Intellectual Disability, Mitigation and Punishment

Individuals with intellectual disability in the criminal legal system experience objectively worse outcomes than others—more wrongful convictions, more pretrial detentions, worse plea deals, and longer sentences. None of these outcomes are justified under the prevailing theories of punishment. These disparate outcomes stem from initial failures to identify that a person has intellectual disability in combination with misunderstandings and biases about intellectual disability. This Article analyzes how the criminal legal system treats individuals with intellectual disability, the reasons for these inequitable and negative experiences, and the theories of punishment justifying their sentences. Drawing on this foundational analysis, this Article proposes that jurisdictions adopt a categorical rule that makes intellectual disability always mitigating and requires courts, in their sentencing orders, to articulate the degree to which they find it mitigating and why. This rule, however, is not the ultimate goal, but rather a tool for effectuating broader change in the criminal legal system.

This Article expands upon the analysis articulated in Atkins v. Virginia, in which the U.S. Supreme Court exempted individuals with intellectual disability from the death penalty after considering both the practical realities they face in the criminal legal system and the theories of punishment. By applying this same approach to non-death penalty cases involving individuals with intellectual disability, it becomes clear that a categorical rule is again necessary. After describing the proposed categorical rule, this Article describes how the rule is situated within broader conversations about disability justice and abolition, as well as the greater implications for change in the criminal legal system—including increased identification, greater understanding across system actors, and more appropriate sentences.