Alvin Bernal Jackson v. Wendy Kelley, Director, Arkansas Department of Correction
No. 16-1847
United States Court of Appeals for the Eighth Circuit
Submitted: January 11, 2018; Filed: August 7, 2018
Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
Appeal from United States District Court for the Eastern District of Arkansas - Pine Bluff
SHEPHERD, Circuit
Once more our Court faces the task of deciding whether Petitioner Alvin Bernal Jackson was improperly denied habeas corpus relief. This is Jackson’s third appeal to this Court seeking a finding that he is intellectually disabled under
I. Background
In 1990, Jackson was convicted for the capital murder of Charles Colclasure and sentenced to life in prison. While serving his sentence, Jackson killed Scott Grimes, a prison guard with the Arkansas Department of Correction. In 1996, he was convicted for the capital murder of Grimes and sentenced to death.
In 2003, Jackson filed a petition pursuant to
On remand, the district court ordered Jackson to respond to Norris’s pre-appeal summary judgment motion. Jackson responded and filed a motion for discovery and funds to retain experts. In 2009, the district court granted Norris’s motion for summary judgment and dismissed Jackson’s Atkins claim on the merits. Jackson again appealed, and we reversed and remanded, finding that Jackson was entitled to an Atkins hearing. Jackson v. Norris, 615 F.3d 959 (8th Cir. 2010).
Upon remand, the district court granted Jackson’s motion for discovery and funds to retain experts. The court conducted an evidentiary hearing and heard from two experts: Dr. James Moneypenny, Jackson’s expert, and Dr. Gilbert S. Macvaugh, III, Kelly’s expert. The district court issued a detailed opinion, walking through the several tests administered to Jackson throughout his lifetime and the facts surrounding Jackson’s crimes and incarceration. The court decided that the DSM-V definition of intellectual disability was the appropriate standard to use to determine whether Jackson was intellectually disabled. After parsing the DSM-V standard and the evidence presented at the hearing, the district court decided to credit Dr. Macvaugh’s clinical opinion and found that Jackson was not intellectually disabled. Jackson now appeals.
II. Discussion
Jackson essentially makes two arguments on appeal. First, he argues the district court erred in analyzing
A. Intellectual Disability
Jackson argues that the district court erred in finding that he was not intellectually disabled and is therefore eligible for the death penalty. “The legal standard applicable to an Atkins claim presents a pure question of law, which we review de novo. Whether an individual is mentally retarded under the applicable legal standard, however, is a pure question of fact, which we review for clear error.” Sasser v. Hobbs, 735 F.3d 833, 841-42 (8th Cir. 2013) (internal citations omitted).
The Arkansas statute barring the execution of persons with an intellectual disability defines intellectual disability as follows:
(A) Significantly subaverage general intellectual functioning accompanied by a significant deficit or impairment in adaptive functioning manifest in the developmental period, but no later than age eighteen (18) years of age; and
(B) A deficit in adaptive behavior.
- “Significantly subaverage general intellectual functioning”;
- “[A] significant deficit or impairment in adaptive functioning”;
- That both of the above “manifest[ed] . . . no later than age eighteen”; and
- “A deficit in adaptive behavior.”
Sasser, 735 F.3d at 843 (alterations in original) (quoting
The first prong of the analysis—intellectual functioning—“is typically measured with individually administered and psychometrically valid, comprehensive, culturally appropriate, psychometrically sound tests of intelligence.” DSM-V, supra note 2, at 37. However, “[t]he psychiatric and psychological communities, including those specializing in the treatment of mental retardation, agree ‘[a] fixed point cutoff score for [mental retardation] is not psychometrically justifiable.’” Sasser, 735 F.3d at 843 (quoting AAIDD, Intellectual Disability: Definition, Classification, and Systems of Support 40 (11th ed. 2010)). “[W]here an IQ score is close to, but above, 70, courts must account for the test’s ‘standard error of measurement.’” Moore, 137 S. Ct. at 1049. In Moore, the Supreme Court explained that, because IQ tests are inherently imprecise, “an individual’s score is best understood as a range of scores on either side of the recorded score.” Id. When the lower range of the defendant’s IQ score “falls at or below 70,” courts are required to “consider other evidence of intellectual disability”—meaning courts must “move on to consider [the defendant’s] adaptive functioning.” Id. at 1049-50.
