Wednesday, July 25, 2012

The NIH Toolbox for Assessment of Neurological and Behavioral Function to be unveiled





Meeting Unveils NIH Neurological, Behavioral Toolbox for Clinical Research

Registration is now open for “Unveiling the NIH Toolbox”, a free scientific conference Sept. 10-11 presenting the NIH Toolbox for Assessment of Neurological and Behavioral Function— a set of brief but comprehensive neurological and behavioral health measurements designed for use particularly in large-scale research studies such as epidemiological studies or clinical trials. Developed by a team of more than 250 scientists from nearly 100 academic institutions, the NIH Toolbox provides a battery of on-line and royalty-free measures of motor, cognitive, sensory and emotional function for study participants aged 3 to 85 years. Developed under the auspices of the NIH Blueprint for Neuroscience Research, a coalition that creates new tools and resources to advance neuroscience research, the highly anticipated NIH Toolbox promotes economies of scale and enhanced efficiency in measurement.

Taking place in Bethesda, Md., the meeting features lectures, interactive demonstrations and panel discussions about the development, testing and use of the NIH Toolbox in biomedical research. An optional “Administering the NIH Toolbox” training workshop follows the conference on Sept. 12-15. To register for the conference and/or training workshop or to learn more about the NIH Toolbox



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Sunday, July 22, 2012

Review of the construct of adaptive behavior

Click on image to enlarge to read abstract



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Friday, July 13, 2012

Shouldn't SCOTUS review Georgia's uniquely tough application of Atkins?

The question in the title of this post is promoted by this new lengthy AP article about the next scheduled lethal injection in Georgia.  The piece is headlined "Case highlights strict Ga. execution standard," and here are the basics:

Georgia was the first state to ban executing mentally disabled death row inmates, but the case of an inmate who is to be put to death next week has highlighted the state's strictest-in-the-nation standard for proving mental disability.

Former President Jimmy Carter is among those who have said the state pardons board should commute Warren Lee Hill's death sentence to life in prison without parole. However, the state argues defense attorneys have failed to meet their burden of proving beyond a reasonable doubt that Hill is mentally disabled.  Hill was convicted of the 1991 murder of a fellow inmate.

Most states that impose the death penalty have a lower threshold for defendants to prove they are mentally disabled, while some states don't set standards at all.  Hill's lawyer Brian Kammer said the high standard for proving mental disability is problematic because psychiatric diagnoses are subject to a degree of uncertainty that is virtually impossible to overcome.

Prosecutors have presented expert testimony and evidence that Hill is not disabled, while his attorneys have presented their own evidence to prove he is disabled.  That can make it difficult to determine anything beyond a reasonable doubt, said Kay Levine, an associate professor of law at Emory University.

"Beyond a reasonable doubt can never be met if you're simply not sure which side is unequivocally telling the truth and which side is not," said Levine, who has no connection to the Hill case.  "The issue with Georgia setting its mental health standard as high as it's set is that it requires such a high level of certainty that even scientists will rarely reach."

Nonetheless, Georgia's strict standard has repeatedly been upheld by state and federal courts.  Last year, the 11th U.S. Circuit Court of Appeals ruled in an appeal of Hill's case that it couldn't strike down Georgia's law because the U.S. Supreme Court allows states to create their own definitions for mentally disabled.  The decision, written by Judge Frank Hull, noted the justices were careful not to set their own rigid guidelines for such a definition.  Even if Georgia "somehow inappropriately struck the balance" when it adopted its standard, Hull wrote, only the U.S. Supreme Court can overturn the state's law.

The Supreme Court last month declined to hear Hill's case, but his lawyer has already submitted a new request to the high court....

The state has cited expert testimony and IQ tests that concluded Hill is not mentally disabled.  Before trial, Hill's family members described him as "the leader of the family" and "a father figure," the state notes.  He was not in special education classes and served in the Navy, where he received promotions, the state has said.

The defense has referenced a state court judge's assessment that Hill was mentally disabled and a test that shows his IQ to be about 70.  The defense has also cited expert testimony that it is not unusual for someone who is mildly mentally disabled to be able to function at a satisfactory level in an environment as structured as the military.  Attorneys also presented a letter from some of Hill's teachers saying that he could never read or write at the proper grade level, and that he was promoted to the next grade only so he would continue to be with children his own age.

The Georgia Board of Pardons and Paroles is set to hear Hill's case Friday.  His lawyer has asked the board to commute Hill's sentence to life in prison without parole or to grant him a 90-day delay to allow the U.S. Supreme Court to consider his case.

Included with the application to the board are letters from former President Carter and his wife, disability groups and the nephew of Joseph Handspike, the inmate Hill killed.  Richard Handspike, who says he is a representative for the family, says in the letter that they were not contacted by prosecutors but would have told authorities they did not want Hill to be executed.

"I and my family feel strongly that persons with any kind of significant mental disabilities should not be put to death," Handspike said.  "I believe that if the system had evidence of such disability in Mr. Hill, it should have taken steps to treat him accordingly and prevent his execution."

It has now been more than a decade since the Supreme Court ruled in Atkins that the Eighth Amendment prohibits the execution of mantally retarded defendants.  In Atkins, SCOTUS punted back to the states the hardest issue the case raised: how state are to procedurally administer this new substantive limit on the death penalty.  This procedural issue has been resolved in disparate ways throughout the nation, and Georgia's uniquely tough approach is arguably unconstitutional by virtue of being uniquely tough.  Also, I cannot think of any other matter of criminal procedure in which a defendant is expected to prove something beyond a reasonable doubt.

