By Michael L. Perlin, Esq. | 65 Am. U. L. Rev. 1437 (2016)
In a recent masterful article, Professor Robert Sanger revealed that, since the Supreme Court’s decision in Atkins v. Virginia, some prosecution experts have begun using so-called “ethnic adjustments” to artificially raise minority defendants’ IQ scores, making such defendants—who would otherwise have been protected by Atkins and, later, by Hall v. Florida—eligible for the death penalty. Sanger accurately concluded that ethnic adjustments are not logically or clinically appropriate when computing a person’s IQ score for Atkins purposes. He relied further on epigenetics to demonstrate that environmental factors—such as childhood abuse, poverty, stress, and trauma—can cause decreases in actual IQ scores, and that “ethnic adjustments” make it more likely that such individuals, who are authentically “intellectually disabled,” will be sentenced and put to death.
I agree with Professor Sanger, but I wish to shift the focus to the role of prosecutors in perpetuating this state of affairs by endorsing and sanctioning the use of “corrupt science” in the cases in question. I consider whether there is any meaningful distinction between what was done by the state in the cases discussed by Sanger, and what was done in the cases involving fingerprints, autopsies and laboratory reports, discussed some years ago by Professor Giannelli, and whether the use of such testimony is yet another example of “corrupt science.” Here, I conclude that legal and moral corruption similarly permeates what some prosecutors do in the “ethnic adjustment” cases.
Through the filter of therapeutic jurisprudence, I argue that the introduction of “ethnic adjustment” testimony is as corrupt as putting on the witness stand a fact witness who the DA knows is lying, and that a DA who, in fact, does introduce such testimony should be, at the least, sanctioned by the relevant bar associations, and perhaps, prosecuted criminally. Finally, I offer some modest conclusions, focusing on the need for defense counsel to familiarize themselves with these issues so that they can vigorously challenge the credentials of experts on voir dire.
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