The Arc Responds to Appointment of Judge Kavanaugh to the US Supreme Court

 

Today, The Arc responded to Judge Brett Kavanaugh’s appointment to the United States Supreme Court. In August, The Arc came out in opposition to Judge Kavanaugh’s appointment to the highest court based on his decisions on cases involving self-determination of individuals with intellectual and developmental disabilities (I/DD), education, employment, and his stances on the Affordable Care Act and school choice.

The Arc has not publicly opposed a nominee to the Supreme Court in 30 years, since 1987 when Judge Robert Bork was nominated by President Ronald Reagan. When Judge Gorsuch was nominated to the highest court, The Arc did a thorough analysis of his record and decided to not oppose his appointment. The Arc solely takes positions based on the core values, mission statement, position statements, and public policy agenda for the organization.

“The Arc is disappointed in the Senate’s confirmation of Judge Kavanaugh, this is a devastating blow to disability and civil rights in our country. After a thorough analysis of Judge Kavanaugh’s record we chose to oppose his appointment and activate our grassroots network. Our organization was founded to promote and protect the human rights of people with intellectual and developmental disabilities. We couldn’t sit by idly knowing that Judge Kavanaugh has demonstrated a disregard for the impact of his judicial philosophy on the lives of people with disabilities and their families time and time again.

“Particularly concerning is his opinion in Doe. V. Tarlow, a case where women with intellectual disability who resided in the District of Columbia’s Forest Haven institution brought a class action lawsuit against the District for violating their due process rights. The District, through its developmental disabilities agency, consented to subject them to non-emergency surgical procedures, including abortions and eye surgeries, without even talking to them and their family members. Judge Kavanaugh’s ruling is disturbing in his apparent lack of appreciation for the humanity of individuals with intellectual disability, their basic human rights, and their ability and right to participate in important life decisions even when found legally unable to make decisions by themselves.

“We believe Judge Kavanaugh’s appointment poses a threat to the civil rights of millions of individuals with intellectual and developmental disabilities and their families. It is shocking that so many Senators ignored the gaps in Judge Kavanaugh’s knowledge and understanding of the value and perspectives of people with intellectual disability. Even more disheartening is those Senators who ignored the pleas of their constituents with disabilities who called on them to oppose Judge Kavanaugh’s appointment. We appreciate those who stood up for their constituents, their support did not go unnoticed. We remain united with our colleagues across the disability and civil rights communities and will continue our advocacy to support the values we hold dear as an organization,” said Peter Berns, CEO of The Arc.

The Arc Partners with the Vera Institute of Justice on National Initiative to Improve Police Responses to Persons with Mental Health and Developmental Disabilities

People living with mental health disabilities and/or intellectual and developmental disabilities (I/DD) are disproportionately represented in contacts with law enforcement and other first responders, as well as in every part of the criminal justice system, including jails and prisons. While people with I/DD comprise 2 to 3 percent of the general population, they represent 4 to 10 percent of the prison population.

Interactions with law enforcement can be extremely harmful to community members with disabilities. These interactions are also challenging for responding officers, who do not always have the tools or resources to understand disability. Conservative estimates show that at least 10 percent of calls to police involve people who have mental health disabilities and that 50 to 80 percent of police encounters involve persons with some type of disability. In response to this critical need, the Vera Institute of Justice—in cooperation with the Bureau of Justice Assistance (BJA) and in partnership with a consortium of organizations, including The Arc—is launching Serving Safely: The National Initiative to Enhance Policing for Persons with Mental Illnesses and Developmental Disabilities. This new initiative is designed to promote collaborative responses for people with mental health disabilities and I/DD who come into contact with the police to improve outcomes and the safety of all parties.

Through Serving Safely, The Arc, Vera, BJA, and other partners will work together to minimize unnecessary detention and incarceration of persons with mental health and developmental disabilities, strengthen connections to community-based supports and services, and grow meaningful partnerships between law enforcement agencies and the communities they serve.