Perhaps five or more Justices of the current Supreme Court would find constitutionally permissible Georgia's approach to Atkins; perhaps five or more Justices would not.  Either way, this issue seems sufficiently important and ripe for SCOTUS to resolve this issue ASAP and the Hill case seems like a timely and appropriate means for doing so.









Thursday, July 12, 2012

Stanford Law Review Online - Lieb: Regulating Through Habeas - A Bad Incentive for Bad Lawyers?

I am no lawyer or legal scholar and am just posting this as an FYI without comment.

Available as a pdf at:

- - - - -

http://www.stanfordlawreview.org/online/regulating-through-habeas

July 12, 2012 | Stanford Law Review | 65 Stan. L. Rev. Online 7   Notes

 

Regulating Through Habeas

A Bad Incentive for Bad Lawyers?

 

by Doug Lieb | Editor-in-Chief, Yale Law Journal

 

The most important—and most heavily criticized—provisions of the Antiterrorism and Effective Death Penalty Act restricted federal courts' ability to hear habeas petitions and grant relief to prisoners. But the 1996 law also included another procedural reform, now tucked away in a less-traveled corner of the federal habeas statute. It enables a state to receive fast-track review of its death row prisoners' federal habeas petitions if the U.S. Attorney General certifies that the state provides capital prisoners with competent counsel in state postconviction proceedings.[1]

 

Presumably, the rationale underlying this fast-track provision is that states and the judicial system have an interest in expeditiously resolving claims, executing lawful sentences, and achieving finality for victims' families and other interested parties. Claims raised in federal habeas petitions must usually first be raised in state postconviction proceedings, and the federal court hearing the petition may not grant relief unless the prior state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law."[2] In theory, if prisoners lose in state postconviction proceedings despite the benefit of competent representation, their federal habeas petitions are unlikely to contain meritorious claims that overcome the high bar to relief. Requiring that such petitions be developed, filed, and moved through the courts more quickly makes some sense.

 

As of 2005, no state had yet received the benefit—if hastier review of death row habeas petitions can really be called that—of the fast-track provision.[3] Now, a pending Department of Justice (DOJ) rule sets forth extensive criteria for states' certification for fast-track review.[4] Piggybacking on a federal statute that does the same, the proposed DOJ rule encourages states to adopt a seemingly commonsense measure to weed out bad lawyers: if an attorney has been found legally ineffective, remove him or her from the list of qualified counsel eligible for appointment.

 

Unfortunately, such removal provisions may do more harm than good by jeopardizing the interests of ineffective lawyers' former clients. This Note explains why removal provisions can be counterproductive, argues that rewarding the implementation of these provisions with fast-track habeas review is especially unwise, and offers a few recommendations.

 

The pending DOJ rule would replace a rule issued in the final months of the George W. Bush Administration and later rescinded by the Obama Administration. The Bush-era rule required states seeking fast-track certification to adopt "competency standards" for capital postconviction counsel in state proceedings, but it never specified what those standards should be.[5] The Obama Administration apparently saw an opportunity to nudge state capital postconviction systems into shape by giving the previously unspecified competency standards some teeth.[6]

 

Under the proposed rule,[7] one way for states to provide "competent" postconviction counsel is to comply with the standards set forth in the federal Innocence Protection Act of 2004 (IPA), which provides grants to states if they impose certain standards for the qualification of counsel in capital cases.[8] Among the IPA standards is a requirement that states "remove from the roster" of lawyers eligible for appointment "attorneys who . . . fail to deliver effective representation."[9]

 

The IPA was focused on trial rather than collateral review, and only some states chose to implement the standards it set forth. Texas, for instance, implemented a removal provision for trial-level capital defense lawyers in 2005,[10] but other highly active death-penalty states do not have removal provisions.[11] Thus, the proposed DOJ rule reaffirms the IPA's policy that ineffective attorneys be purged from lists of qualified counsel eligible for appointment, and it encourages states to extend that logic to state postconviction proceedings.

 

Preventing a previously ineffective lawyer from again representing a capital defendant or death row prisoner might seem like an uncontroversially good idea. After all, given the notoriously low bar by which Strickland v. Washington and its progeny measure "effectiveness," it takes a serious blunder—and a close enough case that the error can be deemed prejudicial—to be found ineffective. In a vacuum, disqualifying the worst performers makes perfect sense.

 

The problem is that removal provisions encourage prior counsel to fight against, rather than cooperate with, subsequent claims of ineffectiveness. Where removal provisions are in effect, lawyers suddenly have a very direct stake in the outcome of later habeas proceedings that are supposed to be about their former clients' rights, not their own pecuniary interests. Appointed capital defense lawyers and state habeas lawyers are often solo practitioners who depend on the modest but steady income from handling a string of cases. Removal from the list of qualified counsel could well threaten their livelihoods. While federal habeas lawyers make ineffectiveness claims as a matter of course, sometimes decades after the events in question, those claims could become personal, high-stakes affairs if the attorneys accused of ineffectiveness could lose their jobs. Without a removal provision, of course, some lawyers are still loath to be found ineffective for reasons of pride, principle, or reputation. But with a removal provision, the ordinary appointed lawyer has a much stronger reason to vigorously defend her past performance instead of assisting her former client.[12]

 

This perverse incentive might seem to be a much bigger issue for trial counsel than for postconviction counsel. After all, ineffective assistance by trial counsel violates a defendant's constitutional rights and constitutes a ground for habeas relief, whereas ineffective assistance of state habeas counsel does neither.[13] It stands to reason that capital postconviction lawyers would face few, if any, ineffectiveness claims compared to their trial-level colleagues. After the Supreme Court's March 2012 decision in Martinez v. Ryan, however, ineffective assistance of postconviction counsel may allow defendants to raise ineffectiveness-of-trial-counsel claims that would otherwise be procedurally barred from federal habeas review.[14] In many cases, federal habeas lawyers now have as good a reason to levy claims of ineffectiveness against state habeas counsel as they do against trial counsel. Indeed, the former claims will often be essential to the latter.

