Defending Intellectually Disabled Clients – George Kendall and Amber Pittman

This session will discuss practical concerns in representing defendants with intellectual disabilities. The session will go over how to conduct an investigation, how to write pretrial motions, how to address plea negotiations, how to work with the State’s experts, and how to present a case for mitigation.


Intellectual Disability, The Death Penalty, and Jurors

Emily V. Shaw and Scurich, Nicholas and Faigman, David L., Intellectual Disability, The Death Penalty, and Jurors (June 5, 2018). Jurimetrics, Vol. 58, 2018, Forthcoming; UC Hastings Research Paper No. 286; UC Irvine School of Law Research Paper No. 2018-45. Available at SSRN:

Abstract: In Atkins v. Virginia (2002), the United States Supreme Court held that intellectually disabled defendants cannot be sentenced to death; but since then, the Court has continued to grapple with how intellectual disability should be legally defined. Typically, however, it is jurors who determine whether a defendant is intellectually disabled and therefore categorically ineligible for the death penalty. Very little is known empiriccally about how jurors reason about and make these decisions. This Article presents the results of a novel experiment in which venire jurors participated in an intellectual disability hearing and a capital sentencing hearing. The diagnosis of a court-appointed expert was experimentally manipulated (defendant is or is not intellectually disabled), as was the provision of information about the crime (present or absent). Jurors were consider-ably more likely to find the defendant not disabled when the expert opined that the defendant was not disabled. They were also more likely to find the defendant not disabled when they learned about the details of the crime. Similarly, jurors were more likely to sentence the defendant to death after learning about the details of the crime, which in-creased perceptions of both the defendant’s blameworthiness and his mental ability. These findings highlight the reality that jurors’ assessments of intellectual disability are influenced by crime information, contrary to pronouncements made by the United States Supreme Court, and they support the use of bifurcated disability proceedings, as some states have recently adopted.

Is Powell Still Valid? The Supreme Court’s Changing Stance on Cruel and Unusual Punishment

Maria Slater, Note, Is Powell Still Valid? The Supreme Court’s Changing Stance on Cruel and Unusual, 104 L. Rev. 547 (2018).

Abstract: In its seminal case Robinson v. California, the Supreme Court struck down a state statute criminalizing narcotics addiction. The Court held this statute, in criminalizing the disease of drug addiction, constituted cruel and unusual punishment prohibited by the Eighth Amendment. Six years later in Powell v. Texas, the Court declined to extend this holding to encompass alcoholism, because alcoholism involves the act of drinking rather than the status of addiction. However, the Court’s modern Eighth Amendment jurisprudence has signaled a shift in its understanding of cruel and unusual punishment. The Court has begun to take into account brain development, and its relationship to culpability, for certain classes of offenders. Neurological findings regarding the brain development involved in chronic alcoholism necessitate a similar shift in the Court’s framework for analyzing the penalization of chronic alcoholism and, given the Court’s changing stance, call into question the constitutionality of Virginia’s habitual drunkard statute. Rather than viewing alcoholism under the act-versus-status dichotomy, the Court’s Eighth Amendment proportionality analysis signals a shift towards understanding addictions such as chronic alcoholism under a non-binary framework that takes into account recent scientific understandings of addiction. Much like the Court’s shift in the juvenile and intellectual disability contexts, a similar shift should occur, this Note posits, in the Court’s proportionality analysis as applied to statutes involving chronic alcoholism. This Note concludes by calling into question the continued constitutionality of Virginia’s habitual drunkard statute under the Court’s changing jurisprudence.

‘My Brain is so Wired’: Neuroimaging’s Role in Competency Cases Involving Persons with Mental Disabilities

Perlin, Michael L. and Lynch, Alison J., ‘My Brain is so Wired’: Neuroimaging’s Role in Competency Cases Involving Persons with Mental Disabilities (August 9, 2017). NYLS Legal Studies Research Paper No. 3016035. Available at SSRN:

Abstract: In this article, we consider the therapeutic jurisprudence implications of the use of neuroimaging techniques in assessing whether a defendant is competent to stand trial, a topic that has been the subject of no prior legal commentary. Recent attention paid to neuroscience in the criminal process has focused on questions of mitigation and competency to be executed, but the potential of such evidence transcends these areas.

