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It’s called ethnic adjustment. “This practice is a symptom of a dysfunctional death penalty system where prosecutors seek to ‘win’ by executing the mentally disabled and people of color at all costs,” says Robert M. Sanger, a senior partner at the Santa Barbara law firm, Sanger Swysen & Dunkle. “Borrowing from Justice Blackmun, this is a part of the machinery of death. It is a disturbing part. And it is all the more reason to end the death penalty.”

Sanger explains that statistically, some minorities tend to perform worse on tests than Caucasians, so “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 . . . minority IQ scores should be increased to control for these biases and behavioral factors.”

In a 2013 case (Hernandez v. Stephens), the 5th Circuit Court of Appeals ruled that a state court can find a defendant is not intellectually disabled if his IQ score if brought up to the bottom of the non-disabled range after being “scaled to Mexican norms.” Ramiro Hernandez, convicted of killing his employer in Texas, had IQ test scores in the 50s and low 60s, one of which was ethnically adjusted to a 70. The U.S. Supreme Court denied his appeal in April 2014, and he was executed two weeks later.

In a recently published paper, “IQ, Intelligence Testing, ‘Ethnic Adjustments’ and Atkins” (http://works.bepress.com/robert_sanger/32), Sanger explores how prosecution expert witnesses are testifying to “ethnic adjustment” in death penalty cases to artificially raise minority defendants’ IQ scores. These witnesses add five to 15 points to the IQ score of people of color, disqualifying them from protection by the Atkins v. Virginia and Hall v. Florida decisions prohibiting the execution of the intellectually disabled, and qualifying them for death.

This testimony is being presented all over the country, says Sanger, “and remarkably, is still left unresolved by the courts, including the California and United States Supreme Courts.”

 

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