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Two years ago, we reported on the use of “ethnic adjustment” by prosecutors in death penalty cases, which artificially raises minority defendants’ IQ scores. In an interview with DFP at the time, death penalty attorney (and DPF board member) Robert M. Sanger described the practice as “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.”

Sanger explained 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 on testing biases and behavioral factors that cause minority test-takers to underperform.” So prosecution expert witnesses testify to ethnic adjustment, adding enough points to disqualify defendants from protection by Atkins v. Virginia and Hall v. Florida, two decisions prohibiting the execution of the intellectually disabled.

More than two years later, the practice is still going on, according to a recent article in Pacific Standard. Reporter David M. Perry has found that, “at least eight states have been hiring experts” to use ethnic adjustment testimony “in order to kill more black and brown men.”

“It is outrageous,” Sanger says. “One would think that based on the way the [U.S.] Supreme Court has ruled recently, they would want to end this practice.”

Sanger is referring to Moore v. Texas, in which the Court ruled last March that the state was using outdated standards in determining the intellectual impairment of Bobby James Moore, who had been sentenced to death in 1980. The Court sent the case back to a lower court with instructions to apply current clinical standards of intellectual disability.

Justice Ruth Bader Ginsburg wrote that, “Texas cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual’s life is at stake.”

That opinion, according to Sanger, “made clear that intellectual disability determinations should be informed by the current views of medical experts.”

Sanger says Hall v. Florida (2014) is another rebuke of ethnic adjustment because in that case the Court held that the threshold requirement of a 70 IQ was not a bright line, and states must consider other factors when determining intellectual disability. Justice Anthony Kennedy wrote the majority (5-4) opinion, and Sanger says Kennedy “was taking great care to rely on real science and real clinical opinions.

“But this [ethnic adjustment] is still going on, and this is not good science.”

It's time to end this costly, failed system.

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