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.

The Arc Recognizes Steven Drizin, one of Brendan Dassey’s Attorneys, for Championing Disability Rights Throughout Career

Washington, D.C. – The Arc of the United States has recognized 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 intellectual and developmental disabilities (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, a young man with learning and developmental disabilities, and a central figure in Netflix’s smash docuseries Making a Murderer. The award was presented to Drizin during an event celebrating the creation of The Arc’s Criminal Justice Advisory Panel, the latest addition to the organization’s National Center on Criminal Justice and Disability’s® (NCCJD®) ongoing work to protect the rights of people with intellectual and developmental disabilities involved in the criminal justice system.

Drizin’s law career spans more than 30 years, during which he has become a national expert on false confessions, wrongful convictions, and juvenile justice reform. Drizin and his colleague, Laura Nirider, have been working on the Brendan Dassey case since Dassey was sentenced to life in prison after conviction for first-degree intentional homicide, rape, and mutilation of a corpse at the age of 16.  His conviction was overturned on grounds that his confession was involuntary but later reinstated after an en banc decision of the United States Court of Appeals for the Seventh Circuit. This month, the U.S. Supreme Court will consider whether to hear his case.

“Our justice system is flawed in many ways, but nothing is more cruel, inhumane, and tragic than the way people with intellectual and developmental disabilities can be treated in the process. Steve Drizin has made it his mission to take on many cases in which justice hasn’t been served.  In Brendan Dassey’s case, the work he is doing will have a ripple effect for other people with intellectual and developmental disabilities caught up in a system that can stack the odds against them. For those of us who knew and worked with Bob Perske, giving Steve this award in Bob’s name is a natural fit, as Bob’s passion lives on in those who continue to work toward justice,” said Peter Berns, CEO, The Arc.

The Perske Award was established by The Arc in 2018 to further the legacy of Bob Perske by recognizing individuals who champion the rights of people with I/DD in the criminal justice system. As a former Executive Director of a chapter of The Arc, Perske’s legacy was in volunteering his time to assist defendants with I/DD who were unjustly accused and their defense attorneys. Perske famously fought for more than 25 years to win the freedom of Richard LaPointe, a man with Dandy Walker Syndrome, who was incarcerated for more than 26 years after falsely confessing to a murder he could not have committed.  He also played a critical role in winning the posthumous pardon in 2011 of Joe Arridy, a 23-year-old man with an intellectual disability, executed in 1939 after falsely confessing to a rape and murder he did not commit.

“For more than a decade, Bob was a partner in a shared passion to shed light on the systemic problem of false and coerced confessions. Bob taught me that far too often, it’s people with intellectual and developmental disabilities who are placed in peril during interrogations and in court proceedings simply because actors in our criminal justice system ignore or don’t recognize their disabilities.  Bob’s work, often accompanied by beautiful illustrations from his wife Martha, humanized those with disabilities and spotlighted the many ways in which they were abused.  My respect and admiration for Bob and his work is boundless and difficult to put into words – receiving this award in his name is the greatest honor I could receive, and I thank The Arc for the work it does to fight for change in our criminal justice system for people with disabilities,” said Drizin.

Upon Perske’s passing in 2016, The Arc created The Robert Perske Fund for Criminal Justice to support carrying on his legacy through the work of The Arc and our National Center on Criminal Justice and Disability (NCCJD).

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 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.

About The Arc’s Criminal Justice Advisory Panel

The Advisory Panel is the latest addition to NCCJD’s ongoing work 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. The Advisory Panel is led by Cliff Sloan, partner at  Skadden Arps, whose pro bono litigation experience includes securing a victory for a death row inmate with intellectual disability before the U.S. Supreme Court, and Elizabeth Kelley, a solo practitioner specializing in defending individuals with I/DD and mental health disabilities, and The Arc’s CEO, Peter Berns.

The Arc Responds to Texas Court of Criminal Appeals Ruling in Bobby Moore Case

Washington, DC – Earlier this week, the Texas Court of Criminal Appeals (CCA) ruled that Bobby Moore did not have intellectual disability and could, therefore, be executed in Texas. The 5-3 CCA decision ignored the request of State prosecutors who—in light of last year’s U.S. Supreme Court ruling in Moore v. Texas—urged the CCA to find that Mr. Moore did meet the criteria for intellectual disability and should therefore have his sentence commuted to life in prison rather than be subject to the death penalty in violation of the Eighth Amendment to the U.S. Constitution prohibiting cruel and unusual punishment. 

