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September 5, 2022

"Condemning Those with Multiple Disabilities to Die: Dual Diagnosis of Substance Abuse and Intellectual Disability in Capital Sentencing Proceedings"

The title of this post is the title of this new article authored by Aliya Sternstein and John R. Mills now available via SSRN.  Here is its abstract:

While the execution of defendants who score significantly low on intelligence tests, struggle to adapt their behavior to their environment, and experience these deficits during the developmental years is unconstitutional -- some courts have imposed or upheld death sentences because they find the defendant also has a drug addiction.

These courts misread the no longer used technical phrase “related to” in the above medical criteria for an intellectual disability (ID) diagnosis.  The criteria stated that shortfalls in adaptive behavior must be “related to” low intellectual functioning.  The long-settled medical community consensus is that there is no requirement to identify the psychological causes of these adaptive deficits.  But the misinformed courts have improperly held that related to means “caused by” instead of “co-existing with,” requiring proof of a negative: that the accused’s deficits in behavior are not caused by a substance use disorder.  This legal and medical error is common in some jurisdictions.  That is so, even in light of U.S. Supreme Court instructions to be informed by the medical consensus when assessing ID.

Although a great deal has been written about the exemption of those with ID from execution, little legal scholarship has addressed the intersection of substance abuse, Supreme Court reliance on the medical consensus in death eligibility decisions, and a misunderstanding or disregard of the consensus that addiction may and often do co-exist with ID.  Limited social skills and a self-perception of being different from others can foster loneliness and an urge to fit in that defendants with ID overcome by abusing drugs and alcohol.  The high Court has explicitly recognized the same: because people with ID often have other psychological impairments, the “existence of a personality disorder or mental-health issue, in short, is not evidence that a person does not also have intellectual disability.”

Judges and jurors perhaps deny protection to defendants with addictions and ID because of a misperception that those with substance use disorders are more blameworthy for their plight than defendants with additional psychological disorders or those with only ID.  But neither the medical consensus nor the Supreme Court has ever suggested that addiction changes the level of culpability of an offender with ID.  Quite the opposite: ID may heighten the risk of developing a substance use disorder.

This paper makes the straightforward case that a defendant, who otherwise meets the ID criteria, cannot be excluded from the constitutional prohibition on executing those with ID simply because of a dual diagnosis of substance abuse. Accordingly, courts must not require a defendant asserting ineligibility for execution to show that their deficits in adaptive behavior are “related to” an intellectual impairment and not related to substance abuse or some other psychological impairment.

September 5, 2022 at 08:45 PM | Permalink


"Nobody's Bad, Everybody's Just Sick," Vol. Eight Zillion.

Posted by: Bill Otis | Sep 5, 2022 9:00:02 PM

Bill -
Why not try to be more understanding and compassionate toward those who come into conflict with the law rather than be stern, unyielding, and fail to recognize the fact that traumatic injuries during the formative years have a profound impact on people who come into conflict with the law? I think that by being more empathetic and compassionate, we may have a better shot of a more kinder and gentler society than one who fails to extend compassion and empathy toward law breakers. Brett Miler

Posted by: Brett Miler | Sep 6, 2022 2:03:49 PM

Brett Miller --

I love your phrase, "come into conflict with the law." Let me try to translate: We need to be more compassionate "toward those whose icepick has come into conflict with the 7-11 clerk's ear in the course of relieving her of the contents of the cash drawer."

I respectfully dissent. It's the guy with the icepick who needs to be more compassionate, although I'd settle for just any sort of roughly normal behavior.

People don't do a heist of the 7-11 because of childhood trauma. They do it because they want a quick buck without having to work for it like the rest of us do. And they belong in the slammer because that's what they've earned.

Posted by: Bill Otis | Sep 6, 2022 3:43:42 PM


Were you serious about that attempt to "soften Bill Otis"?? One may suspect that you and Bill colluded on that one...kind of "tee'd it up" for Bill to come in with his driver and blast away. Awfully suspect, if you ask me.

On the other hand, I would not be too critical of Bill's position in respect to violent felons. Bill is pretty much right on. However, we can do a lot better on the 'rehabilitation' end of things. We're pretty good at getting convictions and imposing sentences, but what happens to those who are without a moral compass once in custody of the government for extended periods of time is pretty much criminal as well.

Posted by: SG | Sep 6, 2022 4:07:36 PM

Bill - I just think you are overly simplistic when you dismiss brain injuries and other traumatic life events as root causes of crime and just resort to "greed". We must try to minimize the use of prison as prison seems to just produce more and more crime (the very high recidivism rate you and others point to). Brett Miler

Posted by: Brett Miler | Sep 6, 2022 4:52:40 PM

On Brett's last point, I thought the earlier post highlighting a paper and forthcoming book proposing many more police and much shorter prison sentences was very provocative.

Posted by: John | Sep 6, 2022 6:11:37 PM

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