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February, 2018

Texas Summit on the Assessment of Adaptive Behavior Capital Cases

Ollie J. Seay, Ph.D., President, Capacity FOR JUSTICE
Past President, AAIDD Texas Chapter

The determination of intellectual disability in criminal cases has long been fraught with many complications.  Nowhere are the stakes higher for accuracy of such assessments than in capital murder trials in which defendants face the death penalty.   On January 19, 2018, Capacity FOR JUSTICE held the first Texas Summit on the Assessment of Adaptive Behavior in Capital Cases in Austin at Integral Care’s Dove Springs Rudy Zapata Room. Thirty participants, including psychologists and stakeholder group representatives, attended this invitation-only event which featured national experts, Greg Olley, Ph.D., Marc Tassé, Ph.D., and Ann Delpha, J.D., along with facilitated discussion led by Kris Donley, Executive Director of the Austin Dispute Resolution Center.  Jim Ellis, J.D., had planned to come to speak, but was unable to attend due to illness.  Another invited guest was Maggie Nygren, Executive Director of the American Association on Intellectual and Developmental Disabilities (AAIDD).  Adaptive behavior was the focus due to current definitions and legal rulings that have highlighted its importance in the classification of intellectual disability and use capital murder cases.

A little background may be useful in putting the need for the summit in perspective.  In 2002, in the Atkins v. Virginia case, the United States Supreme Court banned the execution of persons with mental retardation, now referred to as persons with intellectual disability.   In making their ruling, the Supreme Court relied on definitions current at the time of what was then termed mental retardation described by the American Association on Mental Retardation (AAMR, now AAIDD) and the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV), but they left it up to the states to determine how they would define the term and enforce the constitutional restriction.  Most states did this through enacting statutes or by court decisions, and all definitions contain three prongs: significantly subaverage intellectual functioning, significant deficits in adaptive behavior, and origination in the developmental period. 

Texas did not pass a statute addressing persons with intellectual disability and the death penalty, but the Texas Court of Criminal Appeals (TCCA) devised their own set of definitional standards when they considered their first capital case in which intellectual disability was the focus of an appeal.  In Ex Parte Briseño, the TCCA devised their own set of 7 questions to be asked to determine if a petitioner has adaptive deficits.  These questions were based on stereotyped concepts of persons with intellectual disability and would be more reflective of persons with severe impairments rather than those at the upper end of the range as is more common in criminal cases.  In fact, they used Lenny in the John Steinbeck novella, Of Mice and Men, as their prototype, though there has been some speculation that even Lenny might not have been able to meet these criteria.  The Briseño factors focused on such issues as whether those who knew the person as a child viewed the person as having an intellectual disability, whether the person could formulate plans, was the person a leader, was the person’s conduct in response to external stimuli rational and appropriate, does the tend to wander from subject to subject in conversation rather than being coherent, can the person lie or hide facts, and did the commission of the crime require planning ad forethought.  If any of these questions could be answered in the affirmative, then the person was not believed to have an impairment in adaptive functioning, and therefore could not be determined to be a person with an intellectual disability and exempt from the death penalty.

In 2016, the United State Supreme Court made a ruling that brought the adaptive behavior prong of the definition of intellectual disability into the forefront in capital cases.  In Moore v. Texas, the high court said that, by relying on the Briseño factors, Texas had disregarded established professional standards.  They further indicated that, while Atkins v. Virginia required states to come up with their own definition of intellectual disability, the states still needed to be informed of current professional framework.  This ruling brought about a surge of appeals and a renewed interest in the assessment of adaptive behavior in capital cases.