“The facts in this case are clear—so much so that prosecutors acknowledged that Mr. Moore met the criteria for intellectual disability following the Supreme Court’s decision—and Mr. Moore should therefore be protected by Supreme Court decisions that ban the execution of persons with intellectual disability as cruel and unusual punishment under the Eighth Amendment.  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 legal advocacy efforts to ensure that the Supreme Court’s decisions are upheld and justice is appropriately served,” said Peter Berns, CEO of The Arc.

Last year, the U.S. Supreme Court vacated the CCA’s prior decision finding that Mr. Moore did not meet the criteria for intellectual disability and could be executed based on its use of stereotypical and outdated factors—instead of well-established clinical standards—to determine intellectual disability in death penalty cases. Judge Elsa Alcala who authored the CCA’s dissenting opinion this week, issued a strong rebuke to the majority: “this Court has set forth an unconstitutional standard for intellectual disability that continues to permit consideration of wholly subjective, non-clinical factors and stereotypes…This Court’s approach…is eerily reminiscent of the seven Briseno factors that were held to be unconstitutional by the Supreme Court.”

The Arc of the United States and The Arc of Texas filed an amicus brief with the CCA in support of Mr. Moore, joining a broad range of prominent entities and individuals with diverse perspectives and views on the death penalty who filed briefs urging the CCA to grant relief for Mr. Moore. The Arc’s amicus brief noted that the framework established by the Supreme Court requiring courts to consult clinical standards in making intellectual disability determinations in death penalty cases laid a sound foundation for the CCA to determine that Mr. Moore meets the criteria for intellectual disability and cannot be executed.

In her dissent, Judge Alcala cited The Arc’s amicus brief, noting that it “correctly observe[s] that ‘there is a wide gap between the clinical definition and expectations that many laypeople have about intellectual disability…these ‘common misimpressions include beliefs that people with intellectual disability are essentially identical to one another and that all are incapable of any but the most rudimentary tasks.’”

In its 2002 decision in Atkins v. Virginia, the U.S. Supreme Court recognized the special risk of wrongful execution faced by persons with ID and banned the execution of persons with ID as cruel and unusual punishment under the Eighth Amendment. Subsequently, in Hall v. Florida (2014), 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. Most recently, in Moore v. Texas (2017), the Court rejected 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.”
The Arc has deep sympathy for the family and friends of the victim in this case, and we supported appropriate punishment of all responsible parties. The Arc did 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 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.

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 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 and without regard to diagnosis.

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.

The Arc Responds to Execution of Ledell Lee in Arkansas: “A dark day for justice.”

Washington, DC – On April 20, the state of Arkansas carried out the execution of Ledell Lee, ignoring the pleas of advocates and legal experts across the country.  The Arc had urged Arkansas Governor Asa Hutchinson to commute this death sentence pending a full clinical evaluation to determine whether Mr. Lee had intellectual disability (ID). Following his execution, The Arc released the following statement:

“Today is a dark day for justice not just in Arkansas but across the country. The execution of Ledell Lee betrays the values of our legal system. If an evaluation of Mr. Lee had shown that he had intellectual disability, he would have been granted the protections of Atkins v. Virginia and subsequent Supreme Court decisions – protections that prohibited the use of the death penalty. Governor Hutchinson ignored the advice of legal experts across the country and Mr. Lee’s trial lawyers failed to properly investigate whether he had intellectual disability. These actions combined led to a gross miscarriage of justice that we will not soon forget,” said Peter Berns, CEO of The Arc.

In a letter to the Governor, The Arc noted that the evidence presented by the neuropsychological expert in this case supports the conclusion that if Mr. Lee underwent a full evaluation, he would likely have met the three prongs of an ID diagnosis.

This evaluation was vital in this case because in its 2002 decision in Atkins v. Virginia, the U.S. Supreme Court recognized the special risk of wrongful execution faced by persons with ID and banned the execution of persons with ID as cruel and unusual punishment under the Eighth Amendment. Subsequently, in Hall v. Florida (2014), 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. Most recently, in Moore v. Texas (2017), the Court rejected 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.”

The Arc has deep sympathy for the family and friends of the victim in this case, and we supported appropriate punishment of all responsible parties. The Arc did not seek to eliminate punishment of Mr. Ledell 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.

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.

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.

The Arc on Commutation for Death Row Inmate Abelardo Arboleda Ortiz In the Final Days of Obama’s Presidency

Washington, DC – The Arc commends President Obama for commuting Abelardo Arboleda Ortiz’s sentence from death to life in prison without the possibility of parole. Mr. Ortiz’s diagnosis of intellectual disability should have ruled out the death penalty per a 2002 Supreme Court ruling, Atkins v. Virginia. While the Court’s prohibition of the execution of defendants with intellectual disability could not be clearer, many states continue to define intellectual disability in a manner that significantly deviates from clinical standards, resulting in inconsistent application of Atkins and a miscarriage of justice for many defendants.

