NADD Bulletin Volume VIII Number 1 Article 2

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In memory of John Jacobson, Ph.D.: On the Mitigating Nature of Intellectual Disability (ID) in the Offender with Developmental Disability

George S. Baroff, Ph.D.

Introduction

In 1998, the author published a paper for defense lawyers working with ID defendants (mentally retarded) in criminal cases (Baroff, 1998). Focused on ID defendants facing the death penalty, its intent was to show that major cognitive impairment is always "mitigating," that is, always meriting consideration as a basis for a lesser punishment in convicted offenders. In making this argument, since mooted by the recent Supreme Court decision that outlawed capital punishment for offenders with mental retardation (Atkins v. Virginia, 2002), I sought to communicate to the criminal defense bar the general vulnerabilities of ID defendants in the criminal justice system. The paper dealt with a number of important issues: (1) the nature of mental retardation; (2) distinguishing between mental retardation and mental illness; (3) indicating signs of the disability to which attorneys and their investigators should be sensitive; (4) issues of "competency"-- to confess, to stand trial, and plead guilty; and (5) sentencing. With regard to "sentencing," it is the view here that mental retardation necessarily reduces the level of culpability or personal blameworthiness. This update of the 1998 paper is directed to mental retardation and mental health professionals, those to whom the criminal justice system looks to for assistance in understanding the accused with intellectual disability.

A clinical psychologist and not an attorney, the author has a lengthy history in the field of mental retardation where he has published two textbooks (Baroff, 1991; Baroff & Olley, 1999), conducted numerous forensic evaluations of ID defendants since 1987, and served as an "expert witness" in criminal cases involving these individuals. In the forensic role, I've acquired some familiarity with the workings of the criminal justice system and with the vulnerabilities to it of the ID accused. I've taken particular interest in their understanding of their competency to waive their Constitutional rights against self-incrimination ("Miranda rights"), and confess to capital murder (e.g., Baroff & Freedman, 1988, Baroff, 2004 ). Parenthetically, the dual diagnosed criminal suspect may be at particular risk because the already diminished capacity for understanding potential jeopardy can be aggravated by a concurrent psychiatric disorder.

On the Nature of Mental Retardation

The audience for this paper is certainly knowledgeable about mental retardation and about mental illness, as well. Nevertheless, a brief presentation of the author's view of the disability is appropriate--it's what he tries to convey in his psychological reports to lawyers and on the witness stand.

Mental retardation is seen as a disorder of chronic intellectual and emotional immaturity arising in the developmental years and creating lifelong adaptive difficulties. Its most general effect is to impair the rate of learning and the complexity of that which can be grasped. Its adaptive consequence is to reduce the degree of independence that can be achieved in age-appropriate developmental tasks. Its "immature" nature stems from the fact that intellectual impairment impels adaptive functioning at age-levels younger than that expected for the affected person and, by definition, when we behave in ways that are more appropriate to an age younger than our own, we're behaving "immaturely." In less severely affected individuals, those with not more than "mild" retardation, the immaturity will be most evident in the cognitive sphere. Where the retardation is more than mild, however, its emotional as well as cognitive character will be readily apparent. In mentally retarded criminal defendants, virtually all of whom are not more than "mildly retarded," it is the cognitive element that dominates. The intellectual and emotional immaturity in retardation is, of course, "built in" biologically during the developmental years, especially in those of early childhood, though its effects can be mitigated with environmental intervention. This is most evident in the benefits derived from a language-rich intensive early childhood educational experience on biologically normal children of mothers with intelligence in the mildly retarded to borderline ranges (e.g., Garber, Hodge, Rynders, Dever, & Velu, 1991; Campbell & Raimey, 1995). The early-intervention research suggests that gains of as much as 10 IQ points can be expected, relative to controls, and with eventual functioning in the low normal to average intelligence ranges.