Since current professional practice definitions focus on adaptive functioning, the need to get this type of assessment done in the most accurate way has foremost importance.  With defendants in criminal cases suspected of having an intellectual disability, there has been a long-standing debate among professionals about the best way to assess adaptive behavior.  On one side are professionals who argue that you must use standardized adaptive behavior scales, while on the other side, there are professionals who see extreme limitations to the use of such scales.  Both groups agree that measurement of adaptive behavior in jail and prison settings is not accurate due to the high structure of the settings and the lack of opportunity to display and practice many adaptive skills.  AAIDD, in their User’s Guide to Intellectual Disability: Definition, Classification, and Systems of Support (Schalock, et al., 2012) has indicated that a retrospective assessment of adaptive behavior is more appropriate for such cases.  This retrospective evaluation requires finding and interviewing people who were familiar with the defendant before he or she was incarcerated.  This is often difficult, particularly when the defendant has been incarcerated for a number of years.  Proponents of the use of formal scales cite the need for standardized administration and norms.  Opponents say that adaptive behavior instruments were designed to measure current functioning and that there is insufficient research to support their use retrospectively.  Some opponents also say that the population of persons suspected of having an intellectual disability in the criminal justice system are in a culture that is not tapped by such scales, that most adaptive behavior scales were not designed to be used with this population, and informants required for most scales may not be reliable if they are even available.  Both sides cite the need for multiple sources of information about adaptive behavior. 

Ann Delpha, J.D., of the University of New Mexico Law School, worked alongside Jim Ellis, J.D., to author amicus briefs to the courts on relevant cases involving person with intellectual disability and the death penalty.  In her presentation, she highlighted legal cases that provide the foundation of the admissibility of expert testimony and specific issues in Atkins v. Virginia and Moore v. Texas that speak to adaptive behavior.


Marc Tassé, Ph.D., psychologist and Director of the Nisonger Institute at The Ohio State University and author of numerous publications on the topic, provided a review of research and practice in assessing adaptive behavior in death penalty cases.  He discussed qualifications for doing such assessments, various standardized scales, the use of informants versus self-report, and interview versus rating scale.


Greg Olley, Ph.D., psychologist and Clinical Professor at the University of North Carolina who has testified in Atkins cases across the nation, presented on gathering information and providing testimony on adaptive behavior in capital cases.  He emphasized the need for multiple sources of information and provided examples of many.  Another emphasis of his talk was that adaptive behavior is typical behavior and not potential or illegal behavior.  He further addressed common courtroom issues for the adaptive behavior expert and the importance of clinical judgment.


The facilitated discussion focused on “Where are we now?  Where do we want to be? And What are our next steps?” The group noted that where we are now is that adaptive behavior scales are being inconsistently used, that recent Supreme Court cases resulted in increased validation of professional judgments, that Texas is resistant to the results of such cases, that there is an increase in requests for such evaluations, that we have imperfect tools for measuring adaptive behavior, that legal processes in Texas lack definition, that there may be a disconnect between experts and juries, and that there is a lack of an organized best practice for this area.  In terms of where we want to be, the group noted a need to educate (public, clinicians, and stakeholders), a need to work with the legislature on defining processes for Atkins cases, a need to work with judges and attorneys, a need for more publications on the topic, and a need for more dialogue on controversies in the filed regarding assessment of adaptive behavior.  Next steps identified included Identifying ways to exchange educational discourse across disciplines (legal community, advocates and clinicians), exploring ways to fill in existing gaps in areas of judgment in assessments, contacting the Texas Criminal Defense Lawyers Association to raise the issue with them, producing a white paper to spell out issues, and partnering with grassroots organizations that provide support to clients and families. 


Clearly, there is more work to do, and there will be follow-up sessions related to the summit.


While the event was sponsored primarily by Capacity FOR JUSTICE, AAIDD-Texas Chapter Board members provided support in many ways.  Dr. Pat Craig and Dr. Charlotte Kimmel should be recognized for their assistance with transportation of our speakers, and Cheryl Petty should be recognized for her help in locating a meeting room and working with other staff of Integral Care to provide copies and get Newk’s to donate lunches. 



Atkins v. Virginia, 536 U.S. 304 (2012)

Ex Parte Briseño, 135 S.W.3d 1, (Tex. Crim. App. 2004).

Moore n. Texas, No. 15-797, 581 U.S. 1044 (2017)

Schalock, R. L., Luckasson, R., Bradley, V., Buntinx, W.H.E., Lachapelle, Y., Shogren, K.A., Snell, M.E., Thompson, J.R., Tassé, M.J., Verdugo-Alonso, M.A., & Wehmeyer, M.L. (2012). User’s Guide to intellectual disability: Definition, classification, and systems of support. Washington, DC: American Association on Intellectual and Developmental Disabilities.

Steinbeck, J. (1994, ©1937) Of mice and men. New York, N.Y., U.S.A.: Penguin Books.

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