Disability Pride Month Series: How Mitigation Specialists Help Protect Intellectually Disabled Defendants

In honor of Disability Pride Month (July), the Death Penalty Information Center posted a weekly feature highlighting issues related to the death penalty and disability and profiles of individuals who have played key roles in changing the laws to protect prisoners with disabilities. This final post focuses on the role of mitigation specialists. 

Capital mitigation specialists assist defense attorneys when preparing for capital trials and post-conviction appeals by conducting a thorough, independent investigation of a client’s life history. They work with legal counsel to ensure that defendants receive high quality, zealous representation, and with the hope of achieving a more compassionate sentence outcome by helping tell the defendant’s life story to draw on the empathy of judges and jurors. Mitigation is not exclusive to capital cases, but it is crucial in death penalty cases where there is a life at stake. This is why the American Bar Association Guidelines for defense counsel representation and the Supplementary Guidelines for the Mitigation Function require at least one mitigation specialist on every defense team in capital cases. As part of this series, the Death Penalty Information Center spoke with capital mitigation specialists about their work representing clients, specifically in terms of investigating intellectual disability. 

In Atkins v. Virginia (2002), the United States Supreme Court held that people with intellectual disabilities are not eligible for the death penalty. Unfortunately, the evidence is clear that despite this decision, people with intellectual disability have continued to be sentenced to death and executed. That is because many capital defendants do not have access to high quality legal representation and because some state laws are so narrowly drawn that “proving” ineligibility is extremely difficult.  

Because the evidentiary burden falls on the defense, it is imperative that the defense team thoroughly investigates the client’s background with the assistance of capital mitigation specialists. One Texas capital mitigation specialist says that she commonly encounters intellectual disability in her post-conviction work. “You have to think about who ends up getting prosecuted for capital crimes,” she said. She explained that death eligible cases often involve defendants who have never had access to resources and who have been disadvantaged in every aspect of their lives. For these reasons and others, she said, people with intellectual disabilities are disproportionately likely to be sentenced to death.   

When asked about her approach to cases, one mitigation specialist said that clients “all have [intellectual disabilities] until they don’t” – meaning that a disability is never ruled out until the investigation is complete. Evidence is collected by examining school and medical records, family history, and testimony from friends and loved ones who can speak to the defendant’s functioning during their developmental period. This process can sometimes be difficult, she said, because those close to a defendant may be reluctant to speak about them in a way that seems negative. In these situations, it is helpful to reassure family members that their candid recollections will assist the defendant by helping them tell an honest version of his life.  

The greatest challenge in proving intellectual disability is when a client is so severely impaired that they cannot assist in their own defense. This challenge complicates the goal of gathering and presenting evidence of the client’s impairments within the three relevant categories (cognitive, social, and practical) as well as a standard IQ test score ranging between 70 and 75.

The overrepresentation of persons with intellectual disabilities on death row is not unique to Texas. A 2016 report by the Fair Punishment Project found that 40% of death sentences in Clark County, Nevada “involved defendants with mitigation evidence similar in severity to the impairments that render a person categorically ineligible for the death penalty.” And around 25% of executions reviewed in this report “involved defendants with intellectual impairment, brain damage, or severe mental illness.”

In 2021, a review committee examining California’s death row found that the largest death row in the country contained at least 60 individuals with credible claims of intellectual disability. Half of California death row prisoners do not have legal representation during the phase of appeals when these claims are initially raised, so this number is likely significantly higher. 

Prior to the U.S. Supreme Court’s 2017 decision in Moore v. Texas, the Texas Court of Criminal Appeals used what it called the “Briseño factors” to evaluate intellectual disability claims following Atkins. These factors, based in part on the stereotypical portrayal of intellectual disability in the character Lennie Small in John Steinbeck’s Of Mice and Men, were not scientifically or medically based and allowed for defendants with significant mental impairments to be unconstitutionally sentenced to death and executed.  Texas’ new standards for proving intellectual disability are grounded in science and recognize that people who qualify for protection from capital punishment may not resemble “a grown man, a clumsy giant…[with] the mind of a child,” such as Lennie from Of Mice and Men. Although this new criteria is more closely aligned with medically diagnostic standards, serious concerns remain that the protections for Texas defendants with intellectual disability are inadequate.