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October 2015

IQ, Intelligence Testing, Ethnic Adjustments and
Atkins

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IQ, INTELLIGENCE TESTS, “ETHNIC
ADJUSTMENTS” AND ATKINS
ROBERT M. SANGER *
In Atkins v. Virginia the U.S. Supreme Court declared that executing the
intellectually disabled violated the U.S. Constitution’s Eighth Amendment
prohibition against cruel and unusual punishment. In Atkins, the Court
relied heavily on medical standards, which indicated that individuals with an
IQ of approximately or below seventy and who met the other criteria for
intellectual disability were ineligible for the death penalty. Twelve years later,
in Hall v. Florida, the Court evaluated a Florida statute that created a bright
line rule, making anyone whose IQ was above seventy eligible for execution,
regardless of other factors suggesting the defendant was, despite his IQ score,
intellectually disabled. Finding the statute violated the Constitution, the
Court stated that the Florida statute’s bright line rule made the possibility too
great that an intellectually disabled person would be executed.
Since Atkins, some prosecution experts have begun using so-called “ethnic
adjustments” to artificially raise minority defendants’ IQ scores, making
defendants who would have been protected by Atkins and its progeny eligible
for the death penalty. This Article details this practice, looking at several cases
in which prosecutors successfully adjusted a defendant’s IQ score upward,
based on his or her race. The Article then turns to the arguments put forth by
these prosecutors for increasing minority defendants’ IQ scores, namely that it
would be improper not to adjust the scores. Statistically, some minority cohorts

* Senior Partner, Sanger, Swysen & Dunkle. Adjunct Professor of Law, Santa
Barbara College of Law. J.D., University of California at Los Angeles; B.A., University of
California at Santa Barbara. Certified Criminal Law Specialist, The State Bar of
California Board of Legal Specialization. Technical portions of this paper topic were
presented to The American Academy of Forensic Sciences Annual Meeting, February
2015, Orlando, Florida. The author wishes to thank those who reviewed earlier drafts of
this Article and made valuable contributions, including Dr. Kathy Wayland, Dr. Erin
Dunkle, Sarah Sanger and the editors at the American University Law Review, including
Stephanie Poucher and Shahrzad Noorbaloochi. All errors are the author’s.

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tend to perform worse on tests than White cohorts; prosecutors argue that this
discrepancy is not based on intellectual inferiority, but rather that there are
testing biases and behavioral factors that cause minority test-takers to
underperform. Thus, the argument goes, minority IQ scores should be
increased to control for these biases and behavioral factors.
Evaluating the merits of these arguments, this Article concludes that ethnic
adjustments are not logically or clinically appropriate when computing a
person’s IQ score for Atkins purposes. This Article looks at epigenetics to
explain the discrepancies in IQ scores, concluding that environmental
factors—such as childhood abuse, poverty, stress, and trauma—can cause
decreases in actual IQ scores and which can be passed down from generation
to generation.
Therefore, given that individuals who suffered these
environmental factors disporportionately populate death row, ethnic
adjustments make it more likely that individuals who are actually
intellectually disabled will be put to death. Ultimately, after looking at the
Supreme Court’s affirmative action jurisprudence, this Article concludes that
the practice of ethnic adjustments for the purpose of determining eligibility for
the death penalty violates the Fourteenth Amendment’s Equal Protection
Clause and would not survive strict scrutiny.
TABLE OF CONTENTS
Introduction .......................................................................................... 89
I. Intellectual Disability, Ineligibility for Execution, and
“Intelligence” .............................................................................. 93
A. A Person Convicted of a Capital Crime Who Is
Intellectually Disabled Cannot Be Executed...................... 93
B. Hall and Further Reflection on the Definitional
Structure of Intellectual Disability ...................................... 98
C. IQ Tests and the First Criterion: Impaired Intelligence
or Subaverage General Intellectual Functioning ................ 100
D. The Legal Significance of IQ Scores and the First
Criterion:
Impaired Intelligence or Subaverage
General Intellectual Functioning ..................................... 104
II. The Prosecution’s Recent Attempts to Increase FSIQ
Scores Based on “Ethnic Adjustments” ................................... 108
A. The Prosecution’s Claim to Add Points to African
American and Latina/o IQ Scores in Florida and
Other Death Penalty Jurisdictions .................................... 108
B. Ethnic Adjustments in California ..................................... 112
C. Prosecution’s Attempt to Add Points to a Mexican’s
Scores in Texas .................................................................. 115

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III. The Logical and Clinical Analysis of “Ethnic Adjustments”
and Discrepancy Analysis ......................................................... 116
A. The Logical and Clinical Fallacy....................................... 117
B. Cohorts Do Score Differently ........................................... 118
C. Heaton’s Adjustments ....................................................... 122
D. Why Courts Acquiesce in “Ethnic Adjustments” .............. 124
IV. There Is an Epigenetic Effect of Childhood Abuse, Stress,
Poverty, and Trauma That Affects the Expression of Genes
and the Phenotype of Cell and Individual Development....... 129
A. Race is a Proxy for Likelihood of Exposure to Abuse,
Neglect, Stress, Poverty, and Trauma ............................... 130
B. Abuse, Neglect, Stress, Poverty, and Trauma Are
Correlated to Limitations in Intelligence ........................ 131
C. Studies Show that These Effects Can Be
Multigenerational .............................................................. 133
D. Etiology: Environmental Factors Lead to Epigenetic
Effects................................................................................. 135
V. Using a Classification of Race to Determine Eligibility for
Execution is Unconstitutional ................................................. 138
A. Classifications Based on Race Are Subject to Strict
Scrutiny .............................................................................. 138
1. Adjusting test scores based on race in the employment
and education contexts is unconstitutional .................... 140
2. “Ethnic adjustments” have the opposite effect of
the “benign” purpose for which they were offered
and therefore are not narrowly tailored ..................... 144
Conclusion .......................................................................................... 146
INTRODUCTION
In the last few years, courts in the United States have approved of,
or acquiesced in, expert testimony offered by the prosecution in
death penalty cases to the effect that several points (generally, five to
fifteen) should be added to the intelligence quotient (IQ) scores of
African American and Latina/o 1 defendants in determining whether
1. The term “Latina/os” is currently the accepted way to refer to the people
whom the prosecution experts and courts seem to be categorically classifying as
Mexican or Hispanic or, in some cases, for whom they do not make a clear ethnic
designation. For a taxonomy of the various available terms, see Lilian Comas-Díaz,
Hispanics, Latinos, or Americanos: The Evolution of Identity, 7 CULTURAL DIVERSITY &
ETHNIC MINORITY PSYCHOL. 115, 115–19 (2001). However, none of the terms refer to
a “race.” See State & County Quick Facts: Hispanic Origin, U.S. CENSUS BUREAU,
http://quickfacts.census.gov/qfd/meta/long_RHI725212.htm
(“Hispanics
or

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they are intellectually disabled (mentally retarded) 2. Generally, after
increasing the test scores, the prosecution argues that the defendant
is not eligible for relief from execution under Atkins v. Virginia. 3 In
such cases, the “ethnic adjustment” 4 of test scores based on the race
of the defendant has the effect of qualifying people of color, who
otherwise would be exempted, for execution.
Placing this in context, in 2002, the U.S. Supreme Court held in
Atkins that it is unconstitutional for the government to execute an
intellectually disabled person. 5 The determination of whether a
particular individual is intellectually disabled is based, in significant
part, on IQ test scores. 6 The purported “ethnic adjustment” of IQ
scores in capital cases, therefore, plays a significant role in
determining who will be executed. This Article addresses whether it

Latinos are those people who classified themselves in one of the specific Spanish,
Hispanic, or Latino categories . . . as well as those who indicate that they are ‘another
Hispanic, Latino, or Spanish origin.’ . . . Origin can be view [sic] as the heritage,
nationality group, lineage, or country of birth of the person or the person’s parents
or ancestors before their arrival in the United States. People who identify their
origin as Spanish, Hispanic, or Latino may be of any race.”).
2. This Article will use “intellectual disability” as identical to, and generally
instead of, “mental retardation.”
3. 536 U.S. 304, 321 (2002) (citing Ford v. Wainwright, 477 U.S. 399, 405 (1986)).
4. See Robert K. Heaton et al., Demographic Influences and Use of Demographically
Corrected Norms in Neuropsychological Assessment, in NEUROPSYCHOLOGICAL ASSESSMENT
OF NEUROPSYCHIATRIC AND NEUROMEDICAL DISORDERS 127, 146–47 (Igor Grant &
Kenneth M. Adams eds., 3d ed. 2009) (using the term “demographic corrections”
interchangeably with “adjustments”) [hereinafter Heaton et al., Neuropsychological
Assessment]; ROBERT K. HEATON ET AL., REVISED COMPREHENSIVE NORMS FOR AN
EXPANDED
HALSTEAD-REITAN
BATTERY:
DEMOGRAPHICALLY
ADJUSTED
NEUROPSYCHOLOGICAL NORMS FOR AFRICAN AMERICAN AND CAUCASIAN ADULTS 6 (2004)
[hereinafter HEATON ET AL., REVISED COMPREHENSIVE NORMS] (same); see also In re
Champion, 322 P.3d 50, 67 (Cal. 2014) (illustrating how witnesses, such as Dr.
Charles Hinkin, have used the term “ethnically corrected”).
5. Atkins, 536 U.S. at 317 (using the terminology “mental retardation”). But see
AM. ASS’N ON INTELLECTUAL DEV. & DISABILITY, INTELLECTUAL DISABILITY: DEFINITION,
CLASSIFICATION, AND SYSTEMS OF SUPPORTS 33 (11th ed. 2010) [hereinafter AAIDD
MANUAL] (using the current clinical terminology: “intellectual disability”). See
generally Hall v. Florida, 134 S. Ct. 1986, 1990 (2014) (approving of use of the term
“intellectual disability” in lieu of “mental retardation” during discussions of eligibility
for execution under Atkins (citing Rosa’s Law, Pub. L. No. 111-256, 124 Stat. 2643
(2010) (removing references to “mental retardation” in the U.S. Code and replacing
the phrase with “intellectual disabilities”))).
6. See Hall, 134 S. Ct. at 2001 (recognizing that IQ test scores have clinical
significance but are not dispositive in diagnosing intellectual disability); see also
Brumfield v. Cain, 135 S. Ct. 2269, 2278 (2015) (noting that an IQ test result of
seventy-five was “in the range of potential intellectual disability”).

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is appropriate constitutionally, logically, or clinically to “ethnically
adjust” the IQ scores of African Americans and Latina/os for the
purpose of determining whether they are eligible for execution. 7
Last Term, the United States Supreme Court had an opportunity to
address this issue. In Hernandez v. Stephens, 8 a Latino defendant, 9
whose IQ the prosecution successfully argued should be adjusted
upward, applied for relief under Atkins in Texas. 10 The U.S. Court of
Appeals for the Fifth Circuit nevertheless affirmed his death
sentence, 11 and the U.S. Supreme Court subsequently denied
certiorari. 12 Meanwhile, as described in this Article, other courts have
either approved of or acquiesced in ethnic adjustments. 13
This Article proceeds in five Parts. Part I reviews the basic law
regarding intellectual disability and the death penalty. In so doing,
this Part explores the two major Supreme Court cases considering the
constitutionality of executing the intellectually disabled, Atkins and
Hall v. Florida. 14 Part I then examines the definition of intellectual
disability as established by the medical community, the legislature,
and the judiciary. Finally, this Part considers the Court’s specific
treatment of IQ testing in Hall along with the Court’s conclusion that
rigid reliance on IQ scores should not deprive persons facing the
death penalty of the opportunity to show that the Constitution
prohibits their execution.

7. Although the topic references the death penalty, the same question would also
apply to the purported “ethnic adjustment” of IQ scores in any forensic setting. This would
include eligibility for treatment or services, civil liability, or non-capital criminal mitigation.
8. 537 F. App’x 531 (5th Cir. 2013) (per curiam), cert. denied, 134 S. Ct. 1760 (2014).
9. It is not clear from the opinions and record whether Mr. Hernandez was a
Mexican National, or an American of Mexican descent. The U.S. Court of Appeals
for the Fifth Circuit indicated only that Mr. Hernandez’s mother and sister lived in
Mexico and that he may have spent his childhood in Mexico. Id. at 541.
10. Id. at 535–36. The prosecution’s expert adjusted an IQ score of sixty-two to a
seventy to conform with “Mexican norms.” Id. at 536.
11. Id. at 543.
12. Hernandez, 134 S. Ct. 1760.
13. See, e.g., Maldonado v. Thaler, 625 F.3d 229, 238 (5th Cir. 2010) (affirming
that “cultural and educational factors” could have “suppressed” the defendant’s IQ
scores, so his scores had to be adjusted upward); Hodges v. State, 55 So. 3d 515, 525
(Fla. 2010) (per curiam), cert. denied, 132 S. Ct. 164 (2011) (stating that the
defendant’s low IQ scores could be discounted because “IQ tests tend to
underestimate particularly the intelligence of African-Americans”); Ex parte
Rodriguez, 164 S.W.3d 400, 404 (Tex. Crim. App. 2005) (Cochran, J., concurring)
(stating that the defendant’s scores did not necessarily show mental retardation
because the verbal IQ test “is really culturally based”).
14. 134 S. Ct. 1986 (2014).

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Part II of this Article examines the testimony of expert witnesses to
the effect that points should be added to the IQ scores of African
Americans and Latina/os for the purpose of determining whether
such individuals meet the first criterion of intellectual disability. This
Part discusses California Supreme Court and Fifth Circuit cases
decided in 2014, along with cases from other death penalty
jurisdictions in the United States that either accepted or acquiesced
in the ethnic adjustment of IQ scores.
Part III of this Article examines the justification for ethnic
adjustments, both as a matter of logic and in clinical practice.
Accordingly, Part III discusses under what circumstances, if any, race
or ethnicity can be considered in calculating IQ scores. This Part
then evaluates the argument that the state must ethnically adjust IQ
scores in capital cases to avoid racism, an analysis that challenges the
paradigm that has perpetuated the practice of ethnic adjustments.
This Part also analyzes whether race neutral variables have a
demonstrated relationship to decreased intellectual ability and to
lower IQ test scores. It further examines whether something like
race—where there might be an imperfect statistical correlation (on
average) to lower scores—could be used to justify the imposition of
the death penalty on any individual.
Part IV evaluates the issue within a new paradigm, looking to the
ways in which environmental factors, rather than race itself, affect IQ
scores. Specifically, this Part examines the effects of childhood
abuse, stress, poverty, and trauma on an individual—both
behaviorally and through the process of epigenetics. 15 This Part
argues that any correlation between the average IQ test scores of
racial cohorts (or comparing average scores of cohorts to the overall
community norm) is not attributable to race and is heavily influenced
by race-neutral environmental factors. Further, it asserts that adverse
environmental factors result in phenotypic manifestations, which
include epigenetic changes affecting intellectual ability. Ultimately,
these epigenetic changes result in a disproportionate number of
those exposed to adverse environmental factors being intellectually
disabled. These individuals are disproportionately represented in the
population of people facing the death penalty in the United States.
Part V of this Article examines the constitutional validity of using
racial classifications in determining eligibility for the death penalty and
15. Epigenetics is the study of “a stably heritable phenotype resulting from
changes in a chromosome without alterations in the DNA sequence.’’ Shelley L.
Berger et al., An Operational Definition of Epigenetics, 23 GENES & DEV. 781, 781 (2009).

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explores whether it is a violation of the Fourteenth Amendment’s Equal
Protection Clause to make a decision of life and death as a result of
adjustments based on race. Through this analysis, this Article argues
that, for Atkins determinations (or for any other forensic purpose),
the “ethnic adjustment” of IQ scores is unconstitutional and contrary
to both logic and medical science. Therefore, this Article concludes
that it is not only logically, clinically, and constitutionally inappropriate
to “ethnically” adjust IQ scores, but that, in the context of the death
penalty, there is a likelihood that people whose intellectual abilities are
actually depressed by adverse environmental factors will be subjected to
a false increase in their IQ scores. Thus, the “ethnic adjustment” (or
adjustment based on any subgroup cohort) of IQ scores has the effect
of making those who are actually intellectually disabled more
susceptible to capital punishment.
I.

INTELLECTUAL DISABILITY, INELIGIBILITY FOR EXECUTION, AND
“INTELLIGENCE”

This Part will review the constitutionality of executing the
intellectually disabled by analyzing the Supreme Court’s decisions in
Atkins and Hall. This Part further explains the definition of
intellectual disability that the courts, legislature, and medical
community have widely accepted. Finally, this Part will identify the
Court’s specific treatment of IQ testing in Hall and will evaluate the
Court’s conclusion that rigid reliance on IQ scores should not
deprive people facing the death penalty of a chance to illustrate that
their execution is unconstitutional.
A. A Person Convicted of a Capital Crime Who Is Intellectually Disabled
Cannot Be Executed
In 2002, the Supreme Court, in Atkins v. Virginia, held that
executing a person who is “mentally retarded” (intellectually
disabled) constituted “excessive” punishment under the Eighth
Amendment 16 and therefore violated the Constitution. 17 The Court

16. Atkins v. Virginia, 536 U.S. 305, 321 (2002). The Eighth Amendment to the U.S.
Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.” U.S. CONST. amend. VIII. As stated in Atkins,
A claim that punishment is excessive is judged not by the standards that
prevailed in 1685 when Lord Jeffreys presided over the “Bloody Assizes” or
when the Bill of Rights was adopted, but rather by those that currently
prevail. As Chief Justice Warren explained in his opinion in Trop v.
Dulles[:] “The basic concept underlying the Eighth Amendment is nothing

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reasoned that the execution of the mentally retarded is “excessive” in
that “the Constitution ‘places a substantive restriction on the State’s
power to take the life’ of a mentally retarded offender.” 18 The Court
further explained that mentally retarded offenders “by definition []
have diminished capacities to understand and process information, to
communicate, to abstract from mistakes and learn from experience,
to engage in logical reasoning, to control impulses, and to
understand the reactions of others.” 19
The Court’s holding in Atkins has resulted in a legal process
whereby the courts make a binary determination about whether a
defendant is intellectually disabled. That process is outcomedeterminative regarding life or death. Consequently, as with any
term upon which significant legal consequences depend, there has
been legislation, 20 litigation, 21 and controversy 22 over its “legal”

less than the dignity of man. . . . The Amendment must draw its meaning from
the evolving standards of decency that mark the progress of a maturing society.”
Atkins, 536 U.S. at 311–12 (citing Trop v. Dulles, 356 U.S. 86, 100–01 (1958)).
17. Id. at 321 (“We are not persuaded that the execution of mentally retarded
criminals will measurably advance the deterrent or the retributive purpose of the
death penalty. Construing and applying the Eighth Amendment in the light of our
‘evolving standards of decency,’ we therefore conclude that such punishment is
excessive and that the Constitution ‘places a substantive restriction on the State’s
power to take the life’ of a mentally retarded offender.” (citing Ford v. Wainwright,
477 U.S. 399, 405 (1986))).
18. Id. (quoting Ford, 477 U.S. at 405).
19. Id. at 318.
20. Compare IND. CODE § 35-36-9-2 (2015) (defining an individual with an
intellectual disability as one “who, before becoming twenty-two years of age,
manifests: (1) significantly sub-average intellectual functioning; and (2) substantial
impairment of adaptive behavior”), with OR. REV. STAT. § 427.005 (2015) (defining
intellectual ability as “significantly subaverage general intellectual functioning . . .
with significant impairment in adaptive behavior, that is manifested before the
individual is [eighteen] years of age”).
21. Compare the Supreme Court of Tennessee in Van Tran v. State, 66 S.W.3d 790,
795 (Tenn. 2001) (citing AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS 39 (4th ed. 1994) [hereinafter DSM-IV]) (narrowing
the definition of adaptive behavior by stating that “[an intellectually disabled] person
will have significant limitations in at least two of the following basic skills:
communication, self-care, home living, social/interpersonal skills . . . and safety”),
with the Texas Court of Appeals in Ex parte Briseno, 135 S.W.3d 1, 7 (Tex. Crim. App.
2004) (citing AM. ASS’N ON MENTAL DEFICIENCY, CLASSIFICATION IN MENTAL
RETARDATION 11 (Herbert J. Grossman ed., 1983)) (failing to specify a particular
number of skills that should be impaired in making the determination that an
individual is intellectually disabled).
22. See Benjamin L. Handen, Intellectual Disability (Mental Retardation), in
ASSESSMENT OF CHILDHOOD DISORDERS 551, 553 (Eric J. Mash & Russell A. Barkley

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definition. This controversy arises because “mental retardation”
(intellectual disability) is both a legal and medical (or clinical)
term. 23 After Atkins, this confluence of contexts from which the term
arises left unsettled whether its meaning evolved with changes in
understanding in the medical community.
Determining whether the Atkins Court intended “mental
retardation” to be a legal term with a fixed definition or whether it is
a term of art dependent on the evolving medical interpretation
entails three further questions: first, whether the court would
acknowledge any change in terminology to the legal definition based
on a change in usage in the medical profession; second, whether the
definition is intended to be static, that is, fixed at the time of the
Atkins decision, or dynamic based on subsequent legal and medical
developments; and third, whether the definition is intended to be
implemented in individual cases based on clinical judgment or based
on a rigid application of legal rules.
The U.S. Supreme Court did not directly answer these questions in
Atkins, nor did it address any definitional issues under Atkins until its
2014 decision in Hall v. Florida. 24 The Court in Hall concluded that
IQ scores used to ascertain the intelligence of persons facing the
death penalty should be treated with “studied skepticism” and that
courts must recognize these tests’ imprecision. 25
Years before Hall came down, the medical community stopped
using the term “mental retardation” and began using the term
“intellectual disability,” 26 with the American Association on
Intellectual and Developmental Disabilities (“AAIDD”) leading the

eds., 4th ed. 2007) (discussing the revised definitions of “intellectual disability” over
the last few decades, which today places greater emphasis on associated deficits in
adaptive functioning, although there is “little agreement over both the definition of
‘adaptive behavior’ and how to assess it”).
23. See infra notes 24–29 and accompanying text.
24. 134 S. Ct. 1986, 1990 (2014); cf. People v. Barrett, 281 P.3d 753, 755 & n.2
(Cal. 2012), reh’g denied, 2012 Cal. LEXIS 8950 (Cal. Sept. 19, 2012) (opining that
California courts should use the term “developmentally disabled” or “intellectually
disabled” rather than “mental retardation”).
25. Hall, 134 S. Ct. at 2000–01, see Brumfield v. Cain, 135 S. Ct. 2269, 2278
(2015). The holding in Hall will be addressed in more detail later in this Article. See
infra Part I.A–B (discussing the definitional structure of intellectual disability and the
legal significance of IQ scores, respectively).
26. Robert L. Schalock et al., The Renaming of Mental Retardation: Understanding
the Change to the Term Intellectual Disability, 45 INTELLECTUAL & DEVELOPMENTAL
DISABILITIES 116, 116 (2007).