“With this decision, President Obama not only ensured justice for an individual with intellectual disability, he also affirmed the Supreme Court’s Atkins v. Virginia and Hall v. Florida rulings. We thank him for ensuring that justice was finally served in this case.

“Sadly, this is one of many cases where an individual with intellectual disability was wrongly being sentenced to death despite the protections promised by the Supreme Court.  We have much work to do to ensure access to justice is accessible for all citizens. The Arc remains committed to ensuring the rights of people with intellectual and developmental disabilities, and we will continue our legal advocacy work to make sure that the Supreme Court ruling on this issue is followed in jurisdictions across the country,” said Marty Ford, The Arc’s Senior Executive Officer of Public Policy.

The Arc has been involved in this case for years, having filed two amicus briefs in support of Mr. Ortiz, the first in 2010 in support of his appeal before the Eighth Circuit Court of Appeals and the second in 2015 in support of his petition for writ of certiorari (request for review of the lower court’s decision) before the United States Supreme Court. Most recently, in December 2016, The Arc submitted a clemency letter to President Obama requesting the commutation of Mr. Ortiz’s sentence.

“In this case, the pursuit of justice was a team effort, and The Arc was a leading player.  At every step of the way, from the circuit court to the Supreme Court, The Arc had Mr. Ortiz’s back, pitching in to draft a key amicus brief and fighting for his rights in support of our legal team. This is the right decision not only for Mr. Ortiz, but for the future of legal advocacy for people with intellectual and developmental disabilities,” said Amy Gershenfeld Donnella, attorney for Mr. Ortiz.

Read more about this case on The Arc’s blog.

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.

Justice For Abelardo Arboleda Ortiz In the Final Days of a Presidency

By Shira Wakschlag | Director, Legal Advocacy & Associate General Counsel for The Arc

“In this case, the pursuit of justice was a team effort, and The Arc was a leading player. At every step of the way, from the circuit court to the Supreme Court, The Arc had Mr. Ortiz’s back, pitching in to draft a key amicus brief and fighting for his rights in support of our legal team. This is a win for not only Mr. Ortiz, but for the future of legal advocacy for people with intellectual and developmental disabilities,” said Amy Gershenfeld Donnella, attorney for Mr. Ortiz.

The Arc is thrilled to announce that President Obama has commuted the sentence of Abelardo Arboleda Ortiz—an individual with intellectual disability—from death to life in prison without the possibility of parole.

The Arc has been involved in this case for years, having filed two amicus briefs in support of Mr. Ortiz, the first in 2010 in support of his appeal before the Eighth Circuit Court of Appeals and the second in 2015 in support of his petition for writ of certiorari (request for review of the lower court’s decision) before the United States Supreme Court. Most recently, in December 2016, The Arc submitted a clemency letter to President Obama requesting the commutation of Mr. Ortiz’s sentence.

In the brief before the U.S. Supreme Court, The Arc argued that:

In implementing this Court’s decisions in Atkins and Hall, both judges and clinicians must carefully evaluate whether a defendant satisfies the clinical definition of intellectual disability according to the consensus of the scientific community…In finding that Mr. Ortiz is not an individual with intellectual disability, the district court mistakenly relied on irrelevant testimony regarding Mr. Ortiz’s adaptive strengths rather than relevant testimony regarding his adaptive deficits, thereby rejecting the scientific community’s well-established guidelines governing intellectual disability. Broad acceptance of the district court’s mistaken reasoning would deprive individuals with intellectual disability of the protections and supports to which they are entitled under state and federal law and the U.S. Constitution.

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 Hall v. Florida and Atkins v. Virginia. In Atkins, the U.S. Supreme Court recognized the special risk of wrongful execution faced by persons with intellectual disability and banned their execution as cruel and unusual punishment under the Eighth Amendment. In its more recent 2014 Hall decision, the Court reinforced its earlier decision that people with intellectual disability not be executed, requiring that consideration of evidence beyond IQ tests be taken into account when determining intellectual disability. While the Court’s prohibition of the execution of defendants with intellectual disability could not be clearer, many states continue to define intellectual disability in a manner that significantly deviates from clinical standards, resulting in inconsistent application of Hall and Atkins and a miscarriage of justice for many defendants.

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. Ortiz 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.

Learn more about The Arc’s legal advocacy work on behalf of people with intellectual and developmental disabilities.