The Forgotten Class:

Eighth Amendment Litigation and the Path to Criminal Justice for the Mentally Disabled

Jacqueline Hillman | April 2021

Inside the Santa Monica City Jail, Santa Monica, CA


hen most of us imagine incarceration, we may think of depictions of prison from popular media like Piper Chapman’s stint in Litchfield Penitentiary in Netflix’s Orange is the New Black. Those of us operating with a bit more pragmatism likely hold a far less romantic view, perhaps shaped by hearing news stories about horrifying conditions or instances of prison abuse and violence. Regardless of your individual perspective on what life looks like for a felon, it is virtually impossible for any of us to understand the experience of an intellectually or developmentally disabled individual attempting to navigate an incarceratory environment.


The United States is one of only 53 countries that continues to practice capital punishment, and 52 capital punishment challenges, primarily complaints of Eighth Amendment violations, have been raised in our nation, dating back to 1879. Supreme Court decisions limiting the imposition of the death penalty for various groups including Thompson v. Oklahoma, Coker v. Georgia, Enmund v. Florida, and Ford v. Wainwright all precede the landmark case Atkins v. Virginia. Decided in 2002, the Atkins decision declared the death penalty unconsitutional under the Eighth Amendment, prohibiting the infliction of cruel and unusual punishments for mentally disabled offenders. This case became a beacon of hope for the intellectually disabled subjected to the shortcomings of our criminal justice system. For centuries prior, both legal executions and genocidal eugenics, such as the Holocaust’s handicapped experiments, subjected countless people to mistreatment, torture, and stigmatization prior to this victory.


Atkins v. Virginia


Daryl Atkins was convicted in Virginia for armed robbery, abduction, and capital murder in 1996. In the original trial, the defense’s case against the death penalty relied on the testimony from a forensic psychologist that Atkins was mentally disabled. The state rebutted this claim and Atkins was sentenced to death. The Virginia Supreme Court upheld Penry v. Lynaugh, decided in 1989, sustaining Atkins’ sentence of the death penalty. 


The Supreme Court oral argument for the plaintiff revolved around the fact that 18 states had individually ratified legislation prohibiting the death penalty for the mentally disabled. Interestingly, in oral argument, James Ellis, arguing for passage of federal legislation prohibiting the death penalty, clearly stated that while federal prohibition would ensure the right for these individuals not to be executed, it would be left to the state to define what constitutes a mental disability.


The Atkins decision was momentous. It acknowledged that Atkins’ crime was proportional to one warranting a death penalty sentence; however, his intellectual incapacity precluded him from having an identical sentence enforced. The majority opinion took into consideration not only the constitutionality of the argument, but also public opinion surrounding views of intellectual deficits as well as data surrounding sentencing and jury involvement in similar cases. 


IQ as a Problematic Metric


In the original Atkins case, the Virginia Supreme Court relied on Atkins’ IQ score to determine a death sentence. Historically, IQ, or intelligence quotient, is an insufficient and limited scope of determining someone’s intellectual faculties. According to a journal article published by Ajitha Reddy in the DePaul Law Review, there has existed a close tethering of IQ to negative eugenics, including sterilization and pseudoscience. Race purification through eugenics seeped into intellectual purification, manually selecting against those who may have had the same, if not greater intellectual capacities, including individuals suffering from autism spectrum disorder, but who were limited socially and behaviorally. The notion of genetic supremacy, concentrated into a pseudoscientific field, distorted the IQ test greatly.  


Furthermore, the DSM 5 definition for various intellectual and developmental disabilities does not solely rely upon IQ as a determining factor of differing levels of severity of disability. The AAIDD (American Association on Intellectual and Developmental Disabilities) also purports a clinical evaluation to more adeptly measure deficits including evaluation of practical life skills relating to inter-social activities, functional self-care, and academic areas. The AAIDD also takes into consideration the age of onset, requiring the emergence of disability to be before adulthood.


With this framework in mind, when rulings are based on incomplete medical determinations, ignoring other key disability determinants, the courts operate with incredibly poor judicial acumen. Not only are IQ cut-off points arbitrary, but the premise of a single determinant of intelligence, especially one colored with a history of prejudice and subjugation, perpetrates injustice for the mentally disabled.