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charge. 27 Indeed, the organization changed its name from the
American Association on Mental Retardation (“AAMR”) to its current
name to reflect its commitment to abandoning the term “mental
retardation” in favor of “intellectual disability.”28 Thereafter, the
American Psychiatric Association (“APA”) accepted the change in
terminology in the Diagnostic and Statistical Manual-5 (“DSM-5”). 29
Answering this terminological question, Justice Kennedy, writing
for the majority in Hall, held that the Court would adopt the current
medical appellation. 30 The Court chose to abandon the term “mental
retardation” and its variants in favor of “intellectual disability,”31
considering the two terms to be “identical” for legal purposes. 32
Hence, as a matter of constitutional law, the terms are
interchangeable. Congress amended the U.S. Code thereafter,
confirming this change in terminology. 33
The second question, now that the Court used “the term
‘intellectual disability’ to describe the identical phenomenon,” 34 was
whether the definition of “intellectual disability” was static and fixed
at the time of Atkins or subject to evolution over time in the course of
medical practice. The AAIDD held that the change in terms
reflected a change in the understanding of the clinical phenomenon
as well as a change of label. 35 During the course of discussing the
specific issues in Hall, the Court acknowledged that the definition of
intellectual disability was neither static and frozen in time by Atkins

27. KRONKOSKY CHARITABLE FOUND., INTELLECTUAL DISABILITY 1 (2015)
[hereinafter KRONKOSKY RESEARCH BRIEF], http://www.kronkosky.org/Research/
Foundation-Research/Research-Briefs; see also AAIDD MANUAL, supra note 5, at xiii–
xvi (explaining that the AAIDD has led the field of intellectual disabilities in
“understanding, defining, [] classifying[,]” and educating the public).
28. AAIDD MANUAL, supra note 5, at xiii.
29. See AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS 33 (5th ed. 2013) [hereinafter DSM-5]. The modern Diagnostic and
Statistical Manual was created by the American Psychiatric Association (“APA”) in the
early 1950s in an effort to standardize diagnostic criteria within the mental health
professions. Id. at 6.
30. Hall, 134 S. Ct. at 1990.
31. Id.
32. Id.; cf. People v. Barrett, 281 P.3d 753, 755 n.2 (Cal. 2012).
33. See Rosa’s Law, Pub. L. No. 111-256, 124 Stat. 2643 (2010) (changing all
references in the U.S. Code from “mental retardation” to “intellectual disability”).
34. Hall, 134 S. Ct. at 1990 (emphasis added). See generally Barrett, 281 P.3d at 755 n.2
(recommending “that California courts should speak only in terms of persons who are . . .
‘intellectually disabled’” and should discontinue using the term “mental retardation”).
35. See KRONKOSKY RESEARCH BRIEF, supra note 27, at 1.

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itself, nor detached from medical science by legislative enactment. 36
The Court discussed the current clinical understanding of
intellectual disability at length, saying, “In determining who qualifies
as intellectually disabled, it is proper to consult the medical
community’s opinions.” 37 The Court went on to cite numerous
scholarly and diagnostic materials written long after the Atkins
decision. 38 In that way, it acknowledged both that the terminology
identifying the phenomenon is legally interchangeable and that the
legal concept should reflect that the phenomenon itself is subject to
changes in clinical understanding. 39
Finally, the Court addressed the third question, namely whether
the Court’s definition was to be applied in individual cases as a strict
set of legal rules or if it was subject to clinical interpretation. 40 On
this question, the Court held that the legal definition used for Atkins
purposes is substantially based on clinical assessment rather than
“rigid” legal rules. 41 The use of rigid rules, the Court concluded,
“create[d] an unacceptable risk that persons with intellectual
disabilit[ies] will be executed, and thus is unconstitutional.” 42 In
other words, the determination of intellectual disability in any given
case will be based on clinical assessment and not limited by a
mechanical application of strict rules.
In summary, a person who is intellectually disabled cannot be
constitutionally executed, and the legal meaning of intellectual
disability, which is synonymous with mental retardation, evolves with
the medical understanding of the term and should be assessed in
individual cases based on clinical judgment. Having acknowledged
this, however, intellectual disability is not totally amorphous. There is
a basic structure to the definition both legally and clinically. We will
turn to the structure of that definition as interpreted by the Supreme
Court and look at the sources upon which the Court relied.

36. Hall, 134 S. Ct. at 1993.
37. Id.
38. Id. at 1995 (citing the latest literature on interpretation of IQ scores, including
the DSM-5, supra note 29, at 37, and the AAIDD MANUAL, supra note 5, at 22).
39. Id. at 1990.
40. Id. at 2000 (citing DSM-5, supra note 29, at 37).
41. Id. (stating that “[t]he legal determination of intellectual disability is distinct from a
medical diagnosis, but it is informed by the medical community’s diagnostic framework”).
42. Id. at 1990.

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B. Hall and Further Reflection on the Definitional Structure of
Intellectual Disability
Acknowledging that the legal definition would evolve with the
medical community’s understanding and foreshadowing where the
Court would focus more attention in the future, the Atkins court cited
two “clinical definitions” 43: the first derived from the AAMR’s
manual, Mental Retardation: Definition, Classification, and Systems of
Support; the second came from the APA’s Diagnostic and Statistical
Manual for Mental Disorders (“DSM”). 44 In 2014, twelve years after
Atkins, the U.S. Supreme Court addressed, for the first time,
questions directly related to the definitional structure of intellectual
disability, 45 relying heavily on clinical sources.46 Significantly, since
Atkins, the medical community’s understanding of intellectual
disability had progressed considerably. 47

43. Atkins v. Virginia, 536 U.S. 305, 317 (2002); see id. at 308 n.3 (noting the
similarities between the American Association on Mental Retardation’s and the
APA’s definitions of mental retardation).
44. AM. ASS’N OF MENTAL RETARDATION, MENTAL RETARDATION: DEFINITION,
CLASSIFICATION, AND SYSTEMS OF SUPPORT (10th ed. 2002); DSM-IV, supra note 21.
These were the authoritative clinical publications at the time of the Atkins decision in
2002. Each has been revised since the publication of Atkins: DSM-5, supra note 29
and AAIDD MANUAL, supra note 5. It does not seem controversial that the
definitional structure of a medical or clinical psychological term would be based on
the understanding of doctors and clinical psychologists. Not all areas where the law
and psychology intersect can make this claim. Insanity in most states relates, in part,
to a clinical diagnosis, but it is strictly a legal concept and has a legal definition that is
independent of any one clinical diagnosis. The standard in M’Naghten’s Case, 8 Eng.
Rep. 718, 719 (1843), is used in many states. It is a cognitive test that examines
whether an individual knows right from wrong or knows the nature and quality of
one’s acts. Whereas the MODEL PENAL CODE § 4.01 (AM. LAW INST. 1985), followed in
other jurisdictions, has both a cognitive and volitional aspect. Both depend on a
mental disease or defect that would be informed by medical and clinical opinion but
ultimately, the definition of insanity is legal, not medical.
45. Hall, 134 S. Ct. at 1993.
46. Id. at 1994 (citing Atkins, 536 U.S. at 308 n.3) (using the APA’s three criteria
for defining an intellectual disability). APA has now published the DSM-5, supra note
29. See infra Part I.B. for a more detailed discussion.
47. The Court acknowledged the subsequent editions of the American
Association on Mental Retardation Manual (now the American Association on
Intellectual and Developmental Disabilities (AAIDD) Manual), the DSM-5, and also
cited treatises and articles such as R. MICHAEL FURR & VERNE R. BACHARACH,
PSYCHOMETRICS: AN INTRODUCTION 118 (2d ed. 2014) and W. Joel Schneider,
Principles of Assessment of Aptitude and Achievement, in THE OXFORD HANDBOOK OF CHILD
PSYCHOLOGICAL ASSESSMENT 286, 289–91, 318 (Donald H. Saklofske et al. eds., 2013).
Hall, 134 S. Ct. at 1995.

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The specific issue before the Court was whether Florida could
preclude potentially intellectually disabled persons from Atkins’s
protections by creating a bright line rule excluding anyone with an
IQ of more than seventy from such protection. 48 In Hall, unlike
Atkins, the Court conducted a lengthy analysis of intellectual
disability’s definitional structure, 49 relying extensively on medical and
clinical authorities. 50 As a result, three broad criteria derived from
the term’s clinical definition emerged, establishing the term’s legal
definition51: “(1) significantly subaverage intellectual functioning,
(2) deficits in adaptive functioning[,] . . . and (3) onset of these
deficits during the development period.” 52 These three broad
definitional criteria are now common to all legal and clinical
definitions of intellectual disability;53 since Atkins, states generally
agree 54 on this framework. 55 Unsurprisingly, these three broad

48. Hall, 134 S. Ct. at 1994.
49. Id. at 1998–99.
50. Id. at 1993–94, 2000–01.
51. Id. at 1994.
52. Id. at 1994.
53. These three criteria can be traced back to the definition given in 1959 by
Rick Heber. See generally Rick Heber, A Manual on Terminology and Classification in
Mental Retardation, 64 AM. J. MENTAL DEFICIENCY 55, 55–56, 65 (1959). The same criteria
have been carried through from inception to both the AAIDD MANUAL and the DSM-5.
The history is set forth in the AAIDD MANUAL, supra note 5, at 8–9 tbl.1.1.
54. See ALA. CODE 1975 § 15-24-2 (2015), ARIZ. REV. STAT. § 13-753(K)(3) (2015);
ARK. CODE ANN. § 5-4-618 (2015); CAL. PENAL CODE § 1376 (West 2015); COLO. REV.
STAT. § 18-1.3-1101 (2015); DEL. CODE ANN. tit. 11, § 4209(d)(3)(d)(2) (2015); FLA.
STAT. § 921.137 (2015); GA. CODE ANN. § 17-7-131(a)(3) (2015); IDAHO CODE § 192515A(1)(a) (2015); IND. CODE § 35-36-9-2 (2015); KAN. STAT. § 76-12b01(d) (2015);
KY. REV. STAT. ANN. § 532.130(2) (West 2015); LA. CODE CRIM. PROC. ANN. art.
905.5.1(H) (2015); MAINE REV. STAT. tit. 34-B, § 5001(3) (2015)*; MASS. GEN. LAWS
ch. 123B, § 1 (2015)*; MICH. COMP. LAWS § 330.1100b(12) (2015)*; MISS. CODE
ANN. § 41-21-61(f) (2015); MO. REV. STAT. § 630.005(20) (2015); NEV. REV. STAT.
§ 174.098(7) (2015); N.C. GEN. STAT. § 15A-2005(a)(1)(a) (2015); OKLA. STAT. tit. 21,
§ 701.10b (2015); S.C. CODE ANN. § 44-20-30(12) (2015); TENN. CODE ANN. § 39-13203(a) (2015); TEX. HEALTH & SAFETY CODE ANN. § 591.003(15-a) (West 2015); UTAH
CODE ANN. § 77-15a-102 (LexisNexis 2015); VT. STAT. ANN. tit. 1, § 146 (2015)*; VA.
CODE ANN. § 19.2-264.3:1.1(A) (2015); WASH. REV. CODE § 10.95.030(2)(a) (2015);
WYO. STAT. ANN. § 25-5-102(b)(xx) (2015).
* Denotes that the state does not have the death penalty but does have a statute
defining intellectual disability.
55. The federal statute does not purport to define mental retardation. See 18
U.S.C. § 3596(c) (2012) (merely stating, “A sentence of death shall not be carried
out upon a person who, as a result of mental disability, lacks the mental capacity to
understand the death penalty and why it was imposed on that person”).

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definitional criteria derive from the clinical definitions56 and form the
starting point for the more nuanced medical and legal discussions of who
qualifies as intellectually disabled in the context of an Atkins hearing.57
C. IQ Tests and the First Criterion: Impaired Intelligence or Subaverage
General Intellectual Functioning
Forensically, in capital punishment litigation, the question of
intellectual disability is presented by way of evidence at an Atkins
hearing. The specific interpretation of each of the three clinical
criteria and the overall evidence of clinical judgment is the subject of
expert testimony at such hearings. 58 Ultimately, if the trier of fact
determines that the defendant facing the death penalty is
intellectually disabled based on these three criteria, the defendant is
not eligible for execution and, instead, is subject to life in prison
without the possibility of parole. 59
IQ test scores are a factor in assessing the first criterion for
intellectual disability—impairment in intelligence or subaverage
general intellectual functioning.
This Article analyzes “ethnic
adjustments” to IQ scores under the first criterion; specifically,
whether “ethnic adjustments” to IQ testing are constitutionally,
logically, or clinically appropriate.
The three broad criteria in the definition of intellectual disability,
as a matter of constitutional law, must be construed in a way that
recognizes the acute need to avoid improper execution and gives a
fair opportunity to those who are intellectually disabled to show they
are not eligible. In other words, the constitutional requirement is
that the definitional criteria be construed in a manner that, if there is
error, the error is in favor of not executing the defendant. 60 In the

56. AAIDD MANUAL, supra note 5, at 33–34. The APA has now published the
DSM-5, supra note 29.
57. Hall, 134 S. Ct. at 1995; Atkins v. Virginia, 536 U.S. 304, 318 (2002).
58. E.g., Commonwealth v. DeJesus, 58 A.3d 62, 67–75 (Pa. 2012) (describing the
defendant’s Atkins hearing, which was conducted over twelve days and included testimony
from multiple mental health experts and witnesses who knew the defendant well).
59. In the event that the death penalty is not imposed, most jurisdictions with the
death penalty allow capital convictions to be punished with life in prison without the
possibility of parole. See ROGER HOOD & CAROLYN HOYLE, THE DEATH PENALTY: A
WORLDWIDE PERSPECTIVE 478 (5th ed. 2015).
60. See Hall, 134 S. Ct. at 2001; see also Brumfield v. Cain, 135 S. Ct. 2269, 2278
(2015) (reiterating that it is unconstitutional to foreclose examination of a capital
defendant’s intellectual disability merely because his IQ is above seventy).

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context of the first criterion, impairment in intelligence or “subaverage
general intellectual functioning,” error can occur in IQ testing. 61
The idea of “full scale intelligence quotient” (“FSIQ”) testing 62 is to
determine the “g” or general intelligence of the individual and then
compare the individual’s g to the norm. 63 This comparison results in
an IQ score. There is much written on the extent to which there is a g
and, if there is, the extent to which intelligence tests actually measure
it. 64 Nevertheless, the predominant clinical opinion is that, while subject
to error, current IQ testing is fairly accurate. 65 Thus, IQ testing remains
a significant factor in making both the legal and clinical assessment of
intelligence or intellectual functioning under the first criterion. 66
An individual’s IQ is measured by standardized testing that is
“normed” against a cross-section of the larger community. 67 The
norm for the cross-section is 100. 68 It is generally accepted that an
FSIQ score of approximately two standard deviations below the norm,
which is approximately thirty points or an FSIQ of approximately
seventy, is considered “subaverage” for the diagnosis of intellectual
disability. 69 For many reasons, both clinically and legally, the score is
important, but not dispositive. 70

61. Atkins, 536 U.S. 305, 308 n.3, 318; see Hall, 134 S. Ct. at 1995–96.
62. “Full scale intelligence quotient” (“FSIQ”) is a term used for an individual’s
complete cognitive capacity. Tests include the Wechsler Intelligence Scale for
Children (“WISC-IV”) and the Wechsler Adult Intelligence Scale (“WAIS-IV”) for
adults. The FSIQ test consists of fifteen subtests that measure four different aspects
of intellectual ability: verbal comprehension, working memory, perceptual reasoning
and processing speed. See generally ELIZABETH LICHTENBERGER & ALAN KAUFMAN,
ESSENTIALS OF WAIS-IV ASSESSMENT 9 (2d ed. 2013) (listing the origins of the fifteen
subtests and the aspect of intellectual disability covered by each).
63. A key consideration in IQ testing is the “degree to which an IQ test score is
saturated” with general intelligence or “g”. Dale G. Watson, Intelligence Testing, in
THE DEATH PENALTY AND INTELLECTUAL DISABILITY 113, 113 (Edward A. Polloway ed.,
2015). Some tests are better than others, but the “g-loading” of the WAIS-IV and
other major intelligence batteries is fairly high. Id. at 127.
64. See, e.g., LICHTENBERGER & KAUFMAN, supra note 62, at 36–37; Roberto Colom
et al., Education, Wechsler’s Full Scale IQ, and g, 30 INTELLIGENCE 449, 450–51 (2002).
65. See Watson, supra note 63, at 114–15, 131–32.
66. AAIDD MANUAL, supra note 5, at 40 (“It must be stressed that the diagnosis of
[intellectual disability] is intended to reflect a clinical judgment rather than an
actuarial determination.”).
67. Watson, supra note 63, at 116.
68. Id.
69. AAIDD MANUAL, supra note 5, at 39–40; DSM-5, supra note 29, at 37.
70. See, e.g., Brumfield v. Cain, 135 S. Ct. 2269, 2277–78 (2015) (concluding that
it would be unreasonable to ignore potential errors in measurement and other
factors necessary in assessing adaptive functioning); Hall v. Florida, 134 S. Ct. 1986,

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Scientists agree that testing in general, and psychometric testing in
particular, is not absolutely precise. 71 Scientific measurement is
subject to a standard error of measurement (“SEM”). 72 Properly
administered IQ testing has an SEM of about plus or minus three to
five points. 73 Therefore, to the extent that IQ test scores contribute
to a determination of whether the first criterion is met for the
purpose of determining intellectual disability, the scores should be
subject to interpretation based, at a minimum, on the SEM. 74
The SEM, however, is an arbitrary figure; 75 best practices require
that any IQ score be reported with an associated confidence
interval. 76 That confidence interval should be considered as a part of
any diagnosis of intellectual disability. For instance, one SEM (plus
or minus four points) may give a confidence level of somewhere
around sixty-six, while two (plus or minus eight points) might give a
level of ninety-five. 77 Hence, even an SEM of plus or minus eight
points does not convey full confidence. Therefore, although a plus
or minus five point SEM is considered clinically reasonable, it will
encompass the g score of most, but not all, of the test takers. 78
In addition to the SEM, there may be an adjustment based on the
date of the norming of the particular test. 79 This is commonly known
as the “Flynn Effect.” 80 In essence, intelligence has increased in the
2001 (2014) (“It is not sound to view a single factor as dispositive of a conjunctive
and interrelated assessment.” (citation omitted)).
71. Watson, supra note 63, at 113–15.
72. Id. at 119; see also Stephen Greenspan & J. Gregory Olley, Variability of IQ Test
Scores, in THE DEATH PENALTY AND INTELLECTUAL DISABILITY 141, 149 (Edward A.
Polloway ed., 2015) (describing standard error of measurement (“SEM”) as an
“estimate” of variability in a sample).
73. AAIDD MANUAL, supra note 5, at 36.
74. Watson, supra note 63, at 119.
75. Hall, 134 S. Ct. at 1995–96; see Brumfield, 135 S. Ct. at 2278 (explaining that
any IQ test is subject to a margin of error, represented by the SEM).
76. See Hall, 134 S. Ct. at 1995 (noting that IQ test professionals have concluded
that test scores are better understood as a range, rather than as a fixed score).
77. AAIDD MANUAL, supra note 5, at 36.
78. Id. This raises a larger issue about error rates in criminal convictions, or,
here, imposition of capital punishment. The concept of an error rate is problematic
when deciding to take a life. See generally LARRY LAUDAN, TRUTH, ERROR, AND CRIMINAL
LAW 3–9 (2006) (analyzing the question of error as it applies to criminal convictions).
79. See United States v. Davis, 611 F. Supp. 2d 472, 485–86 (D. Md. 2009)
(defining normalization on a population, with respect to IQ scores, as an average around a
mean of 100, with intellectual disability falling about two standard deviations below 100).
80. See id. at 486 (describing that the “Flynn Effect” is an observation that the
overall population has sustained an increase in test scores since scientists began
normalizing the tests).

