliminary showing of a substantial Atkins claim has been made, regardless of whether any retardation evidence was introduced at trial.  What to do when they do not?

Congress wasn't thinking about this situation when it enacted AEDPA.  It will take some doing to craft an acceptable answer and fit it into the statutory language.

The Supreme Court took up the case today in Brumfield v. Cain, No. 13-1433.

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Friday, December 5, 2014

SCOTUS grants cert for another Atkins case: Brumfield v Cain




Today SCOTUS  granted cert. for Brumfield v. Cain, an Atkins related death penalty case.  More information can be found at this link
                                                    
Issue: (1) Whether a state court that considers the evidence presented at a petitioner’s penalty phase proceeding as determinative of the petitioner’s claim of mental retardation under Atkins v. Virginia has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254( (2); and (2) whether a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation has denied petitioner his “opportunity to be heard,” contrary to Atkins and Ford v. Wainwright and his constitutional right to be provided with the
“basic tools” for an adequate defense, contrary to Ake v. Oklahoma.

Wednesday, November 19, 2014

Sharing The magical numbers 7 and 4 are resistant to the Flynn effect: No evidence for increases in forward or backward recall across 85 years of data via BrowZine

The magical numbers 7 and 4 are resistant to the Flynn effect: No evidence for increases in forward or backward recall across 85 years of data
Gignac, Gilles E.
Intelligence, Vol. 48 – 2015: 85 - 95

10.1016/j.intell.2014.11.001

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Monday, November 10, 2014

The Death Penalty in the U.S. Military [feedly]



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The Death Penalty in the U.S. Military
// Death Penalty Information Center

The U.S. military has its own laws and court system separate from those of the states and the federal government. Although the military justice system allows the death penalty, no executions have been carried out in over 50 years. The last execution was the hanging on April 13, 1961 of U.S. Army Private John Bennett for rape and attempted murder. The military death penalty law was struck down in 1983 but was reinstated in 1984 with new rules detailing the aggravating circumstances that make a case death-eligible. Only about one-third of the capital cases tried under this law resulted in a death sentence. As of 1997, military law allows for an alternative sentence of life without parole. Six men are currently on the military death row, which is housed in the disciplinary barracks at Fort Leavenworth, Kansas. The President has the power to commute any military death sentence. A 2012 study indicated that defendants of color in the military were twice as likely to be sentenced to death as white defendants.

(DPIC, November 10, 2014). See U.S. Military and Race.

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Tuesday, November 4, 2014

Neurolaw Conference at Swansea University, December 11-12 [feedly]


Neurolaw Conference at Swansea University, December 11-12
// Neuroethics & Law Blog

Via this link: Minds Brains and Law A Multidisciplinary Conference on Law and Neuroscience The Abbey, Swansea University 11-12th December 2014 Developments in neuroscience, and in particular the ability of neuroscientific technologies to probe the depths of mind and brain,...
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Friday, October 3, 2014

Sharing Using a prison sample to assess the association between the general factor of personality and general intelligence via BrowZine

Using a prison sample to assess the association between the general factor of personality and general intelligence
Dunkel, Curtis S.; van der Linden, Dimitri; Beaver, Kevin M.; Woodley, Michael A.
Intelligence, Vol. 47 – 2014: 72 - 82

10.1016/j.intell.2014.09.003

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******************************************************
Kevin McGrew, PhD
Educational Psychologist
Director, Institute for Applied Psychometrics
IAP
www.themindhub.com
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Wednesday, October 1, 2014

Georgia Judge Would Allow Execution of Intellectually Disabled Man, But Calls for Higher Court Review [feedly]



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Georgia Judge Would Allow Execution of Intellectually Disabled Man, But Calls for Higher Court Review
// Death Penalty Information Center

A county judge in Georgia denied relief for Warren Hill, a death row inmate whose diagnosed intellectual disabilities have failed to meet the state's narrow standard for exemption from the death penalty. However, the judge encouraged the state Supreme Court to consider whether a recent U.S. Supreme Court ruling, Hall v. Florida, should require Georgia to modify its standard. Chief Judge Thomas Wilson of Butts County said, "In light of the severity of the penalty in this case, this Court hopes that, in reviewing [Mr. Hill's] application to appeal, the Georgia Supreme Court will fully consider any potential application of Hall v. Florida to [his] case." In Hall v. Florida, the Supreme Court directed Florida to broaden its interpretation of intellectual disability. Florida refused to spare an inmate whose IQ was just one point above their cutoff. Similarly, Georgia has the narrowest standard of proof for intellectual disability in the entire country, requiring defendants to prove their disability beyond a reasonable doubt. Brian Kammer, an attorney for Hill, said,"Mr. Hill should not be eligible for execution in a nation which does not execute persons with intellectual disability, and he would not be eligible for execution in any other jurisdiction in the nation."