The Arc has a long history of work in the criminal justice field and is thrilled to be partnering with Vera on this project. In 2013, The Arc created the National Center on Criminal Justice and Disability® (NCCJD®). This is the first national center of its kind serving as a bridge between the I/DD community and criminal justice community that focuses on both victim and suspect/defendant/incarcerated person issues. The Center provides training and technical assistance; resources for professionals, people with disabilities, and their supporters; and educates the public about the intersection of criminal justice reform and the advancement of disability rights. Pathways to Justice®, NCCJD’s signature training curriculum, is a comprehensive, community-based training program that helps criminal justice professionals—including law enforcement—understand disability, disability culture, and professionals’ legal obligations toward the disability community.

NCCJD is building the capacity of the criminal justice system to respond appropriately to gaps in existing services for people with disabilities, focusing on people with I/DD, who often remain a hidden population within the criminal justice system, with little or no access to advocacy supports or services. Vera will be partnering directly with the experts and staff that run NCCJD on Serving Safely.

Other key partners on the project include:

  • American College of Emergency Physicians
  • CIT International
  • National Alliance on Mental Illness
  • National Disability Rights Network
  • Prosecutors’ Center for Excellence
  • Dr. Amy Watson, University of Illinois, Chicago
  • Dr. Michael Compton

Serving Safely has already started to accept requests from law enforcement agencies for training and technical assistance at www.vera.org/projects/serving-safely/training-and-technical-assistance. If you are interested in learning more about The Arc’s role in the Serving Safely initiative, please email NCCJDinfo@thearc.org.

About The Arc
The Arc advocates for and serves people wit­­h intellectual and developmental disabilities (I/DD), including Down syndrome, autism, Fetal Alcohol Spectrum Disorders, and cerebral palsy. The Arc has a network of nearly 650 chapters across the country promoting and protecting the human rights of people with I/DD and actively supporting their full inclusion and participation in the community throughout their lifetimes.

About the Vera Institute of Justice
The Vera Institute of Justice is an independent nonprofit national research and policy organization working with governments to build and improve justice systems that ensure fairness, promote safety, and strengthen communities. For more information about Serving Safely and the Vera Institute of Justice, see www.vera.org/projects/serving-safely.

The Arc Responds to Supreme Court Decision to Decline Review of Brendan Dassey Case

Washington, DC – Washington, D.C. – Today, The U.S. Supreme Court declined to grant review of Dassey v. Dittman. Brendan Dassey, a young man with social, learning, and developmental disabilities, was a central figure in Netflix’s smash docuseries, Making a Murderer He was sentenced to life in prison at the age of 16 after conviction for first-degree homicide, rape, and mutilation of a corpse based solely on his confession – no physical evidence linked him to the crime.

Dassey appealed the conviction on the grounds that his confession was involuntary. The Wisconsin Court of Appeals rejected this argument and affirmed Dassey’s conviction. A federal district court and a divided panel of the Seventh Circuit Court of Appeals held that this rejection warranted habeas relief, but by a 4-3 vote, the en banc Seventh Circuit disagreed. Dassey’s attorneys then made an appeal to the U.S. Supreme Court. Now that the U.S. Supreme Court has declined to review the case, Dassey may spend the rest of his life in prison.

The Arc, the nation’s largest civil rights organization for people with intellectual and developmental disabilities (I/DD) and their families, released this statement following the news that the nation’s highest court will not review Dassey’s case:

“This is a sad day for Brendan Dassey and his family, as well as our criminal justice system. The U.S. Supreme Court’s decision to not review this case means that Brendan will likely serve life in prison based solely on a dubiously obtained confession.

“The U.S. Supreme Court has not addressed the issue of false confessions by juveniles in almost four decades. There has been significant growth of knowledge and understanding of how adolescents can be more susceptible to authority figures, coercion, and misleading tactics in the last four decades.  This is particularly true for individuals with intellectual and developmental disabilities.

“Brendan Dassey has already been incarcerated for over a decade, solely on the basis of an unreliable confession. Now the reality of life in prison for a crime there is no physical evidence he committed is sinking in. Sadly, our prisons and jails hold many Brendan Dasseys, too often forgotten, some not even recognized as being robbed of justice. We have a responsibility to ensure everyone in our country accesses justice the same way, which is why we must acknowledge the gaps in justice many are facing. The Arc will continue fighting for the rights of people with intellectual and developmental disabilities, and in the aftermath of this case we will only increase our efforts to ensure that justice is appropriately served,” said Peter Berns, CEO of The Arc.