Only last year, the true danger of these evaluations was revisited in the Supreme Court case Moore v. Texas. Bobby J. Moore shot and killed a store clerk in a robbery in 1980. The question of the rigidity of IQ measurements to determine intellectual capacity was brought before the Supreme Court first in 2015, where the Court determined that the Texas Court of Appeals used  archaic standards in upholding Moore’s sentence, failing to  include an up-to-date medical definition of mental retardation. Following this decision, Mr. Moore’s fate was again left in the hands of the Texas judiciary, which again ruled he was not in fact mentally disabled. Consequently, the case was brought again before the Supreme Court, which cited identical errors and lapses in medical judgement. 


This series of rulings, though convoluted, illustrates the beauty and promise of our tiered judicial system in its ability to intervene and seek justice for Mr. Moore. Consequently, countless other disabled individuals will not be subjected to the same constrictions of rigid testing and noncomprehensive rulings.


Beyond IQ and the Death Penalty: Limitations on Access to Prison Abuse Litigation


The abolition of the death penalty for intellectually disabled individuals, however, does not remedy the plethora of criminal justice issues that continue to plague disabled inmates. One such issue concerns pathways for disabled inmates to seek justice for prison abuses they incur, resulting from their unique vulnerability in the prison population and the severe lack of knowledge and training possessed by correctional officers regarding proper incident management.


David Fathi asserts that, because prisons are “closed environments” and prisoners are a “powerless population,” mistreatment is often inflicted and prisoners cannot always effectively defend their rights. Unlike the United Kingdom or countries that have ratified the Optional Protocol to the Convention against Torture, the United States has no regulatory body to oversee the protection of prisoners against abuses. Fathi argues that it is for this reason that “the main vehicle for official oversight of conditions in U.S. prisons and jails historically has been the federal courts.”


This oversight, however, is severely limited by the 1996 Prison Litigation Reform Act, or PLRA, which requires prisoners to take their complaints through “all levels of a prison’s or jail’s grievance system,” additionally requiring proof of a physical injury for compensation and limiting attorneys fees should a suit be won. The PLRA in particular highlights the many cases of prison abuse that could be lost to prejudicial processes before they qualify for suit, along with barriers to proper representation given attorney fee limitations. 


The intellectually disabled population, along with children, is especially at risk for discrimination in these processes, because legal representation is not guaranteed in prison grievance protocols. Moreover, the Supreme Court decision in Lewis v. Casey permits the substitution of “adequate law libraries” for “adequate assistance from persons trained in the law,” leading to prisoners often studying in prison law libraries for self-representation or seeking legal assistance from one another. The resulting effect of the Lewis v. Casey decision presents another barrier that vulnerable disabled populations could uniquely face, especially those with lower IQs or other mental incapacities. With these barriers in mind, it is reasonable to conclude that there are cases that have not reached courtrooms that illustrate unequal treatment and prevent constitutional access to the courts for the intellectually disabled. 


Our democracy is fundamentally built on the principle of equality. The 14th Amendment explicitly states that citizens are entitled to “equal protection of the laws.” However, our system also permits the suspension of certain rights under conditions of incarceration. Despite these limitations, the Eighth Amendment protects offenders from “cruel and unusual punishment.” Unfortunately, the reality of the prison system often muddies the true application of these idealistic protections, barring them from being universally upheld. 


In Conclusion


Nelson Mandela once stated, “It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.” The term “lowest” itself is a value judgement, composed of the individuals we deem dangerous to society, making incarceration a necessity. But there exists a subgroup within this population that is subject to an especially pervasive lack of consideration for their needs and fundamental rights: disabled offenders. It is by studying the treatment of this most vulnerable subgroup that the true degree of democracy in our country may be determined. Given the continued legal barriers and hurdles blocking access to justice for the mentally disabled, there is still much work to be done in ensuring the promise of the Constitution to all Americans, regardless of mental ability. 

Jacqueline Hillman is a sophomore at the University of Michigan studying Philosophy, Politics, and Economics in the LSA Honors Program. Her writings interests include disability policy, environmental law, cybersecurity, and economic development. Jackie grew up in the San Francisco Bay Area and enjoys dancing, hiking, and mastering various rap verses in her free time.