In 2002, in Atkins v. Virginia, the U.S. Supreme Court held that executing an intellectually disabled (formerly called mentally retarded) individual violates the Eighth Amendment ban on cruel and unusual punishments. Since then, a number of experts have come forward with the following claim: IQ tests, used as a component of assessing intellectual disability for Atkins purposes, are biased against minorities, whose scores should accordingly be upwardly adjusted for a more accurate picture of their intelligence. Some state prosecutors and courts, moreover, have been friendly audiences to this line of argument. In this column, I will consider the argument along with how it ought to fare in the U.S. Supreme Court.

The Atkins Case

The Supreme Court in Atkins determined that executing an intellectually disabled person is unconstitutional, in part because of the disproportionality between the ultimate punishment and the necessarily diminished culpability of an intellectually disabled defendant. In the years following Atkins, the Court had occasion, in Hall v. Florida, to flesh out the meaning of intellectual disability and to clarify that it includes more than a simple IQ score. Nonetheless, IQ scores remain an important component of intellectual disability assessment, both clinically and for Atkins purposes.

An excellent article by Robert Sanger calls attention to a particular sort of challenge to IQ scores that has developed in the Atkins context. This challenge or critique provides that African Americans, Latinos, and Latinas are disserved by IQ tests, as life experiences of deprivation, for instance, produce artificially low scores on such tests, relative to the test-takers’ true ability. In some contexts, this critique could help minorities applying for jobs and educational opportunities. Here, however, the proposal is to give minority defendants a “bump up” on their IQ scores so that they qualify to be executed.

My first reaction, upon considering this phenomenon, was to imagine a story in The Onion (a satirical online magazine) titled “Ku Klux Klan Acknowledges Racial Bias in IQ Tests; Seeks to Remedy By Executing More Minorities.” In the “What Do You Think?” section of The Onion, one African American’s reaction could be, “Finally, the Klan recognizes that standardized IQ tests are unfair to us. And if I’m not good enough for Harvard, at least I might be good enough for death row; it’s a first step.” Jonathan Swift might have had fun with this very different kind of “modest proposal.”

These arguments, however, are not jokes and must therefore be taken seriously, notwithstanding their vulnerability to satire. According to Sanger, the highest courts of several states, including Alabama, have allowed the proposed racial IQ adjustments. So what is wrong with this practice?

Race Discrimination

The first thing wrong with racially adjusting minority IQ scores upward for execution purposes is that it constitutes blatant and invidious race discrimination against minority individuals. It basically says that a person with an IQ test score of X will live if he is white but (potentially) die if he is black. And this result is not simply a matter of observed disparate impact but of intentional practice in the courtroom.

Sanger does an admirable job of arguing that racially adjusting IQ scores is a scientifically unsupported and invalid project. The correct comparison for an individual IQ, he contends, is the larger community’s IQs.

But even if there is some validity to discounting or elevating IQ test scores based on race, one needs to ask when such a move is constitutionally—not just scientifically—valid. And Sanger addresses this issue thoroughly as well, explaining that race-based adjustments are subject to—and handily fail—strict scrutiny, under the Equal Protection Clause of the Fourteenth Amendment.

For our limited purposes here, retaining a healthy skepticism toward the Supreme Court’s stingy attitude toward race-based assistance to minorities, consider that upwardly adjusting minority test scores sounds like a form of state-sponsored affirmative action, something to which the Supreme Court has arguably been too hostile. Generally, affirmative action at its best is aimed at either rectifying specific racial injustices or at fostering a needed diversity in such venues as educational environments.

Neither of these justifications has any purchase in the death penalty context. We do nothing to rectify past racial injustices by rendering more minority defendants eligible for execution. Indeed, we arguably do just the opposite, given the existing overrepresentation of minorities within the criminal justice system and the complex history of discrimination within the death penalty itself.

On the diversity front, there is no need for racial diversity on death row that we would foster by permitting the execution of minority defendants who would otherwise qualify as intellectually disabled. It is indeed bizarre to suggest that we might “enrich” the environment of death row by adding racial diversity, and I cannot imagine anyone even articulating this argument with a straight face.

The Supreme Court has made clear, in Atkins and Hall, that executing the intellectually disabled is constitutionally unacceptable and that care must be taken to avoid the risk of such executions, such as by attending to the imprecision of IQ tests and the standard error of measurement (SEM). If it were not truly happening, we could find funny the notion of admitting minority candidates to execution “under the wire” despite their disqualifying IQ scores. But because it is actually going on, the Supreme Court must step in and for once display a completely well-founded opposition to a benighted form of affirmative action, one that would give minority candidates with prima facie intellectual disability a “leg up” to a lethal injection.