Intellectual Disability

Alabama Faith Leaders Hold Panel on Death Penalty, Spotlight 'Rocky' Myers' Case of Possible Innocence

Inspired by the case of Robin "Rocky" Myers (pictured), an intellectually disabled and possibly innocent Alabama death row prisoner whom an elected state judge sentenced to death despite a 9-3 jury recommendation for life, a panel of faith leaders gathered in Montgomery, Alabama to discuss religious views on the death penalty and the intersection of faith and justice. Before the discussion began, the faith leaders and the audience viewed a screening of a new documentary on Myers' case describing why his lawyers believe he is innocent. The documentary explained that no forensic evidence links Myers to the crime and that the prosecution witness who identified him has since recanted his testimony. Myers' case also highlights other problems in the death penalty system. A neuropsychologist who evaluated Myers diagnosed him with intellectual disability, a condition that would make him ineligible for execution, but courts have not granted him relief. His disability hindered Myers' opportunities to have his appeals heard. His attorney abandoned him without notice, and Myers, who cannot read, did not know his appeal deadlines had expired until a fellow inmate read him a notification letter from the state. Finally, Myers' jury voted 9-3 that he should be sentenced to life, but—in a practice no state other than Alabama still allows— the trial judge overrode the jury's recommendation and sentenced Myers to death. After the film presented Myers' story, leaders from a variety of faith traditions led a discussion about justice and capital punishment. The multi-faith panel included representatives of Christianity, Judaism, and Islam and featured Rabbi Elliot Stevens, Sister Gilda Marie Bell, a Catholic nun of the Sisters of the Blessed Sacrament, and Aya Zaied, a youth leader for the East Montgomery Islamic Society. Zaied summarized Islamic views on the issue, saying, "If you claim Islam, … then justice is your responsibility. We try to teach that to our children really young so they understand if (someone is) hurting, then I’m hurting. We’re all in this together."

REPORT: 5 Florida Counties Disproportionately Impose Death Penalty Against Seriously Mentally Impaired Defendants

Nearly two-thirds of death row prisoners in five Florida counties whose cases were studied by Harvard University's Fair Punishment Project suffer from serious mental impairments. According to a report released by the project on January 12, 2017, the Florida Supreme Court's December 2016 ruling in Mosley v. State requires reconsideration of the sentences imposed on approximately 150 people on Florida's death row who were sentenced to death after the U.S. Supreme Court decided RIng v. Arizona in 2002. Based on Ring, Florida's death sentencing procedures were later ruled unconstitutional. Nearly one-third of the death sentences in question were imposed in just five Florida counties: Duval, Miami-Dade, Hillsborough, Orange, and Pinellas. The Fair Punishment Project report examines the 48 death sentences from those counties that involved non-unanimous jury recommendations of sentence or waivers of jury sentencing proceedings, and finds that in 63% of those cases, the defendants "exhibit signs of serious mental illness or intellectual impairment, endured devastatingly severe childhood trauma, or were not old enough to legally purchase alcohol at the time the offense occurred." Those impairments, the report argues, makes the death penalty disproportionate for those defendants. Defendants in more than a third of the cases (35%) had low IQ scores or traumatic brain injury that left them with deficits similar to people with intellectual disability, whose diminished culpability makes them constitutionally ineligible for the death penalty. Approximately 1/5th of the 48 defendants presented symptoms or diagnoses of severe mental mental illness; approximately 23% had experienced severe childhood or emotional trauma; and 6 were under the age of 21 at the time of the offense. More than a quarter—such as Victor Caraballo, who was sentenced to death in Miami-Dade County despite an "extensive history of mental illness," as well as serious trauma stemming from "child abuse, incest, and neglect"—had overlapping impairments from multiple categories. The report concludes, "These findings have raised a legitimate question as to whether Florida’s capital punishment scheme–even one with a unanimous jury requirement– is capable of limiting application of the death penalty to the most culpable offenders."

REPORT: Two-Thirds of Oregon's Death Row Have Mental Impairments, History of Severe Trauma, or Were Under 21 at Offense

Most of the prisoners on Oregon's death row suffer from significant mental impairments, according a study released on December 20, 2016 by the Fair Punishment Project at Harvard University. The Project's analysis of case records, media reports, and opinions of Oregon legal experts found that two-thirds of the 35 people on the state's death row "possess signs of serious mental illness or intellectual impairment, endured devastatingly severe childhood trauma, or were not old enough to legally purchase alcohol at the time the offense occurred." The report argues that these characteristics make the prisoners less culpable than the average offender. "[T]he U.S. Supreme Court has held that regardless of the severity of the crime, imposition of the death penalty upon a juvenile or an intellectually disabled person, both classes of individuals who suffer from impaired mental and emotional capacity relative to typically developed adults, would be so disproportionate as to violate his or her 'inherent dignity as a human being,'" the report says, drawing parallels between those classes and the prisoners included in the report. The study found that 9 of the 35 death row prisoners (26%) "presented evidence of significantly impaired cognitive functioning as evidenced by low IQ scores, frontal lobe damage, and fetal alcohol syndrome"; approximately one in four exhibited symptoms of mental illness, or had a confirmed mental health diagnosis; one-third suffered some form of severe childhood or emotional trauma of the sort known to affect brain development; and six (17%) were under the age of 21 at the time of the offense. In one case, an Oregon death row prisoner was granted a hearing to determine whether he is intellectually disabled after evidence showed he has a psychotic disorder, partial fetal alcohol syndrome, visible brain defects in his corpus callosum, a low IQ, and deficits in adaptive behavior that left him functioning at the level of a seven-and-a-half-year old child. His co-defendant, a childhood friend who admitted that he had exerted pressure on the first defendant to participate in the crime, was given a life sentence. The report concludes, "These findings raise a legitimate question as to whether Oregon’s capital punishment scheme is capable of limiting application of the death penalty to the most culpable offenders." Oregon currently has a moratorium on executions, and has executed just two people in 40 years.

