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.