While people with intellectual and developmental disabilities comprise 2% to 3% of the general population, they represent 4% to 10% of the prison population. Those accused of crimes they did not commit often face the greatest injustices of all, some losing their lives when coerced into giving false confessions. Long before Brendan Dassey’s case hit mainstream media, Robert Perske, respected author, advocate, and long-time supporter of The Arc, compiled a list of people with intellectual disability who gave false confessions to begin documenting these otherwise hidden-away cases.

Earlier this month, The Arc’s Criminal Justice Advisory Panel was launched. The panel is the latest addition to the organization’s National Center on Criminal Justice and Disability’s® (NCCJD®) ongoing advocacy to protect the rights of people with I/DD involved in the criminal justice system. During this event, The Arc presented, Steven Drizin, Clinical Professor of Law at Northwestern University Pritzker School of Law’s Center on Wrongful Convictions of Youth, with The Perske Award for championing the rights of people with I/DD in the criminal justice system. Drizin was presented the award for a lifetime of work on justice reform for youth and people with disabilities and his representation of Brendan Dassey

Established in 2013, NCCJD is the only national center of its kind serving as a bridge between the I/DD community and criminal justice community that focuses on both victim and suspect/defendant/inmate issues. The center provides training and technical assistance, resources for professionals, people with disabilities, and their supporters, as well as educates the public about the intersection of criminal justice reform and the advancement of disability rights. Pathways to Justice,® NCCJD’s signature training tool, is a comprehensive, community-based training program facilitated through chapters of The Arc that helps criminal justice professionals understand their legal obligations toward the disability community, and includes the topic of false confessions. NCCJD is building the capacity of the criminal justice system to respond appropriately to gaps in existing services for people with disabilities, focusing on people with I/DD, who often remain a hidden population within the criminal justice system, with little or no access to advocacy supports or services.

About The Arc

The Arc advocates for and serves people wit­­h I/DD, including Down syndrome, autism, Fetal Alcohol Spectrum Disorders, and cerebral palsy. The Arc has a network of nearly 650 chapters across the country promoting and protecting the human rights of people with I/DD and actively supporting their full inclusion and participation in the community throughout their lifetimes.

About The Arc’s Criminal Justice Advisory Panel

The Advisory Panel is the latest addition to NCCJD’s ongoing advocacy to protect the rights of people with I/DD involved in the criminal justice system. It brings together legal professionals who share The Arc’s mission to protect and promote the civil rights of people with I/DD and will help expand NCCJD’s crucial advocacy.

Kecia’s #MeToo Story

WARNING: This article contains descriptions of sexual assault

Individuals with disabilities are seven times more likely to be victims of sexual assault than those without disabilities. Kecia, sexual assault survivor-turned-advocate, is one of those individuals. She was raped, but justice was denied to her because of the failings of our criminal justice system. This is her story, in her words.

Kecia #MeTooI met this man at a self-advocacy meeting and we had very similar hobbies. I invited Michael back to my house to play chess with me. As soon as Michael entered my house, he started to kiss me and then drag me towards the couch where he proceeded to rape me.

I called the police after Michael left to report the rape. They sent a female investigator to take my report. After asking me questions, the investigator told me they would interview Michael about the rape and get back with me. Michael lied and said I wanted to have sexual contact with him. I was informed by a detective later in the week that the case closed since it was a “he said/she said” incident. For the record, I absolutely didn’t want to have any sexual contact with Michael whatsoever.

Shaken up, I called my social service agency for help and reported the rape to my case manager. My case manager listened and filled out a Special Incident Report (SIR) without offering any additional support.

I checked back with my case manager but she didn’t respond back to me for many days. I had to keep calling her to get a response. I never received a copy of the SIR report.

I am unaware if my case manager reported my rape to APS because I never received a visit from a social worker. I am totally unaware if my case manager told anyone else about my rape because once she took my report, she simply stopped responding to me.

The system had totally failed me—law enforcement, my case worker, and the case management agency. As a result of the system failing to help me, I sunk into a deep depression for several years with very severe physical and psychological events.

I am healthy today because I was referred to an excellent in-patient program with specialized therapy and a structured follow up that continues today. I have been in recovery for three years and have gained strength and found my voice so I can speak of the rape incident now.