 

The consequences are not trivial. Prior counsel's cooperativeness, or lack thereof, can significantly affect the success of an ineffectiveness claim in a federal habeas petition. At a basic level, prior counsel's file is the backbone of any ineffectiveness claim. This is especially true in the context of capital sentencing, where insufficient review of a client's personal history may constitute ineffectiveness.[15] Only by painstakingly reviewing all of prior counsel's records can federal habeas counsel identify what her predecessor failed to investigate. Getting prior counsel to promptly turn over a complete and orderly file—even when his career is not on the line—can be more difficult than one might expect.

 

More dramatically, prior counsel can undermine an ineffectiveness claim by testifying in an affidavit or at an evidentiary hearing that his apparent deficiencies were actually deliberate strategic choices, which warrant deference under Strickland if they were grounded in professional judgment.[16] Indeed, habeas lawyers often find themselves competing with the state attorney general's office, which works to defend the judgment by opposing habeas relief, to quickly secure trial counsel's cooperation and her commitment to submit a favorable affidavit.[17] After Martinez, both sides now have a similar incentive to secure the cooperation of state habeas counsel. If prior counsel is out of a job if the federal habeas petition is granted, who's more likely to win that competition?

 

It is one thing, then, for the federal government simply to offer money to states that adopt removal provisions, as it did in the Innocence Protection Act. But there's a special irony and a special problem with encouraging states to adopt removal provisions in exchange for fast-track review of their capital prisoners' federal habeas claims. It is precisely such federal habeas claims—the last step in the chain of collateral review—that may suffer when prior counsel is incentivized not to cooperate. If anything, removal provisions should probably give rise to more deliberate and searching collateral review.

 

So, what to do? The DOJ rule, and removal provisions more generally, aim not only to police bad lawyers, but to encourage lawyers to do a good job in the first place. To strike a more appropriate balance of incentives, one partial fix might be to make removal provisions prospective. That is, boot an attorney from the list only if he renders ineffective assistance after the removal provision takes effect.[18] Prospective rules would give lawyers the same incentive as retrospective ones to improve their performance in the future. They would also eliminate the incentive to fight tooth and nail against claims of ineffectiveness based on events that took place years or decades ago. Yet they would still have the drawback of encouraging counsel to obstruct those claims when based upon future conduct.

 

The lesson, at a minimum, is that policymakers should be wary of one-off regulatory interventions into indigent defense, considering the hydraulic pressure that a new requirement might exert elsewhere in the system. Leaders within the public defense bar might also wish to think carefully about their expressions of support for ineffective-attorney-removal provisions.[19] And, while some scholars have considered the ethical obligations of predecessor counsel when faced with an ineffectiveness claim,[20] rigorous empirical study of lawyers' actual responses to allegations of ineffectiveness may be needed to develop sound policy. Do most attorneys actually understand themselves to owe continuing duties to former clients, or do most do what they can to protect their professional reputations against charges of deficient performance? (And are those with the latter attitude more likely to be ineffective in the first place?) The practical effect of regulatory interventions, including removal provisions, turns on the answer to these questions.

 

None of this is to suggest that it's in any way acceptable for an ineffective lawyer, let alone an incorrigibly awful one, to represent a capital—or non-capital—defendant or prisoner. The point is the opposite. Even a well-intentioned patchwork of regulation through habeas is no substitute for an adequately funded system that trains, compensates, and screens counsel appropriately. If kicking ineffective lawyers off the list may do more harm than good, the goal should be keep them off the list to begin with.

 

1.    See 28 U.S.C. §§ 2261-66 (2006). Among other provisions, the fast-track scheme reduces the period of limitation to file a federal habeas petition from one year, id. § 2255(f), to 180 days, id. § 2263(a).

2.    Id. § 2254(d)(1).

3.    See Justin F. Marceau, Challenging the Habeas Process Rather than the Result, 69 Wash. & Lee L. Rev. 85, 93 n.21 (2012); Jennifer Ponder, Comment, The Attorney General's Power of Certification Regarding State Mechanisms to Opt-In to Streamlined Habeas Corpus Procedure, Crim. L. Brief, Spring 2011, at 38, 41. The federal courts were originally responsible for the certification of the state's provision of competent postconviction counsel, but members of Congress grew upset that the courts never granted it, see id., and transferred certification authority to the Attorney General when Congress reauthorized the USA PATRIOT Act in 2006, see USA PATRIOT Improvement and Reauthorization Act of 2005, § 507, Pub. L. No. 109-177, 120 Stat. 192, 250-51 (2006) (codified at 28 U.S.C. §§ 2251, 2261, 2265 (2006)).

4.    See Certification Process for State Capital Counsel Systems, 77 Fed. Reg. 7559 (proposed Feb. 13, 2012) (to be codified at 28 C.F.R. pt. 26). As of this writing, the final rule has not been published.