 

On the Cognitive Problems in Mental Retardation

For this psychologist, the cognitive impairments in mental retardation can be conceptualized as broad deficits in learning. Indeed, in the continuing struggle to find less pejorative ways of describing the disability, the writer proposed the term "general learning disorder" (Baroff, 1999). The intent was to characterize it in terms of its essence--a problem of learning. The term "general learning disorder" was intended to distinguish "mental retardation" from the less severe and more circumscribed learning difficulties subsumed under the label of "specific learning disabilities." The latter refers primarily to academic difficulties, most often in reading and writing but also including arithmetic-developmental conditions currently designated as "learning disorders" (academic skills disorders) in the psychiatric nomenclature (American Psychiatric Association, 1994). In any case, the term "intellectual disability" (ID) is now finding favor. It substitutes for "mental retardation" in the United Kingdom (UK) such that the writer was informed that his text, "Mental Retardation: Nature, Cause, and Management," now in its third edition, could not be published in the UK under that title!

Apart from its general character, what are its most significant cognitive effects? On measures of intelligence, there seems to be particular difficulty in language-related functions as these are employed in basic understanding of what is heard (or read), and in problems of reasoning, analysis, and judgment. In addition, there are memory deficits. Together with these basic cognitive impairments, there are corresponding personality problems that can exacerbate the effect of the cognitive ones. The perfectly normal trait of "suggestibility" tends to be heightened (Baroff & Olley, 2004) and has evoked such descriptive labels as "gullible" and "credulous" (e.g., Greenspan, Loughlin, & Black, 2001). This kind of suggestibility or naiveté can create major errors of judgment for the accused with ID when confronted with police officers anxious to solve a serious crime.

Cognitive Problems and Criminal Responsibility in the ID Defendant as Seen by the Supreme Court

In justifying their recent decision with respect to the death penalty and retarded defendants, the Supreme Court described these individuals as having a lesser degree of personal "blameworthiness" or culpability than non-disabled ones. In their earlier treatment of this issue (Penry v. Lynaugh, 1989), the Court held that Penry's retardation left him less able to consider the consequences of his actions and to control his impulses But in 1989, the Supreme Court was not yet ready to outlaw capital punishment for persons with ID because a majority of the 38 states with the death penalty were still executing these defendants. The Court also appears to have taken heed of the level of Penry's retardation; he had IQs in the 50-60 range, the least degree of severity within retardation. Only then-Justices Brennan and Marshall projected the view that the level of retardation was irrelevant and that the death penalty was not appropriate for any person with mental retardation because the disability created so great a deficit in reasoning ability, impulse control, and moral development

The Court seems to have taken special notice of impaired "impulse control" as a feature of the disorder. Whether this impulsiveness can be likened to "poor brakes" is a matter of speculation. For this writer, the problem is attributed to a lesser capacity to consider consequences and, therefore, to apply the brakes as needed. The author is more inclined to equate poor impulse control with the related problem of hyperactivity and/or with elevated tension states.

The Atkins Court finally took the action proposed by Brennan and Marshall because of a major increase in the number of death penalty states that were now excluding that sanction for retarded defendants. By 2002, almost one-half of the death penalty states, 18 of 38, had so acted (Atkins v. Virginia. 2002). The Court had not earlier more prepared to outlaw this punishment because its continued use in some death penalty states indicated at least some level of acceptance of it by the citizenry, as reflected in their relevant state laws. But in the years since Penry, a growing national consensus against its application to ID defendants was apparent, and the Court took note of this change in public attitude. It concluded that due to deficits in "reasoning, judgment, and control of impulses," the question could be raised as to whether the two justifications for capital punishment, retribution and deterrence, applied to those with mental retardation. With respect to "retribution," society's means of providing a painful consequence to those who violate its laws, the severity of punishment depends, in part, on the offender's degree of culpability or blameworthiness. Viewed as possessing a diminished level of culpability because of their intellectual disability, the death penalty was seen as "excessive" (!) rather than as merited. As for "deterrence," the extremity of the death penalty as a sanction is expected to restrain criminal conduct, especially when it is the consequence of "premeditation and deliberation." Parenthetically, capital murder involving ID offenders is rarely "premeditated" in nature. Much more often the killing occurs in the course of committing another crime, commonly armed robbery; so-called "felony murder." In any case, the Court reasoned that their cognitive impairment would interfere with their awareness off the death penalty as a possible consequence of their actions. It concluded that such punishment was in violation of the 8th Amendment of the Constitution, the Amendment that prohibits "cruel and unusual punishments."

