Van TranVan Tran and Beyond and Beyond

Mark OliveMark Olive

Tallahassee, FloridaTallahassee, Florida

WHY NOT EXECUTE PEOPLE WHY NOT EXECUTE PEOPLE WHO SUFFER FROM MR?WHO SUFFER FROM MR?

“Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants.” Atkins

Who else looks like this?Who else looks like this?

AgeAge

Mental IllnessMental Illness

Brain DamageBrain Damage

What Other Reason Was Given for What Other Reason Was Given for AtkinsAtkins??

Evolved standard of decencyEvolved standard of decency

State legislative judgmentsState legislative judgments Public OpinionPublic Opinion International prohibitions on the punishmentInternational prohibitions on the punishment Views of interested organizationsViews of interested organizations Views of religious organizationsViews of religious organizations

How Do You Get 8How Do You Get 8thth and 14 and 14thth Amendment Protection?Amendment Protection?

Have a client who has as significant a Have a client who has as significant a disability as a mentally retarded person, disability as a mentally retarded person, and as severe a handicap when it comes and as severe a handicap when it comes to reliability and fairness (to reliability and fairness (City of CleburneCity of Cleburne))

and/orand/or

Have an evolved standard of decencyHave an evolved standard of decency

Handicap plus standard = protectionHandicap plus standard = protection

You Can Win Either WayYou Can Win Either Way

If you are seriously disabled but there is If you are seriously disabled but there is no evolved standard (30 year old w/head no evolved standard (30 year old w/head injury) (majority has always said it is the injury) (majority has always said it is the final arbiter)final arbiter)

If you are not seriously disabled but there If you are not seriously disabled but there is an evolved standard (16 year old)is an evolved standard (16 year old)

EVOLVED STANDARD BUT NOT EVOLVED STANDARD BUT NOT SERIOUSLY DISABLEDSERIOUSLY DISABLED

Juveniles: Roper v. Simmons and the Juveniles: Roper v. Simmons and the execution of 17 year oldsexecution of 17 year olds

Is every 17 year old disabled? Any more Is every 17 year old disabled? Any more so than some 19 year olds and some 16 so than some 19 year olds and some 16 year olds?year olds?

Every mentally retarded person is Every mentally retarded person is disabled. disabled.

Evolved Standards on Juveniles?Evolved Standards on Juveniles?

We are basically where we were with We are basically where we were with MRMR

State legislative judgmentsState legislative judgmentsOpinions of interested organizationsOpinions of interested organizationsReligious groupsReligious groupsInternational opinion and treatiesInternational opinion and treaties

Except there has not been as much “recent” change.Except there has not been as much “recent” change.

ATKINSATKINS & THE MENTALLY ILL & THE MENTALLY ILL

On its face, much of the reasoning in On its face, much of the reasoning in AtkinsAtkins seems logically to apply to persons seems logically to apply to persons with mental illness and brain impairment.with mental illness and brain impairment.

Attorneys, and some judges and courts Attorneys, and some judges and courts have recognized – but not fully exploited – have recognized – but not fully exploited – this connection.this connection.

Categories?Categories?

Category of 1 (your client)Category of 1 (your client)

Or a broader category, i.e., the psychoticOr a broader category, i.e., the psychotic

CATEGORY OF 1CATEGORY OF 1

1. Mentally retarded but for age of onset1. Mentally retarded but for age of onset

2. A young person (not a juvenile), who is “close” 2. A young person (not a juvenile), who is “close” but not MR, 18 years old with an 80 I.Q.but not MR, 18 years old with an 80 I.Q.

This person will generally This person will generally functionfunction like a juvenile or like a juvenile or an adult with MR.an adult with MR.

The The AtkinsAtkins risks are present. risks are present.

Look for a Constellation of FactorsLook for a Constellation of Factors

The whole disability is greater than the The whole disability is greater than the sum of its parts.sum of its parts.

Cumulative disabilities make you more Cumulative disabilities make you more impaired than the mentally retardedimpaired than the mentally retarded

Other examples: Young and mentally ill; Other examples: Young and mentally ill; mentally ill and low IQmentally ill and low IQ

A Category of More Than One: A Category of More Than One: The Mentally Ill? Evolved The Mentally Ill? Evolved

Standard?Standard?

No states prohibit itNo states prohibit it

A couple of judges have advocated itA couple of judges have advocated it

Polling data?Polling data?

Organizations?Organizations?

Jury verdicts?Jury verdicts?

No evolved standard, but it could be begun.No evolved standard, but it could be begun.

On the Other Hand…..On the Other Hand…..

In a number of states, proportionality review is In a number of states, proportionality review is used to reduce the death sentences of the used to reduce the death sentences of the mentally mentally

other states do not have the DPother states do not have the DP

And virtually every capital sentencing state And virtually every capital sentencing state contains the statutory mitigator of substantial contains the statutory mitigator of substantial impairment failing short of a defense impairment failing short of a defense

AtkinsAtkins language and disability language and disability

The The AtkinsAtkins Court held that DP for persons Court held that DP for persons with MR does not further deterrence with MR does not further deterrence because of their “diminished capacities to because of their “diminished capacities to understand and process information, to understand and process information, to communicate, to abstract from mistakes communicate, to abstract from mistakes and learn from experience, to control and learn from experience, to control impulses and to understand the reactions impulses and to understand the reactions of others.”of others.”