The victim's family in Hill's case has also said that they do not support his execution. Several jurors from his trial have said that they would have recommended a sentence of life without parole if it had been an option at the time. National and state organizations focusing on intellectual disabilities have supported Hill's claim. President Jimmy Carter and Rosalyn Carter have called for a commutation of Mr. Hill's death sentence to life without parole. Additionally, the American Bar Association, the ACLU, and the Council of Europe have all called for sparing Hill's life.

(Hill v. Chatman, Order, September 29, 2014; E. Jacobson (Executive Director of the Georgia Council on Developmental Disabilities), "The Supreme Court Must Stop the Execution of Warren Hill," Huffington Post, February 11, 2013). See Intellectual Disability and Supreme Court.

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Monday, September 8, 2014

Sharing The Legitimacy of the US Supreme Court: Conventional Wisdoms and Recent Challenges Thereto via BrowZine

The Legitimacy of the US Supreme Court: Conventional Wisdoms and Recent Challenges Thereto
Gibson, James L.; Nelson, Michael J.
Annual Review of Law and Social Science, Vol. 10 Issue 1 – 2014: 140906191720007

10.1146/annurev-lawsocsci-110413-030546

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Wednesday, August 20, 2014

FYI. The MindHub web portal has been updated

I finally got around to updating the MindHub web portal. There is new information under most major categories. Enjoy.

http://themindhub.com/

Saturday, August 16, 2014

Sharing Comparisons of Five Performance Validity Indices in Bona Fide and Simulated Traumatic Brain Injury via BrowZine

More malingering measurement research.

Comparisons of Five Performance Validity Indices in Bona Fide and Simulated Traumatic Brain Injury
Bashem, Jesse R.; Rapport, Lisa J.; Miller, Justin B.; Hanks, Robin A.; Axelrod, Bradley N.; Millis, Scott R.
The Clinical Neuropsychologist, Vol. 28 Issue 5 – 2014: 851 - 875

10.1080/13854046.2014.927927

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Sharing Are Verbal Intelligence Subtests and Reading Measures Immune to Non-Credible Effort? via BrowZine

File under malingering.

Are Verbal Intelligence Subtests and Reading Measures Immune to Non-Credible Effort?
Sawyer, R. John; Young, J. Christopher; Roper, Brad L.; Rach, Amanda
The Clinical Neuropsychologist, Vol. 28 Issue 5 – 2014: 756 - 770

10.1080/13854046.2014.920922

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Sharing One-Week Practice Effects in Older Adults: Tools for Assessing Cognitive Change via BrowZine

One-Week Practice Effects in Older Adults: Tools for Assessing Cognitive Change
Duff, Kevin
The Clinical Neuropsychologist, Vol. 28 Issue 5 – 2014: 714 - 725

10.1080/13854046.2014.920923

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Sunday, August 10, 2014

"Scientizing Culpability: The Implications of Hall v. Florida and the Possibility of a 'Scientific Stare Decisis'" [feedly]



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"Scientizing Culpability: The Implications of Hall v. Florida and the Possibility of a 'Scientific Stare Decisis'"
// Sentencing Law and Policy

The title of this post is the title of this notable new paper available on SSRN authored by Christopher Slobogin. Here is the abstract:

The Supreme Court's decision in Hall v. Florida holds that "clinical definitions" control the meaning of intellectual disability in the death penalty context. In other words, the Court "scientized" the definition of intellectual disability. This article discusses the implications of this unprecedented move. It also introduces the idea of scientific stare decisis — a requirement that groups that are scientifically alike be treated similarly for culpability purposes — as a means of implementing the scientization process.


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Tuesday, August 5, 2014

The Richard Woodcock Institute for Advancement of Cognitive Assessment: Oct, 25, 2014

The 2nd Richard Woodcock Institute for Advancement of Cognitive Assessment is now scheduled and enrollment is open. Registration and additional information can be found at the WMF web page.




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Thursday, July 31, 2014

WJ IV update: Correlations of WJ IV COG g-scores (GIA,Brief,Gf-Gc composite) and WISC-IV/WAIS-IV FS and GAI IQ scores

In the WJ IV technical manual (McGrew, LaForte, Schrank, 2014) concurrent validity results are presented for the WJ IV COG with the WISC-IV and WAIS-IV (click here for WJ IV COG overview and select correlation information from tech. manual).

A number of psychologists have asked about correlations between the primary WJ IV COG g-scores and the Wechsler General Ability Index (GAI).  They are not presented in the technical manual.  I have now computed those correlations, as well as a few others with the Wechsler GAI, and they are now part of the SlideShare at the link above and are also reported below.  Click on image to enlarge.


Article: Assessing Intellectual Functioning and Adaptive Behavior




Tuesday, July 29, 2014

Quotes to note: Importance of high quality psychological testing to psychologists




I just read this nice statement at the begging of the following article by Robert J. Ivnik, Ph.D., ABPP Professor of Psychology, Mayo Clinic College of Medicine, Rochester, MN.