Though the author has grave reservations about the death penalty, its typical carrying out in the wee hours of the morning not only indicates our societal ambivalence toward it but also tends to render it less "visible" to potential perpetrators!

In their review of the Atkin's decision, Coleman and Shallow (2003) express regret that the Court did not offer what would be, in effect, a national legal standard for the diagnosis of mental retardation. Instead, the Court continued to leave the diagnostic discretion to the individual state courts. Their concern is with different diagnostic criteria among the states, e.g., the IQ cutoff score, and its implication for inequities in who is subject to execution.

Moral Development and Culpability

In arguing for a lesser culpability in ID offenders on the grounds of inadequate "moral development," Justices Brennan and Marshall were raising an issue little heard in mental retardation. But "morality" was a major concern in the early decades of the last century, when persons with mental retardation were regarded as potential paupers and criminals and were subject to societal efforts to limit their number through sterilization and institutionalization. These measures reflected, in part, eugenic reactions to a condition that was viewed as hereditary and a potential threat to the societal gene pool (Sarason & Gladwin, 1959). (Recall study of the Kallikak family [Goddard, 1912].) The abuses associated with those two efforts at controlling the population, primarily, persons with the "cultural-familial or "psychosocial" forms of mental retardation, ultimately led to the normalization movement and the anti-institutional bias of recent years.

In my evaluation of capital defendants with ID, the author has sought to explore their understanding of the "morality" of the crime for which they've been charged. Asked to indicate whether the crimes of robbery and murder are "wrong," all will so attest. Apart from their moral appreciation of its "wrongfulness," they know by the actions taken against them, that they're accused of doing something "wrong!" But when asked to give reasons why these acts are wrong, difficulty arises. Among a dozen capital offenders, only about one-half could offer a reason why, murder, for example, was wrong. The abstract concept of a "right to life" is usually not present nor awareness of the reciprocity implied in "The Golden Rule." Those who have lived "on the street," however, may have such understanding. Constantly exposed to the threat of the theft of their own belongings, they can verbalize that it's wrong to steal somebody else's "stuff' because they wouldn't want theirs stolen. But the application of this moral principle may not transfer to the taking of a life. Since involvement in killing or murder is not to be more than a one-time experience in their lives, little thought may have been given to its significance.

Moral understanding is, in part, tied to intellectual development The very young child may not distinguish between "accident" and "intent" and think that both should be punished equally. From awareness of "intent" there is gradual consciousness of "fairness" and reciprocity; fair treatment for me demands fair treatment for you. This lack of moral appreciation is epitomized in the mildly retarded adult defendant who, some years ago, had been convicted of the rape and murder an 87-year-old woman. Evaluated by me prior to a re-sentencing trial, he acknowledged that rape was "wrong" but could offer no explanation of why it was wrong. Pressed for an answer, he finally blurted out, "Maybe its against her religion!" The sentencing jury gasped at such an explanation and, taking into account his retardation, spared his life.

Common Vulnerabilities of the Criminal Defendant with ID

The vulnerabilities of intellectually disabled defendants pertain to various "competencies"--to stand trial, to confess, to plead guilty, and to be sentenced.

