Ian Smith, Daily Caller, August 28, 2014

Although the case of Hernandez v. Stephens was one of thousands denied review by the Supreme Court this past term, that it received next to no media attention is deeply puzzling.

The case involved a Mexican-born illegal immigrant named Ramiro Hernandez who was convicted in a Texas court in 2000 for the murder of his employer and the rape of his employer’s wife. After he was sentenced to death, he appealed on the grounds that he was mentally retarded. Hernandez’s lawyers argued that because IQ tests taken prior to trial showed his IQ to be a mere 62, within the standard definition of mental retardation, his execution would be unconstitutional under the Eighth Amendment’s prohibition on “cruel and unusual punishment.”

This so-called “Atkins claim” by the defense, named after the 2002 case of Atkins v. Virginia, was rejected by the Fifth Circuit. They accepted the prosecution’s rather astonishing argument that although Hernandez’s IQ was low compared to “American norms,” when “scaled to Mexican norms” it should be adjusted upward. When assessed according to his “cultural group”, they argued, his results should be closer to 70, a level just outside the definition of mental retardation.

As a result, this past April, Mr. Hernandez was executed. Attorneys filing a brief on Mr. Hernandez’s behalf claim this “race-based” approach to IQ violated the Equal Protection Clause of the Fourteenth Amendment.

The Fifth Circuit’s method in deciding Hernandez’s appeal is not out of the ordinary. For years, courts across the country have followed the requirement in Atkins that “some population” be used to measure a capital defendant’s IQ. But some critics say the courts are becoming increasingly unhinged when it comes to measuring the IQ of minority defendants. In their friend-of-the-court brief filed on behalf of Hernandez, law professor Ernest Young and attorney Erin Blondel argue that “requiring courts to compare defendants’ mental functioning to the population . . . opens the door to courts improperly letting race define that population.”

Although the two say in their brief that some arguments implicating ethnic background “does not raise concern” (i.e. that non-English speakers should be tested in a language they understand), many cases “go much further” and “cross the line into very suspect stereotyping.”

A chief concern for Young and Blondel involves the apparently long-accepted conclusion from the psychology community that there’s “inherent bias” in IQ tests which disadvantage minority populations. Indeed, organizations such as the American Psychiatric Association and the American Association of Mental Retardation require that IQ results take into account the test-taker’s “cultural group” and “cultural diversity” so that these “biases” can be corrected. But a vague standard like “cultural group” can easily become a proxy for race and, as Young and Blondel contend, “racial stereotypes” can easily be made to “influence how a cultural group is defined.”

Further they warn, “efforts to compensate for racial bias in mental retardation assessments may be well intentioned, but they risk the opposite effect.” This unintentional effect is that prosecutors can now argue in court that “when compared to people of the same race, rather than the American population, minority defendants are able enough to be executed.” {snip}

Although not covered in detail in Young and Blondel’s brief, it appears courts are utilizing IQ results found among different countries and different races in order to correctly “scale” minorities’ scores. This is done, at least partially, through the testimony of race-psychology experts. The expert in Hernandez, Dr. Richard Coons, testified that Mr. Hernandez functioned normally given his “cultural group,” which tends to have “low socioeconomic status, low achievement, decreased social skills, increased substance abuse, and increased level of criminal behaviour”–“pernicious stereotypes,” according to Young and Blondel.

In Lizcano v. State, another case referenced in their brief, it was argued that 7.5 points should be added to a Hispanic defendant’s IQ assessment because “Hispanic test subjects historically score 7.5 points lower on IQ tests than Caucasian subjects.” Another case, Brown v. State, involving an African-American defendant, a judge said that in his opinion the defendant’s “intellectual function may be slightly higher [because] . . . [s]ometimes individuals of African-American background don’t score quite as high on formal testing.”

{snip}

{snip} In a case called Van Tranh, an expert for the defense argued that “any bias in the testing scores would favor (not prejudice) Asians over Caucasians” because “Asian Americans tend to score higher than Caucasians on tests of cognitive ability.” Therefore, the expert witness claimed, Asians should be held to higher norms and the defendant in question, who scored above 70, should be dropped into the mental retardation range.

Meanwhile, that the Supreme Court denied review of Hernandez could be due to the inevitable national discussion of race and IQ that the case would create. Knowing that the Bell Curve controversy of 20 years ago could reappear is surely too unpalatable for many of the Supreme Court justices.

Young and Blondel’s concerns are laudable. As they rightly assert, our understanding of racial differences has not yet been rigorously evaluated and may not be fit for application in a court of law. Because of this, they want convicts who’ve violated American law to be held to “American norms.” Until then, the application of race and cultural bias in Atkins claims will continue, as will its grave consequences.