Van Tran and Beyond

1. Van Tran and Beyond Mark Olive Tallahassee, Florida

2. WHY NOT EXECUTE PEOPLE 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

3. Who else looks like this? • Age • Mental Illness • Brain Damage

4. What Other Reason Was Given for Atkins? • Evolved standard of decency • State legislative judgments • Public Opinion • International prohibitions on the punishment • Views of interested organizations • Views of religious organizations

5. How Do You Get 8th and 14th Amendment Protection? • Have a client who has as significant a disability as a mentally retarded person, and as severe a handicap when it comes to reliability and fairness (City of Cleburne) and/or • Have an evolved standard of decency • Handicap plus standard = protection

6. You Can Win Either Way • If you are seriously disabled but there is no evolved standard (30 year old w/head injury) (majority has always said it is the final arbiter) • If you are not seriously disabled but there is an evolved standard (16 year old)

7. EVOLVED STANDARD BUT NOT SERIOUSLY DISABLED • Juveniles: Roper v. Simmons and the execution of 17 year olds • Is every 17 year old disabled? Any more so than some 19 year olds and some 16 year olds? • Every mentally retarded person is disabled.

8. Evolved Standards on Juveniles? We are basically where we were with MR • State legislative judgments • Opinions of interested organizations • Religious groups • International opinion and treaties Except there has not been as much “recent” change.

9. ATKINS & THE MENTALLY ILL • On its face, much of the reasoning in Atkins seems logically to apply to persons with mental illness and brain impairment. • Attorneys, and some judges and courts have recognized – but not fully exploited – this connection.

10. Categories? • Category of 1 (your client) • Or a broader category, i.e., the psychotic

11. CATEGORY OF 1 • 1. Mentally retarded but for age of onset • 2. A young person (not a juvenile), who is “close” but not MR, 18 years old with an 80 I.Q. • This person will generally function like a juvenile or an adult with MR. • The Atkins risks are present.

12. Look for a Constellation of Factors • The whole disability is greater than the sum of its parts. • Cumulative disabilities make you more impaired than the mentally retarded • Other examples: Young and mentally ill; mentally ill and low IQ

13. A Category of More Than One: The Mentally Ill? Evolved Standard? • No states prohibit it • A couple of judges have advocated it • Polling data? • Organizations? • Jury verdicts? No evolved standard, but it could be begun.

14. On the Other Hand….. • In a number of states, proportionality review is used to reduce the death sentences of the mentally • other states do not have the DP • And virtually every capital sentencing state contains the statutory mitigator of substantial impairment failing short of a defense

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

16. More Disability Language • The Atkins Court said that the DP for persons with MR does not further retribution because • Persons with MR have “diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to control impulses and to understand the reactions of others.” • Retribution has been limited to ensuring that “only the most deserving of execution are put to death.”

17. Risk of Wrongful Convictions • The Atkins Court held that persons with MR have: • Increased risks of giving false confessions • Difficulties in communicating with counsel • A lesser ability to testify on effectively on their own behalf • Also due to their demeanor, MR persons may “create an unwarranted impression of lack of remorse” which could lead the jury to believe that the D poses a risk of future danger.

18. Too Broad: Other Possible Categories • Psychotic Disorders (based on the DSM IV – schizophrenia, certain delusional disorders, etc.) • Severe mental illness.

19. ATKINS AND THE MENTALLY ILL • On its face, much of the reasoning in Atkins seems logically to apply to persons with mental illness. • Bryan v. Mullin (10th Cir. 2003) (dissenting op. SCT’s logic applies to those with “severe mental deficiencies”) • Corcoran v. State, 774 NE 2d 495 (Ind. 2002) (Rucker J., dissenting) (Atkins rationale is “just as compelling” for prohibiting the execution of the “seriously mentally ill”) • State v. Nelson, 803 A2d 1 (NJ 2002) (Zappala, J. concurring) (“lesser culpability” of seriously mentally ill D is indistinguishable from MR D).

20. “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.”

21. 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.”

22. Very Popular Today: FAS • Fetal Alcohol Spectrum Disorders • Most individuals with a FASD (80%) – even FAS – are not MR • In fact, having an IQ above 70 and a FASD puts the person more at risk. • But they have most of the deficits in judgment, reasoning, impulse control. • Autism Spectrum Disorders • Many individuals with a ASD will also not be MR. Some, in fact, may be quite high functioning

23. Frequency Distribution of IQ Scores 12 FAS 10 Normal 8 Frequency 6 4 2 0 30 40 50 60 70 80 90 100 110 120 130 140 Full-scale IQ Scores

24. 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

25. Hyperactivity Impulsivity Attention deficits Learning and memory deficits Poor spatial and motor coordination Impaired social ability Deficits in executive function CNS Dysfunction:Common Neurobehavioral Deficits With Prenatal Exposure to Alcohol

26. Corpus Callosum Agenesis Child with FAS Normal child