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general population by about three points every ten years or .33 per
year. 81 Therefore, it would be proper to subtract three points from
the IQ score of a person who took a test that was normed ten years
earlier, because the actual norm at the time of testing would have
been three points higher than at the time the test was normed. 82
Furthermore, in evaluating the significance of test scores, the
clinician and testifying expert should consider the manner in which
the test was given. 83 It should be administered on an individualized
basis and with concern for cultural and lingual differences. 84 In
addition, if a subject has been retested on the same or similar
instrument previously, there may be a “practice effect” that artificially
inflates the subject’s score. 85
Even if the IQ test accurately determines the IQ of an individual, it
is not dispositive and is only a part of the overall clinical assessment of
the first criterion.86 The DSM-5 addresses this: “Deficits in intellectual
functions, such as reasoning, problem solving, planning, abstract
thinking, judgment, academic learning, and learning from experience,
81. See generally James R. Flynn, Massive IQ Gains in 14 Nations: What IQ Tests
Really Measure, 101 PSYCHOL. BULL. 171, 187–88 (1987) (concluding that, based on IQ
testing data from fourteen different countries, the Flynn Effect suggests that IQ tests
do not measure intelligence, but rather that IQ tests measure “abstract problemsolving ability (APSA),” which is not the same as “real-world problem-solving” ability);
see also AAIDD MANUAL, supra note 5, at 37 (observing that the Flynn Effect presents
problems for practitioners diagnosing intellectual disabilities). For a more recent
survey of the literature confirming the significance of the Flynn effect, see Lisa H.
Trahan et al., The Flynn Effect: A Meta-Analysis, 140 PSYCHOL. BULL. 1332 (2014).
82. See Geraldine W. Young, Note, A More Intelligent and Just Atkins: Adjusting for
the Flynn Effect in Capital Determinations of Mental Retardation or Intellectual Disability, 65
VAND. L. REV. 615, 617 (2012) (arguing that the Flynn Effect renders old IQ tests’
norms obsolete and, as such, test scores should be reduced by 0.3 points for every
year between standardization and when the subject took the test).
83. Greenspan & Olley, supra note 72, at 144–45. (“One should attempt to
determine the circumstances under which any given IQ test was administered before
assuming that the result is valid.”).
84. AAIDD MANUAL, supra note 4, at 41. (“[O]ne should employ an individually
administered, standardized instrument that yields a measure of general intellectual
functioning. Further, the selection of a specific standardized measure with which to
assess intelligence should be based on several factors, such as the individual’s social,
linguistic and cultural background.”); see also United States v. Salad, 959 F. Supp. 2d 865,
871 (E.D. Va. 2013) (describing the statistical principles underlying IQ tests); Jeffrey
Usman, Capital Punishment, Cultural Competency, and Litigating Intellectual Disability, 42 U.
MEM. L. REV. 855 (2012) (promoting consideration of “cultural competency” in litigation
on the issue of whether a given defendant is intellectually disabled).
85. See AAIDD MANUAL, supra note 5, at 38; Alan S. Kaufman, Practice Effects, in 2
ENCYCLOPEDIA OF HUMAN INTELLIGENCE 828–33 (Robert J. Sternberg ed., 1994).
86. See Hall v. Florida, 134 S. Ct. 1986, 1995–96 (2014); DSM-5, supra note 29, at 33.

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[should be] confirmed by both clinical assessment and individualized,
standardized intelligence testing.” 87 Therefore, clinically, considering
the SEM and other factors, IQ test scores are not precise and, even if
relatively well-controlled, not clinically conclusive.
D. The Legal Significance of IQ Scores and the First Criterion: Impaired
Intelligence or Subaverage General Intellectual Functioning
Between the Atkins decision in 2002 and the Hall decision in 2014,
the U.S. Supreme Court did not address the legal definition of
impaired intelligence or subaverage general intellectual
functioning. 88 In particular, the Court had not addressed the legal
significance of IQ test scores. 89 Meanwhile, the state of Florida had
legislatively created a bright line rule, such that a person was not
entitled to invoke the protection the Court announced in Atkins if he
or she had an IQ above seventy. 90 The Florida courts interpreted this
to mean that there was no consideration of any error, even the SEM,
associated with IQ testing and, therefore, no room for clinical
judgment for scores above seventy. 91
The Florida statute read in relevant part: “The term ‘significantly
subaverage general intellectual functioning,’ for the purpose of this
section, means performance that is two or more standard deviations
from the mean score on a standardized intelligence test . . . .” 92 The
Florida Supreme Court then interpreted this statute literally in Cherry
v. State 93 to mean that there was a bright line cut off at an IQ of
seventy. 94 Accordingly, the Florida court said, “One standard
deviation on the WAIS-III, the IQ test administered in the instant
case, is fifteen points, so two standard deviations away from the mean
of 100 is an IQ score of [seventy] . . . . [T]he statute does not use the
word approximate, nor does it reference the SEM.”95 Any defendant with

87. DSM-5, supra note 29, at 33.
88. See Hall, 134 S. Ct. at 1991–92.
89. See id. at 1990–92.
90. FLA. STAT. § 921.137 (2014) (challenged by Hall v. Florida, 134 S. Ct. 1986 (2014)).
91. See, e.g., Nixon v. State, 2 So. 3d 137, 146 (Fla. 2009) (per curiam)
(addressing petitioner’s postconviction argument that a cut-off score of seventy
“creates an irrebuttable presumption that no one with an IQ over [seventy] is
mentally retarded”), abrogated by Hall v. Florida, 134 S. Ct. 1986 (2014).
92. FLA. STAT. § 921.137 (2015).
93. 959 So. 2d 702 (Fla. 2007) (per curiam), abrogated by Hall v. Florida, 134 S. Ct.
1986 (2014).
94. Id. at 712–13.
95. Id.

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an IQ score above seventy would, therefore, be eligible for execution, no
matter what other evidence there was of his or her actual impairment.96
In 2012, the Florida Supreme Court affirmed the death sentence of
Freddie Lee Hall on the basis of Cherry. 97 The U.S. Supreme Court
granted certiorari in Hall 98 and subsequently rejected Florida’s bright
line approach. 99 There, the Court said,
Florida’s rule disregards established medical practice in two
interrelated ways. It takes an IQ score as final and conclusive evidence
of a defendant’s intellectual capacity, when experts in the field would
consider other evidence. It also relies on a purportedly scientific
measurement of the defendant’s abilities, his IQ score, while refusing to
recognize that the score is, on its own terms, imprecise.100

In other words, Florida’s bright line rule overemphasized the
significance of IQ scores in the determination of intellectual disability
in that IQ scores constitute only a part of what should be considered
in determining whether a person has deficient general intellectual
functions. 101 The definition of intellectual disability still required
clinical judgment. In that way, Florida’s inflexible use of an IQ score
failed to acknowledge that the score is approximate and subject to
variables, including the SEM. 102
The Court stated that “the medical community accepts that all of
this evidence,” 103 made manifest by the defendant’s failure or inability
to adapt to his social and cultural environment, including medical
histories, behavioral records, school tests and reports, and testimony
regarding past behavior and family circumstances, “can be probative
of intellectual disability, including for individuals who have an IQ test
96. See Franqui v. State, 59 So. 3d 82, 91–92 (Fla. 2011) (per curiam)
(disregarding the other two elements to prove intellectual disability because the
evidence showed Franqui’s IQ score was seventy-five).
97. Hall v. State, 109 So. 3d 704, 708 (Fla. 2012) (per curiam), rev’d, 134 S. Ct.
1986 (2014).
98. 134 S. Ct. 471 (2014).
99. See Hall v. Florida, 134 S. Ct. 1986, 1994–98 (2014) (“The rejection of the
strict [seventy] cutoff in the vast majority of States and the ‘consistency in the trend,’
toward recognizing the SEM provide strong evidence of consensus that our society
does not regard this strict cutoff as proper or humane.”(citation omitted)).
100. Id. at 1995.
101. See id. at 1999 (providing that a person’s IQ score may fluctuate on any given
day based on factors such as health and location of test administration).
102. See id. (positing that the SEM demonstrates it is unreasonable to boil down an
individual’s intellect to a “single numerical score”); see also Brumfield v. Cain, 135 S. Ct.
2269, 2278 (2015) (finding that the lower court was unreasonable in concluding that the
petitioner’s IQ score “demonstrated that he could not possess subaverage intelligence”).
103. Hall, 134 S. Ct. at 1994.

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score above [seventy].” 104 Throughout the Hall opinion, the Court
relied on and cited extensively to clinical practices. 105
The Supreme Court also established the government’s purpose
behind Atkins and the reason for conducting Atkins hearings,
emphasizing the need to protect individuals who suffer from
intellectual disabilities.106 “No legitimate penological purpose is
served by executing a person with intellectual disability. To do so
contravenes the Eighth Amendment, for to impose the harshest of
punishments on an intellectually disabled person violates his or her
inherent dignity as a human being.” 107
Although this was the first time the Supreme Court addressed this
issue, the California Supreme Court had already acknowledged this
clinical understanding in 2005 in In re Hawthorne. 108 There, the
California Supreme Court said that the question of whether a person
is intellectually disabled is a question of fact: “It is not measured
according to a fixed intelligence test score or a specific adaptive
behavior deficiency, but rather constitutes an assessment of the
individual’s overall capacity based on a consideration of all the
relevant evidence.” 109 Two years later, the California high court again
addressed the issue in People v. Superior Court (Vidal). 110 The court in

104. Id.
105. See id. at 1995. The Court cites R. MICHAEL FURR & VERNE R. BACHARACH,
PSYCHOMETRICS: AN INTRODUCTION 118 (2d ed. 2014), and W. Joel Schneider,
Principles of Assessment of Aptitude and Achievement, in THE OXFORD HANDBOOK OF CHILD
PSYCHOLOGICAL ASSESSMENT 286, 289–91, 318 (Donald H. Saklofske et al. eds., 2013),
for the proposition that the SEM must be recognized because a person’s “intellectual
functioning cannot be reduced to a single numerical score.” Hall, 134 S. Ct. at 1995;
see also Brumfield, 135 S. Ct. at 2283 (“We do not deny that Brumfield’s crimes were
terrible, causing untold pain for the victims and their families. But we are called
upon today to resolve a different issue. There has already been one death that
society rightly condemns. The question here is whether Brumfield cleared the
[Antiterrorism and Effective Death Penalty Act]’s procedural hurdles, and was thus
entitled to a hearing to show that he so lacked the capacity for self-determination
that it would violate the Eighth Amendment to permit the State to impose the law’s
most severe sentence, and take his life as well.” (citations omitted)).
106. See Hall, 134 S. Ct. at 1992, 2001 (explaining that in a case involving the death
penalty, which is the “gravest sentence our society may impose,” the United States
has a “duty to teach human decency as the mark of a civilized world”).
107. Id. at 1992 (citation omitted).
108. 105 P.3d 552 (Cal. 2005).
109. Id. at 558.
110. 155 P.3d 259 (Cal. 2007).

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Vidal addressed a specific issue eventually considered by the U.S.
Supreme Court in Hall. 111
In Vidal, the prosecution argued that the defendant’s FSIQ was
significantly higher than the traditional range and that he was,
therefore, automatically excluded from consideration for relief under
Atkins. 112 The California court held that the trial court used the
correct legal standard in assessing intellectual disability when it
rejected the State’s argument:
That Vidal’s Full Scale Intelligence Quotient on Wechsler IQ tests
(Full Scale IQ) has generally been above the range considered to
show mental retardation does not, as a matter of law, dictate a
finding he is not mentally retarded. The legal definition of mental
retardation . . . does not incorporate a fixed requirement of a
particular test score. The trial court, therefore, did not commit legal
error in giving less weight to Vidal’s Full Scale IQ scores and greater
weight to other evidence of significantly impaired intellectual
functioning, including Verbal Intelligence Quotient scores on
Wechsler IQ tests (Verbal IQ) in the mental retardation range. 113

As described by the Court in Hall, most states had come to the
same conclusion. 114 Only Virginia and Delaware seemed to have
established a bright line cut off similar to Florida’s rule. 115 By
rejecting the idea of a “bright line” at a seventy IQ, 116 the Court
established both that IQ scores were subject to error and that they
were only a part of the clinical judgment required to make the
determination of intellectual disability. 117 Both of these principles
were recognized as vital to a person facing the death penalty and that
person’s right to a “fair opportunity to show that the Constitution
prohibits [his] execution.” 118

111. See id. at 267 (determining how much weight California courts should give to
IQ scores in resolving “how best to measure intellectual functioning in a given case”).
112. See id. at 266 (discussing the argument that courts should rely on the full IQ
score, not on subtest scores).
113. Id. at 260–61.
114. Hall v. Florida, 134 S. Ct. 1986, 1996–98 (2014) (“Thus in [forty-one] States
an individual in Hall’s position—an individual with an IQ score of [seventy-one]—
would not be deemed automatically eligible for the death penalty.”).
115. Id. at 1996; see Brumfield v. Cain, 135 S. Ct. 2269, 2278 (2015).
116. Hall, 134 S. Ct. at 2001 (“Florida seeks to execute a man because he scored a
[seventy-one] instead of a [seventy] on an IQ test.”).
117. See id.
118. Id. at 2000–01.

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II. THE PROSECUTION’S RECENT ATTEMPTS TO INCREASE FSIQ
SCORES BASED ON “ETHNIC ADJUSTMENTS”
Part II examines expert testimony in a number of cases around the
country supporting the practice of adding points to African American
and Latina/o IQ scores for the purposes of an Atkins hearing. Then,
this Part includes for more detailed analysis three cases in which
courts considered “ethnic adjustments” of IQ scores: two from
California, and one from the Fifth Circuit.
A. The Prosecution’s Claim to Add Points to African American and
Latina/o IQ Scores in Florida and Other Death Penalty Jurisdictions
At the same time that Florida was taking the position that a “bright
line” cut off at seventy prevented a defendant from getting relief if his
score was above the line, 119 the State argued that a score below the line
could be ethnically adjusted upward to allow execution. 120 In other
words, the “bright line” was “bright” in only one direction based on a
person’s perceived or assigned race. 121 In Hodges v. State, 122 the
Florida Supreme Court held that the legal significance of a Black
defendant’s low IQ score could be discounted because, as one
prosecution expert testified, “IQ tests tend to underestimate
particularly the intelligence of African-Americans.” 123 Therefore, in
Florida prior to Hall, a score over seventy automatically disqualified a
person from relief from the death penalty but a low score could still be
“ethnically adjusted” upward to exceed seventy, once again precluding a
119. Cherry v. State, 959 So. 2d 702, 713–14 (Fla. 2007) (per curiam), abrogated by
Hall v. Florida, 134 S. Ct. 1986 (2014).
120. Hodges v. State, 55 So. 3d 515, 525 (Fla. 2010) (per curiam).
121. The terms “race” and “ethnicity” are not consistently applied or understood
by the witnesses and courts. In fact, even the Brief of Public Law Scholars makes
significant errors. See generally Brief of Public Law Scholars as Amici Curiae
Supporting Petitioner at 20, Hernandez v. Stephens, 134 S. Ct. 1760 (2014) (No. 138004), 2014 WL 333536 (using the terms seemingly interchangeably). Race is a
social construct, and ethnicity is largely self-described. Both “African American” and
“Latina/o” are a description of origin or affinity with some group. Black and Brown
may describe pigmentation of the skin but are more likely to describe some group
affiliation. See, e.g., Comas-Díaz, supra note 1, at 115–20; Jennifer J. Manly & Ruben J.
Echemendia, Race-Specific Norms: Using the Model of Hypertension to Understand Issues of Race,
Culture, and Education in Neuropsychology, 22 CLINICAL NEUROPSYCHOLOGY 319, 322 (2007).
122. 55 So. 3d 515 (Fla. 2010) (per curiam).
123. Id. at 525 (upholding the trial court’s ruling that Hodges did not prove
mental retardation despite both parties’ experts concluding sub-seventy scores
because of Hodges’ functional intelligence and relationships). The court credited
witnesses who testified that Hodges was able to travel independently, date women,
and work labor-intensive jobs. See id.

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person, specifically a Black or Brown person, from relief. 124 While the
U.S. Supreme Court found the Florida “bright line” cut off rule
unconstitutional, the Court has not yet considered the merits of the
claim that “ethnically adjusting” scores upward is constitutional. 125
“Ethnic adjustments” are not confined to Florida. Prosecutors and
their experts have advocated for upward, ethnic adjustments to
minority IQ scores in Texas, Alabama, Tennessee, Missouri,
California, Pennsylvania, and Ohio state courts as well as before the
Fifth Circuit. 126 For example, Texas courts held, based on the
testimony of prosecution expert Dr. James Sherman, that the
defendant’s scores did not necessarily show mental retardation
because the verbal IQ test “is really culturally based.” 127 The Fifth
Circuit considered, at length, the testimony of Dr. George
Denkowski 128 in a separate case allowing for adjustments to
minorities’ IQ scores on the theory that “cultural” factors could have
“artificially suppressed” the defendant’s scores. 129
124. See id. at 523–25 (recognizing the State’s witness reliance on factors outside the
IQ score because “cultural aspects can affect how a person performs on IQ tests”).
125. The Supreme Court denied certiorari. Hodges v. Florida, 132 S. Ct. 164,
164 (2011).
126. See infra Part II.
127. Ex parte Rodriguez, 164 S.W.3d 400, 404 (Tex. Crim. App. 2005) (per curiam)
(“Dr. Sherman testified again and stated that the fact that a person has a subaverage
IQ score does not necessarily mean that he is mentally retarded.”).
128. But see Matamoros v. Stephens, 783 F.3d 212, 226 n.10 (5th Cir. 2015) (“[W]e
have not given any weight to Dr. Denkowski’s testimony or opinions.”). The
Matamoros court made a point to explain that “Denkowski entered into a settlement
agreement with the Texas State Board of Examiners of Psychologists, in which he
agreed to ‘not accept any engagement to perform forensic psychological services in
the evaluation of subjects for mental retardation or intellectual disability in criminal
proceedings.’” Id. at 214; see Ex parte Gallo, No. WR-77940-01 2013 WL 105277, at *1
(Tex. Crim. App. Jan. 9, 2013) (per curiam) (noting that Dr. Denkowski’s license was
“reprimanded”); see also Pierce v. Thaler, 355 F. App’x 784, 794 (5th Cir. 2009) (per curiam)
(noting that Dr. Denkowski was subject to disciplinary proceedings for “improperly . . .
overstat[ing] the impact of sociocultural factors on these [adaptive] deficits”).
129. Maldonado v. Thaler, 625 F.3d 229, 237–38 (5th Cir. 2010) (upholding the
trial court’s decision that petitioner failed to show adaptive deficits). While the Fifth
Circuit criticized the methodology of Dr. Denkowski involving a number of issues—
including the use of a translator—the idea of cultural adjustment was not rejected.
See id. The Fifth Circuit ultimately adopted the findings of the state’s habeas court
that, based on [Maldonado’s] “minimal amount of education and his criminal
lifestyle, [his] poor academic functioning is consistent with the dynamics of lack of
opportunity, underachievement, and poor life choices, rather than lack of
intellectual functioning” and does not establish significantly subaverage intellectual
functioning. Maldonado v. Thaler, 662 F. Supp. 2d 684, 717 (S.D. Tex. 2009); see
Maldonado, 625 F.3d at 244.

