Disability Pride Month Series: ​“National Treasure” Professor James W. Ellis

This July, in honor of Disability Pride Month, the Death Penalty Information Center is posting 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. 

Distinguished Professor of Law James W. Ellis has spent his career defending the rights of individuals with intellectual and developmental disabilities (I/DD), including arguing the landmark case Atkins v. Virginia before the U.S. Supreme Court. Since 1985, Professor Ellis has filed over 20 amicus briefs in U.S. Supreme Court cases involving the rights of people with I/DD. He has also represented disability organizations and taught law students for more than 40 years.  

After earning his law degree in 1974 at the University of California, Berkeley, Professor Ellis worked at the Bazelon Center for Mental Health in Washington, D.C. Professor Ellis then joined the faculty of the University of New Mexico School of Law as a law professor in 1976 where he taught courses on constitutional law, criminal law, and mental disability law. He has also worked as a law reporter for the American Bar Association’s Criminal Justice Mental Health Standards project and served as the president of the American Association on Intellectual and Developmental Disabilities (AAIDD) (then known as the American Association on Mental Retardation) from 1989 to 1990. 

In 1989, Professor Ellis and a team of UNM students and faculty filed an amicus brief in Penry v. Lynaugh in which the U.S. Supreme Court considered whether individuals with I/DD possess the moral culpability to be sentenced to death. Johnny Paul Penry, a Texas man with the mental age of seven years old, had been convicted of murder and rape and sentenced to death by a jury that was not instructed that it could consider the mitigating circumstances of Mr. Penry’s intellectual disability in imposing its sentence.  

The Court in Penry decided that while the jury should have been instructed that it could consider I/DD as a mitigating circumstance, there was not enough evidence of a national consensus against executing individuals with I/DD to conclude that his execution would violate the Eighth Amendment’s prohibition of cruel and unusual punishments. At the time, the only states that had outlawed the death penalty for individuals with I/DD were Georgia and Maryland. But over the next twelve years, aided by Professor Ellis’ extensive writings on mental health and law, 19 more states exempted individuals with I/DD from being executed.  

In 2002, Professor Ellis argued before the U.S. Supreme Court in Atkins v. Virginia on behalf of Daryl Renard Atkins, a Virginia death row prisoner with intellectual disability. It was his first and only United States Court argument. Virginia’s Supreme Court had upheld Mr. Atkins’ death sentence, relying on Penry v. Lynaugh. But by a 6-3 majority, the U.S. Supreme Court in Atkins overruled Penry and held that the execution of people with intellectual disability violates the Eighth Amendment. In doing so, the Court recognized the special vulnerability of people with intellectual disability, including the risk of wrongful conviction, and their reduced culpability because of their mental impairment. This same rationale was used just three years later to exclude juveniles from death penalty eligibility in Roper v. Simmons.  

For his efforts resulting in the landmark victory in Atkins, The National Law Journal selected Professor Ellis as 2002’s Lawyer of the Year. “It’s kind of like if you’re in the World Series,” said Robert Lee of the Virginia Capital Representation Resource Center at the time. “You’re in the bottom of the ninth and you get to pick anyone you want to come to the plate. Jim has just been a leader in disabilities law virtually all of his professional life. There was an obvious expertise and awareness of the history of this issue that is truly unparalleled.” 

While Atkins marked a significant achievement for intellectual disability advocates, the Court left the definition of intellectual disability and related legal procedures to individual states, prompting years of additional litigation.  

One such case was Hall v. Florida in 2014, a Supreme Court case that disallowed Florida’s use of brightline IQ scores to define intellectual disability. Another case was Moore v. Texas in 2017, a case that overruled the Texas Court of Criminal Appeals’ use of outdated definitions for determining I/DD. Professor Ellis led teams from UNM in filing amicus briefs in both of these cases. In Hall, Professor Ellis contributed to the Supreme Court’s finding that the use of rigid IQ score cutoffs to define intellectual disability creates “an unacceptable risk that persons with intellectual disability will be executed,” and thus is unconstitutional. In Moore, the Court sided with Professor Ellis, finding that Texas’ use of non-scientific standards (Briseño factors) was unconstitutional and inconsistent with Atkins. 

“These so-called ‘Briseño factors’ use inaccurate and arbitrary standards to diagnose intellectual disability in death penalty cases,” Professor Ellis said of the Moore decision in 2017. “All of the Supreme Court justices, including the dissenting justices, agreed with the points made in our brief about the Briseño factors… Texas cannot ignore science in determining intellectual disability.” 

“Professor Ellis is a national treasure,” said Kevin Washburn, then-Dean of UNM School of Law, in 2011. “He has been a resource for litigants and attorneys across the country and a quiet hero, really, to countless mentally disabled people, most of whom will never know his name or understand the impact that he has made in their lives.” 

Each time Professor Ellis filed a brief with the U.S. Supreme Court, Federal Appellate Courts, or State Supreme Courts, he did so with a team of UNM students and faculty. Professor Ellis retired from teaching in 2018 and was celebrated and thanked by his students and colleagues for his wit, wisdom, and kindness. He has remained a valuable resource for litigators and researchers during his retirement.