There has been almost no attention paid to its potential impact on a critical intersection between the criminal trial process and inquiries into mental or psychological status: a defendant’s trial competency. Less than a handful of reported cases consider this question, and it is “under the radar” for most relevant scholarship as well, notwithstanding that (1) this inquiry is, numerically, the most important “disability law” question relevant to criminal law, (2) the costs of these hearings are staggering, and (3) the incompetency status in no way admits or presumes factual guilt. It is imperative that the ways in which neuroimaging may influence competency determination be studied and understood.

We review legal standards for competency in the context of mental disabilities, then examine what neuroimaging may be able to add to these determinations. We examine this in the context of therapeutic jurisprudence, discussing whether the introduction of scientifically-based evidence of incompetency will lead to a therapeutic outcome for the defendant, no matter what its usefulness to the court. We also consider the important, related questions of (1) defense counsel’s competency to provide effective representation in this important area of law-and-science, and (2) an indigent defendant’s access to such testimony.

Again, there is virtually no legal scholarship on this important topic. We hope that this paper encourages others – judges, scholars, policymakers, forensic mental health professionals – to think carefully about the questions we seek to address and our proposed solutions.

“Infinity Goes up on Trial”: Sanism, Pretextuality, and the Representation of Defendants with Mental Disabilities

Perlin, Michael. (2016). “Infinity Goes up on Trial”: Sanism, Pretextuality, and the Representation of Defendants with Mental Disabilities. QUT Law Review. 16. 106. 10.5204/qutlr.v16i3.689.

“Power and Greed and the Corruptible Seed”: Mental Disability, Prosecutorial Misconduct, and the Death Penalty

Perlin, Michael. (2015). “Power and Greed and the Corruptible Seed”: Mental Disability, Prosecutorial Misconduct, and the Death Penalty. Journal of the American Academy of Psychiatry and the Law. 43. 266-272. 10.2139/ssrn.2522444.

Abstract: The Supreme Court’s death penalty jurisprudence is based in large part on the assumption that jurors can be counted on to apply the law in this area conscientiously and fairly. All our criminal procedure jurisprudence is based in large part on the assumption that prosecutors and judges will act fairly. I believe that these assumptions are based on nothing more than wishful thinking, and that the record of death penalty litigation in the thirty-eight years since the “modern” penalty was approved in Gregg v. Georgia gives the lie to them.This article focuses solely on the role of prosecutors in this process, and the extent to which prosecutorial misconduct has contaminated the entire death penalty process, especially in cases involving defendants with mental disabilities. This is an issue known well to all those who represent such defendants in death penalty cases but, again, there is startlingly little literature on the topic. It is misconduct that is largely hidden and ignored. The article begins with some brief background on issues that relate to the treatment of persons with mental disabilities in the criminal justice system in general. It then discusses prosecutorial misconduct and the outcomes of that misconduct, with special attention to a cohort of appellate decisions in unheralded and rarely (if ever) discussed published cases that, in almost every instance, sanction such misconduct. Next, it demonstrates how some prosecutors purposely flaunt the canons of ethics in the prosecution of defendants with mental disabilities in death penalty cases, and then will discuss some solutions raised by scholars to (at least, partially) cure this problems, and concludes with some modest suggestions of my own.

Evidence of Mental Retardation in Death Penalty Proceedings: An Application of Atkins in Alabama by Cynthia Chavira and Joseph Simpson, The Journal of the American Academy of Psychiatry and the Law Online (2015)

Abstract: In Burgess v. Commissioner, Alabama Department of Corrections, 723 F.3d 1308 (11th Cir., 2013), the Eleventh Circuit Court of Appeals reversed a federal district court’s decision to deny Mr. Burgess an evidentiary hearing on his habeas corpus petition claiming that he was intellectually impaired and that the Eighth Amendment to the U.S. Constitution categorically barred his execution pursuant to Atkins v. Virginia, 536 U.S. 304 (2002). The Eleventh Circuit ruled that there was insufficient and contradictory information in the record to support the lower court’s conclusion that Mr. Burgess did not have an intellectual disability. The court ordered that he be granted an evidentiary hearing to determine whether he was intellectually impaired and therefore not eligible for execution. Read the full article.