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In Ex parte Smith, 130 the Supreme Court of Alabama accepted the
testimony of a prosecution expert, Dr. Harry McClaren. Dr.
McClaren testified that the defendant was not intellectually disabled
because his IQ score was “spuriously lowered by things such as
exposure to domestic violence, poverty, cultural deprivation,
ethnicity, [and] perhaps intoxication.” 131 In another case from
Alabama, Brown v. State,132 an expert testified that the defendant’s IQ
might be higher than what he scored, explaining that “[s]ometimes[,]
individuals of African-American background don’t score quite as high on
formal testing.” 133 The court ultimately accepted this testimony and
concluded that the defendant was not intellectually disabled. 134
Expert witness Dr. Charles Hinkin testified in California in favor of
altering test results on the basis of race, arguing that “because Blacks
ordinarily perform more poorly than Whites on those tests, it is
preferable to use ethnically corrected norms when scoring the
tests.” 135 Other experts, such as Dr. Richard Coons who testified in
Texas in Hernandez, went further, describing the defendant’s “cultural
group” this way: “[The Defendant’s behavior was in] keeping with the
cultural group, . . . people getting into drugs, and . . . using drugs” and
that using drugs was “a common thing in that cultural group.” 136
The highest courts in other states have also allowed IQ adjustments
to ethnic minority scores. Based on the testimony of the same Dr.
Denkowski who testified in Texas, the Supreme Court of Pennsylvania
in Commonwealth v. DeJesus 137 said that a Puerto Rican defendant’s
poor adaptation should be discounted because he was a member of
“the criminal socio-culture.” 138 In Black v. State, 139 a Tennessee
130. No. 1080973, 2010 WL 4148528 (Ala. Oct. 22, 2010). Although Mr. Smith’s
“race” is not identified, the expert referred to his “ethnicity” as a factor that
“spuriously lowered” his IQ scores. Id. at *3.
131. See id. (quoting part of the trial court’s transcript found within the
intermediate appellate court’s ruling in Smith v. State, No. CR-97-1258, 2007 WL
2459291, at *1 (Ala. Crim. App. Aug. 31, 2007) (per curiam)).
132. 982 So. 2d 565 (Ala. Crim. App. 2006).
133. Id. at 604–05 (holding that Brown was not intellectually disabled because he
had a seventy-six IQ, and “had some education as well as personal relationships”).
134. Id. at 605.
135. In re Champion, 322 P.3d 50, 67 (Cal. 2014).
136. See Brief for United Mexican States as Amicus Curiae Supporting Petitioner at 14,
Hernandez v. Stephens, 134 S. Ct. 1760 (2014) (No. 13-8004), 2014 WL 316661, at *14.
137. 58 A.3d 62 (Pa. 2012).
138. Id. at 72–73 (remanding to the trial court so the prosecution could introduce
new evidence regarding DeJesus’ functioning capabilities and his participation in a
scheme to smuggle a cell phone into prison to defeat his Atkins claim).
139. No. M2004-01345-CCA-R3-PD, 2005 WL 2662577 (Tenn. Crim. App. Oct. 19, 2005).

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appellate court accepted testimony that “IQ tests have historically
been biased against minorities.” 140 The court went on to state that
“[i]f you have an African-American who tests in the seventies, the
clinician must be very cautious . . . .” 141 The Supreme Court of
Missouri in Johnson v. State 142 quoted the prosecution’s expert
testimony that the defendant’s IQ score should be raised three to six
points because the test is “culturally prejudiced against him.” 143
Finally, in Ohio, the state’s intermediate appellate court accepted
testimony in State v. Were 144 that the defendant’s sixty-nine IQ score,
was “artificially lower” because the “tests were culturally biased against
minorities,” 145 without ever identifying the defendant’s race, referring
to him only as a “Muslim.” 146
In each of these cases, the expert testified about the members of
the defendant’s racial group generally and without explanation as to
how this bias affected the defendant specifically, other than to note
that he or she was a member of that minority group. 147 In the majority
of cases, the record does not make clear why courts accepted, without
challenge, the ethnic adjustment of IQ scores. There is no discussion
of scientific research other than a vague conclusion that minorities do
not “do as well” and, therefore, based on the race of the defendant, an
adjustment should be made. 148 The courts, in rendering their
140. Id. at *8.
141. Id. at *8, *14 (finding that Black was not excluded from the death penalty
after failing to prove the third element of showing retardation during his
developmental period before he was eighteen years old).
142. 102 S.W.3d 535 (Mo. 2003) (en banc).
143. Id. at 539 n.10. The defendant’s race or ethnicity was not described in the opinion.
144. No. C-030485, 2005 WL 267671 (Ohio Ct. App. Feb. 4, 2005).
145. Id. at *10 (“Nelson stated that cultural bias tended to depress the IQ scores of
minorities such as Were.”).
146. Id. at *2. The term “Muslim” describes a religion, not a race or ethnicity. See
A Demographic Portrait of Muslim Americans, PEW RESEARCH CTR., http://www.peoplepress.org/2011/08/30/section-1-a-demographic-portrait-of-muslim-americans
(“Muslim Americans are racially diverse. No single racial or ethnic group makes up
more than [thirty percent] of the total. Overall, [thirty percent] describe themselves
as white, [twenty-three percent] as black, [twenty-one percent] as Asian, [six
percent] as Hispanic and [nineteen percent] as other or mixed race.”).
147. See, e.g., Maldonado v. Thaler, 625 F.3d 229, 238 (5th Cir. 2010); Black v.
Colson, No. 3:00-0764, 2013 WL 230664, at *9 (M.D. Tenn. Jan. 22, 2013); Johnson,
102 S.W.3d at 538 n.10; Were, 2005 WL 267671, at *11; Commonwealth v. DeJesus, 58
A.3d 62, 72–73 (Pa. 2012); Black v. State, No. M2004-01345-CCA-R3-PD, 2005 WL
2662577 (Tenn. Crim. App. Oct. 19, 2005).
148. See, e.g., Maldonado, 625 F.3d at 238 (“[R]elying upon his ‘clinical judgment’
and his purported knowledge of Mexican cultural norms,” the expert gave a “true”
score between [seventy-four] and [eighty-three], which resulted in the petitioner’s

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opinions, also did not go into any scientific basis for the adjustments. 149
Rather, they either implicitly or explicitly accepted, without much
discussion, the upward adjustment of minority IQ scores. 150
While all of these cases are significant, there are three additional
cases, two decided in 2014 and one still pending review, that deserve
a more detailed analysis. All three were capital cases. The California
Supreme Court decided one, 151 the second is pending in the same
court, 152 and the Fifth Circuit decided the third. 153
B. Ethnic Adjustments in California
The first two cases adopted for more detailed analysis serve to
illustrate the mechanism by which the ethnic adjustment of IQ scores
in death penalty cases are used nationally. The first California
Supreme Court case to mention ethnic adjustments without adverse
comment was In re Champion. 154 In Champion, decided in 2014, the
defendant argued that he had brain damage as evidenced by, among
other things, his intellectual impairment. 155 As such, he argued that
his attorney had provided him ineffective assistance of counsel when
the attorney failed to introduce evidence of the defendant’s brain
damage at the penalty phase of his capital trial. 156 The court denied
relief and affirmed Champion’s death sentence. 157
response that the expert lacked the proper “established methodology” or “cultural
knowledge”); Colson, 2013 WL 230664, at *9 (“Weighing against the Petitioner’s
arguments for reductions of his school test scores is the expert testimony that IQ tests
tended to underestimate the intelligence of African American children in the 1960s.
According to Dr. Vaught, this cultural bias ‘was one of the reasons why that
diagnostic criterion was changed back in the ‘70s, from one standard deviations [sic]
to two standard deviations below the mean.’”); Were, 2005 WL 267671, at *10
(concluding that because there was credible and reliable evidence to support trial
court’s finding that defendant was not intellectually impaired as a result of culturally
biased IQ tests, it would not overrule the trial court’s determination).
149. See DeJesus, 58 A.3d at 72–73 (stating Dr. Denkowski’s opinion that cultural factors
have “different effects” without describing or explaining those effects); see also Were, 2005
WL 267671, at *10 (describing the experts’ discussion of “cultural bias” vaguely, which
affected “other factors” in the determination and “led to changes in the tests”).
150. See supra Part II.
151. In re Champion, 322 P.3d 50 (Cal. 2014).
152. In re Lewis, No. S117235 (Cal. filed July 2, 2003). The author of this Article is
counsel for the Petitioner in Lewis.
153. Hernandez v. Stephens, 537 F. App’x 531 (5th Cir. 2013) (per curiam), cert.
denied, 134 S. Ct. 1760 (2014).
154. 322 P.3d 50 (Cal. 2014).
155. See id. at 59.
156. See id. at 68–69.
157. See id. at 83; see also CAL. PENAL CODE § 190.3 (West 2015).

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In the middle of the opinion, the court referred to the evidence
offered by the experts regarding Champion’s intellectual disability.
The court specifically made reference to the State’s expert, Dr.
Charles Hinkin, 158 and seemed to comment favorably on his
interpretation of the IQ test data. 159 The court said, “Dr. Hinkin
disagreed with Dr. Riley’s method of scoring the tests given. He
explained that because Blacks ordinarily perform more poorly than
Whites on those tests, it is preferable to use ethnically corrected
norms when scoring the tests, which Dr. Riley did not do.” 160
The Attorney General’s brief to the California Supreme Court
referenced the State’s expert testimony that identified various factors
potentially causing the disparity between Black and White IQ test
scores. These factors include “a lack of equivalent quality of
education, even though both sets of individuals completed the same
level of education; parental education levels; socioeconomic status;
and acculturation.” 161 This conclusory statement is typical of others
across the country in that it conflates a number of environmental
influences in a broad justification for an “ethnic correction” of scores
based on race 162 without specifically referencing the defendant.
A second case in California, In re Lewis, 163 involves testimony from
the same Dr. Hinkin. 164 After granting an evidentiary hearing on a
habeas corpus petition in 2009, the California Supreme Court sent Lewis
back to the Los Angeles Superior Court. The lower court was tasked

158. See In re Champion, 322 P.3d at 67–68. Dr. Hinkin’s prior experience as a
psychologist testifying on behalf of insurance companies in conjunction with Dr.
Faerstein, a psychiatrist colleague who also testified in Champion, was discussed in Cardiner
v. Provident Life & Accident Ins., 158 F. Supp. 2d 1088, 1100–01 (C.D. Cal. 2001).
159. See In re Champion, 322 P.3d at 67 (noting that “[t]he referee found that Drs.
Riley, Hinkin, and Faerstein were ‘all impressive, well qualified witnesses,’ but he was
persuaded by the reasoning of prosecution experts Hinkin and Faerstein”).
160. Id.
161. Respondent’s Reply to Petitioner’s Exceptions to the Referee Report and
Brief on the Merits, In re Champion, 322 P.3d 50 (Cal. 2014) (No. S065575), 2010
WL 3316766, at *62.
162. Dr. Hinkin specifically testified that he was “ethnically correct[ing]” the IQ
scores based on discrepancies in tests scores of “Blacks” and “Whites.” In re
Champion, 322 P.3d at 67–68.
163. In re Lewis, on remand from the California Supreme Court, Case No.
S117235, for a reference hearing on Atkins issues before the Honorable Robert Perry,
Judge of the Los Angeles Superior Court, Case No. A0227897. This case is currently
pending before the California Supreme Court. Reference Hearing Transcripts are
on file with the court and with the author.
164. 12 Reference Hearing Transcripts at 1960, In re Lewis, No. S117235 (Cal.
June 24, 2011) (on file with author).

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with making referee findings on Atkins and claims of ineffective
assistance of counsel during the penalty phase. 165 After extensive
hearings over a period of more than a year, the court found that the
defendant was intellectually disabled and thus ineligible for execution. 166
Lewis is now back before the California Supreme Court. 167
In Lewis, Dr. Hinkin testified that African Americans generally
score fifteen points lower than White individuals on IQ tests,
although the gap narrowed in recent years to about a ten point
range. 168 He said that race is a “proxy” for differences in “educational
opportunities [and] occupational opportunities, the kinds of things
that would . . . affect IQ test performance.” 169 Dr. Hinkin said that
the petitioner was not from a “mainstream” group 170 and speculated,
without doing any testing of his own, that his poor performance
might be due to illiteracy rather than mental retardation, 171 even
though he admitted that the Wechsler tests used to evaluate the
defendant’s IQ did not involve reading. 172 Taking all of these
concerns into account, Dr. Hinkin concluded: “I think that the IQ
Subaverage intellect prong is probably closer to the mental
retardation [sic]. I don’t think that’s it, but that one is certainly in
the ballpark.” 173 Nevertheless, he opined that the petitioner did not
qualify as intellectually disabled. 174 The Attorney General of the State of
California is urging the Supreme Court to consider the testimony of Dr.
Hinkin and to find that the petitioner is eligible to be executed. 175
In the Champion case, the California Supreme Court quoted, but
did not decide on, the propriety of the “ethnic” correcting of
norms. 176 The court said, regarding the neuropsychological tests in
the case in general, “We need not resolve this dispute. We did not
165. The Court also referred certain questions pertaining to ineffective assistance
of the original trial counsel at the penalty phase of the trial. Habeas Hearing Order,
In re Lewis, No. S117235 (Cal. Dec. 10, 2008) (on file with author).
166. Referee’s Report at 42, In re Lewis, No. S117235 (Cal. Mar. 23, 2012) (on file
with author).
167. In re Lewis, No. S117235 (Cal. July 2, 2003).
168. 12 Reference Hearing Transcripts at 2011, In re Lewis, No. S117235 (Cal.
June 24, 2011) (on file with author).
169. Id. at 2011–12.
170. Id. at 2009.
171. Id. at 2000–01.
172. Id. at 1992.
173. In re Lewis, No. S117235 at 2017.
174. Id. at 2074.
175. Respondent’s Response to Petitioner’s Exceptions & Reply Brief on the
Merits at 27, In re Lewis, No. S117235 (Cal. Aug. 14, 2014) (on file with author).
176. See In re Champion, 322 P.2d 50, 67 (Cal. 2014).

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ask the referee to decide whether petitioner was neuropsychologically
impaired at the time of his capital trial, and the answer to that
question does not assist us in deciding whether Defense Counsel Skyers
competently assisted him at the penalty phase of trial.” 177 Therefore,
because Lewis is still pending and the court did not resolve the issue in
Champion, the issue is unresolved by the California Supreme Court as to
whether ethnic adjustments are constitutionally permitted. 178
C. Prosecution’s Attempt to Add Points to a Latino’s Scores in Texas
The third significant case, Hernandez v. Stephens, also decided in
2014, came out of Texas and involved upwardly adjusting the IQ
score of a Mexican defendant in an Atkins hearing. 179 In Hernandez,
the prosecution’s witness, who did not test the defendant
personally, 180 claimed that the defendant’s test scores should be
normed based on a cohort of Mexicans and not the standardized
norm of the community as a whole. 181
The case went from the Texas courts to the Fifth Circuit. 182 The
Circuit Court stated in conclusory terms that “[w]hen scaled to Mexican
norms, [the defendant] scored exactly [seventy] on the one . . . test.” 183
Hernandez’s IQ scores were as low as fifty-two, fifty-four, and fifty-seven
when scaled to so-called “American norms.” 184 Nevertheless, the Fifth
Circuit allowed the adjusted score of seventy to stand. 185
The defendant in Hernandez sought review of Texas’s use of ethnic
adjustments, filing a writ of certiorari before the U.S. Supreme
Court. 186 Several organizations filed amicus curiae briefs urging the

177. Id. at 68.
178. Id. However, the issue is before the court in In re Lewis, No. S117235 (Cal.
July 2, 2003).
179. Hernandez v. Stephens, 537 F. App’x 531, 536 (5th Cir. 2013) (per curiam), cert.
denied, 134 S. Ct. 1760 (2014). It is unclear from the opinion whether the defendant was
a Mexican or American citizen. The Fifth Circuit indicated only that Mr. Hernandez’s
had family living in Mexico and that he may have been raised there. Id. at 541.
180. See id. at 536.
181. See id. at 539 (expressing a prosecution witness’s concern with the results of
the defendant’s IQ testing because parts of the tests lacked “comparative norms”).
182. Id.
183. Id. at 539.
184. Id. at 536.
185. Id. at 540 (concluding that Hernandez did not rebut the presumption of
correctness of the lower court’s determination that he was not intellectually disabled).
186. Petition for Writ of Certiorari, Hernandez v. Stephens, 134 S. Ct. 1760 (2014)
(No. 13–8004).

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Court to grant certiorari. 187 An amicus curiae brief filed on behalf of
constitutional law scholars highlighted that ethnic adjustments in
Atkins cases were occurring nationwide and argued that such
adjustments violated Equal Protection under the Fourteenth
Amendment. 188 Several other briefs made similar arguments. 189
Nevertheless, the Supreme Court denied certiorari in 2014 without
opinion. 190 Although a denial of certiorari is not a decision on the
merits, the reality is that immediately after the denial in April of
2014, Texas executed Mr. Hernandez. 191
III. THE LOGICAL AND CLINICAL ANALYSIS OF “ETHNIC ADJUSTMENTS”
AND DISCREPANCY ANALYSIS
This Part examines the logical and clinical justifications for ethnic
adjustments, which informs the constitutional discussion in Part V.
Since Atkins, discrepancy analysis has generated considerable scholarly
and clinical discussion, including whether there is a logical or clinical
basis for ethnic adjustments in any setting. Accordingly, through that
lens, this Part considers whether race or ethnicity can be considered in
creating IQ scores; and if they can be considered, under which
circumstances such considerations are appropriate. This Part then
explores whether race neutral variables have a demonstrated
relationship to decreased intellectual ability and to lower IQ test scores.
It concludes by examining whether race can be used scientifically to
justify the imposition of the death penalty on an individual.

187. See Brief for American Ass’n on Intellectual & Developmental Disabilities & the
Arc of the United States as Amici Curiae Supporting Petitioner, 134 S. Ct. 1760 (2014)
(No. 13-8004), 2014 WL 262250; Brief for League of United Latin American Citizens et
al. as Amici Curiae Supporting Petitioner, Hernandez v. Stephens, 134 S. Ct. 1760 (2014)
(No. 13-8004), 2014 WL 316660; Brief of Public Law Scholars, supra note 121; Brief for
United Mexican States as Amicus Curiae Supporting Petitioner, supra note 136.
188. Brief of Public Law Scholars, supra note 121, at 1, 5, 13–18, 23.
189. See, e.g., Brief of Public Law Scholars, supra note 121, at 4 (“This Court’s
equal-protection jurisprudence demands that such arguments satisfy strict
scrutiny.”); Brief for League of United Latin American Citizens, supra note 187, at
*24 (“Atkin’s bar on the execution of the mentally retarded must apply equally,
regardless of race, culture, or nationality.”).
190. Hernandez v. Stephens, 134 S. Ct. 1760 (2014).
191. Ian Smith, How Race-Based IQ Handicapping Led to A Man’s Execution, DAILY
CALLER (Aug. 28, 2014, 7:38 PM), http://dailycaller.com/2014/08/28/how-racebased-iq-handicapping-led-to-a-mans-execution.

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A. The Logical and Clinical Fallacy
In determining an intelligence quotient, it is a fallacy, both
logically and clinically, to make the determination based on
comparing an individual’s performance on a test to norms of a
particular group rather than the standardized norms of the
community as a whole. Logically, comparison to the community
norm is comparison to the standardized norm based on a crosssection of the community, not the norm of a limited cohort of
individuals who share certain characteristics with the subject. The
reductio ad absurdum would be to limit the cohort for the purpose of
an individual’s comparison to the norm of a cohort in which she or
he is the only member. In other words, if the claim is that some
people are subject to circumstances that result in discrepancies from
the standardized norm, that individual could only be compared to
the norm for people with identical circumstances. If human beings
are complex and unique, using a regression analysis that corrects for
every variable would result in a normative sample of one. In such a
situation, each individual’s test results would be normed against her
or his own test results, and everyone would have a 100 IQ score.
Therefore, for norming purposes, the use of groups larger than
one, but smaller than a representative cross-section of the entire
population would have the potential to improperly skew the
individual’s IQ either up or down. 192 A portion of the clinical test for
intellectual disability is whether the individual tests approximately
two standard deviations below the norm of the community as a whole. 193
That “community” is based on a cross-section of the entire
population, which includes members of each race, ethnicity, and
The concept does not entail
socioeconomic background. 194
comparing a person’s test scores to a cohort comprised only of a
particular ethnic, socioeconomic, or other group.195 Using a group of
more than one but of any size less than a cross-section of the whole results
in a different kind of analysis. It would be a comparison of an individual’s
intelligence not to the whole but to some specialized group, thus
distorting the true score of the individual.196

192. Watson, supra note 63, at 116.
193. Id.
194. Id. (explaining that IQ test scores reference a normative sample that is
representative of the general population).
195. Id. at 116–17.
196. Greenspan & Olley, supra note 72, at 145–46.

