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The intersection of intellectual disability and the death penalty is now clearly established. Both under the U.S. Supreme Court’s constitutional decisions and under the terms of many state statutes, individual defendants who have that disability cannot be sentenced to death or executed. It now falls to trial, appellate, and post-conviction courts to determine which individual criminal defendants are entitled to the law’s protection. This Article attempts to assist judges in performing that task. After a brief discussion of the Supreme Court’s decisions in Atkins v. Virginia, Hall v. Florida, and Moore v. Texas, it analyzes the component parts and terminology of the clinical definition of intellectual disability. It then offers more detailed discussion of a number of the clinical issues that arise frequently in adjudicating these cases. For each of these issues, the Article’s text and the accompanying notes attempt to provide judges with a thorough survey of the relevant clinical literature, and an explanation of the terminology used by clinical professionals. Our purpose is to help those judges to become more knowledgeable consumers of the clinical reports and expert testimony presented to them in individual cases, and to help them reach decisions that are consistent with what the clinical literature reveals about the nature of intellectual disability and best professional practices in the diagnostic process.

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Hofstra Law Review



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I. Introduction

II. The Supreme Court’s Decisions in Atkins, Hall, and Moore

III. Notes on Changing Terminology
A. The Change from “Mental Retardation” to “Intellectual Disability”
B. Terminology Regarding the Extent of Disability

IV. The Definition of Intellectual Disability: An Overview
A. Intellectual Functioning
B. Deficits in Adaptive Behavior
C. Age of Onset

V. Defendants with Multiple Disabilities

VI. Issues in Evaluating Intellectual Functioning
A. Commonly Used IQ Tests
B. Short Forms and Group Tests
C. Standard Error of Measurement for IQ Testing
D. Factors Affecting the Accuracy of IQ Scores: The Practice Effect and the Norm Obsolescence (“Flynn”) Effect
E. Motivation and Claims of Malingering

VII. Issues in Evaluating Adaptive Behavior
A. Measurement: AB Scales and Other Information
B. Challenges of an Accurate Retrospective Diagnosis
C. Strengths and Weaknesses
D. Relevance of the Facts of the Crime
E. Stereotypes about People with Intellectual Disability

VIII. Process of Judicial Evaluation
A. Qualifications of Evaluators
B. Clinical Judgment
C. Codes and Standards of Ethics

IX. Conclusion



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