Competency to Stand Trial Indictment and subsequent trial assumes that the accused is competent or "fit" to stand trial. A defendant found "incompetent" cannot be tried in a court of law although the law provides other means for dealing with an incompetent defendant who is considered dangerous. This usually takes the form of civil commitment to a secure psychiatric facility for a period of up to 18 months during which efforts are made to help the accused reach competence. Failure to do so, could lead to the dropping of charges or continued commitment on the grounds of dangerousness to self or others.

 Current law views the "competent" defendant as one who (1) understands the charges against him and their seriousness in terms of possible punishment, (2) understands something of the purpose and nature of a trial and the role of its principals, and (3) is able to assist his attorney in his/her own defense. With respect to the last-mentioned, in fact, ID defendants, typically, play little role in the strategy of their defense and rarely take the witness stand.

The majority of criminal defendants, mildly and even moderately retarded, are seen as "competent" to stand trail (e.g., Petrella, 1992) . Those deemed "incompetent" lacked understanding of the consequences of a possible conviction and were unable to offer a coherent description of the events surrounding the alleged offense. At greater degrees of intellectual impairment, prosecutors are unlikely to press charges and, instead, seek non-judicial means of dealing with the accused. Scales for the measurement of competency to stand trial, as well to confess, have been developed and their application in criminal trials described (e.g., Parry & Drogin, 2000).

Competency and "Criminal Responsibility" A distinction is drawn between "fitness to stand trial" and "responsibility" for the act with which one is charged. The latter refers to the question of "culpability" or "blameworthiness." It is on this issue that the Supreme Court acted in outlawing the death penalty for defendants with retardation. It is here that understanding "right from wrong" is relevant. In order to be held criminally liable for an act, the perpetrator must understand that his action was "wrong." Such a lack of awareness is more likely to be found only in those with severe/profound retardation or where there is a major impairment in reality testing as might be true of psychotic or "dually diagnosed" ID defendants. Virtually all "competent" defendants are regarded as "responsible."

Competency to Confess

Confessions are, unsurprisingly, much prized by the police and are thought to be the most common means of solving murder cases. Efforts to obtain confessions have been associated with coercive interrogation practices, physical and psychological, and it was these that led to the 1966 Supreme Court Miranda decision. That decision set the criteria for the legality of a confession (Miranda v. Arizona, 1966). Our so-called "Miranda Rights" refer to our Constitutional protection against self-incrimination. To fail to exercise or to waive those rights and confess to a criminal act, is to place oneself in jeopardy. This understanding is rarely present in the cognitively disabled defendant

The intellectually impaired suspect, unless a chronic offender and experienced in the arrest process, can be expected to be frightened and intimidated in police custody. In such an environment, the impulse to "cooperate" will be strong and even intensified by presumptions that telling the police what they want to hear will lead to a pleasant outcome. Thus the giving of a confession to murder may be followed with the expectation that one will now be allowed to go home! Moreover, these vulnerabilities can actually result in giving false confessions (e.g., Kassin, 1999). Indeed, the defendant in the Miranda case appears to have confessed to two murders that he did not commit! The author has been involved in two capital rape-and-murder cases in which initial denial was followed by confessions that were later recanted. In the absence of physical evidence connecting the defendants to the victim, both were acquitted.

