Opinion
NO. WR-79,322-04
07-31-2024
EX PARTE Blaine Keith MILAM, Applicant
ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS FROM CAUSE NO. CR-09-066 IN THE 4 th JUDICIAL DISTRICT COURT RUSK COUNTY
CONCURRING OPINION
Keller, P.J., filed a concurring opinion in which Yeary, Keel and Slaughter, JJ., joined.
How would a person of ordinary intelligence score on an IQ test if he were intoxicated? What would his adaptive behavior look like? And, relatedly, when each new version of the diagnostic manual changes and liberalizes the meaning of in- tellectual disability, is there a point at which we must recognize that the diagnostic community for intellectual disability and the national consensus on the death penalty are traveling on divergent evolutionary paths? The first two questions address an aspect of what is required to meet the current standard for intellectual disability. The third question addresses whether the current standard for intellectual disability is faithful to the constitutional standard for determining whether punishment is cruel and unusual.
1. Intoxication and Intellectual Disability
Intoxication is a temporary phenomenon caused by a substance—such as alcohol or a drug—that affects how the brain functions. One of the Texas statutory definitions of being "intoxicated" lines up with the common-sense notion of what intoxication means:
not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.
Tex Penal Code § 49.01 (2)(A) (emphasis added).
By statute in Texas, voluntary intoxication is not a defense to a crime. But more to the point, voluntary intoxication does not even mitigate punishment unless the intoxication rises to the level of temporary insanity. This statutory proscription illustrates both the Texas view that voluntary intoxication is not normally mitigating and the reality that intoxication is a temporary phenomenon.
Id. § 8.04(a).
Id. § 8.04(b), (c).
Even in a death penalty case, we have upheld the constitutionality of a jury instruction that voluntary intoxication is mitigating only if it causes temporary insanity. We have never held that a defendant could be intellectually disabled by virtue of intoxication, even though intoxication would obviously create temporary adaptive deficits. And it doesn’t take special expertise to surmise that taking an IQ test while drank would seriously skew the results.
Raby v. State, 970 S.W.2d 1, 5 (Tex. Crim. App. 1998).
Applicant was a chronic user of methamphetamine. Testimony at his trial indicated that chronic methamphetamine use has long-term effects but that those effects would diminish over time through long-term abstinence. When Appellant went through IQ testing before trial, he was still suffering from the drug’s adverse long-term effects, and his IQ scores were relatively low. But after more than a decade of forced abstinence from the drug, his IQ scores were substantially higher—above the intellectual disability range, even accounting for possible measurement error. And the expert who conducted the new IQ testing (Dr. Antoinette McGarrahan) also concluded that Applicant did not have significant adaptive deficits.
The State’s trial expert, Dr. Timothy Proctor, testified at trial that Applicant was not intellectually disabled, but Dr. Proctor changed his diagnosis under the current standard for intellectual disability. The reason he changed his diagnosis is that he applied the current standard to how Applicant presented at the time of trial, when he was still suffering from the long-term effects of methamphetamine. This misunderstands the legal application of the current standard for intellectual disability.
When Applicant was suffering from the long-term effects of chronic methamphetamine use, he was intoxicated. The effects on his mental state were temporary, though instead of wearing off in a day or a week, it took years. That does not change the fact that a substance impaired Applicant’s mental state. My understanding of the current intellectual-disability standard is that it assumes a person’s natural mental abilities, unimpaired by intoxication. No one would suggest that a person of otherwise normal intelligence who murders someone while under the influence of alcohol was intellectually disabled during the period of intoxication and therefore exempt from the death penalty. I see nothing to suggest that intoxication by methamphetamine should differ just because it takes longer to wear off.
2. Changing Standards
But if I am wrong, and long-term intoxication can make someone intellectually disabled, then courts should recognize that the standards for intellectual disability and the standards for cruel and unusual punishment are traveling divergent evolutionary paths. I submit that there is no national consensus that would allow a person to escape the death penalty merely because he was intoxicated over a long period of time.
But assuming that I am correct, I still have concerns about the ever-changing standards for intellectual disability. When the Supreme Court decided Atkins v. Virginia, the relevant diagnostic manuals provided that intellectual disability was shown by:
(1) subaverage general intellectual functioning,
(2) accompanied by significant [related] limitations in adaptive functioning in at least two listed skill areas, and
(3) the onset of which occurred before age 18.