1. Subaverage General Intellectual Functioning
The first prong of Arkansas’s intellectual disability statute—“significantly subaverage general intellectual functioning,”
The district court, crediting Dr. Macvaugh’s expert testimony, found that the IQ tests that Dr. Macvaugh and Dr. Moneypenny administered were inaccurate because Jackson was malingering. Assuming that Jackson was malingering on his most recent IQ tests, the court could still consider Jackson’s scores from his childhood. The district court did not find that any of the IQ tests administered to Jackson before he was 18 were invalid. The court mentions the standard error of measurement in its order, but it does not specifically state that Jackson’s previous tests, which respectively resulted in IQ scores of 72, 73, 74, and 81, should be adjusted for the standard error of measurement. Because the standard error of measurement is plus or minus 5 points, Jackson’s adjusted range for his scores shows the possibility that his IQ could fall below 70. See Hall, 134 S. Ct. at 1995.
Though the district court did not specifically adjust Jackson’s previous IQ scores according to the standard error of measurement, it appears to have followed the Supreme Court’s directive in Hall that additional evidence of intellectual disability is required for scores that fall within the standard error of measurement. See id. at 2001. The court stated that “[e]specially in this case, an informed clinical judgment requires a comprehensive review of data that is relevant to Jackson’s intellectual functioning.” Recognizing this necessity, the court proceeded to devote a significant portion of the order to discussing evidence of Jackson’s adaptive functioning.
2. Adaptive Functioning
The second criterion for intellectual disability in both the DSM-V and the Arkansas Statute is a deficit in adaptive functioning. DSM-V, supra note 2, at 33;
In Moore, the Supreme Court provided extensive direction on analyzing the adaptive functioning prong. Citing the diagnostic guidelines, the Supreme Court stated that the medical community focuses on adaptive deficits to determine intellectual disability and that significant limitations in adaptive skills are not outweighed by potential strengths in other adaptive skills. Moore, 137 S. Ct. at 1050 (citing AAIDD, supra at 47, and DSM-V, supra note 2, at 33, 38) (finding that the Texas Court of Criminal Appeals overemphasized the defendant’s perceived adaptive strengths when it found that evidence of
Here, the district court found that Jackson has, at the very least, intellectual deficits. Intellectual deficits would fall under the category of conceptual adaptive skills. DSM-V, supra note 2, at 37 (“The conceptual (academic) domain involves competence in memory, language, reading, writing, math reasoning, acquisition of practical knowledge, problem solving, and judgment in novel situations, among others.”). However, the court held that these deficits were not directly related to intellectual impairments because Jackson also exhibited adaptive functioning strengths. Throughout the order, the district court relied heavily on Jackson’s perceived adaptive functioning strengths rather than his deficits, citing to evidence that Jackson: could drive a car; has filed pro se lawsuits while in prison; has filed intra-prison grievances; has submitted commissary and law library requests; can recall information about these lawsuits and requests; has used vocabulary that is generally inconsistent with intellectual disabilities; has asked Dr. Macvaugh several questions about his qualifications and the tests he was administering; and, to get around a prohibition on inmate correspondence with other inmates, utilized a complex method of letter delivery. Furthermore, almost all of the skills that the district court appears to have given significant weight are those that Jackson may have developed in prison, which, according to Moore and the DSM-V, should not be heavily relied upon. Moore, 137 S. Ct. at 1050; DSM-V, supra note 2, at 38. Thus, the district court, like the court of appeals in Moore, inappropriately found that Jackson was not intellectually disabled because his adaptive strengths outweighed his adaptive deficits.
Furthermore, the Supreme Court also found in Moore that “[t]he existence of a personality disorder or mental-health issue, in short, is not evidence that a person does not also have intellectual disability.” Moore, 137 S. Ct. at 1051 (internal quotation marks omitted) (finding that the court of appeals erred when it used academic failure and childhood abuse to detract from a determination that the defendant’s intellectual and adaptive behaviors were related); see also United States v. Wilson, 170 F. Supp. 3d 347, 371 (E.D.N.Y. 2016). The Court stated that “many intellectually disabled people also have other mental or physical impairments” and the medical community actually uses those experiences as “risk factors,” causing clinicians to further explore the possibility of intellectual disability rather than “counter[ing] the case for a disability determination.” Moore, 137 S. Ct. at 1051; see also Wilson, 170 F. Supp. 3d at 371.
