1. EVALUATION OF INTELLECTUAL (DIS)ABILITIES IN SPANISH SPEAKERS: DEATH PENALTY EVALUATIONS ANTONIO E. PUENTE UNIVERSITY OF NORTH CAROLINA WILMINGTON WITH ASSISTANCE OF SARA COHBRA - Habeas Corpus Resource Center, San Francisco & MARGIE HERNANDEZ- UCSD LATINOS AND THE DEATH PENALTY CONFERENCE UNIVERSITY OF TEXAS APRIL 10. 2015

2. “A test that is fair does not unduly advantage or disadvantage certain examinees because of individual characteristics that are irrelevant to the construct being measured.” (AERA, et al., 2014)

3. Clinical Definitions of Intellectual Disability AAIDD (American Association on Intellectual and Developmental Disabilities; 11 th edition): Significant limitations in intellectual functioning and Significant limitations in adaptive behavior as expressed in conceptual, social, and practical skills Originating before age 18 DSM-5 (American Psychiatric Association): Deficits in intellectual functioning, such as reasoning, problem solving, planning, abstract thinking, judgment, academic learning, and learning from experience, confirmed by both clinical assessment and individualized, standardized intelligence testing; Deficits in adaptive functioning that result in failure to meet developmental and sociocultural standards for personal independence and social responsibility in at least one or more activities of daily life such as communication, social participation, and independent living, across multiple environments; and Onset of intellectual and adaptive deficits during the developmental period

4. Clinical Standards Vs. State Statutory Definitions State statute(s) defining intellectual disability Atkins v. Virginia, 536 U.S. 304, 317 & n.22 (2002) Ex parte Briseno, 135 S.W.3d 1 (Tex.Crim.App.2004); Chester v. Thaler, 666 F.3d 340, 343–50 (5th Cir.2011). Hall v. Florida, 134 S.Ct. 1986, 2000 (2014) (“The legal determination of intellectual disability is distinct from a medical diagnosis, but it is informed by the medical community’s diagnostic framework.”).

5. Intelligence Testing “Intellectual functioning is typically measured with individually administered and psychometrically valid, comprehensive, culturally appropriate, psychometrically sound tests of intelligence.” DSM-5 Accuracy of assessment requires that the assessment “[t]ake into account such factors as the individual’s culture, language, and any physical or other disabilities that may affect the validity of the assessment.” and “[u]se appropriate norms.” AAIDD (11 th ed.)

6. Norms “Instruments must be normed for the individual’s sociocultural background and native language.” DSM-5. Accuracy of assessment requires that those conducting the assessment “[u]se appropriate norms.” AAIDD (11 th ed.).

7. Re-Norming & Interpretation of Norms Lizcano v. Texas, 2010 WL 1817772 (CCA) (unreported) (“Whether or not ‘Spanish speakers’ as a group tend to score below ‘Caucasians’ on IQ tests, has little relevance for the proposition that, on the tests administered to him, the appellant's scores were somehow inaccurate due to his particular culture and influences.”). Maldonado v. Thaler, 625 F.3d 229 (5th Cir. 2010) (Assuming without deciding that Denkowski’s upward adjustment of IQ scores for a Spanish-speaking Mexican defendant based on his purported knowledge of Mexican cultural norms was improper)

8. 8 Borderline ID 70 – 85 Mild ID 50 ~ 55 – 70 Normal Distribution Bell Curve: Intelligence Test Results

9. Adaptive Skills: AAIDD  Adaptive Behavior is comprised of the following three skill types:  Conceptual Skills: language and literacy; money, time, and number concepts; and self direction.  Social Skills: interpersonal skills, social responsibility, self-esteem, gullibility, naïveté (i.e. wariness), social problem solving, and the ability to follow rules/obey laws and to avoid being victimized.  Practical Skills: activities of daily living (personal care), occupational skills, healthcare, travel/transportation, schedules/routines, safety, use of money, use of the telephone.