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Dr. Stephen Greenspan, member of the APA’s Ad Hoc
Committee on Mental Retardation and the Death Penalty, 197 and
others have put this concept succinctly:
IQ tests are norm-based, which means that standard scores are based
on the individual’s performance in comparison to that of others of
the same age used in the standardization sample. The norms are
intended to reflect the population of the larger society which, in
the case of the Wechsler and Stanford-Binet tests, is the most
recent census of the United States. 198

Clinical psychologist Dr. Dale Watson made the same logical point
when he argued that demographic variables such as gender, race, and
education are not useful in assessing intellectual disability because
such a diagnosis is “dependent on a comparison to the larger
normative reference group.” 199 Anything other than that does not
measure whether a person is approximately two standard deviations
below the norm as is required by Atkins and Hall.
B. Cohorts Do Score Differently
This is not to deny that there is a discrepancy between the average
test results of particular cohorts—including cohorts selected on the
basis of race, sex, and other factors—and the standardized norm. 200
One may recall the controversy elicited by the book The Bell Curve,
which is credited with offering evidence that it is “highly likely . . .
that both genes and the environment have something to do with
racial differences” in intelligence. 201 Wading in among the thousands
of articles and books spawned by The Bell Curve, the book’s
conclusions have been the subject of voluminous professional
criticism. 202 Early on, the APA confronted the raw data and tried to

197. United States v. Hardy, 762 F. Supp. 2d 849, 858–59 (E.D. La. 2010).
198. Greenspan & Olley, supra note 72, at 145.
199. Watson, supra note 63, at 117.
200. See Ulric Neisser et al., Intelligence: Knowns and Unknowns, 51 AM. PSYCHOL. 77,
91, 97 (1996) (summarizing the differences in IQ test results based on race and sex).
201. RICHARD J. HERRNSTEIN & CHARLES MURRAY, THE BELL CURVE: INTELLIGENCE
AND CLASS STRUCTURE IN AMERICAN LIFE 311 (1994).
202. See, e.g., Jennifer J. Manly, Advantages and Disadvantages of Separate Norms for African
Americans, 19 CLINICAL NEUROPSYCHOL. 270, 272 (2005) (maintaining that the research
agendas of the authors of The Bell Curve “lead to dangerous and irresponsible biological
and genetic interpretations”); Robert J. Sternberg et al., Intelligence, Race, and Genetics, 60
AM. PSYCHOL. 46, 46 (2005) (concluding that The Bell Curve study was “not grounded in
scientifically derived constructs but rather in folk beliefs about them”).

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make some sense of it. 203 The corresponding report surveyed the
literature in response to The Bell Curve and concluded that there
were, in fact, differences in test scores of various cohorts within the
Some of the cohorts were based on
standardized group. 204
ethnicity. 205 However, the report determined that the results are likely
influenced by non-race-based, socioeconomic factors, such as poverty
and exposure to toxins like lead-based paint. 206 They also considered
the general “caste-like” circumstances of minorities in American life. 207
They concluded, in 1996, that the book’s controversial assertions were
riddled with uncertainties and many “unknown[s].” 208
Notwithstanding the APA’s findings in 1996, The Bell Curve raised a
more fundamental issue: is there any genetic difference in IQ and
intellectual ability based on race? Most contend that “[r]ace is a
socially constructed concept, not a biological one[, and that i]t
derives from people’s desire to classify.” 209 Such efforts to classify
based on race are arbitrary and subjective. 210 Therefore, there is no
established genetic basis for identifying race itself. 211 If there is no
genetic basis for identifying race, there can be no genetic basis for
claiming that there is a discrepancy in IQ based on perceived
differences between “races.” 212
Since 1996, however, empirical evidence has provided further
support for the conclusion that there is no genetic basis for

203. See Neisser et al., supra note 200, at 77 (explaining that the APA created a diverse
task force to author an authoritative report on the issues raised by The Bell Curve).
204. Id. at 91–93.
205. Id. at 92–93.
206. Id. at 89, 94.
207. Id. at 94 (defining caste-like minorities as “grow[ing] up firmly convinced that
one’s life will eventually be restricted to a small and poorly-rewarded set of social roles”).
208. Neisser et al., supra note 200, at 97.
209. Sternberg et al., supra note 202, at 49.
ANTHROPOLOGICAL
ASS’N,
210. See
AAA
Statement
on
Race,
AM.
http://www.americananthro.org/ConnectWithAAA/Content.aspx?ItemNumber=2583&R
Dtoken=47501&userID=6944 (“Historical research has shown that the idea of ‘race’ has
always carried more meanings than mere physical differences; indeed, physical variations in
the human species have no meaning except the social ones that humans put on them.”).
211. Id.
212. Id.; see Ta-Nehisi Coates, The Social Construction of Race, ATLANTIC (May 17, 2013),
http://www.theatlantic.com/national/archive/2013/05/the-social-construction
-of-race/275974; Angela Onwuachi-Willig, Race and Racial Identity Are Social Constructs,
N.Y. TIMES (June 17, 2015, 1:40 PM), http://www.nytimes.com/roomfordebate/
2015/06/16/how-fluid-is-racial-identity/race-and-racial-identity-are-social-constructs.

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differences in IQ scores. 213 Statistically comparing IQ test scores
based on self-identified race (or what the tester assumes the testtaker’s race to be) does tend to show a disparity with the norm on the
average. 214 However, this discrepancy analysis does not have a genetic
basis. 215 It is a comparison of averages among cohorts based on selfidentified claims. 216 Indeed, even in 1996, the APA concluded:
The differential between the mean intelligence test scores of Blacks and
Whites (about one standard deviation, although it may be diminishing)
does not result from any obvious biases in test construction and
administration, nor does it simply reflect differences in socioeconomic
status. Explanations based on factors of caste and culture may be
appropriate, but so far have little direct empirical support. There is
certainly no such support for a genetic interpretation.217

More current studies have continued to document the existence of
the discrepancies in test scores quantitatively but many, until recently,
did little to explain their etiology. 218 It is still generally thought that
these disparities in tests scores do not reflect a genetic or “racial”
heritability but, instead, reflect the fact that children who grow up
with limited resources are less likely to develop to their full genetic
potential. 219 The most recent update to the 1996 APA Report

213. Richard E. Nisbett et al., Intelligence: New Findings and Theoretical Developments,
67 AM. PSYCHOL. 130, 130 (2012).
214. Neisser et al., supra note 200, at 96–97.
215. Id. For review of the literature, see LICHTENBERGER & KAUFMAN, supra note
62, at 47–49 (explaining that the results of studies “make it abundantly clear that
socioeconomic status and an array of other background, behavioral, and personal
variables impact a person’s IQ and profile of test scores far more than the variable of
ethnicity alone, and that these variables mediate the role played by ethnicity in
affecting a person’s IQ”).
216. Neisser et al., supra note 200, at 90–91.
217. Id. at 97 n.6.
218. But see Christopher M. Berry et al., Racial/Ethnic Differences in the CriterionRelated Validity of Cognitive Ability Tests: A Qualitative and Quantitative Review, 96 J.
APPLIED PSYCHOL. 881, 882 (2011) (identifying four potential causes of the
discrepancies: range restriction, test error/bias, contextual influences, and actual
differences in cognitive ability); Gregory Cochran et al., Natural History of Ashkenazi
Intelligence, 38 J. BIOSOCIAL SCI. 659, 659–60 (2006) (arguing that the high IQs of the
Ashkenazi Jewish population are a result of natural selection, partly because there
has been little inward gene flow).
219. See EARL HUNT, HUMAN INTELLIGENCE 284 (2011) (recognizing a correlation
between socioeconomic status and test scores); Nisbett et al., supra note 213, at 132–33
(summarizing that genes have practically no effect on IQ variation for families with the
lowest socioeconomic statuses). But see N.J. MACKINTOSH, IQ AND HUMAN INTELLIGENCE 321
(2d ed. 2011) (suggesting that the correlation between scores and socioeconomic status is
due more to genetics and parental attitudes than economic resources).

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indicated that the discrepancy in IQ scores between African
American performance on IQ tests and the standardized norm has
been reduced by approximately 0.33 standard deviations or about five
IQ points in recent years. 220 In that time, researchers have done
considerable work to understand some of the unknowns referred to
in the 1996 APA Report. 221
Logically and clinically, it would not matter, for the purpose of
assessing the IQ of a particular individual, if there were some genetic
basis for differentiation from a larger group. 222 Certainly, individuals
suffering from Down’s or Fragile-X Syndrome would be compared to
the standardized norm for Atkins purposes. 223 It would be unthinkable
to claim that such a person could be executed if they failed to qualify as
intellectually disabled because their IQ as compared to other Down’s
Syndrome or Fragile-X subjects was “normal.”
Admittedly, the immediate reaction to this last argument is one of
distress. It seems insulting to discuss this, even though scholars have
demonstrated that no “race” or ethnicity suffers from any genetic
220. Nisbett et al., supra note 213, at 130, 146. The original discrepancy of fifteen
points, having been reduced by .33 (or five points) is now an approximate
discrepancy of ten points.
221. Id. at 130. It should be noted that non-racial variables used to select cohorts
may include, amongst other variables, gender, educational level, and income. See id.
at 132, 137, 144 (discussing the effect of social class, education, and sex). These
different cohorts also have mean scores that are skewed from the standardized norm.
Robert K. Heaton et al., Demographic Effects and Use of Demographically Corrected Norms
with the WAIS-III and WMS-III, in CLINICAL INTERPRETATION OF THE WAIS-III AND WMSIII 181, 184 (David S. Tulsky et al. eds., 2003) [hereinafter Heaton et al., WAIS-III and
WMS-III]. It is important to reiterate that there is no research establishing that there
is a race-based or genetic phenotype that explains any difference in intelligence
testing. Nisbett et al., supra note 213, at 146. In other words, there is no genetic
difference based on race or ethnicity that explains any real or perceived discrepancy
between a racial or ethnic cohort and the standardized norm, The Bell Curve and its
aftermath notwithstanding. Id.
222. See Neisser et al., supra note 200, at 90 (“Group means have no direct
implications for individuals.”).
223. Down’s and Fragile-X syndromes are phenotypic abnormalities, both
intellectual and morphological, based on an extra chromosome twenty-one and a
variation of the X chromosome, respectively. See ROGER E. STEVENSON ET AL., XLINKED MENTAL RETARDATION 79–94 (2000) (describing syndromic XLMR
phenotypes including physical malformations and intellectual disabilities associated
with chromosome X linked variations, including Fragile-X); L. Nadel, Down’s
Syndrome: A Genetic Disorder in Biobehavioral Perspective, 2 GENES, BRAIN & BEHAVIOR,
156–66 (2003) (surveying the phenotypic developmental effects of “trisomy 21[,]” a
third chromosome twenty-one); see also Heaton et al., Neuropsychological Assessment,
supra note 4, at 147 (stating that it would be “inappropriate” to adjust those with
developmental disorders, including in the context of criminal prosecution).

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distinction relating to intelligence, let alone anything like
discrepancies associated with phenotypic disabilities based on Down’s
or Fragile-X. 224 The stark offensiveness of this comparison serves to
illustrate the absurdity of current prosecutorial comparisons.
Nevertheless, proponents of ethnic adjustments argue that the failure
to address the average discrepancies in IQ scores based on race is an
endorsement of some unsubstantiated theory of phenotypic racial or
ethnic differences. This premise, although unarticulated, is used by
prosecution experts to justify the ethnic adjustment of scores. 225
Therefore, this section will attempt to determine from where the
existence of a race-based average discrepancy in IQ scores originates.
C. Heaton’s Adjustments
Dr. Robert K. Heaton and his colleagues are often attributed with
being the intellectual origin of making “ethnic adjustments” to IQ
scores. 226 Significantly, Dr. Heaton has published materials on the
WAIS-III, a test that measures cognitive functioning in adults,
supporting a theory of discrepancy analysis based on race and other
variables.227 According to this theory, there are discrepancies in average
demographic comparisons, and clinicians can adjust scores to include
considerations for age, level of education, gender, and ethnicity. 228
These scholars argue that discrepancies giving rise to ethnic adjustments
could be of clinical interest in determining “brain integrity.” 229

224. See Sternberg et al., supra note 202, at 57 (concluding that any genetic differences
for IQ based on race is, “when all is said and done, a leap of imagination”).
225. See, e.g., In re Champion, 322 P.3d 50, 67 (Cal. 2014) (failing to explain why
“Blacks ordinarily perform more poorly than Whites,” but using that as justification
for adjustments); Hodges v. Florida, 55 So. 3d 515, 524–25 (Fla. 2010) (per curiam)
(quoting an expert as attributing racial differences in IQ scores to the tests
“underestimat[ing] particularly the intelligence of African-Americans”).
226. HEATON ET AL., REVISED COMPREHENSIVE NORMS, supra note 4, at 1.
227. See Heaton et al., WAIS-III and WMS-III, supra note 221, at 184 (arguing that
the removal of demographic variables to create new standardized scores help
prevents the misclassification of cognitive impairment). For a comparison of the
WAIS-IV to the WAIS-III, see LICHTENBERGER & KAUFMAN, supra note 62, at 39–40,
and for the caution regarding ethnic discrepancies, see id. at 49.
228. Heaton et al., WAIS-III and WMS-III, supra note 221, at 184.
229. Keith A. Hawkins & David S. Tulsky, WAIS-III WMS-III Discrepancy Analysis:
Six-Factor Model Index Discrepancy Base Rates, Implications, and a Preliminary Consideration
of Utility, in CLINICAL INTERPRETATION OF THE WAIS-III AND WMS-III 211, 213 (David S.
Tulsky et al. eds., 2003).

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Dr. Heaton’s discrepancy analysis work evoked considerable
controversy. 230 Nevertheless, he has defended his theory on a limited
clinical application, namely in diagnosing impairment, not a
description of deficiency. 231 Dr. Heaton claims that, in establishing a
baseline to determine if an individual has sustained the effects of a
brain injury, it would be appropriate to compare current test scores
with the individual’s “ethnic” (or other) cohort. 232 Dr. Heaton
agrees, however, that using specific cohorts should not be used for
evaluating intellectual disability in a forensic context. 233
Others who see some usefulness in Dr. Heaton’s discrepancy
analysis in performing a neuropsychological assessment also urge
caution in the diagnosis of intellectual disability. 234 For example, Dr.
Jennifer Manly, Professor of Neuropsychology at Columbia
University, was troubled by the possibility that physical and cognitive
differences might result in test score discrepancies based on some
correlation to ethnicity, concluding that “[u]nexplained racial
differences in cognitive test scores leave ample room for harmful
Similarly, Dr. Watson found that using
misinterpretation.” 235
subgroup norms based on demographic variables may be useful in
neuropsychological evaluation but cannot be used to diagnose
intellectual disability, namely because such a diagnosis requires a
comparison to the “larger normative reference group.” 236
An extensive review of the literature did not locate any peer
reviewed scientific studies that support the scientific use of ethnic
adjustments for forensic purposes and, therefore, none that support
such adjustments in Atkins cases in particular. The limited study of
ethnic discrepancies in IQ scores for application in brain damage
assessment does not support ethnic adjustments in forensics. Both

230. See, e.g., Watson, supra note 63, at 117 (arguing against using demographically
adjusted norms for diagnosing intellectual disability); Manly, supra note 202, at 272
(discussing that separate racial norms for minority testers may promote
misunderstandings about the results).
231. Heaton et al., Neuropsychological Assessment, supra note 4, at 147.
232. Id. at 146.
233. Id. at 147.
234. Manly & Echemendia, supra note 121, at 320.
235. Manly, supra note 202, at 272; see also Manly & Echemendia, supra note 121, at
323 (concluding that clinicians must carefully consider when to use race-specific
norms). Dr. Manly is a professor at the Taub Institute for Research on Alzheimer’s
Disease and the Aging Brain and at the Department of Neurology at Columbia
University. Manly, supra note 202, at 270.
236. Watson, supra note 63, at 117.

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the AAIDD and Dr. Heaton himself237 take the position that there
should be no ethnic adjustments in death penalty cases. 238
Nevertheless, some prosecution experts continue to urge for ethnic
adjustment, and judges apparently continue to acquiesce or give this
testimony weight in Atkins decisions, despite the Hall Court’s
conclusion that in determining whether a defendant is intellectually
disabled, courts look to the clinical understanding of the term.
D. Why Courts Acquiesce in “Ethnic Adjustments”
Although the constitutionality of ethnically adjusting IQ scores in
Atkins cases must be decided on the basis of the law and the
Constitution itself, other implicit factors often influence judges’
decisions to uphold or reject the practice. As Oliver Wendell
Holmes, Jr. 239 and others 240 recognized, judges are influenced by
many factors, including race. To be sure, it is a worthy goal to
deconstruct any process that may have anything to do with race. 241
Prejudices are subtle and hard to identify. 242 Anytime a claim of racism
comes into the picture, particularly in the United States, it quite

237. Heaton et al., Neuropsychological Assessment, supra note 4, at 147.
238. See Watson, supra note 63, at 117 (noting that while norm-based testing can
be useful in neuropsychological evaluation, it cannot be used to diagnose intellectual
disability because intellectual disability can only be evaluated by comparing the
subject to the general population).
239. OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (Lawbook Exchange 2009)
(1881) (“The life of the law has not been logic: it has been experience.”).
240. See, e.g., CRITICAL RACE THEORY: THE CUTTING EDGE 3 (Richard Delgado &
Jean Stefancic eds., 3d ed. 2013) (collecting the works of the phenomenologists and
post-modern deconstructionists with the underlying theory of the existence of a
“homeostatic mechanism that ensures that racial progress occurs at just the right
pace”). As it applies here, Justice Holmes’s comment in his Lochner v. New York
dissent is instructive: “General propositions do not decide concrete cases.” 198 U.S.
45, 76 (1905) (Holmes, J., dissenting), overruled by Ferguson v. Skrupa, 372 U.S. 726
(1963). So here, it is not a principle (constitutional, logical, or clinical) that is allowing
ethnic adjustments into evidence in individual cases, it is the judge. Therefore, we take
the liberty of going beyond principle to try to understand the phenomenon.
241. Jennifer Manley entitled one section of her paper on discrepancy analysis,
“Deconstruction of Race.” Manley & Echemendia, supra note 121, at 322.
242. Michael Yudell, A Short History of the Race Concept, in RACE AND THE GENETIC
REVOLUTION, SCIENCE, MYTH AND CULTURE 27 (Sheldon Krimsky & Kathleen Sloan,
eds. 2011) (“History has shown that even acknowledging that race has both a social
and a scientific meaning cannot disconnect the concept from its typology and racist
past (or present). Despite the best intentions of many scientists and scholars, race
will always remain what Ashley Montagu once called a ‘trigger word; utter it and a
whole series of emotionally conditioned responses follow.’” (quoting ASHLEY
MONTAGU, STATEMENT ON RACE 65 (Oxford Univ. Press 1972) (1951))).

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properly evokes a strong response. 243 That is precisely why it is
important to make an evidence-based assessment and examine why
judges are attracted to ethnically adjusting IQ scores. Although ethnic
adjustment in Atkins cases appear to be unconstitutional, courts still
accept the theory with literally fatal consequences for people of color. 244
A superficial attraction of the prosecution’s argument is its appeal
to a sort of benign political correctness. 245 Chiefly, the argument is
that to not adjust African Americans’ or Latina/os’ scores would be to
make the racist assumption that members of each ethnic group are
genetically inferior.246 This argument strikes an emotional chord, but is
not based in scientific fact. The argument rests on the inaccurate
assumption that to reject it is to concede that race causes lower test scores.
This argument may be appealing precisely because it accepts the
current paradigm. 247 As Thomas Kuhn, American physicist, historian,
and philosopher, famously demonstrated, scientists work within an
established paradigm to refine it and demonstrate its internal
consistency. 248 However, to make progress, a paradigm must shift.
Here, the paradigm seems to include acceptance of the premise that
IQ testing is not adequate and that adjusting testing discrepancies
automatically on a race-wide basis will achieve some sort of
equilibrium. Once it is accepted that the testing process is reasonably
accurate and that there is no genetic difference by race or ethnicity,
the old paradigm cannot account for reality. A shift to a new

243. The culture in the United States is still permeated by the vestiges of historical
racism and by a new form of racism that is, perhaps, more subtle but just as
devastating. See, e.g., MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION
IN THE AGE OF COLORBLINDNESS 2 (2010) (arguing that instead of relying directly on
race, today’s society uses the criminal justice system to label African Americans as
“criminals,” which is then used as he basis for discrimination); ISABEL WILKERSON,
THE WARMTH OF OTHER SUNS: THE EPIC STORY OF AMERICA’S GREAT MIGRATION 10
(2010) (chronicling how the Great Migration of African Americans from the Jim
Crow South changed their lives and still affects the United States today).
244. See Maldonado v. Thaler, 625 F.3d 229, 238–39 (5th Cir. 2010) (upholding the
death penalty sentence of a lower court, which relied on an ethnically motivated adjustment
of the defendant’s IQ scores); supra notes 179–90 and accompanying text (discussing
Hernandez v. Stephens, 537 F. App’x 531, 536–37 (5th Cir. 2013) (per curiam)).
245. See, e.g., Johnson v. Missouri, 102 S.W.3d 535, 539 n.10 (Mo. 2003) (en banc)
(quoting the prosecution’s expert as describing the IQ test as “culturally prejudiced
against” the defendant).
246. See id.
247. See THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS vii (2d ed.
1970) (explaining that paradigms are “universally recognized scientific achievements
that for a time provide model problems and solutions”).
248. Id. at 23.