Today I am an Abuse Awareness Prevention Advocate with the earnest desire to help other individuals rise from abusive situations and become stronger, like I am. It is because of the rape incident that I am a very strong person and I love to help others.

Kecia’s #MeToo story is a stark reminder that society needs to be discussing the very real risk individuals with disabilities are facing every day, every hour, and every minute in this country. This month, NPR released a powerful series on sexual assault and disability that included testimony from survivors – completely in their own words.

This series is drawing national attention to the epidemic facing individuals with disabilities, and we must keep the momentum on this issue going. Only then will we be able to change these jarring statistics and make systemic changes to ensure no victim has to suffer alone. All victims must have a way to tell their stories when they are ready, to be heard and believed, and to get the help they need to move from victim to survivor – just like Kecia did.

Kecia is helping others speak out and get help in many ways. One way is by supporting the work of The Arc’s National Center on Criminal Justice and Disability® (NCCJD®). Kecia is a National Advisory Committee Member and is working with NCCJD to ensure people with intellectual and developmental disabilities have equal access to the justice system, and that criminal justice professionals are well-trained to understand disability issues. She is also featured in the Talk About Sexual Violence project, which is a compilation of short videos for health care professionals to help them know how to talk to women with disabilities about sexual violence.

Every person has a role to play to STOP sexual assault and violence in the lives of people with disabilities. That includes you.

To support The Arc’s efforts, please contact us to learn how you can get involved in the #MeToo movement for people with disabilities. Share your story, engage leaders in your community, or make a donation.

The Arc Responds to New Report Exposing Abuse and Neglect of Individuals With Disabilities in Group Homes

Washington, DC – At the request of Congress, the U.S. Department of Health and Human Services Office of Inspector General investigated states’ monitoring and reporting of injuries and other critical incidents of people with disabilities living in group homes. Following the investigation, a report was issued that cited numerous incidents of abuse of people with intellectual and developmental disabilities in group homes. The report found that up to 99% of these critical incidents were not reported to the appropriate law enforcement or state agencies as required. Below is The Arc’s response to the report:

“We are grateful to the Department of Health and Human Services, Office of Inspector General for its report that draws attention to critical incident reporting in group homes and provides states the tools to address the health and safety of individuals with intellectual and developmental disabilities (I/DD) in their communities. Abuse, neglect, and injuries to people with disabilities must be taken seriously, reported to the appropriate law enforcement or state agencies, and prosecuted as appropriate for crimes committed. System failures must be addressed to ensure improvements.

“The OIG report is certainly cause for alarm and signals the need for rededication and reinvestment to ensure that everyone has the freedom to live safe from harm in their communities. It is important to highlight and appropriately address such jarring results, however, we are concerned that some see this as a call for returning to the time when people with I/DD were placed in institutions and hidden away from the community. This report only focuses on group homes, not on the whole service system including institutions, the narrowness of the report must be taken into consideration and the report must not be used to eliminate options for community living.

“Throughout The Arc’s history we have fought for community inclusion for individuals with disabilities. Everyone deserves the right to choose where and with whom they live and it has been proven that people with disabilities thrive when living, working, and enjoying life in the community with their peers. We remain steadfast in our commitment to ensure that the services people with disabilities rely on for inclusion remain intact because community supports are critical. When people live in their communities they are visible and their neighbors and friends look out for them and know when something is wrong. We must make no mistake, it is life in the community that really is safest,” said Peter Berns, CEO of The Arc.

The Arc advocates for and serves people wit­­h intellectual and developmental disabilities (I/DD), including Down syndrome, autism, Fetal Alcohol Spectrum Disorders, cerebral palsy and other diagnoses. The Arc has a network of over 650 chapters across the country promoting and protecting the human rights of people with I/DD and actively supporting their full inclusion and participation in the community throughout their lifetimes and without regard to diagnosis.