The only professional services that are uniquely psychology's are testing-based assessments. Every other service that psychology offers can be obtained from other professions. In light of testing's central importance to our profession, and considering the number of years that psychologists have been practicing, we assure that our tests are scientifically sound and have been validated for the purposes to which they are put (e.g., research proves that our tests make accurate predictions). Correct? After all, in today's health care environment would any profession knowingly expose its core service to potential attack?

Although testing-based assessments are psychology's defining feature, they may also be our profession's Achilles' heel. Unfortunately, the manner in which many tests have been developed, standardized, normed, and validated may be most kindly described as ‘‘varied'' when it comes to scientific rigor. The science behind some of psychology's older and commercially successful tests tends to be stronger when some of the profit accrued by their sale is devoted to improving the tests. Lacking similar financial resources, many other tests have simply not been developed or validated very well
.

Click on image to enlarge.


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Fwd: [ABA-3D] Webinar Announcement



Suspects/Offenders' Issues Series:

Alternatives to Incarceration for Criminal Offenders with Developmental and Intellectual Disabilities

 

August 28, 1:30-2:30 p.m. EST

Jessica S. Oppenheim, Esq.

Director of the Criminal Justice Advocacy Program of The Arc of New Jersey


Criminal Offenders with developmental and intellectual disabilities (I/DD) present unique challenges to the criminal justice system seeking to investigate and prosecute crime as well as to the social service system seeking to serve and assist this vulnerable population. Such individuals make up at least 9 – 10% of the prison population and some studies tell us that they may comprise as much as 50% of adult and juvenile offender populations. It is unquestioned that individuals with I/DD face distinct disadvantages in the system, resulting in convictions for more serious offenses and more prison time.

 

The Criminal Justice Advocacy Program (CJAP) of The Arc of NJ seeks to overcome these disadvantages, while still ensuring that offenders take responsibility for criminal behavior, by arranging specific interventions that provide alternatives to incarceration through offender-specific Personalized Justice Plans. The CJAP also acts as a clearinghouse of information between the criminal justice and social service system in provide training and communication between the two systems. This webinar will review the obstacles and disadvantages faced by this population and provide an overview of the CJAP.  Register here

The Arc's National Center on Criminal

Justice & Disability (NCCJD)

Webinar Series

MISSIONNCCJD will become the national focal point for the collection and dissemination of resources and serve as a bridge between justice and I/DD professionals. NCCJD will pursue and promote safety, fairness and justice for all people with intellectual and developmental disabilities as suspects, offenders, victims or witnesses. For more information: http://www.thearc.org/NCCJD

Contact: Kathryn Walker, Criminal Justice Fellow    Phone: 202.534.3700    Email: NCCJDInfo@thearc.org

 

 

 

 

 

    Kathryn J. Walker, J.D., M.P.H.

Criminal Justice Fellow

The Arc 

1825 K Street NW, Suite 1200, Washington, D.C. 20036

Phone:  202.600.3491 | Toll free: 800.433.5255

Fax: 202.534.3731

Email: kwalker@thearc.org

            www.thearc.org/NCCJD

Follow us online at:   

 

 

 

You can help build The Arc by making a secure, online contribution by visiting www.thearc.org/donate. Thank you for supporting the work of The Arc.

 

Saturday, July 26, 2014

More on Greenspan's model of personal competence: Relationship between IQ and social, practical, and conceptual abilities

I am pleased to see that, after a relatively long draught in published research, someone is again investigating the relations between general intelligence, and the primary domains of adaptive behavior, in models (that when examined closely) that are investigating aspects of Greenspan's' model of personal competence. The title, abstract, and key figure from this new research follow. The article can be read here. Kudos to these researchers

Click on images to enlarge





My primary criticism of this study is that it completely ignores the primary foundation research in this area that occurred between 1990 and 2000, some of which are the primary research studies cited in the AAIDD manuals to support the domains of practical, conceptual and social competence (Greenspan's model). I have provided a list of that research, and results from the most prominent article from that group of researchers, below.












Yes, my name is all over these MIA studies (in the current featured article) so some could see my comments as academic sour grapes for being overlooked. But I see their omission as a lack of scholarly rigor by the researchers and the journal who published the current article. All of the MIA studies can be found at the MindHub--scroll down until you see the list of studies shown above. Then click away and download and read. It would have been nice if the new study results would have been integrated with the extant personal competence research literature.

In the final analysis I am pleased that someone is conducting much needed research on these constructs given the pivotal role they play in the definition and assessment of MR/ID.


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Friday, July 25, 2014

The new WJ IV: Introductory webinar and author video interviews

The publisher of the new WJ IV Battery just posted an on-line video of Dr. Fred Schrank's WJ IV introduction and overview webinar and brief video interviews of the three WJ IV authors. They can be found here.

[Conflict of interest disclosure: I am one of the coauthors of the WJ IV].

I am much younger looking than my video interview suggests :)






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Tuesday, July 15, 2014

The Flynn Effect Archive Project: 7-15-14 update

I am pleased to announce an update of the Flynn Effect Archive Project. Information on the project and how to access the on-line archive can be found at this link.

Click on image to enlarge.


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