In Atkins v. Virginia the U.S. Supreme Court declared that executing the intellectually disabled violated the U.S. Constitution’s Eighth Amendment prohibition against cruel and unusual punishment. In Atkins, the Court relied heavily on medical standards, which indicated that individuals with an IQ of approximately or below seventy and who met the other criteria for intellectual disability were ineligible for the death penalty. Twelve years later, in Hall v. Florida, the Court evaluated a Florida statute that created a bright line rule, making anyone whose IQ was above seventy eligible for execution, regardless of other factors suggesting the defendant was, despite his IQ score, intellectually disabled. Finding the statute violated the Constitution, the Court stated that the Florida statute’s bright line rule made the possibility too great that an intellectually disabled person would be executed.

Since Atkins, some prosecution experts have begun using so-called “ethnic adjustments” to artificially raise minority defendants’ IQ scores, making defendants who would have been protected by Atkins and its progeny eligible for the death penalty. This Article details this practice, looking at several cases in which prosecutors successfully adjusted a defendant’s IQ score upward, based on his or her race. The Article then turns to the arguments put forth by these prosecutors for increasing minority defendants’ IQ scores, namely that it would be improper not to adjust the scores. Statistically, some minority cohorts tend to perform worse on tests than White cohorts; prosecutors argue that this discrepancy is not based on intellectual inferiority, but rather that there are testing biases and behavioral factors that cause minority test-takers to underperform. Thus, the argument goes, minority IQ scores should be increased to control for these biases and behavioral factors.

Evaluating the merits of these arguments, this Article concludes that ethnic adjustments are not logically or clinically appropriate when computing a person’s IQ score for Atkins purposes. This Article looks at epigenetics to explain the discrepancies in IQ scores, concluding that environmental factors—such as childhood abuse, poverty, stress, and trauma—can cause decreases in actual IQ scores and which can be passed down from generation to generation. Therefore, given that individuals who suffered these environmental factors disproportionately populate death row, ethnic adjustments make it more likely that individuals who are actually intellectually disabled will be put to death. Ultimately, after looking at the Supreme Court’s affirmative action jurisprudence, this Article concludes that the practice of ethnic adjustments for the purpose of determining eligibility for the death penalty violates the Fourteenth Amendment’s Equal Protection Clause and would not survive strict scrutiny.