What are our Miranda Rights? The Supreme Court held that there were there several conditions that had to be met to validate a confession. The accused had to know (1) that he need not speak, (2) that if he chose to speak, what he said could be used against him in a court of law, (3) that he has the right to request an attorney before answering any questions; and (4) that should he choose to waive his rights and answer questions without a lawyer present, he could stop at any time and request one. Each right is read to the defendant prior to questioning and he is asked if it is understood. A mere "yes" or "no" is accepted and, in my experience, no ID defendant has ever admitted to not understanding what was heard. There is also the opportunity to read the rights as they are verbalized. None of us, either intellectually disabled or normal, is likely to admit not understanding to an authority figure. This is a manifestation of the need to protect "self-esteem"-- the sin of pride! In fact, except for ID suspects with a history of prior arrests, there is likely to be very little understanding of these rights. The assertion of understanding is never questioned by the police, a not surprising response from those who want the suspect to speak! In my evaluation of the defendant's understanding of the rights, they're presented just as the police did but, after each assent, an explanation is sought, in their own words for the meaning of what was heard. A special psychological measure has also been developed to evaluate Miranda competency (Grisso, 1998) but the rights are presented in language that seems simpler than that of the typical version used by the police. The latter is usually at a 7th-grade level of reading difficulty and should also be presented to the defendant in addition to the Grisso version. The former is what was actually heard and to which assent was given. With regard to their comprehension of the rights, ID defendants generally do not understand their right to silence. It may be perceived as a warning not to "sass" a policemen or interpreted in terms of the "classroom" where you're only allowed to speak with the teacher's permission. Ironically, neither of these misunderstandings leads to "silence" and virtually all ID defendants waive their right to silence and answer questions. Nor does the inexperienced suspect make a connection between responding to questions and the threat of their use as evidence against him in a trial. Even when experience has taught the suspect that he is entitled to a lawyer, it is never understood that he has a right to a lawyer at the time of questioning. Nor is it understood that he can exercise his right to silence at any time, stop answering questions, and request an attorney.

The vulnerability of the intellectually impaired suspect is most apparent at the time of arrest and subsequent questioning. Thereafter, an attorney will be appointed for him by the State. Attempts to address this vulnerability have included in-service training of police officers to sensitize them to potential ID suspects. Brief screening intellectual assessment could also be conducted by the police who would then contact the local mental retardation service program (e.g., Hayes, 2004). While such precautions might be expected with suspects in minor criminal offenses or where there are obvious physical abnormalities, e.g., Down syndrome, the typical offender is perfectly normal in appearance, not more than mildly retarded, and probably was never a client of the local mental retardation program. In any case, there should be a liaison person in the local DD program who can serve as an initial resource to the newly arrested suspect with possible retardation. He/she can provide guidance and help him understand and exercise his rights against self-incrimination and request an attorney.

 

Competency to Plead Guilty

A plea of guilty is a fateful choice. Usually made to avoid a trial, conviction, and a longer sentence, a plea of guilty to a criminal charge is irrevocable. In forsaking a trial, one abandons any effort to defend oneself against the charge or to challenge a confession, if one was given. A plea of guilty can also present a special cognitive challenge to the ID defendant because it requires the admission of guilt and the conscious and deliberate choice with respect to outcomes; here the lesser of two evils. The defendant may have insisted on his innocence even when the evidence is overwhelming and much effort, by family as well as attorney, may be necessary to persuade him to accept the plea. And it must be the defendant's decision! Although some have argued that the "competency to plead guilty" involves a more demanding standard that of "fitness to stand trial," the latter continues to be the minimal legal requirement although states are free to set a higher one (Paul, 1993).

Dual Diagnosis: The ID Defendant with Mental Illness

Of special interest to the readers of this journal are the legal issues that pertain to the defendant with both intellectual impairment and mental illness. The issue here is usually that of "diminished culpability"--that is, the presence of mental states that can reduce the level of responsibility for a criminal act. These fall into such rubrics as "diminished capacity," not guilty by reason of insanity, and "automatisms." A fourth category, "diminished responsibility" (as against "capacity") only comes into play at the sentencing of a convicted defendant. Each is now briefly described.

Diminished Capacity This legal defense refers to one's "state of awareness" during the alleged act and is concerned with "intent." Four levels of "intent," from least to most purposeful are designated in the Model Penal Code of the American Bar Association (Parry & Drogin, 2000). In order, from least to most, they are (1) negligence--awareness that one's actions pose a risk; (2) recklessness--awareness of risk but a deliberate disregard of it; (3) knowledge--awareness of risk and its disregard but without the actual intent to commit a crime; and (4) purposefulness--acting deliberately in a manner that one knows is criminal.

