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.