5.    See 28 C.F.R. §§ 26.20-.23 (2009), removed by Certification Process for State Capital Counsel Systems; Removal of Final Rule, 75 Fed. Reg. 71,353 (Nov. 23, 2010).

6.    The Obama Administration made an initial proposal in March 2011, see Certification Process for State Capital Counsel Systems, 76 Fed. Reg. 11,705 (proposed Mar. 3, 2011) (to be codified at 28 C.F.R. pt. 26), that it revised in response to comments in February 2012, see Certification Process for State Capital Counsel Systems, 77 Fed. Reg. 7559 (proposed Feb. 13, 2012) (to be codified at 28 C.F.R. pt. 26).

7.    See Certification Process for State Capital Counsel Systems, 77 Fed. Reg. at 7560 (revised proposal); Certification Process for State Capital Counsel Systems, 76 Fed. Reg. at 11,708 (initial proposal).

8.    See 42 U.S.C. § 14163 (2006).

9.    Id. § 14163(e)(2)(E)(ii) (2006). This IPA requirement was omitted from the initial proposed rule, but, in response to comments, the DOJ put it back into the revised version of the rule. See 77 Fed. Reg. at 7560 (explaining that the revised rule includes the IPA removal provision and describing that provision as an "integral element[] of the IPA's comprehensive approach to counsel qualifications").

10.    See Act of June 18, 2005, §§ 5, 7, 2005 Tex. Gen. Laws 3239, 3240-41 (codified as amended at Tex. Code Crim. Proc. Ann. arts. 11.071, 26.052(d) (West 2011)) (requiring that "a trial attorney appointed as lead counsel to a capital case . . . have not been found by a federal or state court to have rendered ineffective assistance of counsel during the trial or appeal of any capital case"), repealed in part by Act of June 19, 2009, § 11, 2009 Tex. Gen. Laws 1972, 1976. The Texas State Senate—not known for its favorable disposition toward capital defendants—passed the Act unanimously. See 2005 Tex. Gen. Laws at 3242. It may not be a coincidence that Texas did so the year after the Innocence Protection Act made grants available.

11.    My review of relevant statutory provisions in Alabama, for instance, identified no such policy. See Ala. Code § 13A-5-54 (2012) (requiring appointment of experienced counsel in capital cases); id. §§ 15-12-1 to -6, -20 to -29, -40 to -46 (governing appointment of counsel for indigent defendants). Similarly, the Virginia statute setting forth standards for appointed capital defense counsel includes no removal provision. See Va. Code Ann. § 19.2-163.8 (West 2012); see also Statutory Qualifications for Court Appointment, Va. Indigent Def. Commission, http://www.indigentdefense.virginia.gov/serving.htm (last visited July 7, 2012) (collecting relevant statutory authority). If an attorney violates the Commission's standards of practice—which are not the measure of effectiveness under Strickland v. Washington, 466 U.S. 668, 687-91 (1984), though they may be relevant to a Strickland analysis—then he may be subject to sanctions, including removal from the list. See Va. Indigent Def. Comm'n, Standards of Practice Complaint Procedure Pamphlet, available at http://www.indigentdefense.virginia.gov/PDF%20documents/SOP%20Brochure.pdf (last visited July 7, 2012).

12.    In my own conversations with Texas capital habeas attorneys, they have suggested that trial lawyers have become more hesitant to cooperate with them since Texas implemented its removal provision.

13.    There is no constitutional right to counsel in discretionary postconviction proceedings. See Murray v. Giarratano, 492 U.S. 1, 9-10 (1989); Wainwright v. Torna, 455 U.S. 586, 587-88 (1982) (per curiam); Ross v. Moffitt, 417 U.S. 600, 610 (1974).

14.    See Martinez v. Ryan, No. 10-1001, slip op. at 15 (U.S. Mar. 20, 2012), available at http://www.supremecourt.gov/opinions/11pdf/10-1001.pdf ("Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, . . . counsel in that proceeding was ineffective.").

15.    See, e.g., Rompilla v. Beard, 545 U.S. 374 (2005).

16.    See Strickland, 466 U.S. at 681.

17.    For an explanation of that process from a habeas lawyer's perspective, see If Ineffective Assistance of Counsel Rears Its Ugly Head, Here's How to Approach It, Ga. Ass'n of Crim. Def. Lawyers, http://www.gacdl.org/zoomdocs/articles/article-ineffective%20assistance%20of%20counsel.htm (last visited July 7, 2012).

18.    Whether the IPA standard applies retrospectively is unclear: it simply states that attorneys should be removed from the roster if they "fail to deliver effective representation." 42 U.S.C. § 14163(e)(2)(E)(ii)(I) (2006).

19.    Cf. Comments by Federal Public Defenders and Community Defenders at 4, Certification Process for State Capital Counsel Systems, 77 Fed. Reg. 7559, (proposed Feb. 13, 2012) (to be codified at 28 C.F.R. pt. 26), available at http://www.regulations.gov/#!documentDetail;D=DOJ-OAG-2012-0002-0020 (describing "removal of inadequately performing attorneys" as an "important element[] of any federal minimum standard to ensure counsel competency").

20.    See, e.g., Lawrence J. Fox, Making the Last Chance Meaningful: Predecessor Counsel's Ethical Duty to the Capital Defendant, 31 Hofstra L. Rev. 1181 (2003); Jenna C. Newmark, Note, The Lawyer's "Prisoner's Dilemma": Duty and Self-Defense in Postconviction Ineffectiveness Claims, 79 Fordham L. Rev. 699 (2010); see also ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 10-456 (2010), available at http://www.americanbar.org/content/dam/aba/migrated/2011_build/professional_responsibility/ethics_opinion_10_456.authcheckdam.pdf (discussing trial counsel's disclosure obligations to successor habeas counsel).