U.S. Supreme Court Hears Argument in Texas Intellectual Disability Case

During argument November 29 in the case of Moore v. Texas, the U.S. Supreme Court expressed skepticism about Texas' idiosyncratic method of deciding whether a capital defendant has Intellectual Disability and is therefore ineligible for the death penalty. A trial court, applying the criteria for Intellectual Disability established by the medical community, found that Bobby James Moore (pictured) was not subject to the death penalty. However, the Texas Court of Criminal Appeal reversed that ruling in 2015, saying that Moore did not qualify as intellectually disabled under Texas' “Briseño factors” (named after the Texas court decision that announced them), an unscientific seven-pronged test based in part on the character Lennie Smalls from John Steinbeck's "Of Mice and Men." Moore's attorney, Clifford Sloan, argued that "Texas is very extreme and stands alone" in rejecting clinical standards used by the medical community to determine Intellectual Disability and replacing them with “nonclinical” and “anti-scientific” criteria. Five justices seemed sympathetic to Moore's case, raising concerns about the arbitrariness of allowing states to set their own criteria for deciding who is intellectually disabled. Justice Ruth Bader Ginsburg said, "You're opening the door to inconsistent results ... something that we try to prevent from happening in capital cases." Justice Stephen Breyer said that, without nationwide uniformity, there will be "disparities and uncertainties" and "people who are alike treated differently." Justices Elena Kagan and Sonya Sotomayor questioned whether application of the Briseño factors excluded some individuals whom clinicians would regard as being intellectually disabled. Justice Anthony Kennedy asked Texas Solicitor General Scott Keller whether the purpose of Texas' system was to "really limit" the definition of intellectual disability. When Keller said that was not the intent, Kennedy asked, "But isn't that the effect?" The Court is expected to rule on the case by June 2017.

NEW VOICES: Special Olympics Chair Urges Supreme Court to Strike Down Texas' 'Horrific' Criteria for Determining Intellectual Disability

Timothy Shriver (pictured), the Chairman of the Special Olympics, has called on the U.S. Supreme Court to end Texas' "use of stigmatizing stereotypes" in determining whether a defendant has Intellectual Disability and is therefore ineligible for execution. On November 29, the Court will hear argument in Moore v. Texas, a case challenging Texas' use of the “Briseño factors”—a set of unscientific criteria based in part on the fictional character of Lennie Smalls from the novel "Of Mice and Men"—to determine whether capitally charged prisoners have significant impairments in adaptive functioning that could qualify them for an Intellectual Disability diagnosis. In a column in TIME magazine, Shriver called Texas' method of adjudicating Intellectual Disability "horrific." He wrote, "[t]he inaccurate Texas standard reinforces one of the most damaging stereotypes about people with intellectual disability—that they can’t be 'good' at anything." In Moore's case, the judge relied on the fact that Moore was able to play pool and earned money mowing lawns as evidence that he did not really have an intellectual disability. Shriver applauded the Supreme Court's 2002 decision, Atkins v. Virginia, which barred the death penalty for defendants with Intellectual Disability. His article highlights some of the reasons people with Intellectual Disability should be exempt from execution: "people with intellectual disabilities have abilities but also challenges: they are less able to advocate for themselves; more likely to be coerced into behaviors they don’t understand; less likely to understand the implications of their actions and at higher risk for unreliable trials and wrongful convictions." Shriver encouraged the Court to bolster that protection by ending Texas' practices, which he said contravene established medical and clinical criteria: "It’s time for the Supreme Court to remind our nation that the Constitution and the vision of rights it embodies have no place for ill-informed and deadly stigmas."

