New DSM-V: Effect on death penalty?

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Lawyers worry new measure of mental retardation could prompt more executions

By Elizabeth Dilts

(Reuters) – A new standard from the country’s leading psychiatric association to diagnose mental retardation could allow courts to execute convicted criminals with IQ scores below 70 more easily, say death penalty lawyers.

The Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association (APA), is the standard guidebook of psychiatric disorders and is used by clinicians to identify and diagnose psychiatric illnesses.

Each new edition is scrutinized by mental healthcare providers and the pharmaceutical industry for changes in definitions as well as new categories of illnesses. Such shifts can have enormous economic, social and legal implications and often are the subject of controversy.

The fifth edition of the book since it was first published in 1952, or DSM-V, is due to be released May 22. Already it has prompted concern from death penalty lawyers because of the change in the way the manual defines mental illness, or intellectual disability, the new name given in DSM-V.

Earlier editions of the DSM defined mental retardation as an IQ score below 70 accompanied by an inability to meet certain developmental norms, such as bathing regularly or maintaining work. Based on that IQ benchmark, the U.S. Supreme Court ruled in Atkins v. Virginia in 2002 that it is illegal to execute a mentally handicapped person.

But the editors of DSM-V have dropped the 70 IQ score as an indicator of mental retardation and instead recommend that clinicians consider IQ scores while analyzing an individual’s behavior to determine if he or she meets the developmental standards.


Making the definition of mental retardation more subjective could prompt more courts to subvert Atkins, said David Dow, a death penalty lawyer in Houston whose client Marvin Wilson was executed in Texas last summer despite his IQ score of 61.

« There are a lot of courts that are hostile to the basic legal doctrine the Atkins case established, » Dow said. « When you replace a test that is one part objective, one part subjective with a solely subjective test, it becomes easier for courts that are hostile to the constitutional principle of Atkins to evade that criterion. »

While it is illegal under Atkins to execute someone who was diagnosed mentally handicapped, states have the leeway to determine what criteria are used and who makes the diagnosis, said Richard Dieter, executive director of the Death Penalty Information Center. Consequently, states like Texas, Georgia and others have their own statutes outlining criteria to diagnose a convicted criminal as mentally retarded.

From 2002 to 2012, only a quarter of the death row inmates who claimed to have mental retardation were granted stays of execution, according to research by John Blume, director of Cornell University Law School’s Death Penalty Project. This included cases that had exhausted all appeals from the time of the Atkins decision to the end of 2012.

« Judges and jurors have stereotypes of what it means to be mentally retarded, » Blume said. « There is a problem with people who have lower than 70 IQ scores getting executed in spite of the Atkins ruling, and under the new DSM guidance, that problem is only going to get worse. »


According to Darrel Regier, vice chairman of the task force that produced the DSM-V revisions, the DSM is developed to provide guidelines for diagnosing mental illnesses for clinicians, not to provide treatment or judicial guidelines, and the test scores are only useful when interpreted by a clinical expert.

The DSM-IV’s reliance on an IQ score led, in some cases, to jurors sentencing people with IQ scores of 71 or 72 to death, in spite of the test’s five-point margin of error, Regier said.

« A single IQ point on a test can have profound implications for life and death without (clinical) interpretation, » he said.

James Harris, the founding director of the Developmental Neuropsychiatry Program at the Johns Hopkins University School of Medicine and a member of the DSM-V work group, said the criteria focus on three areas of adaptive functioning: academic, social and practical.

Looking at a death row inmate’s social adaptive area, an expert can examine how gullibility may have led the inmate into a crime, which could support a claim of mental retardation, Harris said in an email.

« We believe that we are providing the courts with a more fine-grained means to consider adaptive functioning more comprehensively and more meaningfully, » Harris said.

Lawyer Susan Orlansky of Feldman Orlansky & Sanders said Texas’s individualized statutes are the reason her client, Elroy Chester, will be executed even though he meets the lower-then-70-IQ standard. Chester was convicted in 1998 of fatally shooting a firefighter and confessed to killing four other people in the south Texas town of Port Arthur. He is scheduled to be executed June 12. Orlansky does not think changes in the reliance on IQ scores would impact the decision in Elroy’s case.

« Personally, I think if the Texas court system is willing to ignore the DSM-IV, I don’t know why they wouldn’t be just as willing to ignore the DSM-V, » she said.

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