The True Legacy of Atkins and Roper: The Unreliability Principle, Mentally Ill Defendants, and the Death Penalty’s Unraveling by Scott E. Sundby, University of Miami Legal Studies Research Paper No. 15-5 (2014)

In striking down the death penalty for intellectually disabled and juvenile defendants, Atkins v. Virginia and Roper v. Simmons have been understandably heralded as important holdings under the Court’s Eighth Amendment jurisprudence that has found the death penalty “disproportional” for certain types of defendants and crimes. This Article argues, however, that the cases have a far more revolutionary reach than their conventional understanding. In both cases the Court went one step beyond its usual two-step analysis of assessing whether imposing the death penalty violated “evolving standards of decency.” This extra step looked at why even though intellectual disability and youth were powerful mitigators, juries were not able to reliably use them in their decision making. The Court thus articulated expressly for the first time what this Article calls the “unreliability principle:” if too great a risk exists that constitutionally protected mitigation cannot be reliably assessed, the unreliability means that the death penalty cannot be constitutionally imposed. In recognizing the unreliability principle, the Court has called into serious question the death penalty for other offenders to whom the principle applies, such as mentally ill defendants. And, unlike with the “evolving standards” analysis, the unreliability principle does not depend on whether a national consensus exists against the practice. This Article identifies the six AtkinsRoper factors that bring the unreliability principle into play and shows why they make application of the death penalty to mentally ill defendants unconstitutional. The principle, which finds its constitutional home in the cases of Woodson v. North Carolina and Lockett v. Ohio, has profound implications for the death penalty, and if taken to its logical endpoint calls into question the Court’s core premise since Furman v. Georgia, that by providing individualized consideration of a defendant and his crime, the death penalty decision will be free of arbitrariness. Read the full paper.

“Intellectual Disability and the Death Penalty: the Profound Effect of Amici on the Supreme Court” by Jeffrey Janofsky, The Journal of the American Academy of Psychiatry and the Law Newsletter (2014)

This article discusses the importance of the amicus brief filed on behalf of the petitioner in Hall v. Florida, which was written as a joint effort between the American Psychological Association, the American Psychiatric Association, the American Academy of Psychiatry and the Law, and others. The brief successfully argued two points: (a) that the clinical diagnosis of intellectual disability requires judgment in assessing the general intellectual and adaptive functioning of the subject; and (b) that intelligence quotient (IQ) tests have significant limitations. Read the full article (starts on page 5).

“A Practitioner’s Guide to Defending Capital Clients Who Have Mental Disorders and Impairments” by Anne James and Matthew Cross (2006)

Abstract: This manual focuses on the issues arising solely in the representation of persons with mental disorders and impairments in death penalty cases. It does not address the legal excuses for criminal responsibility, the various affirmative defenses such as not guilty by reason of insanity or diminished capacity, available in both capital and non-capital contexts. Clearly, the assertion of such defenses implicates myriad strategic considerations in death penalty cases—most notably, how to resolve the inherent conflict between offering mental health evidence as an excuse in the first phase of a trial and then, if it is rejected for that purpose, arguing that the same evidence is not an excuse, but a reason to spare an individual’s life. In most jurisdictions, insanity defenses may also expose the client to early discovery of defense work product and a wide-ranging evaluation by a prosecution expert. It is simply beyond the scope of this manual to discuss these complex legal and strategic questions. Instead, the manual focuses on the issues unique to capital cases (especially mitigation evidence). Competency questions are addressed because of the unusual ways in which they implicate every phase of capital litigation. Read the full guide.

“Words Without Meaning: The Constitution, Confessions, and Mentally Retarded Suspects” by Morgan Cloudt, George B. Shepherd, Alison, Nodvin Barkoff, and Justin V. Shu, University of Chicago Law Review (2002)

Abstract: The Supreme Court’s Miranda decision rested upon the unverified assumptions that suspects who received the now-famous warnings not only would possess information ensuring that subsequent waivers were “knowing and intelligent,” but also would possess the tools necessary to resist the pressures inherent in custodial interrogation, thus ensuring that confessions were “voluntary.” The flaws in these assumptions are exposed when they are applied to mentally retarded people. The authors of this Article tested a sample of mentally retarded individuals to determine if they could understand the Miranda warnings, then compared these results to those obtained for a control group of nondisabled people. The results show that, in contrast to the nondisabled controls, mentally retarded people simply do not understand the warnings. They do not understand the context in which interrogation occurs, the legal consequences of confessing, the meaning of the sentences comprising the warnings, or even the warnings’ individual words. For mentally retarded people, the Miranda warnings are words without meaning. Read the full article.