 


Wednesday, July 11, 2012

AP 101 Brief #14: Demographically adjusted neuropsych (Heaton) norm-based scores inappropriate for MR/ID Dx



Applied Psychometrics 101 Brief # 14:  Demographically adjusted neuropsychological (Heaton) norm-based scores are inappropriate for the diagnosis of MR/ID

Kevin S. McGrew, PhD.
Director

Dale G. Watson, PhD.
Berkeley, CA

Neuropsychological assessments are sometimes part of psychological evaluations in Atkins MR/ID death penalty cases.  These assessments include specialized tests, often in addition to an age-appropriate IQ battery, that are specifically designed to assess brain-behavior relations.  The neuropsychological-specific tests (NPST) are used to draw inferences about brain function/dysfunction and to provide functional implications of neuropsychological test data for a person’s real-world functioning.  NPST batteries, as well as all the individual tests included in NPST batteries, are not designed or validated to provide a reliable and valid estimate of a person’s general intelligence (of course, an exception is the portion of the battery that may include an individualized measure of general intelligence; e.g., WAIS-IV; WJ III; SB5).

Demographically Adjusted Test Norm Interpretation is Inappropriate in the Diagnosis of Atkins MR/ID in Capital Cases

A test interpretation feature used in some neuropsychological assessments is demographically adjusted norms.   The specialized NPST of memory, sensory-motor function, concept formation, etc. may be reported with these special demographically adjusted norms.  Also, demographically adjusted norms are sometimes applied to the individualized measure of general intelligence included as part of the NPST (see Lange et al., 2006).

The most well known demographically adjusted norms are the Heaton norms.   As described by a neuropsychologist in a recent Atkins cases, Heaton norms are “number crunching, age-corrected, you know, socioeconomic variable-corrected data,” and as generating “a comprehensive T-score age-, education, sex-corrected, actually race-corrected, also.”  In simple terms, the demographically-adjusted norms make equation-based statistical adjustments that allow certain NPST scores for an individual to be compared against other individuals of the same age and other demographic characteristics (e.g., gender, race, socio-economic status and level of education.   In the context of neuropsychological assessment to determine whether an individual’s functioning has decreased, such as after a brain injury or a stroke, demographically adjusted norms may help with the diagnosis of brain dysfunction and the identification of relative strength- and weakness-generated interventions. 

Siverberg and Millis (2009) have outlined the clear distinction between using neuropsychological measures to identify acquired deficits as opposed to developmental deficiencies. They note:

If the clinician is interested in whether a patient has declined from their premorbid status, contrasting their obtained raw scores with their expected premorbid scores (based on age, education, gender, ethnicity, and any other variables that add to their prediction) is most appropriate. This type of comparison quantifies impairment—how much examinees’ scores are lowered relative to their (estimated) preinjury/disease onset baseline. The degree of impairment is likely most predictive of the patient’s success in returning to (or continuing) work or other premorbidly engaged-in functional activities with extraordinary or idiosyncratic cognitive demands. If, in contrast, the clinician is interested in determining whether the patient’s cognitive abilities are sufficient for the demands of universal functional tasks (e.g., activities of daily living, driving a car, operating a cashier, etc.), comparing their raw [non-demographically adjusted] scores with general healthy adult population norms, generating “absolute” scores, is most appropriate (p. 98).


When used in the context of neuropsychological assessment, certain NPST scores are adjusted so an individual’s performance is compared not to the general population but only to others of the same age, gender, race and level of education.  Norm-referenced testing is at the heart of psychological assessment for the diagnosis of MR/ID (AAIDD, 2010).  The diagnosis of MR/ID requires comparison of a person’s scores against nationally representative norms, not a comparison to others of the same age, gender, race and level of education.  An analogous situation would be for a professional psychologist or lawyer whose intellectual functioning is in the top 2% of the population as a whole, and who therefore obtains an IQ of 130 when his/her score is compared to nationally representative norms.  If his/her score is instead compared only to those of a group of his/her peers with a similar level of education, he/she may fall only in the top 16% of that group and so his/her score would  be much lower, perhaps 115.

Demographically adjusted norm scores result in a sliding reference point that no longer represents a comparison to the general population, which is the only proper reference point in the diagnosis of MR/ID. The use of demographically adjusted norms is inappropriate if such adjusted scores are used to formulate and inform an opinion regarding level of general intellectual functioning for the diagnosis of MR/ID.

The technical adequacy and appropriate use of demographically adjusted NPST scores is not a settled professional consensus in the field of neuropsychological assessment.  A lack of consensus in the field is represented by the significantly differing opinions as articulated by Heaton et al. (1996), Lange, Chelune, Taylor, Woodward and Heaton (2006),  Russell (2005), Sattler (2001), Sherrill-Pattison, Donders, and Thompson (2000), Strauss, Sherman and Spreen (2006), Romero et al. (2009), Yantz, Gavett, Lynch and McCaffrey (2006). 

Particularly important is the professional consensus-based report produced by the 2008 Multicultural Problem Solving Summit (Byrd et al., 2010) of neuropsychologists that produced the document “Challenges in the Neuropsychological Assessment of Ethnic Minorities:  Summit Proceedings” (Romero et al., 2009).  This consensus report stated (emphasis added via underline):

Demographic adjustments to normative data are not validated for the use of predicting future academic or employment performance, and laws exist to prohibit the use of race-based norms in employment decisions (p. 767).

