Intellectual Disability, Categorical Mitigation, & Punishment

Individuals with intellectual disability in the criminal legal system experience objectively worse outcomes than others—more wrongful convictions, more pretrial detention, worse plea deals, and longer sentences. None of which is justified under the theories of punishment. These disparate outcomes stem from initial failures to identify that a person has intellectual disability and then misunderstandings and biases about intellectual disability. This Article examines and 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 intellectual disability is always mitigating; and that courts, in their sentencing orders, must articulate the degree to which they find intellectual disability mitigating and why. This rule, though, is not the ultimate goal but rather is the tool for effectuating broader change in the criminal legal system.

This Article expands upon the analysis articulated in Atkins v. Virginia, which relied on both the practical realities facing individuals with intellectual disability in the criminal legal system and the theories of punishment to categorically exempt individuals with intellectual disability from the death penalty. 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.