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paradigm provides a framework that allows thinking to accommodate
evidence-based explanations for discrepancies in IQ scores and to
resolve the question of whether ethnic adjustments are justified.
Dr. Heaton, perhaps unintentionally, helped to develop the old
paradigm. 249 He developed a modern theory of discrepancy analysis
and advocated a limited application of ethnic adjustments. 250 Viewed
simplistically, his work suggested that if there are, on average,
disparities in IQ test scores between groups and the standardized
norm, those scores should be adjusted group-wide. 251 If the group is
based on race, the adjustment would apply to the entire race. 252 This
paradigm is based on the further assumption that, to avoid being a
racist, the test scores are assumed to be based on some behavioral
explanation, like lack of motivation or cultural deprivation, that deserves
a correction. 253 Although there is no evidence showing that race directly
causes lower test scores, there is evidence of correlation between race
and lower test scores. 254 Thus, the logic goes, to test an individual’s true
g, within the old paradigm, an adjustment based on race is required.
Of course, this paradigm purports to avoid racism but is, in fact,
racist itself. 255 The argument, even in its most benign form, assumes
that every African American or Latina/o who comes before the court
is a poor test taker, unmotivated, or somehow subject to the factors
that these experts claim artificially cause false discrepancies in their
IQ scores.256 It is obviously false that the IQ score of every African
American or every Latina/o is lower because every African American and
Latina/o is a poor test taker or unmotivated. Whether the proponents of
249. See Manly & Echemendia, supra note 121, at 319 (stating that ethnic
adjustments are a popular method to compensate for IQ tests that are not validated
for minorities, and citing Heaton among its sources).
250. Heaton et al., Neuropsychological Assessment, supra note 4, at 146–47.
251. Id. at 146 (stating that the best option is to compare a patient’s test results to
the patient’s entire cohort).
252. Id.
253. See id. at 149 (noting that race is used as a proxy for influences that are more
complex and difficult to assess, such as culture, values, and beliefs).
254. Id.
255. For more information, see the collection of scholarly essays in RACE AND THE
GENETIC REVOLUTION: SCIENCE, MYTH AND CULTURE 190 (Sheldon Krimsky &
Kathleen Sloan, eds. 2011). In particular, see Pilar N. Ossorio, Myth and Mystification:
The Science of Race and IQ in RACE AND THE GENETIC REVOLUTION: SCIENCE, MYTH AND
CULTURE 173, 190 (Sheldon Krimsky & Kathleen Sloan, eds. 2011) (“Taken together,
the evidence suggests that differences in IQ scores are the result of social inequality
rather than its cause.”).
256. See, e.g., Manly, supra note 202, at 272 (noting that attitudes about test taking and
motivation during the testing session may play a role in racial differences in IQ scores).

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ethnic adjustments would agree with this evaluation is unknown because,
as far as the records show, experts have failed to offer further explanation
as to how this logical leap is justified in the Atkins context. Once this
paradigm is challenged, however, progress can be made.
The inverse to the obviously false argument that all minority testtakers are lazy is the argument that the disparity in test results is not
the fault of the test taker, but rather that the problem lies with the
test itself. Criticism relating to possible bias in testing gained traction
in the 1970s and 1980s when it appeared that there was an overdiagnosis of intellectual disability in African American children.257 As
a result, students were “tracked” through special education rather
than “mainstreamed.” 258 The racially correlated misdiagnosis of
intellectual disability ultimately led the Ninth Circuit to prohibit
California public schools from using standardized tests to determine
which students would be placed in special education classes. 259 This
was a legitimate concern.
The argument that the test itself is the reason for the disparities
assumes that the differences in test scores between a cross-section of the
community and a race based cohort must be the result of culturally
insensitive testing as opposed to intellectual disability.260 The assumption
is that the tests are not fair or are not administered in a way that discerns
other attributes, like being a poor test taker or being unmotivated. 261
However, there is no scientific support for either logical leap,
particularly in current forensic testing. 262 The testing companies
257. E.g., Larry P. v. Riles, 793 F.2d 969, 975 (9th Cir. 1984) (“No pupil may be
placed in a special education program for the mentally retarded unless a complete
phychological [sic] examination by a credentialed school psychologist investigating
such factors as developmental history, cultural background, and school achievement
substantiates the retarded intellectual development indicated by the individual test
scores. This examination shall include estimates of adaptive behavior [and the
ability to engage in social activities and perform everyday tasks].” (alteration in
original) (citing CAL. EDUC. CODE § 56504 (West 1978) (repealed 1980))).
258. See EDWARD ZIGLER & ROBERT HODAPP, UNDERSTANDING MENTAL RETARDATION
223–26 (1986).
259. Larry P., 793 F.2d at 972. But see Parents in Action on Special Educ. v.
Hannon, 506 F. Supp. 831, 883 (N.D. Ill. 1980) (holding that Chicago’s standardized
intelligence tests were not culturally biased against African Americans).
260. See, e.g., Johnson v. Missouri, 102 S.W.3d 535, 539 n.10 (Mo. 2003) (en banc)
(quoting the prosecution’s expert as describing IQ tests as “culturally prejudiced
against” the defendant).
261. Id.
262. See Neisser et al., supra note 200, at 93–94 (noting that studies have shown
that the supposed cultural biases of the tests do not contribute substantially to the
racial difference in scores).

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have rigorously designed tests to avoid exactly these disparities. 263
Furthermore, tests that are administered for forensic purposes are
administered individually, take into account racial and cultural
differences, and are generally not dependent on reading and
writing. 264 Tests like the WAIS are well normed and reliable. 265
Although SEMs are present in all scientific testing, including
psychometric testing, the weight of the evidence suggests that the test
results represent fair assessments of general intelligence, or g. 266
Even if there were an unexplained discrepancy in the test scores of
cohorts based on race or ethnic origin when compared to the
standardized norm, 267 it is nevertheless unconstitutional to invoke an
adjustment to make defendants, based solely on their race, eligible
for execution. 268 There is no nexus between the disparity in test
scores of the group and the actual IQ of an individual before the
court. 269 There is no evidence of a genetic link to a deficit in test
scores for any ethnicity. The paradigm is internally inconsistent.
Therefore, the experts making the benign argument—though not
benign in its results—contend that, lacking a genetic link, African
Americans and Latina/os must be unmotivated or bad test takers. 270
However, to save this argument from appearing stereotypical, experts

263. See Watson, supra note 63, at 131 (explaining the extent to which current
testing seeks to correct for unfairness attributed to cognitive assessments, including
socioeconomic and racial bias).
264. AAIDD MANUAL, supra note 5, at 41 (“[O]ne should employ an individually
administered, standardized instrument that yields a measure of general intellectual
functioning. Further, the selection of a specific standardized measure with which to
assess intelligence should be based on several factors, such as the individual’s social,
linguistic and cultural background.”).
265. Watson, supra note 63, at 117, 119–20 (noting that when IQ scores are used as
a basis for making classification decisions (such as “pass” and “fail”), the SEM “has
important implications for the trustworthiness of these decisions”).
266. Id. at 119–20.
267. Quod erat demonstrandum (“which had to be proven”), it was not.
268. See McClesky v. Kemp, 481 U.S. 279, 345 (1987) (Blackmun, J., dissenting)
(arguing that the Court’s refusal to find that evidence of an “intolerable level of
racially based discrimination” in Georgia when imposing the death penalty was a
violation of Eighth Amendment protection).
269. See Watson, supra note 63, at 117.
270. See, e.g., Hernandez v. Stephens, 537 F. App’x 531, 536–37 (5th Cir. 2013)
(per curiam) (explaining the conclusion of psychiatrists that certain low IQ test
scores earned by Hernandez, a Mexican national, may have been due to
“motivational variables,” even when corrected for “American norms”), cert. denied,
134 S. Ct. 1760 (2014).

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claim that race is a proxy for socioeconomic conditions. 271 If not, the
argument would fall into the logical trap of once again claiming that
there is some genetic or stereotypic racial basis for the lack of
proficiency in taking tests.
IV. THERE IS AN EPIGENETIC EFFECT OF CHILDHOOD ABUSE, STRESS,
POVERTY, AND TRAUMA THAT AFFECTS THE EXPRESSION OF GENES AND
THE PHENOTYPE OF CELL AND INDIVIDUAL DEVELOPMENT
This Part examines the effects of childhood abuse, stress, poverty,
and trauma on an individual through the process of epigenetics. It
explores whether such race neutral environmental factors actually
decrease test performance and whether the effects are
phenotypic/biological as opposed to merely behavioral/sociological.
This Part considers whether any adjustment to scores could be
justified, even assuming the individual’s cohort could be ascertained
with certainty (as opposed to generally correlated to race).
Some prosecution experts have, perhaps carelessly, merged
behavioral and environmental arguments to support the use of ethnic
adjustments. 272 For instance, the expert in Ex parte Smith opined that
the records “indicate school scores measured by IQ that would be
indicative of mild mental retardation, if they were not spuriously
lowered by things such as exposure to domestic violence, poverty,
cultural deprivation, ethnicity, [and] perhaps intoxication.” 273 The
contention that the effect of “ethnicity” in conjunction with these
environmental factors “spuriously” lowers the IQ scores is not based
on evidence. 274 However, to look at the evidence would challenge the
old paradigm of ethnic cognitive disparity. Therefore, exploration of
a new paradigm is required.
The new paradigm considers that there may be an actual etiology
of impairment in intellectual ability that is not based on one’s race or
ethnicity. Rather, given current social realities in the United States, 275
people of color are more likely to have been exposed to the factors
271. Jeffery L. Johnson & Colleen F. Johnson, Poverty and the Death Penalty, 35 J.
ECON. ISSUES 517, 519 (2001).
272. See, e.g., Ex parte Smith, No. 1080973, 2010 WL 4148528, at *3 (Ala. Oct. 22, 2010).
273. Id.
274. Compare id. (noting the history of substance abuse and family history that
would contribute to lower test scores), with Marijcke W. M. Veltman & Kevin D.
Browne, Three Decades of Child Maltreatment Research: Implication for the School Years, 2
TRAUMA, VIOLENCE & ABUSE, 215, 231 (2001) (noting the correlation between child
maltreatment and poor performance in school).
275. See infra notes 276–84 and accompanying text.

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that cause such an impairment. 276 If those factors are environmental
and also have a phenotypic manifestation, the effects are not
behavioral, but physical. If the manifestations are physical and not
behavioral, then there is no basis to adjust the scores of the
individuals and, by extension, no basis to adjust the scores of the
group in which they may be counted.
A. Race is a Proxy for Likelihood of Exposure to Abuse, Neglect, Stress,
Poverty, and Trauma
Race in the United States is a proxy for a cohort more likely to be
exposed to childhood abuse, neglect, and poverty. 277 While it is
important to avoid stereotyping, it is equally important to understand
how non-racial variables may disproportionately correlate with, and
affect, a cohort within the general population. The fact is, minorities,
including African Americans and Latina/os, on average, are more
likely to live in an impoverished environment. 278 That environment,
for a variety of reasons, is associated with increased exposure to a
dysfunctional and deleterious environment for children. 279
Gary Evans of Cornell University concluded in a comprehensive
study 280 that “[p]overty is harmful to the physical, socioemotional,
and cognitive well-being of children, youths, and their families. A
potent explanation for this relation is cumulative, environmental risk
Dr. Evans chronicles a host of environmental
exposure.” 281
conditions to which low-income children are exposed at home that
middle- and high-income children are not, including: greater family
turmoil, fewer cognitive enrichment opportunities, harsher

276. See, e.g., Violence & Socioeconomic Status, AM. PSYCHOL. ASS’N, [hereinafter APA,
Violence & Socioeconomic Status] http://www.apa.org/pi/ses/resources/publications/
factsheet-violence.aspx (last visited Oct. 26, 2015); see also Camille Zubrinsky Charles,
The Dynamics of Racial Residential Segregation, 29 ANN. REV. SOC. 167, 197 (2003)
(explaining the connection between residential segregation and poverty).
277. See, e.g., APA, Violence & Socioeconomic Status, supra note 276.
278. See Charles, supra note 276, at 175–76 (noting that minority suburban
communities, despite being more affluent than minority urban communities, are
nevertheless poorer than majority communities).
279. DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION
AND THE MAKING OF THE UNDERCLASS 109 (1993); Gary Evans, The Environment of
Childhood Poverty, 59 AM. PSYCHOLOGIST 77, 77 (2004).
280. Evans, supra note 279, at 88.
281. Id.

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parenting, and greater pollution. 282 These environmental factors are
also present in their surrounding neighborhoods and schools. 283
The etiology of the resulting condition is not race-based. 284 The
research merely shows the correlation between poverty and these
effects on children. 285 Obviously, given the economic advantages—or
even in the face of economic disadvantages—there is no racial factor
involved in any individual’s ability to thrive.
B. Abuse, Neglect, Stress, Poverty, and Trauma Are Correlated to
Limitations in Intelligence
Science has demonstrated for several decades that people
subjected to childhood abuse, neglect, stress, poverty, and trauma do,
in fact, develop limitations on intelligence. 286 The studies show the
effect on the cognitive development of children, including the ability
to score well on intelligence tests.
The 1996 APA report 287 that surveyed the literature in response
to Herrnstein’s and Murray’s The Bell Curve 288 concluded that some
differences in test scores may have been influenced by
socioeconomic factors—exposure to toxins, like lead based paint,
and “caste-like” circumstances—that American minorities
disproportionately experience. 289
However, many of the “unknowns” 290 in 1996 have now become
known.
One unknown was the actual effect of an abusive
environment during childhood. As Louis Cozolino, Professor of
Psychology at Pepperdine University who has written extensively on
neuroscience and psychotherapy, put it:
We are just as capable of adapting to unhealthy environments and
pathological caretakers. The resulting adaptations may help us to
survive a traumatic childhood but impede healthy development
later in life. . . . Because the first few years of life are a period of

282. Id. at 77.
283. Id.
284. Id.
285. Craig Haney, The Social Context of Capital Murder: Social Histories and the Logic
of Mitigation, 35 SANTA CLARA L. REV. 547, 564 (1995).
286. Veltman & Browne, supra note 274, at 219, 224–30 (citing scientific data,
spanning from 1967 to 1999).
287. Neisser et al., supra note 200, at 77.
288. HERRNSTEIN & MURRAY, supra note 201.
289. Neisser et al., supra note 200, at 89, 94.
290. Id. at 97.

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exuberant brain development, early experience has a
disproportionate impact on the development of neural systems. 291

In a recent longitudinal study of a birth cohort with 3796 subjects at
Mater University, researchers followed subjects from birth to age
After correlating reports of abuse and neglect to
fourteen. 292
subsequent intellectual development and test scores, the researchers
concluded that “[b]oth child abuse and child neglect are independently
and strongly associated with lower cognitive functioning.” 293
Research has documented a direct correlation between these
effects and Post-Traumatic Stress Disorder (PTSD). Learning deficits
are found to have a statistically significant relationship to PTSD. 294
Not surprisingly, abuse leads to PTSD and depression, which has a
demonstrable effect on intelligence test scores. 295 In addition, the
environment’s stress levels can have a significant effect. 296 For
instance, exposure to homicides in the neighborhood, whether
witnessed or just heard about, can have a significant effect on IQ test
scores. 297 High levels of chronic stress have a detrimental physical effect
on the individual, including the brain. 298 The neuronal interrelation
between the prefrontal cortex and the hippocampus can be damaged,
impairing the regulation of attention and memory. 299

291. LOUIS COZOLINO, THE NEUROSCIENCE OF HUMAN RELATIONSHIPS: ATTACHMENT
xvi–xvii (2d ed. 2014).
292. Ryan Mills et al., Child Abuse and Neglect and Cognitive Function at 14 Years of
Age: Findings From a Birth Cohort, 127 PEDIATRICS 4, 5, 7 (2011).
293. Id. at 10.
294. Diane Scheiner et al., Verbal Learning Deficits in Posttraumatic Stress Disorder and
Depression, 27 J. TRAUMATIC STRESS 291, 295–96 (2014).
295. Divya Mehta et al., Childhood Maltreatment is Associated with Distinct Genomic and
Epigenetic Profiles in Posttraumatic Stress Disorder, 110 PROC. NAT’L ACAD. SCI. 8302, 8304
(2013) (identifying a correlation between childhood abuse and PTSD); Patrick
Sharkey, The Acute Effect of Local Homicides on Children’s Cognitive Performance, 107
PROC. NAT’L ACAD. SCI. 11733, 11736 (2010) (finding a correlation between exposure
to homicides and a measured reduction in cognitive assessment).
296. Sharkey, supra note 295, at 11,733.
297. Id. at 11,736.
298. Christopher Bergland, Chronic Stress Can Damage Brain Structure and Connectivity,
PSYCHOL. TODAY (Feb. 12, 2014), https://www.psychologytoday.com/blog/the-athletesway/201402/chronic-stress-can-damage-brain-structure-and-connectivity.
299. Bruce S. McEwen, The Neurobiology of Stress: From Serendipity to Clinical
Relevance, 886 BRAIN RES. 172, 185 (2000).
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C. Studies Show that These Effects Can Be Multigenerational
Studies show that adverse environmental influences can have
effects that may be multigenerational. 300 The effects of the Dutch
Hunger Winter were studied extensively, providing insight into the
effects of one’s environment on inheriting adverse characteristics. 301
Toward the end of World War II, the Nazis cordoned off Amsterdam
and blockaded the delivery of food to the city residents. 302 As a result
of this, and the corresponding inability to ship food due to an early
winter, there was severe deprivation in the city and overabundance in
the country. Due to the meticulous obstetric medical record keeping
of the Dutch, researchers were able to track the health of both
groups’ survivors. 303 Perhaps more importantly, they were able to
track the health of those groups’ children and grandchildren. 304
The results remarkably demonstrated the inheritable consequences
Children and
of exposure to environmental stress factors. 305
grandchildren had phenotypic differences based on the cohort to which
their mothers or grandmothers belonged. 306 This was not due to
genetic mutation and not all the effects were negative.307 Nevertheless,
somehow, information was passed on through multiple generations as a
result of maternal or grand-maternal environmental influences. 308

300. See, e.g., Charles W. Schmidt, Uncertain Inheritance: Transgenerational Effects of
Environmental Exposures, 121 ENVTL. HEALTH PERSP. A298, A299 (2013) (arguing that
published transgenerational findings have increased substantially since 2005).
301. See Tessa Roseboom et al., The Dutch Famine and Its Long-Term Consequences for
Adult Health, 82 EARLY HUM. DEV. 485, 486–87 (2006) (detailing the unique nature of
the Dutch famine as affording an unprecedented opportunity to study the effects of
starvation due, in part, to meticulous records).
302. Id. at 486 (explaining that the blockade’s effect was exacerbated and extended by
an early winter that rendered shipping impossible on the Dutch canals and waterways).
303. Id.
304. See NESSA CAREY, THE EPIGENETICS REVOLUTION 4 (2011) (remarking that the
effects of the famine are evident in the children of children born during and
immediately following the famine).
305. Id.
306. Id. Cohorts were established based on geographic location (which was a
proxy for abundance of or lack of food) and on, for instance, trimester of pregnancy
during the time period. See L.H. Lumey et al., Cohort Profile: The Dutch Hunger Winter
Families Study, 36 INT’L J. OF EPIDEMIOLOGY 1196, 1197 (2007).
307. CAREY, supra note 304, at 92.
308. Id. at 4.

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Many studies have confirmed this phenomenon. 309 There is an
intergenerational transmission of post-traumatic stress disorder. 310 If
the effects of PTSD, clearly shown to impair cognitive functioning,
are passed on biologically from generation to generation, then it
implies a phenotypic alteration in cell development and development
of the organism—the individual human being—as a result. 311
The anecdotal and medical documentation of the multigenerational effects of psychophysiological stress and trauma have
now been reconfirmed in a study published as this Article goes to
print. 312 This remarkable study measured the methylation of a
particular gene encoding protein at specific gene locations in thirtytwo Holocaust survivors and twenty-two of their adult offspring as
compared to a control group. The study establishes the “first
demonstration of an association of pre-conception stress effects with
epigenetic changes in both exposed parents and their offspring in
adult humans,” providing potential insight into how severe
psychophysiological trauma can have intergenerational effects.” 313
This supports the hypothesis that stress and trauma result in actual
phenotypic/biological effects and that those effects can be passed
down from one generation to another. This new research, therefore,
further supports the conclusion that people who live in poverty and are

309. MELISSA ECCLESTON, IN UTERO EXPOSURE TO MATERNAL STRESS: EFFECTS OF THE
SEPTEMBER 11TH TERRORIST ATTACKS IN NEW YORK CITY ON BIRTH AND EARLY
SCHOOLING OUTCOMES 30 (2011), http://isites.harvard.edu/fs/docs/icb.topic964076
.files/911_Draft5_MelissaEccleston.pdf (studying children who were in utero
during the September 11, 2001 terrorist attacks in New York City, and finding
that stress on the pregnant mother had phenotypic effects on the children and
an impact on their intellectual development).
310. Michelle Bosquet Enlow et al., Mother-Infant Attachment and Intergenerational
Transmission of Posttraumatic Stress Disorder, 26 DEV. & PSYCHOPATHOLOGY 41, 41 (2013).
311. Studies for some time have shown actual physical effects of stress on various
aspects of the brain. See Bruce S. McEwen, The Neurobiology of Stress: From Serendipity to
Clinical Relevance, 886 BRAIN RES. 172, 172–79 (2000); Rachel Yehuda et al., Holocaust
Exposure Induced Intergenerational Effects on FKBP5 Methylation 1, 8 (Aug. 12,
2015) (unpublished manuscript) (on file with Biological Psychiatry) [hereinafter
Yehuda et al., Holocaust Exposure]. According to McEwen, “Recent evidence
indicates that the human hippocampus is particularly sensitive in this respect and
tends to show greater changes than other brain areas, in particular in Cushing’s
syndrome, recurrent depressive illness, post-traumatic stress disorder (PTSD),
schizophrenia and aging prior to overt dementia.” McEwen, supra note 311, at 182
(citation omitted). More recent studies have shown the epigenetic mechanism by
which theses physical changes are conveyed. See sources cited infra note 314.
312. Yehuda et al., Holocaust Exposure, supra note 311, at 1, 8.
313. Id. at 6.