#MeToo: Helping Women with Intellectual and Developmental Disabilities Talk Openly About Sexual Violence with Health Care Professionals

Sexual Violence Healthcare ProfessionalPrompted by recent news events, women everywhere are speaking up and sharing accounts of sexual violence. Social media feeds have been so inundated with tales of unwanted personal sexual encounters that it has sparked an online media campaign, punctuated by #MeToo. However, women with disabilities may face greater barriers to talking about their own experiences on social media or elsewhere. That’s why, before this hashtag went viral, The Arc’s National Center on Criminal Justice and Disability® (NCCJD®) and The Board Resource Center (BRC) teamed up to highlight the alarming rate of sexual assault among women with intellectual and developmental disabilities (I/DD). Just this fall these two organizations, with the assistance of a one-year grant from The WITH Foundation, unveiled the Talk About Sexual Violence webpage that includes videos and other resources dedicated to building the capacity of health care professionals to empower female patients with I/DD to talk about and prevent sexual assault.

Research shows that nationally, 1 in 5 women without disabilities are sexually assaulted. However, women with disabilities face even grimmer statistics. According to the Bureau of Justice Statistics, the rate of violent victimization (which includes rape or sexual assault) of people with disabilities is more than three times higher than the rate for people without disabilities. A related survey conducted in 2012 found that out of over 7,000 respondents, only 37.3% of people with disabilities reported any type of victimization to authorities. Many societal factors have allowed this disturbing pattern to continue, including inexperience among health care professionals in broaching the topic of victimization in ways that are accessible and culturally competent for everyone.

Recognizing that health care professionals are in frontline positions to educate their patients about sexual violence, NCCJD® and BRC created easy-to-use resources to address this issue. The materials provide straightforward guidance on how to start a simple, direct and honest conversation with female patients about an all too common experience, and include two short videos: “How to Have the Conversation” and “Kecia Meets with Her Doctor”, available in both English and Spanish. Accompanying the videos are a variety of supplemental materials, including training and communication guides.

These resources are invaluable in the fight against sexual violence of women with I/DD, but the first line of defense is simply believing woman with I/DD when they disclose sexual assault, and listening to their experiences. The goal of The Arc’s Talk About Sexual Violence project is to support women with I/DD to be heard, believed, and supported by receiving prompt and effective medical care and healing services. Every woman deserves a safe environment to honestly admit “MeToo,” and to protect herself from sexual violence.

The Arc Brings Disability Perspective to Police-Led Hate Crimes Advisory Committee

Hate Crimes Panel Group

Leigh Ann Davis, Chief Will Johnson with Arlington Police Department (TX), Peter Berns, Ariel Simms

Since 2013, The Arc’s National Center on Criminal Justice and Disability® (NCCJD®) has served as a bridge between the disability and law enforcement communities, and is the first-of-its-kind national clearinghouse for information and training on the topic of people with I/DD as victims, witnesses, suspects and incarcerated persons. The Arc’s work to elevate these issues led to the opportunity to attend and present at the 2017 International Association of Chiefs of Police (IACP) national convention in Philadelphia, Pennsylvania. While at the conference, staff, including CEO of The Arc Peter Berns, participated in the initial “Enhancing the Response to Hate Crimes” Advisory Committee meeting co-hosted by IACP and the Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee). In attendance were law enforcement and civil rights leaders, such as The Anti-Defamation League; the Baltimore Police Department; The Leadership Conference on Civil and Human Rights, and many others from across the country who met to develop an achievable action agenda to improve the criminal justice system’s response to hate crimes. According to the FBI, 1.2% of hate crime victims were targeted because of disability in 2015. Many disability advocates find this statistic misleadingly low, as individuals with I/DD frequently cite barriers to reporting crimes committed against them. In 2015, NCCJD explored these barriers and potential solutions in its white paper, Violence, Abuse and Bullying Affecting People with Intellectual/Developmental Disabilities: A Call to Action for the Criminal Justice Community.

“We are proud to lead a committee of such outstanding leaders who are coming together to invest their time and effort into breaking down barriers and strengthening the relationship between law enforcement and the communities that are too often the targets of hate crimes,” said Lawyers’ Committee President and Executive Director Kristen Clarke.

Hate Crime Advisory Panel

The Arc’s NCCJD staff presented with Chief Will Johnson and Melissa Bradley with DOJ’s COPS Office on applying procedural justice to situations involving people with disabilities

At this first in a series of four meetings, members began to develop key principles for improving the response to hate crimes. The committee also discussed the many legal, economic, emotional, social, and safety issues that arise in the wake of hate incidents and hate crimes, as well as proposed recommendations on appropriate responses.