10. A Deconstructed Interpretation of Adaptive Functioning (2 OF 10 are needed) LIKELYLESS LIKELY FUNCTIONAL ACADEMICS COMMUNICATION HEALTH & SAFETYCOMMUNITY USE SELF CAREHOME LIVING SELF DIRECTIONLEISURE WORKSOCIAL

11. Challenges in Measuring of Adaptive Deficits Retrospective Analyses Completer of Form Linguistic Translation vs. Adaption Cultural Limitations Normative Data Set Intended Use for These Scales

12. Non-Standardized Approaches to Adaptive Functioning Although both AAIDD (11 th ed.) and DSM-5 recommend use of standardized measures of adaptive functioning when possible, both also recognize not always possible and allow for alternative methods of assessing adaptive functioning. AAIDD: Allows for review of records, interviews with individuals who knew/know the client and have had opportunity to observe the client’s functioning in the community before the age of 18 See also DSM-5

13. Adaptive functioning assessment U.S. v. Candelario-Santana, 916 F.Supp.2d 191, 216 (2013) (“Given the imperfect and amorphous nature of evaluating adaptive behaviors, courts have adhered to the ‘relative consensus that the best way to retroactively assess Candelario–Santana's adaptive functioning is to review the broadest set of data possible, and to look for consistency and convergence over time.’”).

14. ADAPTIVE DEFICITS: QUALITATIVE PERSPECTIVE COLLATERAL INTERVIEWS MULTIPLE INTEVIEWS PSYCHO-SOCIAL HISTORIES EDUCATIONAL RECORDS DIRECT VS. INDIRECT FACE-TO-FACE/INTERNATIONAL

15. Spanish-speakers in the United States Spanish-speakers and Psychological Testing Spanish-speakers and Intelligence Testing Wechsler’s Adult Intelligence Scales

16. T he W echsler A dult I ntelligence S cales Most widely used intelligence test High validity and reliability User friendly administration and scoring guidelines Excellent psychometric properties WAIS-IV (2008) Most current version WAIS-III (1997) (Spanish versions) Mexico (2003) Puerto Rico (2008) Spain (2001)

17. WAIS-III: English Version Age range: 16 – 89 Administration Time: 60 – 90 minutes 14 Subtests: 7 – Verbal 7 – Performance 4 Indices 3 IQs

18. Literature on the Spanish Versions of the WAIS-III WAIS-III is used in the U.S Limited A total of 7 4: Mexican version 3: Spaniard version Results Overestimated IQs Large Confidence Intervals Technical problems Non-representative sample

19. Example: WAIS-III in Capital Cases Atkins v Virginia – execution of the intellectually disabled, a violation of the Eighth Amendment VariableMexican NormsEnglish Norms Full Scale IQ7966 Confidence Intervals65 – 10563 – 71 Intellectual DisabilityNOYES Death PenaltyYESNO

20. INITIAL STUDY ON THE SPANISH WAIS A Qualitative Study Standardization sample Structure Concept of Items Ordering of Items Response options Hypothetical profile of 45-year-old Results On the surface, they appear to be similar, but the qualitative analysis suggested unusually small to large differences.

21. Purpose of present study To further examine equivalence across the Mexican, Puerto Rican, and Spaniard versions of the WAIS-III against each other and against the English version of the WAIS-III. Qualitative analysis Quantitative analysis

22. Phase 1: Qualitative Comparison

23. Phase 1: Introduction Teaching Items Range of Scale Scores Range of Index and IQ Scores Confidence Intervals

24. Phase 1: Method Teaching Items Item number Item content Range of Subtest Scores Range of IQ & Index Scores Confidence Intervals 4 Indices 3 IQs