OUTLIER COUNTIES: Non-Unanimous Jury Verdicts Highlight Systemic Flaws in Pinellas County, Florida Death Penalty

Pinellas County, Florida ranks among the 2% of counties responsible for more than half of all prisoners on death rows across the United States and among the 2% of counties responsible for more than half of all executions conducted in this country since 1977. The five death sentences imposed in Pinellas between 2010 and 2015 also place it, along with three other Florida counties, among the 16 U.S. counties with the highest number of new death sentences in the country. One major reason for Pinellas' status is the high number of death sentences it has imposed after juries returned non-unanimous sentencing recommendations, an outlier practice that the Florida Supreme Court recently declared unconstitutional. All six of the Pinellas death sentences the Florida Supreme Court reviewed on direct appeal from 2006-2015 involved non-unanimous juries. Only two of those cases garnered the 10 juror votes in favor of death that would have permitted a death verdict to be imposed under 2016 amendments to Florida law that attempted to address another constitutional flaw in the statute. The non-unanimity provisions facilitated the extremely harsh use of the death penalty by Pinellas' prosecutors against defendants with significant mental health problems. Five of these 6 death sentences were directed at defendants with serious mental illness, brain damage, or intellectual impairment; and one was directed as an emotionally disturbed defendant who -- at only few months past 18 years old at the time of the offense -- was barely constitutionally eligible for the death penalty. According to a report by Harvard University's Fair Punishment Project, none of the other 15 outlier counties who have produced the most death sentences in the U.S. since 2010 imposed it so disproportionately against mentally impaired defendants. This prosecutorial overreaching occurred against a backdrop of racial bias and bad defense lawyering. In the cases mentioned above, every defense attorney presented a day or less of mitigating evidence at trial. The trial judge sentenced Richard Todd Robard to death after a 7-5 jury vote; a 6-6 vote would have spared his life. But Robard's lawyer, Richard Watts, decided not to present evidence of his client's brain damage and mental health problems because he didn't think the jury would be swayed by "brain abnormalities." Amid other evidence of racially imbalanced law enforcement practices in the county, 60% of the defendants sentenced to death since 2010 were black and 67% of the victims in cases in which the death penalty was returned were white.

Florida Supreme Court Rules Intellectual Disability Decision Applies Retroactively

The Florida Supreme Court has ruled that death-row prisoners who had unsuccessfully argued that they are ineligible for the death penalty because of intellectual disability must be provided a second chance to prove their claims. On October 20, the Court decided in Walls v. State that Florida must retroactively apply the U.S. Supreme Court’s 2014 decision in Hall v. Florida, which declared Florida’s procedures for determining intellectual disability to be unconstitutional. Prisoners whose intellectual disability claims had been denied under the standard rejected in Hall will now be given new opportunities to present their claims. In that case, the U.S. Supreme Court ruled that Florida’s outlier practice categorically barring a prisoner from presenting evidence supporting his intellectual disability claim if his IQ score was above 70 violated the Eighth Amendment’s prohibition against cruel and unusual punishment. Writing for the Court in Hall, Justice Kennedy explained this strict IQ cut-off requirement “disregards established medical practice” and “contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world.” The Hall Court held that “[i]ntellectual disability is a condition, not a number”; and therefore the determination of intellectual disability must not only consider a standard error of measure regarding IQ scores, but also consider adaptive functioning, which requires a “conjunctive and interrelated assessment.” The Florida Supreme Court recognized that “[t]he rejection of the strict IQ score cutoff increases the number of potential cases in which the State cannot impose the death penalty, while requiring a more holistic review means more defendants may be eligible for relief.” The decision could affect thirty prisoners on Florida’s death row. Like Florida, the Kentucky Supreme Court has also found Hall to apply retroactively. That court reaffirmed its retroactivy decision in White v. Kentucky, also decided on October 20.

Georgia Prepares to Execute John Conner Despite Evidence of Intellectual Impairment, Traumatic Upbringing

Georgia is continuing with preparations to execute John Conner (pictured) on July 14 after the state's Board of Pardons and Paroles denied his clemency petition and the Georgia Supreme Court denied him a stay of execution. In the clemency proceedings, Conner's attorneys presented evidence that he is intellectually disabled and that he was raised in poverty and extreme violence in a home filled with chronic drug and alcohol abuse and in which sexual and emotional abuse were the norm. Conner's lawyers wrote that, at a young age, he was "indoctrinated into a life that normalized drugs, alcohol, and violence, so much so that he drunkenly beat a friend to death in reaction to a lewd comment." They also said Conner's teachers had identified him as intellectually disabled. Conner's inexperienced trial attorney failed to present any evidence at trial or in the sentencing hearing and his appellate lawyer was not provided any resources to investigate his case. As a result, his lawyers said, neither the jury nor the state appellate courts heard any mitigating evidence of his intellectual impairments and horrifying upbringing, which they say might have changed the jury's sentencing decision. Though a federal court later ruled that his evidence of intellectual impairment did not reach the level of disability that would render him ineligible for execution, his lawyers argued that the court did not consider the mitigating aspects of his intellectual impairments or whether "Mr. Conner's poverty-, violence-, and trauma-filled family background ... should have justified a sentence less than death." On July 12, the Georgia Supreme Court declined to review Conner's claim that his execution more than 34 years after being sentenced to death constitutes cruel and unusual punishment and voted 5-2 to deny him a stay of execution. [UPDATE: Georgia executed Conner shortly after midnight on July 15. It was the sixth execution conducted by the state in 2016, more than in any previous calendar year since executions were allowed to resume in 1976.]

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