There was consensus among participants that the field would benefit from guidelines for neuropsychological practice among ethnic and racial minorities…The guidelines should include a specific focus on appropriate and inappropriate uses of demographic adjustments, as well as a discussion of the risks of overpathologizing groups or denying appropriate services, and details of limitations to the application of various normative standards (p. 767).

Additionally, a number of authoritative assessment texts used frequently in the graduate training of psychologists learning to conduct intellectual or neuropsychological assessments have highlighted the potential problems with demographically adjusted norm scores (emphasis added via underlining or bold font) .


Pluralistic norms[1] are norms derived for individual groups, such as Euro Americans, African Americans, Hispanic Americans, Asian Americans, and Native Americans…Pluralistic norms are potentially dangerous, however, because they (a) provide a basis for invidious comparisons among different ethnic groups, (b) may lower expectations of culturally and linguistically diverse children and reduce their level of aspiration to succeed, (c) may have little relevance outside of the child’s specific geographic area, and (d) furnish no information about the complex reasons why some ethnic groups tend to score lower than others on intelligence tests (p. 661).


There are two schools of thought regarding how closely matched the norms must be to the demographic characteristics of the individual being assessed, and these views are diametrically opposed. These are: (1) that norms should be as representative of the general population as possible, and (2) that norms should approximate, as closely as possible, the unique subgroup to which the individual belongs. (p. 47).

At times, it will be paramount to compare the individual to all other persons of the same age in the general population. Determining a diagnosis of mental retardation or learning disability would be one example (p. 47).

Of historical interest is the fact that neuropsychology’s recent shift toward demographically corrected scores based on race/ethnicity and other variables has occurred with surprisingly little fanfare or controversy despite ongoing debate in other domains of psychology. For example, when race-norming was applied to pre-employment screening in the United States to increase the number of minorities being chosen as job applicants, the result was the Civil Rights Act of 1991, which outlawed race-norming for applicant selection of referral (see Sackett & Wilk, 1994; Gottfredson, 1994; and Greenlaw & Jensen, 1996, for an interesting historical review of the ill-fated attempt at race-norming the GATB) (p. 50).

There is also evidence that when “corrective norms” are applied, some demographic influences remain, and overcorrection may occur, resulting in score distortion for some subgroups and a risk of increased false negatives (e.g., Fastenau, 1998) (p. 50).

Importantly, with regard to the WAIS-III/WMS-III, the Psychological Corporation explicitly states that demographically adjusted scores are not intended for use in psychoeducational assessment, determination of intellectual deficiency, vocational assessment, or any other context where the goal is to determine absolute functional level (IQ or memory) in comparison to the general population. Rather, demographically adjusted scores are best used for neurodiagnostic assessment in order to minimize the impact of confounding variables on the diagnosis of cognitive impairment. That is, they should be used to infer strengths and weakness relative to a presumed pre-morbid standard (The Psychological Corporation, 2002). Therefore, neuropsychologists need to balance the risks and benefits of using within-group norms, and use them with a full understanding of their implications and the situations in which they are most appropriate (p. 51).

The following select quotes from professional neuropsychological publications also make it clear that the neuropsychological professional jury is still “out” regarding the methodology and appropriate application of demographically adjusted NPTS scores (emphasis added via underline or bold font).


Clinical neuropsychologists are always starving for good normative data for established neuropsychological measures. Unfortunately, too many studies (and even manuals) contain too few subjects and/or their samples are not representative of the target population on important demographic variables, especially age and education. This was the problem that Heaton, Grant, and Matthews attempted to address with Comprehensive Norms for an Expanded Halstead Reitan Battery (1991). This practical product arose as a direct result of the authors’ 1986 chapter in an edited book (Heaton, Grant, & Matthews, 1986). The project represents a substantial effort on the part of the authors, and it has many commendable qualities. However, the merits are accompanied by significant shortcomings  (p. 444).

Our own informal inquiries have indicated that many of the scientist-practitioners in clinical neuropsychology have embraced this book in an uncritical manner. The strong and unreflective nature of such acceptance of these norms tells us how good an idea this kind of normative project is, in the abstract. Unfortunately, this particular product does not contribute as much as our expectations might lead us to anticipate. The format and marketing are so convincing that few would comb the introductory pages to analyze the test selection quirks and statistical/ design problems that abound (p.447).


While we agree that this initial attempt at providing demographic corrections for several commonly used tests could have been more statistically sophisticated, and possibly could have been more user friendly, the evidence seems to indicate that the norms do have significant advantages for neuropsychological clinical work and research (p. 457).


It is generally understood that demographically corrected normative standards are based upon performances of adults who have developed normally, have typical, mainstream educational backgrounds, and have no known history of brain injury or disease. It follows logically from this that such norms should be used with great caution, if at all, to identify acquired brain dysfunction in patients who have developmental disorders or other-than-mainstream educational backgrounds (e.g., special education). For example, it would be inappropriate to “adjust” a mentally retarded person’s IQ upward because of a low education level, thereby potentially depriving him/her of social services or mitigating considerations in criminal prosecution.

As we have noted, demographically corrected norms are used primarily to identify the presence and nature of neurobehavioral changes due to known or possible brain insult (injury or disease). Such norms are generally not the best choice for characterizing the individual’s absolute level of functioning, or functioning in relation to the general population of normal adults (Heaton & Pendleton, 1981) (p. 147).