Like the court of appeals in Moore, the district court found that Jackson’s diagnosis of anti-social personality disorder, coupled with his untreated childhood ADHD, conduct disorders, and communications disorders, indicated that his adaptive deficits were not related to subaverage intellectual functioning. However, prior to issuing its order, the district court did not have the benefit of the Supreme Court’s finding that the existence of additional personality disorders or mental-health issues is not evidence weighing against an intellectual disability determination. In light of the Court’s decision in Moore, we believe the district court erred by placing too much emphasis on the existence of other diagnosed disorders to find that Jackson was not intellectually disabled.
Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.
Atkins, 536 U.S. at 318. In Tennard v. Dretke, the Supreme Court stated that “impaired intellectual functioning is inherently mitigating . . . . Nothing in [Atkins] suggested that a mentally retarded individual must establish a nexus between her mental capacity and her crime before the Eighth Amendment prohibition on executing her is triggered.” Tennard, 542 U.S. 274, 287 (2004).
The district court compared the underlying facts of Jackson’s crimes to the Atkins justifications. Relying on Jackson’s strengths as displayed in those crimes, the court found that his actions did not align with the justifications for exempting mentally disabled persons from the death penalty, thereby proving he is not intellectually disabled. By analyzing Jackson’s crimes in light of the Atkins justifications, the district court has essentially required Jackson to prove that there was a nexus between his mental capacity and his crime—i.e., that his criminal conduct reflected his mental disability. However, it is not necessary for Jackson’s crime to be related to his intellectual disability: it is only necessary for Jackson to actually be intellectually disabled to be exempt from the death penalty. See Atkins, 536 U.S. at 321. That Jackson’s potential adaptive strengths were used to commit these crimes does not mean that adaptive deficits related to subaverage intellectual functioning do not exist. See Moore, 137 S. Ct. at 1050. Again, the district court balanced Jackson’s strengths against his deficiencies to find that he was not intellectually disabled, which, subsequent to the district court’s order in this case, the Supreme Court has directed courts not do. See id.
Furthermore, we are given pause because Kelley’s own expert, Dr. Macvaugh, who the district court credits, gave a clinical opinion but refused to give a forensic opinion on intellectual disability, stating in the hearing that if Jackson “has mental retardation, it’s not by much. If he doesn’t have it, it’s not by much.” R. at 295. The indecisiveness of Kelley’s expert, coupled with the district court’s brief reference to Jackson’s deficits but heavy emphasis on his strengths, is concerning. Accordingly, we find that the district court committed clear error in finding Jackson’s adaptive behavior deficits were not related to subaverage intellectual functioning.
3. Manifestation No Later Than 18
The third criterion in
4. Deficit in Adaptive Behaviors
The final factor in
B. Application of the DSM-V Standard
Jackson next argues that the district court erred when it applied the DSM-V rather than the DSM-IV standard for intellectual disability. At the time the Atkins hearing took place, the DSM-IV was the most recent version of the APA’s diagnostic manual. The DSM-IV contained no specific requirement that an individual’s adaptive behavior deficits be caused by that person’s subaverage intellectual functioning. DSM-IV, supra note 3, at 39-49. Dr. Macvaugh testified that he could not be sure that Jackson’s deficits were due to subaverage intellectual functioning and that he believed the medical field is not clear about whether the adaptive deficits have to be caused by subaverage intellectual functioning. R. at 356.
The DSM-V was published after Jackson’s Atkins hearing. Though it does not specify the need for a direct relationship between adaptive deficits and subaverage intellectual functioning in the diagnostic criteria, the explanatory text states that “[t]o meet diagnostic criteria for intellectual disability, the deficits in adaptive functioning must be directly related to the intellectual impairments described in [prong one].” DSM-V, supra note 2, at 38. The district court decided to adopt the DSM-V’s standard and found that Jackson had shown intellectual deficits and that both experts had identified adaptive deficits in a number of areas. However, the court also found Jackson failed to show that those deficits were directly related to subaverage intellectual functioning. Jackson argues that the application of the DSM-V standard is inappropriate because that is not the standard under which the parties argued the case. Thus, he claims he was not on notice that he needed to present evidence of a direct connection between his adaptive behavior deficits and his subaverage intellectual functioning. Accordingly, Jackson requests that we remand the case and allow him to present evidence on this connection.