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more likely to be subjected to these adverse environmental influences are
more likely as a group to suffer actual intellectual disabilities.314
D. Etiology: Environmental Factors Lead to Epigenetic Effects
It has been known since the fruit fly experiments at the turn of the
twentieth century that there is a mechanism within cells that
somehow causes them to differentiate. The term “epigenetics” was
coined to describe the phenomenon. 315 Only in the last twenty years
or so have scientists actually determined the mechanism by which this
process takes place. 316
Basically, cells divide in the human organism. Each cell has exactly
the same DNA, gene structure, and sequence. This genetic material,
the gene sequence, determines many of the phenotype’s gross
characteristics, such as eye color. However, the actual mechanism
that causes cells to divide and for one, say, to become an eyeball cell
and another a cell in the big toe, was not known. Recently, scientists
discovered that cells with identical DNA gene sequences are subject
to influences of methylation of the DNA and acetylation of proteins
in a way that “expresses” the existing genes. This is referred to as an
epigenetic process. The process does not mutate the genes, but
rather it activates or deactivates them to one degree or another.
314. Although the Holocaust involved much higher levels of stress than what most
low-income people are exposed to in the United States, the research nevertheless
indicates that when individuals are exposed to severe stress, epigenetic changes that
impact their future offspring manifest. Similar studies have borne similar results. See
Brian G. Dias & Kerry J. Ressler, Parental Olfactory Experience Influences Behavior and
Neural Structure in Subsequent Generations, 17 NATURE NEUROSCIENCE 89, 89 (2014)
(studying the inheritance of “parental traumatic exposure” in mice using olfactory
fear conditioning); Natan P.F. Kellermann, Epigenetic Transmission of Holocaust
Trauma: Can Nightmares Be Inherited?, 50 ISRAEL J. PSYCHIATRY & RELATED SCI. 33, 33
(2013) (“Apparently, not only children of Holocaust survivors, but offspring of other
PTSD parents are also vulnerable to such a burdensome legacy . . . .”); Rachel
Yehuda, Disease Markers: Molecular Biology of PTSD, 30 DISEASE MARKERS 61, 62–64
(2011) (describing studies that have contributed to the body of research on the
molecular biology of PTSD) [hereinafter Yehuda, Molecular Biology of PTSD]; Helen
Thomson, Study of Holocaust Survivors Finds Trauma Passed on to Children’s Genes, GUARDIAN
(Aug. 21, 2015, 1:40 PM), http://www.theguardian.com/science/2015/
aug/21/study-of-holocaust-survivors-finds-trauma-passed-on-to-childrens-genes (reporting
a study by Rachel Yehuda that found gene changes in children of Holocaust survivors that
“could only be attributed” to their parents’ Holocaust exposure).
315. RICHARD C. FRANCIS, EPIGENETICS: THE ULTIMATE MYSTERY OF INHERITANCE, x
(2011) (“[E]pigenetic refers to long-term alterations of DNA that don’t involve
changes in the DNA sequence itself.”).
316. See id.; CAREY, supra note 304, at 4 (providing a comprehensive but
understandable explanations of epigenetics).

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In a way, it is like a 24,000 key piano being played by a pianist with
hundreds of fingers on each hand. 317 When she plays a chord, it
causes certain patterns of genes to be expressed. Each key or set of
keys can be played fortissimo, pianissimo, or anywhere in between. It is
this epigenetic pattern of gene expression that leads to the
differentiation of cells in their development. 318
Furthermore, the environment may influence the epigenetic
expression of gene patterns. Take a simple example. Cells in a tree
will divide and some will become the composite cells of bark, others
part of the limbs, branches, and twigs, and some will become buds,
leaves, and flowers. Research shows that the environmental effect of
the length of exposure to sunlight in combination with temperature
can influence the epigenetic development of such plant cells. 319 That
is how the cells “know” that it is spring and, for instance, that the cells
Through epigenetics,
in the flowers should “blossom.” 320
environmental influences have an effect on the phenotype of the
cells and the organism.
Therefore, it should not be surprising that the environment can
influence epigenetic gene expression and cell development in
humans. 321 If adverse environmental influences cause the behavioral
symptoms of PTSD, for instance, it should not be a surprise that the
stress and trauma causing what we see as PTSD is actually causing

317. The human genome is around 24,000 genes all in a sequence. Ninety-nine
and a half to 99.9 percent of them are identical from one human to another.
Ossorio, supra note 255, at 177. Differences in the individual phenotype from one
person to another are more the work of gene expression, which is achieved by the
methylation of DNA and the acetylation of proteins that interact with the genes. As
Dr. Nessa Carey said, “[a] phenomenon is likely to be influenced by epigenetic
alterations in DNA and its accompanying proteins is one or both of the following
conditions are met: (1) Two things are genetically identical, but phenotypically
variable; (2) An organism continues to be influenced by an event long after the
initiating event has occurred.” CAREY, supra note 304, at 304.
318. This piano metaphor is the author’s, but the inspiration for it is found in
Sam Kean’s poetic book on genetics. SAM KEAN, THE VIOLINIST’S THUMB 79–80
(2012). Kean mentions the similarities of music to the structure of DNA itself. He
observes parenthetically that, “musicology recapitulates ontology,” as an allusion to
Haeckel’s “law” that “ontogeny recapitulates phylogeny.” Id. at 80. See generally
GERALD SCHNEIDER, BRAIN STRUCTURE AND ITS ORIGINS 89–91 (2014) (discussing the
metaphorical use of Haekel’s “law”). Neither can be taken literally but as Haekel’s
“law” helps to understand the more complex reality of brain structure, the piano
metaphor is offered in the same metaphorical sense with regard to epigenetics.
319. CAREY, supra note 304, at 294.
320. Id. at 296–300.
321. Id.

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epigenetic changes in cell development. 322 If PTSD results in the
impairment of intellectual function, the mechanism is an epigenetic
reaction to the environment and a phenotypic manifestation in gene
expression. The result is that people subjected to abuse, stress, and
other adverse environmental influences are phenotypically/biologically
different, rather than just “unmotivated[,] poor test takers.” 323 In other
words, it is not race that is a marker for lower intelligence; instead,
environmental influences can cause phenotypic change in individuals
and may have multigenerational impacts, thus resulting in a higher
number of intellectually disabled persons, which is superficially linked
to race, given the current racial disparities in the United States. 324
Early life stress can actually change the cell development such that
there are observable, morphological changes in the size of critical parts of
the brain.325 These changes are based on epigenetics.326 Studies have
now mapped the gene expression pattern resulting from PTSD.327 They
have also mapped areas within genomic regions for intelligence quotient
performance.328 Together, these studies suggest that it is possible for the
test scores of an individual who has been exposed to these adverse
environmental factors to be affected by a physical, phenotypic change at
the cellular level. The nature of the change is demonstrable and lower
test scores are clearly correlated to those influences.
Behavioral reactions or other unexplained factors cannot be
entirely eliminated, but it is demonstrated that early life experiences
not only have an actual phenotypic/biological effect on cell
development, but that they also have a behavioral effect on intellectual
development and IQ test scores. With this new paradigm in mind,
research needs to continue to more clearly quantify the data and refine

322. Dias & Ressler, supra note 314, at 328; Kellermann, supra note 314, at 33;
Yehuda, Molecular Biology of PTSD, supra note 314, at 61, 63; Thomson, supra note 314.
323. Yehuda, Molecular Biology of PTSD, supra note 314, at 63.
324. Laura Shin, The Racial Wealth Gap: Why A Typical White Household Has 16 Times
the Wealth of a Black One, FORBES (Mar. 26, 2015, 8:00 AM), http://www.forbes.com/
sites/laurashin/2015/03/26/the-racial-wealth-gap-why-a-typical-white-household-has16-times-the-wealth-of-a-black-one.
325. Jamie Hanson et al., Behavioral Problems After Early Life Stress: Contributions of
the Hippocampus and Amygdala, 77 BIOLOGICAL PSYCHIATRY 314, 319 (2015).
326. Anne Schafer et al., Epigenetic Mechanisms of Mental Retardation, 67 PROGRESS IN
DRUG RES. 125, 126 (2011).
327. Dias & Ressler, supra note 314, at 328; Kellermann, supra note 314, at 33;
Yehuda, Molecular Biology of PTSD, supra note 314, at 61, 63; Thomson, supra note 314.
328. Min Zhao et al., A Systems Biology Approach to Identify Intelligence Quotient ScoreRelated Genomic Regions, and Pathways Relevant to Potential Therapeutic Treatments, SCI.
REP., Feb. 25, 2014, at 1, 5.

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conclusions. Nevertheless, based on constitutional, logical, and clinical
analysis, there is no legal, logical or scientific basis to “ethnically adjust”
IQ scores, based solely on one’s race or ethnicity.
V. USING A CLASSIFICATION OF RACE TO DETERMINE ELIGIBILITY FOR
EXECUTION IS UNCONSTITUTIONAL
This Part examines the constitutionality of using racial
classifications to determine death penalty eligibility. This Part
considers whether adjustments based on race violate the Equal
Protection Clause of the Fourteenth Amendment through the lens of
other racial classification schemes previously analyzed by the Court,
ultimately concluding that the practice of “ethnic adjustments” would
not survive strict scrutiny.
A. Classifications Based on Race Are Subject to Strict Scrutiny
The Supreme Court has routinely held that racial classifications are
unconstitutional. The Court in 1938 famously said in footnote four
of United States v. Carolene Products Co. 329 that any law that
discriminates against a “discrete and insular minority” is subject to a
“more searching judicial inquiry.” 330 From there, the Court
developed a standard of employing strict scrutiny in situations
involving potential infringements upon fundamental rights based on
race or national origin. 331
329. 304 U.S. 144 (1938).
330. Id. at 152 n.4.
331. See, e.g., Fisher v. Univ. of Texas at Austin, 133 S. Ct. 2411, 2418–19 (2013)
(applying strict scrutiny to race conscious admissions policy); Johnson v. California,
543 U.S. 499, 505 (2005) (applying strict scrutiny to prison policy of segregating
inmates by race); Grutter v. Bollinger, 539 U.S. 306, 316, 326 (2003) (applying strict
scrutiny to the University of Michigan Law School’s policy of admitting a critical mass
of racial minority applicants); Gratz v. Bollinger, 539 U.S. 244, 270 (2003) (applying
strict scrutiny and striking down the University of Michigan’s policy of giving
minority applicants automatic points to their application); Adarand Constructors,
Inc. v. Pena, 515 U.S. 200, 227 (1995) (applying strict scrutiny to the federal
government’s use of race-based presumptions in contracting); City of Richmond v.
J.A. Croson Co., 488 U.S. 469, 493 (1989) (applying strict scrutiny to a city ordinance
requiring prime contractors to subcontract thirty percent of prime contract value to
minority businesses); Graham v. Richardson, 403 U.S. 365, 472 (1971) (applying
strict scrutiny to a state law conditioning the award of welfare benefits on national
origin); Loving v. Virginia, 388 U.S. 1, 11 (1967) (striking down Virginia’s ban on
interracial marriage); Korematsu v. United States, 323 U.S. 214, 216–18 (1944)
(finding that forcing all persons of Japanese descent into detention camps was
constitutional in order to prevent espionage during World War II); Skinner v.
Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (holding compulsory

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Using this framework, the Court has held that racial classifications
used explicitly or implicitly to interfere with the exercise of any
significant constitutional right violates the Equal Protection Clause.
In Harper v. Virginia State Board of Elections, 332 for instance, the Court
struck down a poll tax that had the effect of discriminating
disproportionately on the basis of race. 333 The Court said, “We have
long been mindful that where fundamental rights and liberties are
asserted under the Equal Protection Clause, classifications which
might invade or restrain them must be closely scrutinized and
carefully confined.” 334 This view has persisted. In 2000, the Court
reaffirmed, in another voting rights case, that “[d]istinctions between
citizens solely because of their ancestry are by their very nature
odious to a free people . . . .” 335 The Court has also applied strict
scrutiny to disallow affirmative or remedial action based on race, 336
saying in 1980 that “[a]ny official action that treats a person
differently on account of his race or ethnic origin is inherently
suspect.” 337 This is true even if the racial group has been subjected to
historical discrimination and disadvantage. 338
The Court has similarly interpreted the Equal Protection Clause as
prohibiting discriminatory practices in criminal law—where the
defendant’s liberty is at stake 339—stating that it has “engaged in

sterilization law unconstitutional because it treated similar crimes differently with
respect to who is eligible for sterilization).
332. 383 U.S. 663 (1966).
333. Id. at 668–70.
334. Id. at 670.
335. Rice v. Cayetano, 528 U.S. 495, 517 (2000) (quoting Hirabayashi v. United
States, 320 U.S. 81, 100 (1943)).
336. E.g., Fisher, 133 S. Ct. at 2419 (“[S]trict scrutiny must be applied to any
admissions program using racial categories or classifications.”); Gratz, 539 U.S. at 270,
275 (striking down the University of Michigan’s policy of giving automatic points to
racial minority applicants); see also Regents of the Univ. of Cal. v. Bakke, 438 U.S.
265, 291 (1978) (stating that restrictions that curtail the rights of a single racial
group are subject to strict scrutiny).
337. Fisher, 133 S. Ct. at 2419 (quoting Fullilove v. Klutznick, 448 U.S. 448, 523 (1980)
(Stewart, J., dissenting)); see Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551
U.S. 701, 726–27, 732, 748 (2007) (striking down the use of race in school admissions when
the only goal of using racial classification was to achieve racial balancing).
338. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 498 (1989) (explaining
that a history of discrimination does not justify the use of “rigid racial quotas”).
339. E.g., Batson v. Kentucky, 476 U.S. 79, 84 (1986) (prohibiting the prosecution
from using peremptory challenges solely on account of jurors’ race); Skinner v.
Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (striking down a sterilization
law that treated similar crimes differently with respect to which crime qualified for

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‘unceasing efforts’ to eradicate racial prejudice from our criminal
justice system.” 340 Ultimately, “discrimination on account of race in
the administration of justice strikes at the core concerns of the
Fourteenth Amendment and at fundamental values of our society and
our legal system.”341 Thus, the ethnic adjustment of IQ scores is subject to
analysis under this framework.342 To pass strict scrutiny, the government
action must further a “compelling government purpose,” and must have
been narrowly tailored to achieve that purpose.343 In the death penalty
context, using ethnic adjustments to qualify people of color for execution
would not pass the Court’s most searching judicial scrutiny.
1. Adjusting test scores based on race in the employment and education
contexts is unconstitutional
The Supreme Court has not addressed the issue of ethnic
adjustments in death penalty cases, despite having had the
opportunity to do so in 2014. 344 However, Washington v. Davis345
provides a telling analysis of adjusting test scores on the basis of race.
Washington involved a challenge to written tests given to District of
Columbia police officer candidates relating to verbal skills. 346
Plaintiffs claimed that the test was racially discriminatory because African
American candidates were four times less likely to pass than White
candidates.347 The petitioner requested an injunction prohibiting the use
of the test and for declaratory relief.348 The validity of the tests was the
sole issue before the district court on a motion for summary judgment
and remained the issue before the Supreme Court. 349
sterilization); Smith v. Texas, 311 U.S. 128, 131 (1940) (finding that Texas’s grand
jury selection procedure violated the Equal Protection Clause).
340. McCleskey v. Kemp, 481 U.S. 279, 309 (1987) (quoting Batson, 476 U.S. at 85).
341. Rose v. Mitchell, 443 U.S. 545, 564 (1979) (denying the petitioner’s claim for
habeas corpus relief).
342. In fact, the need for the Court’s most exacting scrutiny is underscored in
these cases, since the classification is related to the death penalty. Monge v.
California, 524 U.S. 721, 732 (1998) (recognizing the “acute need for reliability” in
capital cases); see also Hall v. Florida, 134 S. Ct. 1986, 2001 (2014) (concluding that
individuals facing the death penalty are entitled to argue that the Constitution
forbids their execution).
343. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 357 (1978).
344. See Hernandez v. Stephens, 134 S. Ct. 1760 (2014) (denying a certiorari
petition seeking review of Texas’ use of ethnic adjustment).
345. 426 U.S. 229 (1976).
346. Id. at 235.
347. Id. at 232–33.
348. Id. at 232.
349. Id. at 235.

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In rejecting the plaintiff’s challenge, the Court stated that though
the Fifth Amendment 350 prohibits the United States from committing
“invidious discrimination,” this implied protection does not embrace
the idea that the United States violates this clause simply because a
law or official act has a “racially disproportionate impact,” absent a
racially discriminatory purpose. 351 Therefore, in Washington, the
Court, apparently putting forth the concept that “our Constitution
is color-blind,” 352 rejected the argument that the test deprived
minority applicants of equal protection and should be adjusted to
admit more minority applicants. 353
The prohibition against this type of adjustment, namely adding
points to a previously ineligible person’s test scores to qualify him for
employment, would apply with equal or greater force to a proposed
upward adjustment of a test score to make someone eligible for
In Washington, the government resisted any
execution. 354
consideration for ethnic adjustment of test scores at the peril of
African American applicants not gaining employment. In Atkins cases,
the government is seeking an ethnic adjustment at the peril of African
Americans and Latina/os losing their lives. Doctrinally, there is a
difference, but the difference weighs heavily in favor of the Atkins
defendants. Given that using race to determine eligibility for execution
requires greater justification than using race to determine employment
eligibility 355 and that the petitioners in Washington sought a benefit, not a
punishment, when compared to employment cases, ethnic adjustments
would not pass the Court’s most exacting level of scrutiny. 356
350. The District of Columbia, being under federal control, is subject to the Fifth
Amendment constitutional restrictions, whereas the states are subject to the Fifth
and the Fourteenth and, in these cases in particular, the Equal Protection Clause of
the Fourteenth. In addition, in light of the fact that the Atkins cases involve the
death penalty, the states are subject to even greater restriction under the Eighth
Amendment. See Monge v. California, 524 U.S. 721, 734 (1998).
351. Washington v. Davis, 426 U.S. 229, 239 (1976).
352. Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting), overruled
by Brown v. Bd. of Educ., 347 U.S. 483 (1954).
353. Washington, 426 U.S. at 236.
354. See Monge, 524 U.S. at 732 (acknowledging the “acute need for reliability”
in capital cases).
355. See id. (detailing the need for reliability in death penalty context given “its
severity and its finality”).
356. See supra Part II.A–C (examining the facts of the Atkins cases); see also Parents
Involved in Cmty. Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 727 (2007)
(finding that the school district’s racial classification did not pass the muster of strict
scrutiny because it was not narrowly tailored to achieve a compelling government
interest, and, in fact, was minimally effective in achieving the stated goal).

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Looking to affirmative action in education, in Gratz v. Bollinger 357
the Court rejected the University of Michigan’s admissions process,
which used a points system that awarded points to applicants for
various accolades and generally admitted any applicant that received
at least 100 points. 358 The admission office, in calculating points,
automatically awarded minority applicants twenty points. 359 Because
the point system made race a decisive factor for many minority
applicants, the Court found that the practice was not narrowly
tailored and thus did not pass strict scrutiny. 360 Similarly, in Parents
Involved in Community Schools v. Seattle School District No. 1, the Court
struck down an integration scheme, remarking that “race, for some
students, [wa]s determinative standing alone,” 361 a circumstance
almost identical to the instant matter.
Whichever view one may have of affirmative action, no such view
could condone creating a situation where more people of a certain
race are put to death based on averages. 362 The positive view of
affirmative action in the education context posits that there is justice
in raising the opportunities of an oppressed group without bestowing
similar benefits upon the dominant group. 363 The negative view is
that is not fair, assuming it is a zero sum game 364: for every minority
admitted to college or graduate school, a majority member will be
excluded, or so the argument goes. 365 However, the death penalty is
not a zero-sum game. There is no quota or maximum or minimum
total enrollment. Artificially adjusting IQ scores to qualify African
Americans or Latina/os for death just puts more people of color to
357. 539 U.S. 244 (2003).
358. Id. at 255.
359. Id.
360. Id. at 271–72.
361. Parents Involved, 551 U.S. at 723.
362. See, e.g., Billish v. City of Chi., 989 F.2d 890, 894 (7th Cir. 1993) (en banc)
(stating that a public employer cannot make up for biased tests through rough
justice and promoting two Black employees); Md. Troopers Ass’n v. Evans, 993 F.2d
1072, 1076 (4th Cir. 1993) (“[T]he use of race as a reparational device risks
perpetuating the very race-consciousness such a remedy purports to overcome.”).
363. Billish, 989 F.2d 894; Maryland Troopers Ass’n, 993 F.2d at 1076.
364. Cf. Brad Linderman, Comment, Diversifying the Workplace: Affirmative
Action in the Private Sector after 1991, 42 S.D. L. R EV. 434, 434 (1996) (“People
holding this view of affirmative action see the labor pool as a zero-sum game,
with affirmative action plans working to select less qualified minorities.”). But see
Ruth Walker, Diversity: Not a Zero-Sum Game, CHRISTIAN SCI. MONITOR (May 17,
1995),
http://www.csmonitor.com/1995/0517/17204.html
(arguing
that
equality of opportunity should be seen as a gain for everyone).
365. See, e.g., Walker, supra note 364.