Heaton, Grant, and Matthews (1991) published procedures for adjusting raw scores on various neuropsychological tests according to the individual's age and education. Despite rather widespread use of these score conversions in both clinical work and research publications, there have been very few investigations to evaluate the accuracy or limitations of these score transformations (p. 181).

Inasmuch as the HGM method brings about its greatest corrections among persons whose scores are more likely to be affected by brain impairment, a question must be raised concerning exactly what the HGM transformations are accomplishing. It might seem, at least in part, that the corrections are, in fact, correcting for subtle impairment of brain functions in less-educated and older persons—the very condition that neuropsychological tests were developed to detect (p. 188).

           
Concluding Comments

Demographically adjusted (e.g., Heaton norms) scores are 100% inconsistent with determination of a person’s general level of intellectual functioning as per the first prong of the diagnosis of MR/ID.  Demographically adjusted IQ scores, in particular, should not play a critical role when determining if a person has a deficit in general intellectual functioning.  Furthermore, interpretation of demographically adjusted NPST test scores (e.g., Halstead Category Test) to provide convergent validity evidence regarding a person’s level of general intelligence is not appropriate in the context of MR/ID diagnosis.


  
American Association on Intellectual and Developmental Disabilities.  (2010). Intellectual disability:  Definition, classification, and systems of supports—11th Edition. Washington, DC:  Author.

Fastenau, P. S. & Adams, K. M. (1996).  Book review: Heaton, Grant, and Matthews' Comprehensive Norms: An Overzealous Attempt. Journal of Clinical and Experimental Neuropsychology, 18 (3), 444-448.

Heaton, R. K., Ryan, L., & Grant, I. (2009).  Demographic influences and use of demographically corrected norms in neuropsychological assessment. In Igor Grant and Kenneth M. Adams (Eds), Neuropsychological Assessment of Neuropsychiatric and Neuromedical Disorders, Oxford University Press US.

Lange, R. T., Chelune, G. J., Taylor, M. J., Woodward, T. S., & Heaton, R. K. (2006).  Development of demographic norms for four new WAIS-III/WMS-III indexes. Psychological Assessment, 18 (2), 174 181.

 

Romero, H. R., Lageman, S. K., Kamath, V., Irani, F., Sim, A., Suarez, P., Manly, J. J., Attix, D. K., & the Summit participants (2009). Challenges in the neuropsychological assessment of ethnic minorities: Summit Proceedings. The Clinical Neuropsychologist, 23, 761-779.


Russell, E. W. (2005). Norming subjects for the Halstead Reitan battery. Archives of Clinical Neuropsychology, 20, 479-484.

Sattler, J. (2001). Assessment of Children:  Cognitive Applications—4th Edition.  San Diego, CA:  Jerome M. Sattler, Publisher, Inc.

Sherrill-Pattison, S., Donders, J., & Thompson, E. (2000). Influence of demographic variables on neuropsychological test performance after traumatic brain injury. The Clinical Neuropsychologist, 14 (4), 496-503.

Silverberg, N., & Millis, S. (2009).  Impairment versus deficiency in neuropsychological assessment: Implications for ecological validity.  Journal of the International Neuropsychological Society (2009), 15, 94–102.

Strauss, E., Sherman, E. M. S., & Spreen, O. (2006). A Compendium of Neuropsychological Tests: Administration, Norms, and Competency – 3rd Edition. New York, NY: Oxford University Press.

Titus, J. B., Retzlaff, P. D., & Dean, R. S. (2002). Predicting scores of the Halstead Category Test with the WAIS-III. International Journal of Neuroscience, 112, 1099-1114.

Yantz, C. L., Gavett, B. E., Lynch, J. K., & McCaffrey, R. J. (2006). Potential for the interpretation disparities of Halstead-Reitan neuropsychological battery performances in a litigating sample. Archives of Clinical Neuropsychology, 21, 809-817.


[1] The term “pluralistic norms” refers to the same concept as demographically adjusted norms and was the terminology used in the 1970’s when procedures for adjusting IQ scores for minority children based on race and socio-economic status were attempted.  Although using a different approach, the theory behind adjusting IQ scores is conceptually similar to that inherent in demographically adjusted norms.
[2] It is important to note that this quote is from the primary author of the Heaton norms. This statement indicates that the author of the Heaton norms views them as useful in “clinical” and “research” settings, which I interpret to not cover high stakes forensic diagnostic purposes such as Atkins cases.

Sunday, July 8, 2012

"Should killer with fetal alcohol syndrome be spared?"

The question in the title of this post is the headline of this lengthy article appearing in today's Forth Worth Star Telegram.  Here are excerpts:

A mother's failures are etched on Mark Anthony Soliz's face.  It's the damaged face of a child whose mother drank heavily, sniffed paint and used drugs while pregnant, the face of a youth who was largely abandoned.  The face of a killer.

Now, with Soliz sitting on Texas Death Row awaiting an execution date, the long-ago failings of his mother could hold the key to sparing his life.  Soliz's appeal of his capital murder conviction in the death of a Godley grandmother has joined a growing list of cases nationwide seeking to exclude the death penalty for defendants with fetal alcohol syndrome, a form of brain damage caused by maternal alcohol abuse.

Experts say the death penalty should be off the table in such cases, just as the U.S. Supreme Court has abolished the death penalty for defendants with mental retardation. Prosecutors and victims advocates, however, say it's a guise for going easy on killers who show no such mercy to their victims....