Subsequent meetings will continue to solicit input from additional law enforcement and civil rights leaders as well as community members targeted for hate crimes. The committee will use this input to craft an action agenda for community and law enforcement leaders, which will ultimately improve the safety of communities targeted by hate. The Arc is thrilled to participate in this important work, as the organization continually strives to raise awareness among law enforcement and other agencies about the high rate of victimization in the disability community (for more information about training for criminal justice professionals see www.nccjdpathwaystojustice.org). Furthermore, The Arc’s National Center on Criminal Justice & Disability works to ensure that any reporting efforts related to hate crimes (and other crimes) include effective outreach methods for people with I/DD who remain traditionally underserved and overlooked in today’s criminal justice system.

RE: Clemency for Ledell Lee

Dear Governor Hutchinson:

I write on behalf of The Arc of the United States (The Arc) to urge you to commute the death sentence of Ledell Lee pending a full clinical evaluation to determine whether Mr. Lee has an intellectual disability (ID). The Arc is a national non-profit organization which, for over 65 years, has sought to promote and protect the civil and human rights of individuals with intellectual and developmental disabilities through the work of its national office and over 650 state and local chapters throughout the country. Through its National Center on Criminal Justice and Disability®, The Arc seeks justice for those with ID who find themselves entangled in the criminal justice system, often without necessary accommodations or understanding of their disability.

The Arc has deep sympathy for the family and friends of the victims in this case, and we support appropriate punishment of all responsible parties. However, Mr. Lee’s history is replete with evidence indicating a potential ID diagnosis, which would bring him under the protection of the United States Supreme Court’s decisions in Atkins v. Virginia, 536 U.S. 304 (2002), Hall v. Florida, 134 S. Ct. 1986 (2014), and the more recent decision in Moore v. Texas, No. 15–797, slip op. (U.S. Mar. 28, 2017).

In its 2002 Atkins decision, the U.S. Supreme Court recognized the special risk of wrongful execution faced by persons with ID (formerly termed “mental retardation”) and banned the execution of persons with ID as cruel and unusual punishment under the Eighth Amendment, noting that individuals with ID “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct” and that “[n]o legitimate penological purpose is served by executing a person with intellectual disability…to impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being.” In its 2014 Hall decision, the U.S. Supreme Court further clarified its decision that people with ID not be executed in violation of the Constitution, requiring that adaptive behavior evidence, beyond IQ test scores alone, be taken into account when determining whether an individual has ID. The more recent Moore case further confirms adaptive behavior criteria as necessary in determining whether someone meets diagnostic criteria for ID, and that such criteria must comport with modern clinical and scientific understanding of ID.

The evidence presented by the neuropsychological expert in this case, Dr. Dale Watson, supports the conclusion that if Mr. Lee undergoes a full evaluation, he will likely meet the three prongs of an ID diagnosis: (1) significantly impaired intellectual functioning; (2) adaptive behavior deficits in conceptual, social, and practical adaptive skills; and (3) origination of the disability before the age of 18. In order to complete his analysis, Mr. Lee’s adaptive deficits and history during the developmental period (before age 18) need to be fully assessed. Individuals with ID—like everyone else—differ substantially from one another. For each person with ID there will be things he or she cannot do but also many things he or she can do. Because the mixture of skill strengths and skill deficits varies widely among persons with ID, there is no clinically accepted list of common, ordinary strengths or abilities that would preclude a diagnosis of ID. Thus, the focus in assessing an individual’s adaptive behavior must be on deficits. As recently confirmed in Moore, adaptive strengths are irrelevant to this analysis and IQ alone cannot paint a full picture of whether a person has an ID. Thus, we urge that Mr. Lee receive a full evaluation for ID to determine whether he may be eligible for the Atkins constitutional protection from the death penalty.

Given the high likelihood of ID in this case, it is troubling that the lawyers who represented Mr. Lee throughout his trial failed to properly investigate evidence of Mr. Lee’s potential ID. As a result, no evidence of Mr. Lee’s potential disability was presented to the jury during the sentencing phase of his trial. If a full evaluation confirms Mr. Lee’s suspected diagnosis of ID, then Mr. Lee’s death sentence violates current prohibitions against cruel and unusual punishment as set forth in the U.S. Supreme Court decisions in Atkins, Hall, and Moore.