However, we also find that there is no material difference between the DSM-V standard and the DSM-IV with regard to the connection between subaverage intellectual functioning and adaptive behavior deficits. Though the DSM-V’s language may appear to create a heightened standard, it is actually “claryif[ying] the most logical approach to a diagnosis of intellectual disability.” United States v. Wilson, 170 F. Supp. 3d 347, 371 (E.D.N.Y. 2016). The DSM-V does not require a showing of specific causation; rather, as the district court found in United States v. Wilson:
[t]he court assumes that a clinician would not diagnose intellectual disability on the basis of adaptive functioning deficits that were related to something else entirely, such as a physical disability or traumatic event. However, where an individual has demonstrated significantly subaverage intellectual functioning, along with significant adaptive deficits that relate to such intellectual impairment, that individual has satisfied the first two diagnostic criteria for intellectual disability. To require this individual to further prove that he satisfies these criteria because he is intellectually disabled would render the criteria meaningless. Indeed, [that] approach would transform the standard for intellectual disability into an impossible test: In order for a defendant to show that he was intellectually disabled, he would need to prove that he satisfied the criteria because he was intellectually disabled. As though trapped on an M.C. Escher staircase, the defendant would climb to the top only to find he had returned to the bottom.
Id. Moreover, “a defendant is not required to rule out other contributing causes of his adaptive deficits in order to meet the standard for intellectual disability.” Id.; see also Moore, 137 S. Ct. at 1050.
Here, the district court appears to have required a specific showing of causation by expecting Jackson to “rule out other contributing causes of his adaptive deficits.” Wilson, 170 F. Supp. 3d at 371; see also Moore, 137 S. Ct. at 1050. The court recognized that Jackson has adaptive behavior deficits, but it heavily emphasized Dr.
This was error. Jackson is not required to demonstrate a specific connection between subaverage intellectual functioning and adaptive behavior deficits. Rather, he must show only that deficits related to intellectual functioning exist. Furthermore, as discussed earlier, Jackson’s other diagnoses are frequently co-occurring with intellectual disability, see DSM-V, supra note 2, at 40, and Jackson is not required to exclude those disorders as causes of his adaptive behavior deficits, see Wilson, 170 F. Supp. 3d at 371. As the court in Wilson found, it would be too much to “ask[] the court to break down each deficit and determine what portion of each is attributable to a learning disability, emotional disturbance, ADHD, or a conduct disorder,” and “such an approach would [not] comply with the legal requirement, as articulated by Hall, to avoid the ‘unacceptable risk that persons with intellectual disability will be executed’ in violation of the Eighth Amendment.” Id. at 372 (quoting Hall, 134 S. Ct. at 1990).
III. Conclusion
We make no judgment as to whether or not Jackson is intellectually disabled, but find that the exacting review required in death penalty cases commands further consideration of this matter. See Ortiz v. United States, 664 F.3d 1151, 1166-67 (2011) (“Because we cannot be fairly certain the error was harmless, we find it appropriate to remand [the] Atkins claim to the district court for further consideration . . . .”).
Clearly, the district court did not have the benefit of the Supreme Court’s guidance in Moore. Consequently, in light of Moore and the publication of the DSM-V following Jackson’s Atkins hearing, we reverse the district court’s finding that Jackson is not intellectually disabled and remand with instructions that the district court reconsider this matter in light of that opinion. The court shall include in its reconsideration: the standard error of measurement as applied to Jackson’s IQ tests administered during his youth; whether Jackson’s adaptive functioning deficits are related to his subaverage intellectual functioning without requiring Jackson to demonstrate a specific link between the two; and whether Jackson’s adaptive functioning deficits rather than his adaptive functioning strengths indicate that he is not intellectually disabled.