In my experience with ID defendants, the issue of purposefulness has only arisen in unlawful sexual activity between adult males with ID and young children.

Not Guilty by Reason of Insanity Although this defense can evoke much media attention, it is offered in only about 4% of felonies and is rarely successful (Paull, 1999). In relation to the ID defendant, it is most likely to be raised where there is also the presence of psychosis. It presumes that the accused either lacked the capacity to conform his behavior to the requirement of the law. The latter has been characterized as "irresistible impulse," a highly controversial defense! If the insanity defense is successful, as in the Hinckley shooting of President Reagan (he tried to kill the president so that he could get a date with actress Jodie Foster!), the accused is relieved of all criminal responsibility though the state may seek civil commitment if the accused is considered dangerous. Such, of course, was the case with Hinckley who has been confined to a psychiatric hospital since the shooting although he is now receiving brief periods of parole.

A less common variant of the insanity defense is guilty but mentally ill. Here one is deemed fully responsible, that is, not "legally insane" but the acknowledged mental disorder may result in a treatment recommendation as a part of the sentence.

Automatisms Referring to actions carried on out-of- consciousness, they're typically associated with organic disorders--brain injury, metabolic diseases, seizures, or accidental ingestion of alcohol or drugs. They also occur in two well-known psychiatric conditions-- posttraumatic stress disorder and multiple (dissociated) personality. Workers with developmentally disabled individuals are most likely to encounter automatisms in persons with complex partial seizures (temporal lobe or psychomotor epilepsy).

Diminished Responsibility Referred to earlier, in distinguishing between "competency to stand trial" and "responsibility," the latter issue can arise at the sentencing of a convicted defendant and is always relevant in the case of the ID accused. It presumes that although a competent defendant knew that the act was wrong, by virtue of his significant cognitive impairment, the degree of his responsibility or blameworthiness is reduced and this should lead to a lesser punishment. It is this rationale that led to the outlawing of the death penalty for ID offenders.

Mitigating Factors Apart from the now-mooted death penalty consideration, in any case of a convicted ID defendant, irrespective of the crime, one can find realities that should lessen the severity of punishment--so-called "mitigating factors." Presented to a judge or jury, they are (1) acting under the influence of a mental or emotional disorder; (2) playing a minor role in a crime involving other and usually brighter defendants; (3) acting under duress or

the influence of others--the "suggestibility" and "need to please" of ID offenders; (4) impaired capacity--as this affects reasoning and moral judgment; and (5) the defendant's age, "mental" as well as chronological. Each of these implies a cognitive-related "diminished responsibility."

Summary

This paper represents an update of an earlier one that was directed to criminal defense lawyers involved in capital cases with ID defendants who were then still subject to capital punishment. With the outlawing of the death penalty for these defendants by the Supreme Court in 2002 (Atkins v. VA, 2002), a broadened version is offered to mental retardation-mental health professionals and seeks (1) to provide a background for understanding the Atkins decision and (2) reveal the range of vulnerabilities experienced by intellectually disabled (ID) individuals in the criminal justice system. We refer here, largely, to biologically normal young adult males with mild retardation who are charged with "felony murder." This refers to "first-degree" or "capital" murder, usually, but not always unintended, a murder that occurs in the course of committing another crime, chiefly, armed robbery, but sometimes rape. To gain an appreciation of the vulnerabilities of these defendants, as well as those involved in lesser crimes, one needs an understanding of the cognitive difficulties associated with mental retardation and of how these can affect the individual in the police station and in the courtroom. The relevant legal issues pertain to various "competencies"--to stand trial; to confess, that is, to waive one's Constitutional rights against self-incrimination; and, if convicted, to be sentenced. The paper also speaks to why mental retardation should always be "mitigating;" that is, a basis for lessening punishment in the convicted intellectually disabled defendant.