The Arc does not seek to eliminate punishment of Mr. Lee or others with disabilities, but rather, to ensure that justice is served and the rights of all parties are protected. The Arc is committed to seeking lawful outcomes for people with ID and will continue working to ensure that the U.S. Supreme Court rulings on this issue are abided by in jurisdictions across the country. I humbly ask that you consider commutation to address the possibility of an unconstitutional miscarriage of justice in the case of Ledell Lee.

Most respectfully,

Peter V. Berns
Chief Executive Officer
The Arc of the United States

The Arc Applauds Supreme Court’s Decisive Rejection of Texas’ “Wholly Nonclinical,” “Outlier” Standards in Determining Intellectual Disability

By: Shira Wakschlag, Director of Legal Advocacy & Associate General Counsel
       Ariel Simms, Criminal Justice Attorney Fellow

In decisively rejecting these “Briseno factors,” the Court embraces the standards-based approach in determining intellectual disability for which The Arc has long advocated. When it comes to matters of life and death, there is simply no room for courts to ground their determinations of intellectual disability in outmoded and baseless stereotypes.

On Tuesday, in the third decision in favor of people with disabilities in the Supreme Court this term, the Court issued a 5-3 decision authored by Justice Ruth Bader Ginsburg in the death penalty case Moore v. Texas. The opinion rejects Texas’ use of stereotypical and outdated factors—rather than well-established clinical standards—to determine intellectual disability in death penalty cases on the grounds that they “create an unacceptable risk that persons with intellectual disability will be executed.” This is a major victory in protecting the rights of individuals with intellectual disability in the criminal justice system and in fulfilling the promise of two Supreme Court cases setting the standard that execution of people with intellectual disability is unconstitutional (Hall v. Florida (2014) and Atkins v. Virginia (2002)).

In Atkins, the Court held that executing defendants with intellectual disability violated the Eighth Amendment’s ban on cruel and unusual punishment. Subsequently, in Hall, the Court rejected an arbitrary cutoff for IQ scores in making the intellectual disability determination and emphasized the importance of courts consulting clinical standards in their analysis. While the Court’s prohibition of the execution of defendants with intellectual disability could not be clearer, some states continue to define intellectual disability in a manner that significantly deviates from clinical standards, resulting in a miscarriage of justice for many defendants.

In this case, Bobby Moore, was convicted of killing a store clerk at the age of 20 in a botched robbery along with two accomplices. He was sentenced to death and challenged that sentence on the grounds of intellectual disability. In 2014, a state habeas court ruled that Moore did meet the criteria for intellectual disability and recommended that the Texas Court of Criminal Appeals (CCA) reduce Moore’s sentence to life in prison or grant him a new trial on the intellectual disability claim. On appeal, however, the CCA ruled that Moore did not meet the criteria for intellectual disability, finding that the lower court had failed to apply the seven-factor test laid out in an earlier Texas opinion, Ex Parte Briseno. The “Briseno factors” rely on stereotypes—rather than clinical definitions—through “the consensus of Texas citizens” in defining intellectual disability and are partly based on the character of Lennie in John Steinbeck’s Of Mice and Men. Using these factors, the CCA found that, among other things, Moore’s ability to live on the streets, mow lawns, and play pool for money precluded a finding of intellectual disability and disregarded several IQ tests Moore had taken with scores in the intellectual disability range.

Decisively rejecting this ruling and referring to the Briseno factors as “wholly nonclinical” and an “invention of the CCA untied to any acknowledged source,” the Supreme Court held unanimously that such factors are impermissible to use in defining intellectual disability in death penalty cases. The Court noted that the Briseno factors were an “outlier” and that Texas did not employ this unscientific approach in determining intellectual disability in any legal issues other than the death penalty: “Texas cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual’s life is at stake.”

Even Justices who disagreed with other aspects of the ruling (Chief Justice John Roberts, Justice Samuel Alito, and Justice Clarence Thomas) agreed that the Briseno factors “are an unacceptable method of enforcing the guarantee of Atkins.” They disagreed that the CCA had erred in its determination of Moore’s intellectual functioning. The dissent criticized the majority opinion for its reliance on clinical standards as opposed to legal interpretation and precedent, noting: “clinicians, not judges, should determine clinical standards; and judges, not clinicians, should determine the content of the Eighth Amendment. Today’s opinion confuses those roles.”