[I]n a groundbreaking decision in the Atkins case in 2002, the Supreme Court held that executing a person who is mentally retarded violates the Eighth Amendment's prohibition against cruel and unusual punishment.  The deficiencies associated with mental retardation, the court concluded, reduce a person's culpability in the crime.

Experts say the same rules should apply to people with fetal alcohol syndrome.  Those people have the same diminished capacities as those with mental retardation, they say, even though their IQs may test somewhat higher than the 70-75 range typically used to define mental retardation.

"The damage to the executive functioning of the brain is as severe as someone who is intellectually disabled," said John Niland, director of the Capital Trial Project with the Texas Defender Service, a nonprofit law firm in Houston and Austin that also provides training and consultation for attorneys in death penalty cases.  "I don't think we've been aware of it long enough to identify all of the cases."

The U.S. Supreme Court has already rejected a request to review a fetal alcohol case involving Louisiana Death Row inmate Brandy Holmes, who was named after her mother's favorite liquor.  But death penalty opponents say that does not rule out that other fetal alcohol cases could be considered by the nation's highest court.

Johnson County District Attorney Dale Hanna, who participated in the Soliz trial, said that fetal alcohol symptoms can vary widely and that such defendants should not be excluded outright from the death penalty.  "It's certainly something a jury can consider," Hanna said, "but in the Soliz case, it didn't go very far."

Billy Edwards, a public defender in California who has helped pioneer some of the legal training to help defense lawyers recognize fetal alcohol syndrome, said the issue is gaining traction in the courts.  "A lot of states are really looking at this issue," Edwards said. "What I'm seeing is a shift, hopefully, in public policy and having courts look at this as a mitigating factor, where in the past lawyers were just uneducated about it."

The State of Alaska just last month passed legislation that allows fetal alcohol spectrum disorder — the umbrella diagnosis for various fetal alcohol-related problems — to be considered as mitigation in criminal cases.  The American Bar Association will also consider a resolution later this summer calling for increased education and training for court and corrections workers about the syndrome.

Prosecutors and victims advocates say anything less than the death penalty in the Soliz [case] would be an injustice.  Soliz committed 13 crimes over eight days, including carjackings, armed robberies, a holdup, a drive-by shooting and the fatal shooting of Ruben Martinez, a deliveryman for Ben E. Keith who happened to be unloading beer at a north-side convenience store about 6 a.m. on June 29, 2010.

A few hours later, Weatherly was killed in her home.  The ruthless nature of the crimes made them even more horrifying, prosecutors said.  Soliz laughed in describing the crime to his girlfriend....

[V]ictims-rights advocates say the mothers are not to blame for their children's conscious decisions to kill.  "In most of these cases, the victim survivors are extremely reluctant to accept this as an excuse to spare them from the death penalty or any other sanction," said Dudley Sharp, a longtime victims-rights advocate based in Houston.  "Even in extremely severe cases ... you'll have some victim survivors who think, 'Better dead than alive.'"









Top-Ten Recent SSRN Downloads

in criminal law and procedure ejournals are here. The usual disclaimers apply. RankDownloadsPaper Title 1 613 Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right Keith A. Findley, Patrick David Barnes, David A. Moran, Waney Squier, University...








Friday, July 6, 2012

Georgia Inmate Scheduled to Die Despite Initial Finding of Intellectual Disabilities

Warren HillWarren Hill (pictured) is scheduled to be executed on July 18 in Georgia despite being previously found intellectually disabled. The U.S. Supreme Court in Atkins v. Virgnia (2002) banned the execution of individuals with intellectual disabilities (mental retardation), but allowed each state to set guidelines for determining whether an inmate has such a condition. In Georgia, capital defendants are required to prove "mental retardation" beyond a reasonable doubt. It is the only state in the country that sets such a high burden of proof for such claims.  Earlier, a state judge found that Hill was intellectually disabled, but under a lower legal threshhold than is required in the statute. In 2003, the Georgia Supreme Court reversed the judge's ruling in a 4-3 vote, holding that Hill's lawyers had failed to clear the threshold of "beyond a reasonable doubt."  Last year, the U.S. Court of Appeals for the Eleventh Circuit upheld the Georgia Supreme Court. Writing for the majority, Judge Frank Hull said federal law "mandates that this federal court leave the Georgia Supreme Court decision alone — even if we believe it incorrect or unwise." Brian Kammer, one of Hill's lawyers, said he will ask the Board of Pardons and Paroles to grant Hill clemency. Kammer said, "Executing Warren Hill, a 52-year-old man whom a court has found to be more likely than not mentally retarded, would be a terrible miscarriage of justice."

Hill was sentenced to death for the murder of a fellow inmate in 1990. 

(B. Rankin, "State sets execution for inmate judged mentally disabled," Atlanta Journal-Constitution, July 3, 2012.  See Intellectual Disability and Arbitrariness. Listen to DPIC's podcast on Intellectual Disability.









Research byte: Performance validity on neuropsych tests by litigants and disability claimants

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Research byte: WAIS-IV Visual Puzzles study

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Research bytes: WAIS-IV practice effect study

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Research byte: Third party observer effect on neuropsych results

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Roberts et al (2005) on Wechslers, WJ III and CHC theory




From the above excellent book. See select comments about the Wechslers, WJ III and CHC theory by Roberts et al. - a very good chapter in an excellent book.



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Article: USSC creates new "Research and Statistics Page"