See Atkins v. Virginia, 536 U.S. 304, 308 n.3, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (citing the then current AAMR manual and the DSM-IV, with "related" appearing in the AAMR manual but not explicitly in the DSMIV).
In 2013, that standard changed significantly under the DSM-5, which changed the required deficits for adaptive functioning from "two" skill areas into "one" domain:
(1) deficits in general mental abilities,
(2) a related impairment in at least one domain of adaptive functioning—conceptual, social, or practical—that is sufficient that ongoing support is needed in order for the person to perform adequately in one or more life settings at school, at work, at home, or in the community, and
(3) onset during the developmental period, defined as childhood and adolescence.
See Ex parte Moore, 548 S.W.3d 552, 560-62 (Tex. Crim. App. 2018) (discussing the standard); Ex parte Mays, 686 S.W.3d 745, 748 n.5 (Tex. Crim. App. 2024) (noting publication year of 2013).
In 2022, the standard changed again, with the DSM-5-TR dropping the "relatedness" part of the deficits-in-adaptive-functioning requirement.
Mays, supra.
It may be that the medical need to provide "support" for certain individuals has prompted the changes in the definition, but that purpose does not automatically line up with society’s notions of cruel and unusual punishment. Some people, for example, have physical disabilities that require "support" for them to function in society. If such a person were to commit capital murder, we would not find the person’s physical disability to be sufficient to exempt him from the death penalty.
It is possible that changing standards could also be the result of bias against the death penalty on the part of those who dictate the standards for intellectual disability. In this case, Dr. Alan Kaufman, one of the co-authors of Essentials of WAIS-IV Assessment, 2d Edition, testified that Dr. McGarrahan did not follow the guidelines when she used the GAI composite score from the recent WAIS-IV exam to measure Applicant’s intellectual functioning instead of using the full scale IQ score. Dr. Kaufman testified this way despite the fact that his own book plainly stated that the use of the GAI composite score was appropriate when one was confronted with the situation that occurred in the present case—a substantial disparity (more than a standard deviation) in sub-scores in the test. Dr. Kaufman claimed that later research revealed a flaw in his methodology in 2007, but the version of Essentials relied upon by Dr. McGarrahan was published in 2013 (with no update for this supposed flaw). And revealing his antipathy for the death penalty, Dr. Kaufman testified that Dr. McGarrahan ignored a "basic principle" of not using scores that will cause someone to get the death penalty:
Don’t use test scores to hurt somebody. And in my opinion, when we are talking, in this case, life and death, it’s violating the basic intent of my entire testing philosophy and of Dr. Wechsler’s entire testing philosophy.
Whether the changing standards are due to bias or are simply part of a shift in focus designed to facilitate supportive treatment, I think it can no longer be said with any confidence that the clinical standards accurately reflect societal standards. I think Applicant’s death sentence is sound under current standards. But I also think that the dropping of "relatedness" in the DSM-5-TR threatens to invalidate a valid death sentence contrary to any national consensus about cruel and unusual punishment. And five years from now, or even next year, with the advent of the DSM-6, the standards for intellectual disability could change even further to sweep Applicant within their reach. At some point, remaining faithful to Atkins requires an acknowledgment that the clinical standards for intellectual disability do not line up with the national consensus about cruel and unusual punishment.
A study to assess the extent and types of financial ties of panel and task force members of the DSM to the pharmaceutical industry found that "[c]onflicts of interest among panel members of DSM-5-TR were prevalent." Lauren C. Davis, Alexa T. Diianni, Sydney R. Drumheller, Noha N. Elansary, Gianna N. D’Ambrozio, Farahdeba Herrawi, Brian J. Piper, Lisa Cosgrove, Undisclosed financial conflicts of interest in DSM-5-TR: cross sectional analysis, BMJ 2024;384:e076902 (abstract) (January 10, 2024). See also Lisa Cosgrove, Financial conflicts of interest in the DSM—a persistent problem, BMJ 2024;384:q36 (January 10, 2024).
I join the order of the Court.