With the American Association on Intellectual and Developmental Disabilities, The Arc filed an amicus brief in August 2016 in support of Moore and The Arc’s attorneys attended oral arguments at the Court in November 2016. The brief, cited in the Court’s opinion, argued that the state of Texas had distorted the clinical definition of intellectual disability by devising a formula of exclusionary factors that rested heavily on stereotypes and the mistaken notion that an ability to do things like engage in relationships, work, and live in the community precluded a finding of intellectual disability based on simultaneous limitations or challenges. Specifically, the brief noted that the “basic framework of the clinical definition is the constitutionally required standard for determining whether a defendant has intellectual disability.” Jim Ellis, a Distinguished Professor at the University of New Mexico School of Law who represented The Arc in this case said: “The Arc of the United States and its state chapters have played a vital role in protecting the rights of people with intellectual disability” in death penalty cases.

In decisively rejecting these “Briseno factors,” the Court embraces the standards-based approach in determining intellectual disability for which The Arc has long advocated. When it comes to matters of life and death, there is simply no room for courts to ground their determinations of intellectual disability in outmoded and baseless stereotypes.

The Arc has deep sympathy for the family and friends of the victim in this case, and we support appropriate punishment of all responsible parties. The Arc does not seek to eliminate punishment of Mr. Moore or others with disabilities, but rather, to ensure that justice is served and the rights of all parties are protected. The Arc is committed to seeking lawful outcomes for people with intellectual disability and will continue working to ensure that the U.S. Supreme Court rulings on this issue are abided by in jurisdictions across the country.

New Project Announcement: The Arc’s National Center on Criminal Justice and Disabilities® (NCCJD) and The Board Resource Center (BRC)

Building Capacity of Primary Care Providers to Discuss Sexual Violence with Women with Intellectual/Developmental Disabilities

Introduction

In September of this year, The Arc’s National Center on Criminal Justice and Disability® (NCCJD) was awarded a one-year grant from The Special Hope Foundation. Working with The Board Resource Center, a California-based consulting firm, this funding will be used to teach health care professionals about how to address and help prevent sexual violence against women with intellectual/ developmental disabilities (I/DD).

Background

This project will address the alarmingly high rate of sexual violence experienced by women with I/DD. About 20% of all women are sexually abused each year. However, women and girls with developmental disabilities are four to ten times more likely to face sexual abuse. Up to 68% of women with developmental disabilities will be abused before they are 18, and up to 90% will experience abuse during their lives (Valenti-Hein, D. & Schwartz, L. 1995).

Health care providers are in a unique position to have open dialogue about sexual violence prevention with their female patients. However, many times they do not have experience talking about victimization with women with I/DD in a manner that is accessible and culturally competent for all. In order for providers to have meaningful conversations about the high risk of violence people with I/DD face, they need training on effective ways to provide patients with safe environments to share their experiences, often for the first time.

By learning how to use effective plain language communication strategies, they can provide a safe place for women to share openly. These strategies can improve communication with all patients, since plain language strategies apply to a number of different populations who struggle with comprehension of information. Ultimately, this project will improve health care delivery by giving providers effective tools to support women with I/DD to discuss or disclose sexual violence.

Project Objectives

This project, funded by The Special Hope Foundation, builds the capacity of primary care providers to discuss the high risk of sexual violence women with I/DD face. It will equip providers with training and tools to create safe, open, and accessible conversations about what sexual violence is and what women can do to report it or stop it from happening. Together, and under the guidance of an advisory committee, we will achieve the following objectives to decrease the incidence of sexual violence: 1) Develop two training videos and materials on discussing sexual violence with female patients. 2) Disseminate tools to health care organizations, regional centers, advocacy groups, and people with I/DD and their families, ultimately reaching 500,000 individuals. 

Both The Arc and The Board Resource Center have a shared vision that emphasizes accessibility, education, and empowerment for people with I/DD.
 

References

Valenti-Hein, D. & Schwartz, L. (1995). The sexual abuse interview for those with developmental disabilities. James Stanfield Company. Santa Barbara: California.