In Atkins u. Virginia, (1) the Supreme Court held that executing individuals with intellectual disability violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. (2) Such executions are inherently excessive primarily because individuals with intellectual disability, as a class, do not have sufficient moral culpability to make them deserving of the most serious punishment. (3) In reaffirming this decision in Hall v. Florida, (4) the Supreme Court noted that "to impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being." (5)
Atkins stressed that individuals with intellectual disability "have diminished capacity 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." (6) This, in turn, reduces the retributive and deterrent purposes of capital punishment due to the fact that persons with intellectual disability have significantly reduced moral culpability due to their cognitive limitations and also makes it less likely that they will be able "to make the calculated judgments that are the premise for the deterrence rationale." (7)
The Court's judgment in Atkins was also informed by a concern unrelated to culpability or deterrence: the heightened "risk of wrongful execution" faced by persons with intellectual disability. (8) Atkins listed multiple factors that increase the risk that an innocent person with intellectual disability may be convicted: they are more likely to confess falsely to a crime they did not commit; they often have difficulty communicating favorable information to their attorneys; they typically make poor witnesses (and thus rarely are able to testify, or testify persuasively, in their own defense); and, their demeanor can convey a false sense of lack of remorse. (9) The Court concluded that these class characteristics reinforced its determination that the death penalty is an excessive punishment for persons with this profound disability. (10)
The Court's description in Atkins of the heightened risk of wrongful conviction and execution facing persons with intellectual disability struck us as right at the time it was made based on clients we had represented wearing our litigation hats. In fact, as fate would have it, at the time the Court decided to re-visit the categorical bar to execution for persons with (then known as) mental retardation, two of the authors were deep in pre-trial proceedings in the case of the State (of South Carolina) u. Johnny Ringo Pearson. (11) Based on our investigation, we believed that our client-'Ringo to his family"--was such a person. The state court stayed the proceedings pending the United States Supreme Court's resolution of the Eighth Amendment issue, and then, after the Court issued its decision in Atkins we conducted one of the very first Atkins Hearings. (12) After multiple days of testimony, the judge determined that Ringo was a person with intellectual disability and quashed the state's notice of intent to seek the death penalty. (13)
But, for a variety of reasons, we were also convinced Ringo was innocent. His confessions matched neither the physical evidence nor the prosecution's theory of the case, (14) a problem which surprisingly did not seem to bother the prosecutors. Moreover, the other main piece of evidence allegedly linking the murder to Ringo, who is African American, was the testimony of two other persons initially charged with the crime but then given immunity in exchange for their testimony--both of whom were white. (15) Their statements were not only inconsistent with Ringo's statements, but also struck us as highly implausible, even ludicrous. (16) Another piece of evidence the prosecution intended to offer was a "duct tape expert", who was prepared to testify that duct tape found on the victim's body "matched" a roll of duct tape found in Ringo's car. (17) Thus, in our view, the prosecution's case rested on the "holy trinity" of false confessions, snitches, and junk science, all fueled by some good old fashioned Southern racism.
On the eve of trial, the prosecutors approached us with a "deal" that was "too good to turn down" given the risk of a death sentence; they offered to drop the murder charge if Ringo would plead guilty to manslaughter, which, given the (extraordinary) length of his pre-trial confinement, meant he was almost immediately eligible for release. (18) We explained this to Ringo, and he entered an Alford plea to the lesser included offense. (19) Ringo was released many years ago and is doing well, but his case is not the only one in which we have represented an innocent, intellectually disabled defendant. (20)
Our experience with several such defendants led us to ask how frequent such cases are. This essay explores that question both anecdotally and quantitatively, hoping to illuminate the causes of wrongful conviction of persons with intellectual disability. We provide examples from our experiences in the Cornell Death Penalty Clinic and cases brought to our attention by defense attorneys. (21) We also present data from the National Registry of Exonerations. (22) Then we turn to the causes of the disproportionate wrongful conviction of intellectually disabled persons and conclude by considering implications of those causes for reform.
ESTIMATING THE NUMBER OF WRONGFUL CONVICTIONS OF PEOPLE WITH INTELLECTUAL DISABILITY
In this essay we build on previous work highlighting the heightened risk for individuals with intellectual disability to be wrongfully convicted, particularly due to the risk of false confessions. We have compiled a list of individuals that are likely to be people with intellectual disability charged with crimes for which they are innocent, drawing from multiple sources: The National Registry of Exonerations, previous lists published by Robert Perske, (23) and previous research on false confessions by Steven Drizin, Richard Leo, and Richard Ofshe, (24) our own work, and communication with other attorneys.
The National Registry of Exonerations (NRE) records detail information about every known exoneration in the United States since 1989. (25) The NRE records include one variable that tracks whether there is evidence that the person has mental illness and/or intellectual disability. (26) As of February 2019, there are 146 individuals that fit into this category. (27) The authors reviewed case information provided by the NRE and parsed out the intellectual disability and mental illness variable. We identified 101 individuals of the 146 where there was evidence of intellectual disability or learning disabilities. (28)
The crimes for which people with intellectual disability have been exonerated are concentrated among the worst crimes, as displayed in Table 1. Most exonerees with intellectual disability are exonerated for the crime of murder (69%), as is also true for anyone with mental disability (66%), but as is not true for all exonerees (38% exonerated for murder). (29)
A charitable explanation is possible: in murder cases, the importance of mitigating factors during sentencing makes it more likely that intellectual disability will be investigated and uncovered in those case. (31) Given the limited information available about most of the exonerations and the fact that the mental disability variable is still being coded, we can't rule out this explanation. Another, less benign explanation is that because there is so much more at stake in investigations and prosecutions for murder than for lesser crimes, authorities may put more pressure on defendants to confess to clear them. (32) Relatedly, those higher stakes may cause greater reliance on informants, or greater willingness to credit the stories of smarter alternative suspects, techniques for which innocent individuals with intellectual disability are particularly vulnerable. (33)
Among exonerees of murder, the more extreme the punishment, the more likely we are to see an individual with a mental disability, including intellectual disability. (34) Overall, in 13% of exonerations for murder, the individual was sentenced to death. (35) When we focus on individuals with mental disability and more specifically, intellectual disability, there is a larger portion sentenced to death (27% and 29%, respectively). (36)
Table 3 displays the demographic data of exonerees. Exonerees with intellectual disability are mostly male (93%), as are exonerees generally (91% of all exonerees are male). Exonerees with intellectual disability are somewhat more likely to be black (55%) (37) and juveniles at the time of the crime (25%), compared to exonerees with no documented intellectual or mental disability (47% black and 8% under 18). (38) This raises the possibility that the combination of race, youth, and intellectual disability may further increase the vulnerability to wrongful conviction. (39)
The NRE data is under-inclusive because it does not include individuals, like Johnny Ringo Pearson, who presented a strong showing of innocence, but were not officially exonerated. (40) Data from research by Steven Drizin, Richard Leo, and Richard Ofshe reveals some of them. Leo and Ofshe described sixty cases where an individual was arrested primarily because of a confession that later was proven, or highly likely, to be false. Many of these individuals were never formally exonerated and therefore were not included in the NRE database. (41) While Leo and Ofshe did not discuss intellectual disability specifically, it was mentioned in the descriptions of fifteen cases. (42) Six of these cases were not in the NRE database. Drizin and Leo focused on innocent defendants who had falsely confessed as demonstrated by at least one piece of dispositive evidence; they found 125 such individuals, including many not formally exonerated. (43)...