More Disability LanguageMore Disability Language

The The AtkinsAtkins Court said that the DP for persons Court said that the DP for persons with MR does not further retribution becausewith MR does not further retribution because

Persons with MR have “diminished capacities to Persons with MR have “diminished capacities to understand and process information, to communicate, understand and process information, to communicate, to abstract from mistakes and learn from experience, to abstract from mistakes and learn from experience, to control impulses and to understand the reactions of to control impulses and to understand the reactions of others.”others.”

Retribution has been limited to ensuring that “only the Retribution has been limited to ensuring that “only the most deserving of execution are put to death.” most deserving of execution are put to death.”

Risk of Wrongful ConvictionsRisk of Wrongful Convictions

The The AtkinsAtkins Court held that persons with MR have: Court held that persons with MR have:

Increased risks of giving false confessionsIncreased risks of giving false confessions Difficulties in communicating with counselDifficulties in communicating with counsel A lesser ability to testify on effectively on their own A lesser ability to testify on effectively on their own

behalfbehalf

Also due to their demeanor, MR persons may Also due to their demeanor, MR persons may “create an unwarranted impression of lack of “create an unwarranted impression of lack of remorse” which could lead the jury to believe that remorse” which could lead the jury to believe that the D poses a risk of future danger.the D poses a risk of future danger.

Too Broad: Other Possible Too Broad: Other Possible CategoriesCategories

Psychotic Disorders (based on the DSM IV Psychotic Disorders (based on the DSM IV – schizophrenia, certain delusional – schizophrenia, certain delusional disorders, etc.) disorders, etc.)

SevereSevere mental illness. mental illness.

ATKINSATKINS AND THE MENTALLY AND THE MENTALLY ILLILL

On its face, much of the reasoning in On its face, much of the reasoning in AtkinsAtkins seems seems logically to apply to persons with mental illness.logically to apply to persons with mental illness.

Bryan v. MullinBryan v. Mullin (10 (10thth Cir. 2003) (dissenting op. SCT’s logic Cir. 2003) (dissenting op. SCT’s logic applies to those with “severe mental deficiencies”)applies to those with “severe mental deficiencies”)

Corcoran v. StateCorcoran v. State, 774 NE 2d 495 (Ind. 2002) (Rucker J., , 774 NE 2d 495 (Ind. 2002) (Rucker J., dissenting) (Atkins rationale is “just as compelling” for dissenting) (Atkins rationale is “just as compelling” for prohibiting the execution of the “seriously mentally ill”)prohibiting the execution of the “seriously mentally ill”)

State v. NelsonState v. Nelson, 803 A2d 1 (NJ 2002) (Zappala, J. , 803 A2d 1 (NJ 2002) (Zappala, J. concurring) (“lesser culpability” of seriously mentally ill D is concurring) (“lesser culpability” of seriously mentally ill D is indistinguishable from MR D).indistinguishable from MR D).

People v. Danks, 32 Cal.4th 269 (Cal. 1994)(Kennard, J., concurring and dissenting).

“If defendant's doctors are right, defendant's mental deficiencies are comparable in severity to mental retardation. In Atkins, the Court held that to execute the mentally retarded is cruel and unusual punishment, reasoning that retarded persons ‘have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.’ Id. at 318. The same mental capacities are impaired in a person suffering from paranoid schizophrenia, and the impairment may be equally grave.”

Nelson, 803 A.2d 1 (N.J. 2002) (Zazzali, J., concurring).

“I agree with defendant that her execution for crimes that are inextricably bound to her mental illness violates our State Constitution. The State’s legitimate penological interests that purportedly are served by the death penalty are unconstitutionally diminished if the State executes such a mentally ill and psychologically disturbed person.”

Very Popular Today: FASVery Popular Today: FAS

Fetal Alcohol Spectrum DisordersFetal Alcohol Spectrum Disorders Most individuals with a FASD (80%) – even FAS – are Most individuals with a FASD (80%) – even FAS – are

not MR not MR In fact, having an IQ above 70 and a FASD puts the person In fact, having an IQ above 70 and a FASD puts the person more at risk.more at risk.

But they have most of the deficits in judgment, But they have most of the deficits in judgment, reasoning, impulse control.reasoning, impulse control.

Autism Spectrum DisordersAutism Spectrum Disorders Many individuals with a ASD will also not be MR. Many individuals with a ASD will also not be MR.

Some, in fact, may be quite high functioningSome, in fact, may be quite high functioning

30 40 50 60 70 80 90 100 110 120 130 1400

2

4

6

8

10

12

Fre

qu

ency

Full-scale IQ Scores

FAS

Normal

Frequency Distribution of IQ Scores

Brain Dysfunction

Damage to the brain is the most serious consequence of prenatal alcohol exposure, producing life-long permanent behavioral disorders

difficulty with abstract thinking problems with sequencing, processing, organizing information difficulty generalizing information from one setting to another inability to change behavior depending on situation poor short term memory difficulty understanding cause-effect relationships difficulty in predicting outcomes chronic poor judgment

CNS Dysfunction:CNS Dysfunction:Common Neurobehavioral Deficits Common Neurobehavioral Deficits With Prenatal Exposure to Alcohol With Prenatal Exposure to Alcohol

HyperactivityHyperactivity

ImpulsivityImpulsivity

Attention deficitsAttention deficits

Learning and memory deficitsLearning and memory deficits

Poor spatial and motor coordinationPoor spatial and motor coordination

Impaired social abilityImpaired social ability

Deficits in executive functionDeficits in executive function

Normal child Child with FAS

Corpus Callosum Agenesis