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death. Failing to “ethnically adjust” scores does not result in more
White people being executed. Indeed, strict adherence of the policy
would likely result in fewer Whites being executed, should White
defendants’ scores be adjusted based on the average White American.
Ultimately, ethnic adjustments’ “automatic distribution of [] points
has the effect of making ‘the factor of race . . . decisive’” for minority
defendants facing death. 366
Thus, given that not all members of a certain race will be exposed
to the factors that contribute to the testing disparities, “racial
adjustments” to IQ scores inappropriately ascribes these socioeconomic
stereotypes to every member of a race, regardless of whether the
particular defendant has been affected by them or not. Consequently,
minority defendants are deprived of the protections the Court
announced in Atkins based solely on their race.
Allowing race to be the dispositive factor that determines whether the
defendant lives or dies is unconstitutional, unless it can be justified
under the Court’s most rigorous scrutiny, 367 because “[r]ace
discrimination within the courtroom raises serious questions as to the
fairness of the proceedings conducted there.” 368 Thus, the State must
offer a compelling government interest for which the solution has been
narrowly tailored for ethnic adjustments to pass constitutional muster. 369
Strict scrutiny “ensures that the means chosen ‘fit’ th[e]
compelling goal so closely that there is little or no possibility that the
motive for the classification was illegitimate racial prejudice or
stereotype.” 370 When it comes to ethnic adjustments to IQ scores,
there are no legitimate scientific findings upon which to base the
practice. 371 Comparing a person to members of his or her selfidentified race instead of the population as a whole makes the
possibility for error greater. 372 When there is error, it should be read
in favor of not executing a defendant. 373 Thus, employing a practice
366. Gratz v. Bollinger, 539 U.S. 244, 272 (2003) (quoting Regents of Univ. of Cal.
v. Bakke, 438 U.S. 265, 317 (1978)).
367. All racial classifications must satisfy strict scrutiny. See, e.g., Parents Involved
in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720, 742–43 (2007); Gratz v.
Bollinger, 539 U.S. 244, 270 (2003); Adarand Constructors, Inc. v. Pena, 515 U.S. 200,
223–24 (1995). Recall that death penalty cases are held to an even higher standard under
the Eighth Amendment. See Monge v. California, 524 U.S. 721, 734 (1998).
368. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 628 (1991).
369. See, e.g., Regents of the Univ. of Cali. v. Bakke, 438 U.S. 265, 357 (1978).
370. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989).
371. See discussion supra Part III.A.
372. See discussion supra Part III.A.
373. See Hall v. Florida, 134 S. Ct. 1986, 2001 (2014).

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based on race that makes the possibility of executing a
developmentally disabled person more likely is not tailored—let alone
narrowly tailored—to any compelling government purpose. 374
Although it appears from the transcripts that the government has
not asserted any interest in adding points to minority defendants’ IQ
scores, an argument could be made that the government has an
interest in fulfilling society’s desire for retribution and that convicted
criminals be punished for their crimes. However, given the Court’s
clear statements in Hall and its assertion that the rigid application of
rules created “an unacceptable risk that persons with intellectual
disability will be executed,” it can also reasonably be inferred that the
Court would not find the need for retribution more “compelling” 375
than the interest the Court identified in Hall:
protecting
376
Notwithstanding the
intellectually disabled people from execution.
lack of a compelling government interest, adding points to a
defendant’s IQ score based on his or her race, like the Court found
in Gratz, is not narrowly tailored. Therefore, looking to racial
classifications in the context of employment and education and the
reasons the Court gave in finding them to violate the Equal
Protection Clause, this Article concludes that, without any purported
compelling government interest, ethnical adjustments in Atkins cases
cannot survive strict scrutiny.
2. “Ethnic adjustments” have the opposite effect of the “benign” purpose for
which they were offered and therefore are not narrowly tailored
While prosecution experts offer the opinion that “ethnic
adjustments” are justified, there is little if any science-based evidence
or evidence specifically assessing the circumstances of the individual
defendants offered in the particular cases. 377 Just as in Washington
and Gratz, the Atkins cases draw conclusions from some comparison
of the average test results of a race-based cohort to the average scores

374. See id.
375. See id. at 1990.
376. Id. at 2001.
377. E.g., Maldonado v. Thaler, 625 F.3d 229, 238–39 (5th Cir. 2010) (relying on
perceived cultural factors and clinical judgment); Commonwealth v. DeJesus, 58
A.3d 62, 72–73 (Pa. 2012) (attributing disparity in IQ test scores, in part, to the
defendant’s alleged “criminal socio-culture”); Ex parte Smith, No. 1080973, 2010 WL
4148528, at *1, *3 (Ala. Oct. 22, 2010) (quoting Smith v. Alabama, No. 971258, 2007 WL
2459291 (Ala. Aug. 31, 2007)) (adjusting IQ scores based on “exposure to domestic
violence, poverty, cultural deprivation, ethnicity, [and] perhaps intoxication”).

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of the larger group. 378 Unlike Washington and Gratz, however, in cases
where the state upwardly adjusted a minority defendant’s IQ score,
the court did not evaluate its merits using strict judicial scrutiny. 379 In
the cases this Article analyzes, the State did not demonstrate, other
than by generalized race-based results, that there was any scientific
basis for inflating the defendant’s IQ score based on race.
Ironically, the old paradigm actually compounds the unfairness of
ethnic adjustments. Because death row is populated disproportionately
by people of color380 and by people who have suffered childhood abuse,
poverty, stress, and trauma, 381 the adjustment of those particular
individuals’ scores adds insult to injury. It is a sad fact, but one that
capital case practitioners and others involved in the capital punishment
system see all the time: people who are charged with capital crimes,382
and especially those sentenced to death,383 are more likely to have
experienced adverse environmental influences. In addition, they are also
quite likely to have parents or grandparents who have passed down some
of the traits through multigenerational epigenetic effects. 384
378. See, e.g., Hernandez v. Stephens, 537 F. App’x 531, 539 (5th Cir. 2013) (per
curiam) (comparing the defendant’s IQ to a Mexican cohort), cert. denied, 134 S. Ct.
1760 (2014); In re Champion, 322 P.3d 50, 67 (Cal. 2014) (acquiescing in the view
that it is preferable to use a race-based cohort instead of a community-based sample
when scaling IQ scores).
379. See generally Hernandez, 537 F. App’x at 531; In re Champion, 322 P.3d at 50.
380. Christopher Hartney & Linh Vuong, Created Equal: Racial and Ethnic Disparities
in the US Criminal Justice System, NAT’L COUNCIL ON CRIME & DELINQ. 1, 2 (2009) (“African
Americans make up [thirteen percent] of the general US population, yet they constitute
[twenty-eight percent] of all arrests, [forty percent] of all inmates held in prisons and
jails, and [forty-two percent] of the population on death row.”).
381. Haney, supra note 285, at 562–63.
382. This may be due to being involved in risky behavior, various impairments, or
to discriminatory investigations. See BRYAN STEVENSON, JUST MERCY: A STORY OF
JUSTICE AND REDEMPTION 16 (2014).
383. Haney, supra note 285, at 548–49 (referring to the association between the
“accident[] of birth” and crime).
384. The genetic and epigenetic etiology of limitations on intelligence are
described here for the purpose of explaining both the mechanism and the
phenotypic/biological results of adverse environmental influences. However, even
in the limited scope of an Atkins hearing, trial and post-conviction practitioners have
to be aware that science cannot be a substitute for telling the story. It is important to
tell the story of the client in the course of Atkins hearings as well as in the
presentation of mitigation evidence during the capital trial itself. In the Atkins
context, the story of the client is important to describe the “deficits in adaptive
behavior,” which is the second criterion in a determination of intellectual disability.
Practitioners should be aware that the science, in and of itself, is not likely to have a
significant effect on the perception of criminal responsibility or the determination of
a more lenient punishment. See, e.g., Paul S. Applebaum et al., Effects of Behavioral

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Thus defendants seeking Atkins relief are likely to be the very same
individuals who suffered epigenetic harm. 385 They are among the
individuals whose lower IQ scores served to lower the group IQ scores.
It compounds the problem that these individuals are also subject to
ethnic adjustments for which there is no scientific justification.
It is cruel, both as a violation of the Constitution’s Eighth
Amendment and fundamental decency, that certain prosecution
experts capitalize on an emotional argument that lacks a basis in
constitutional law, logic, clinical analysis or evidence, to ethnically
adjust IQ scores. This exploits adverse environmental factors and
increases the likelihood of imposing the death penalty on the
intellectually disabled. This remains a pressing problem that
researchers, high courts in states that maintain the death penalty, and
the U.S. Supreme Court itself need to address.
CONCLUSION
The idea of racially classifying a person and then using “ethnic
adjustments” to increase his or her IQ score, thereby qualifying that
person for execution, is logically, clinically, and constitutionally
unsound. 386 In fact, when looked at more closely, it is a wonder how
the practice has gone largely unchallenged over the last few years.
The courts throughout the death penalty states, including those in
California and Texas, seem remarkably insensitive to the issue, while
condoning or acquiescing in a practice that is unendorsed by logic,
clinical practice, or the Constitution.
The death penalty is—ethnic adjustments notwithstanding—a
polarizing issue that can lead to different beliefs in the underlying
facts. 387 It is intrinsically bound with emotional issues of retribution
Genetic Evidence on Perceptions of Criminal Responsibility and Appropriate Punishment, 21
PSYCHOL., PUB. POL’Y & L. 134, 141 (2015).
385. See, e.g., Van Tran v. Colson, 764 F.3d 594, 599, 601 (6th Cir. 2013) (detailing
the arguments proffered by the defendant illustrating a life of neglect and abuse
under an Atkins claim); see also Michael Perlin, Power and Greed and the Corruptible Seed:
Mental Disability, Prosecutorial Misconduct, and the Death Penalty, 43 J. AM. ACAD.
PSYCHIATRY & L. 266, 266–67 (2015) (“The death penalty is disproportionately
imposed in cases involving defendants with mental disabilities (referring both to
those with mental illness and those with intellectual disabilities).”).
386. Brief of Public Law Scholars, supra note 121, at 4 (citing Justice Harlan’s
dissent in Plessy v. Ferguson: “[o]ur constitution is color blind.” 163 U.S. 537, 559
(1896) (Harlan, J., dissenting)); see Charles, supra note 276, at 197 (noting that
ethnicity correlates with greater poverty).
387. LESS SUPPORT FOR DEATH PENALTY, PEW RES. CTR. (2015), http://www.peoplepress.org/files/2015/04/04-16-15-Death-penalty-release.pdf (showing that, in a

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and vengeance, which carry the potential of clouding arguments
about the practice itself. In addition, the death penalty involves
murder, often violent and always tragic. The sheer fact of human
suffering and death evokes visceral responses. 388 Just discussing the
death penalty sometimes leads to ad hominen arguments, instead of
the type of scholarly arguments for which one might hope, especially
from the courts. 389 These factors may avoid or distract from an
analysis of the death penalty’s virtues and the merits of tactics
employed in obtaining death judgments and executions. Perhaps the
practice of “ethnic adjustments” was not given close scrutiny simply
because of these distractions.
Compounding matters, race is also an extremely emotional issue in
American culture. 390 It has long been established that the perception
of groups can lead to illusory correlations. 391 Perceptions of race may
lead to explicit or implicit assumptions and a failure of the observer
to objectively assess the facts. 392 As discussed in this Article, the
conflicting concepts of race and the concern about trying to avoid

March 2015 survey of 1500 adults, “a majority ([sixty-three percent]) says that when
someone commits a crime like murder, the death penalty is morally justified; just
[thirty-one percent] say it is morally wrong, even in cases of murder.” However,
whether someone is in favor of the death penalty or opposes it strongly colors his or
her belief in the underlying facts. For example, sixty-three percent of proponents
believe that there is a risk of putting an innocent person to death, while eighty-four
percent of the opponents believe so; forty-nine percent of proponents think it is a
crime deterrent while seventy-eight percent of opponents think it is not. Id.
388. See, e.g., Glossip v. Gross, 135 S. Ct. 2726, 2753–55 (2015) (Thomas, J., concurring).
In Glossip, Justice Thomas’s primary contribution to the opinion was to chronicle the
heinous details of the homicides in cases that had come before the Court. Id.
389. In Glossip, Justice Scalia attempted to trump Justice Breyer’s dissenting
opinion by using rhetorical references to Groundhog Day, (Columbia Pictures 1993),
and by saying that “[a] vocal minority of the Court, waiving over their heads a ream
of the most recent abolitionist studies (a superabundant genre) as though they have
discovered lost folios of Shakespeare” insist that the death penalty be abolished.
Glossip, 135 S. Ct. at 2746–50 (Scalia, J., concurring).
390. See, e.g., ALEXANDER, supra note 243; WILKERSON, supra note 243.
391. See, e.g., Kate Ratliff & Brian Nosek, Creating Distinct Implicit and Explicit
Attitudes with an Illusory Correlation Paradigm, 46 J. EXPERIMENTAL SOC. PSYCHOL. 721–
28 (2010) (even in controlled laboratory settings, subtle conditioning can lead to
both implicit and explicit attitude formation toward a group).
392. See Anthony Page, Batson’s Blind Spot: Unconscious Stereotyping and the
Peremptory Challenge, 88 B.U. L. REV. 155, 184–85 (2005) (arguing that research has
shown the existence of unconscious stereotyping, where both implicit and explicit
“negative attitudes” manifest as race-based discrimination).

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the appearance of being racist probably had the effect of
undermining an objective evaluation of “ethnic adjustments.” 393
Viewed objectively, however, the practice of “ethnic adjustments”
does not survive strict logical, clinical, or constitutional scrutiny.
“Ethnic adjustments” are not based on the logic of IQ testing: the
intelligence quotient of an individual is that of the individual
compared to the overall societal norm; it is not a comparison to a
particular cohort. 394 In addition, “ethnic adjustments” are not
clinically supported for diagnosing intellectual disability or for any
forensic purpose. 395 By any objective reading of the extensive case
law from the U.S. Supreme Court, “ethnic adjustments,” which
qualify people of color for the death penalty by adjusting scores based
solely on their race, are unconstitutional under the Equal Protection
Clause of the Fourteenth Amendment. 396
Furthermore, any correlations between the average IQ test scores
of racial cohorts (or average scores of cohorts to the overall
community norm) are not attributable to race and are heavily
influenced by race-neutral environmental factors. 397 Those raceneutral environmental factors include the effects of the environment
of childhood abuse, stress, poverty, and trauma. 398 Such adverse
environmental (but race-neutral) factors likely result in phenotypic
manifestations, which include epigenetic changes affecting intellectual
ability and result in greater numbers of persons with intellectual
disabilities within that population. 399 The individuals whose intellectual
ability is adversely affected by those harmful environmental factors are
disproportionately represented by minority groups and among those
facing the death penalty in the United States. 400
Therefore, the actual recipients of death sentences—the people on
death row—are poor, of color, and have disproportionately been
subjected to stress, poverty, abuse, and trauma. 401 These very people
are likely to suffer from actual phenotypic/biological impairment in
intellectual functioning that can be passed down by way of
programmed epigenetic gene expression through generations. The
393.
394.
395.
396.
397.
398.
399.
400.
401.

See supra notes 242–55 and accompanying text.
See supra notes 232–38 and accompanying text.
See supra Part III.A.
See supra Part V.
See supra Part V.
See supra Part V.
See supra Part V.
See Haney, supra note 285, at 562–63.
See supra Part V.

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ironic result is that the actual victims of these environmental effects
not only depress the average of whatever cohort to which they
belong, but “ethnic adjustments” make them more likely to be
executed, even though they are likely actually intellectually disabled.
Perhaps a more profound conclusion of this Article may be that
the project of attempting to determine who should live and die is an
endeavor lost from the beginning. Perhaps there is no way to devise
a just means to implement an unjust result. If the state’s executing
prisoners is wrong, there can be no right way to do it. Justices Breyer
and Ginsberg 402 joined the group of three predecessor-dissenters on
the Supreme Court over the last forty-three years 403 who have
concluded that the death penalty is unconstitutional in all
circumstances. 404 Justice Breyer, whose dissenting opinion in Glossip v.
Gross405 was joined by Justice Ginsberg, cited several reasons for his
position that the death penalty was “cruel and unusual” under the Eighth
Amendment,406 including lack of reliability, arbitrariness, excessive delays,
and the decline in use of the death penalty among the states.407

402. Glossip v. Gross, 135 S. Ct. 2726, 2755 (2015).
403. Justices William Brennan, Thurgood Marshall and Harry Blackmun. At the
time of Furman v. Georgia, 408 U.S. 238 (1972), both Justice Brennan and Justice
Marshall in concurring opinions took the position that the death penalty itself was
unconstitutional for all purposes. Id. at 305–06 (Brennan, J., concurring); id. at 358–
60 (Marshall, J., concurring). Until their respective retirements in 1990 and 1991,
Justices Brennan and Marshall continued to maintain that the death penalty itself
was unconstitutional and dissented in every subsequent case in which the Court
upheld the death sentence. They routinely went so far as to dissent from the denial
of certiorari in death penalty cases. See, e.g., Smith v. Hopper, 436 U.S. 950 (1978);
Michael Mello, Adhering to our Views: Justices Brennan and Marshall and the Relentless
Dissent to Death as a Punishment, 22 FLA. STATE U. L. REV. 591, 593–96 (1995). With
respect specifically to Justice Blackmun, see Callins v. Collins, 510 U.S. 1141, 1145
(1994) (Blackmun, J., dissenting).
404. Note that Justices Powell and Stevens, after retirement, came to the same
conclusion. Justice Powell was interviewed at length by his biographer who
concluded that “[e]xperience taught him that the death penalty cannot be decently
administered.” JOHN C. JEFFRIES, JUSTICE LEWIS F. POWELL, JR.: A BIOGRAPHY 451
(1994). Justice Stevens, after retirement, finally voiced his opposition to the death
penalty. See Tasneem Nashrulla, Former Supreme Court Justice Confirms Texas Once
Executed An Innocent Man, BUZZFEED (Jan. 26, 2015), http://www.buzzfeed.com/
tasneemnashrulla/former-supreme-court-justice-confirms-texas-once-executedan#.yo7Mr1Pym; John Paul Stevens, On the Death Sentence, N.Y. REV. OF BOOKS (Dec. 23,
2010), http://www.nybooks.com/articles/archives/2010/dec/23/death-sentence.
405. Glossip v. Gross, 135 S. Ct. 2726, 2755 (2015).
406. Id. at 2755 (declaring that the Court “recognized that a ‘claim that
punishment is excessive is judged not by the standards that prevailed in 1685 when
Lord Jeffreys presided over the “Bloody Assizes” or when the Bill of Rights was

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A substantial part of this analysis, particularly in the lack of
reliability, arbitrariness, and even excessive delays, not only involves
an overall moral condemnation of the death penalty, but also involves
the recognition that humans are not able to administer this ultimate
punishment equitably. The attempt to “ethnically adjust” IQ scores is
just one example of these inequities. Even if the death penalty could
be morally justified in today’s world, it is impossible to police all of
these procedures. Justice Blackmun, at the end of his long career on
the bench, concluded that “[f]rom this day forward, I no longer shall
tinker with the machinery of death.” 408 So, even if it would otherwise
be a valid enterprise to create a “machinery of death” for the purpose
of identifying the “worst of the worst,” that enterprise is lost when
expert witnesses and prosecutors proffer testimony to circumvent it.
In Callins v. Collins, 409 Justice Blackmun predicted that one day the
death penalty would be abolished. In his dissenting opinion, he
concluded that “[t]he path the [C]ourt has chosen lessens us all.” 410
Twenty-one years later, Justice Breyer, in Glossip, chronicled in more
detail how the machinery is still dysfunctional. This Article has
explored one more instance of that dysfunction, ultimately
concluding that the practice of ethnically adjusting the IQ scores of
those convicted of a capital crime violates Equal Protection and
should, therefore, be abandoned.

adopted, but rather by those that currently prevail’” (citing Atkins v. Virginia, 536
U.S. 304, 311 (2002))).
407. Id. at 2756–78.
408. Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting).
409. 510 U.S. 1141 (1994).
410. Id. at 1156 (Blackmun, J., dissenting).