25. Phase 1: Results Range of IQs and Indices Mexican Narrow Sum of Scale Scores (11 – 209 vs. ≤ 60 – ≥ 188) Narrow IQ & Index Scores (~1 SD) Puerto Rico Identical Sum of Scale Scores Broader IQ and Index scores Spaniard Identical Sum of Scale Scores Identical IQ and Index Scores except PSI (54 – 150 vs. 54 – 143) Comparison Sample: Perceptual Organization Index EnglishMexicanPuerto RicanSpaniard Sum of Scale Scores3 – 57≤ 16 – 1133 – 57 Index Scores50 – 15069 – ≥ 29444 – 15850 – 150

26. Phase 1: Results Average Confidence Interval Ranges: VersionVIQPIQFSIQVCIPOIWMIPSI English9.614811.214 17.8 Mexican26.248.837.44120.4508.4 Puerto Rican9.612.4811.2141519 Spaniard101216888.48

27. Phase 1: Discussion Superficially the same, however: Categorization of standardization variables Test structure Concept of items Order of items Response types and scoring differences Teaching Items Range of scores Confidence Intervals Overestimated IQ scores

28. Phase 2: Quantitative Analysis

29. Phase 2: Introduction Determine extent to which the Spanish versions overestimate IQ and Index scores relative to the English version Determine whether score differences are statistically significant.

30. Phase 2: Method Instruments Four administration and scoring manuals 48 De-identified test profiles NMalesFemalesM age M edu North Carolina125744.8312.92 Mexico125738.0015.33 Puerto Rico105545.4015.30 Spain147522.509.86

31. Phase 2: Procedure Subtest Raw ScoreEnglish SSMexican SSPuerto Rican SSSpaniard SS Vocabulary4510121412 Similarities23101213 Arithmetic1410111312 Digit Span1710131412 Information171011 10 Comprehension221012 L-N Sequence10 111311 Picture Completion2010121311 Digit Symbol6810131210 Block Design3510111210 Matrix Reasoning1310 119 Picture Arrangement1310111210 Symbol Search2810121110 Object Assembly2810 –9 1 raw profile = 4 different profiles given the same raw scores

32. English Version Mexican Version Puerto Rican Version Spaniard Version 1 profile = 4 profiles 12 profiles = 48 profiles Therefore, 48 profiles from all four versions will yield 192 profiles

33. Phase 2: Results Summary Overestimation of IQ and Index Scores Variable Mean English Score Total Point Overestimation MexicanPuerto RicanSpaniard Full Scale IQ88.603.3014.284.70 Verbal IQ89.463.6915.002.83 Performance IQ89.407.2010.89(-0.21) Verbal Comprehension Index90.659.7513.812.37 Perceptual Organization Index92.236.2310.54(-1.98) Working Memory Index86.5812.5215.423.43 Processing Speed Index88.1513.107.273.50

34. Phase 2: Discussion General Patterns Sum of Scales Scores are different IQs are different English version overall yields the lowest scores Puerto Rican overall yields the highest scores

35. General Discussion of WAIS Study Phase 1: Tests are qualitatively different. Phase 2: Tests are quantitatively different. Phase 3: Subtests within tests are qualitatively and quantitatively different. Phase 4: Scores vary depending on the version being administered.

36. Overall Summary IQ Assessment IQ Testing Adaptive Deficits State Vs. Clinical Standards Interpretation WAIS Gold Standard for IQ Testing Limitations & Challenges Conclusion Best Vs. Perfect Research & Practices

37. Future Directions Translation & Standardization of the Wechsler Scales into Spanish Alternative Methods of Intellectual Assessment (e.g., Reynolds Intellectual Assessment Scales) Alternative Methods of Adaptive Functioning Assessment (e.g., Luria-Vygostsky) State x State Challenge of DSM/AAIDD/WHO Definitions of ID

38. Resources American Psychological Association Ethical Standards for Psychologists Standards for Educational and Psychological Tests & Assessments Guidelines on Multicultural Education, Training, Research, Practice, and Organizational Change for Psychologists National Academy of Neuropsychology Hispanic Neuropsychological Society Available book chapters & articles www.antonioepuente.com www.alfredoardila.wordpress.com