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Last year’s Hoffman Report, which came out of an independent review of the world’s largest organization of psychologists, the American Psychological Association (APA), made waves in the field of psychology. The reviewers found that the APA’s leadership had colluded with national intelligence agencies and the Department of Defense to allow psychologists to take part in and facilitate the torture of detainees as part of the state’s counter-terrorism efforts. This wasn’t news to the dissident psychologists from organizations like the Coalition for Ethical Psychology and Psychologists for Social Responsibility who had been trying to spotlight this practice for over a decade. Nonetheless, soon after its release, numerous APA leaders resigned or were fired, and some have publicly apologized. The organization also implemented policy reforms, banning psychologists from conducting, supervising, attending, or assisting in any national security interrogations for military or other intelligence agencies, including private contractors working on their behalf. The APA now has one of the strongest anti-torture policies of any health care profession. The Hoffman Report was a big victory, but psychology isn’t in the clear. Psychologists continue to operate, largely unnoticed, in other spaces — most notably the legal system — that promote immediate harm. Here, psychologists routinely provide expert testimony to help courts render decisions. These decisions are often directly detrimental to defendants, resulting in a range of negative outcomes including the loss of benefits, the categorization of juvenile defendants as adults, and even death.

Passing Judgment Psychologists’ testimony has long played a role in death-penalty sentencing. But since 2002, when the Supreme Court ruled in Atkins v. Virginia that executing defendants with “mental retardation” — now called “intellectual disability” after the 2010 passage of Rosa’s Law — is unconstitutional, this role has increased significantly. Granted, barring defendants with intellectual disabilities from receiving the death penalty lessens the number of executions. But because psychologists now routinely provide judgments on defendants’ intellectual ability, they have been drawn deeper into the practice of state-sanctioned execution than ever before. This effectively means that psychologists — despite being members of a healing profession — play an active role in determining who lives and who dies. A psychologist’s testimony that a defendant does not have an intellectual disability can lead to that person’s death. Even with the best intentions, psychologists are once again systematically violating their ethical code to “do no harm.”

The Fine Line The way intellectual ability is determined in the United States highlights how psychology and criminal justice intersect on a landscape shaped by persistent inequality. The term “intellectual disability” itself is a catch-all that, like many other recognized psychiatric disorders, lumps together individuals who have varying abilities in terms of judgment, reasoning, and maturity. On top of this, the Atkins v. Virginia ruling left it to individual states to define intellectual disability. In effect, there is no standard criteria in either the mental health or the legal field that determines intellectual disability. Different states have different rules for who is deemed disabled — and thereby spared from death. Many states rely on the defendant’s IQ score and designate a single-score cut-off (e.g., a defendant’s IQ score has to be 70 or less) to determine whether the defendant has an intellectual disability. The “tyranny of the single score,” as psychologists have called it, is highly problematic because it averages a person’s performance across multiple verbal and nonverbal sections of the test, vastly oversimplifying the overall picture of the defendant’s abilities. Indeed, psychologists rarely use the single score to determine ability outside of the legal system. Moreover, IQ scores are plotted on a continuous scale, which makes any cut-off score arbitrary. An IQ score of 70 or less only indicates that one tested lower than 97.5 percent of the population. In other words, there is no “natural” delineation between “disability” and “ability.” The difference between an IQ of 70 and 71 doesn’t reflect a meaningful difference in cognitive ability, yet a one-point difference can mean life or death for a prisoner. IQ tests also bring their notorious history of racial bias into the courtroom. Psychologists have long been aware that black, Latino, and Native American test-takers score on average lower than white test-takers, attributing the gap to broader disparities in household income and educational resources and the tests’ preference for certain forms of (Western, white, middle-class) knowledge. These flaws haven’t stopped IQ scores from being used to prop up scientific racism (a recent example is Nicholas Wade’s A Troublesome Inheritance). And rather than address the fundamental limitations of the test, psychologists instead make post-test changes to correct for these biases, essentially raising black and Latino test-takers’ scores by using discrete scoring systems for each group. Psychologists defend this quick fix, arguing that adjusting IQ scores shields the test-taker from the consequences of the current tests’ inherent limitations. But these corrections — called “ethnic adjustments” in the legal field — can turn deadly when brought into the courtroom because they make it easier for courts to give disadvantaged minorities the death penalty. For example, after being convicted of murder in Texas, Ramiro Hernandez underwent testing to determine whether he would be eligible for the death penalty. His raw IQ score was 62, well in the range of intellectual disability, but after an “ethnic adjustment” — Hernandez was born and raised in Mexico — his score jumped to 70. The court opted to use his ethnic adjustment score, and he was executed soon afterwards. Hernandez’s case is not isolated. Revising IQ scores based on the defendant’s race or ethnicity is becoming a widespread practice in courts nationwide, making it substantially more difficult to exempt minority defendants from the death penalty. Many psychologists raise these concerns during their testimony, but not all. In fact there have been cases of psychological assessments’ misuse. In 2011, Texas reprimanded psychologist George Denkowski for using improper methods to assess the intellectual ability of at least twenty-five death row prisoners. Prior to the reprimand Denkowski’s expert testimony put at least fourteen defendants on death row, two of whom were later executed. Disturbingly, while Denkowski has been barred from assessing criminal defendants, he has escaped censure and retains his license to practice as a psychologist.