VICTIMS

12.16.14 10:45 AM ET

How the U.S. Justice System Screws Prisoners with Disabilities

From arrest to trial, suspects with intellectual disabilities face a system they don’t understand—often leading to false imprisonment or even execution.

Last week, Robert Wayne Holsey of Georgia and Paul Goodwin of Missouri were executed within just a few hours of each other. Each of them had IQs that hovered around 70. An IQ below 70 generally indicates someone with intellectual disability (ID). Goodwin and Holsey, then, were right on the borderline.

In 2002, the Supreme Court ruled in Atkins v. Virginia that executions of people with ID constitute a violation of the Eighth Amendment, which prohibits cruel and unusual punishment. If Holsey’s and Goodwin’s IQs were just a few points lower, they could not have been executed. At least, they should not have been. Despite Atkins, people with IQs lower than 70 have since been executed.

IQs are hardly measurable with microscopic precision. Both Holsey and Goodwin received sentences that were, at the very least, frighteningly close to what the Supreme Court has determined is cruel and unusual punishment. But Holsey and Goodwin are not alone. At every stage in the criminal justice system, from arrest to interrogation to trial to sentencing, people with ID—both those who are guilty and those who are innocent—are especially vulnerable to injustices in virtue of their disability.

Holsey’s case in particular exhibits the vulnerability of people with ID or borderline ID at the hands of the justice system. Holsey admitted to killing a police officer after robbing a convenience store. As this excellent piece in Mother Jones describes, however, Holsey had outrageously poor representation during his trial. His court-appointed lawyer was drinking a quart of liquor per day. At the sentencing, his lawyer failed to hire what is known as a “mitigation specialist” although the court had provided funds for one. A mitigation specialist would have gathered evidence that might suggest to the sentencing jury that Holsey deserved life in prison rather than execution. (His lawyer did not remember what happened to the funds for the mitigation specialist. Later, he served prison time for theft in a different matter.) Ultimately, the sentencing jury did not hear very much about either about Holsey’s ID or about the vicious abuse he suffered at the hands of his mother when he was a child. Had he been competently represented, the jury might well have failed to concur on a death sentence. He might be alive today.

Leigh Ann Davis is the Program Manager for The Arc’s National Center on Criminal Justice and Disability, which advocates for victims as well as suspects and offenders. It serves as a clearinghouse for information on ID and the criminal justice system, and provides training and technical assistance. (Here’s a short video they produced on the injustices often faced by people with ID.) Davis told The Daily Beast that people with ID might have, as Holsey did, greater-than-usual problems with poor legal representation. “All people are vulnerable to poor representation, but this issue impacts defendants with ID more seriously because of their own lack of ability to communicate clearly with counsel or fully understand the legal system, legal jargon, courtroom proceedings, etc.,” she said. “Also, due to limited cognitive ability they may not be aware of just how inept their attorney is or have any idea that they have a right to a certain level of quality representation.”

For Robert Ethan Saylor, a 26-year-old man with Down syndrome, his fatal contact with criminal justice began and ended before he was even arrested. In January 2013, he refused to leave a Frederick, MD movie theater because he wanted to see the movie Zero Dark Thirty a second time. The theater manager called security, and three moonlighting off-duty police deputies arrived. What happened next is a matter of dispute. It seems that the deputies asked him to leave, but Saylor insisted on staying, and perhaps physically resisted them. The deputies pinned Saylor to the ground, and he died of asphyxiation. In an outcome that has unfortunate resonance with Eric Garner’s, his death was ruled a homicide, but a grand jury nonetheless declined even to indict the law enforcement officials. With better training on how specifically to deal with people with ID, the deputies might have handled the situation differently. Saylor, too, might be alive today.

Once people with ID are arrested, they are particularly susceptible to making coerced and often false confessions. Robert Perske has long been an activist raising awareness of the issue of false confessions by people with ID. He maintains a list of people with ID whom he believes were unjustly convicted after false confessions. Many of the people on his list were executed. Among the reasons he cites why people with ID are particularly vulnerable to making false confessions are the following: they are more likely to trust and try to please authority figures, they may face challenges in comprehending language and expressing themselves, and they might not understand the legal process well enough to participate effectively in their own defense.

People with ID who come into contact with police officers during the course of an investigation may expect that the officers are there to help them. “There’s a dual role of police officers—sometimes they’re there to help, but they may also be trying to catch criminals, and it may be more expedient to do what comes down to bullying them during interrogations,” said Davis. “People with ID are much more likely to want to be cooperative with authority figures or question their own judgment in the face of an authority figure telling them what happened."

One of the most well known cases of someone with ID who falsely confessed was Joe Arridy, who was issued a rare posthumous pardon in 2011. Arridy, who had an IQ of 46, falsely confessed to the sexual assault and murder of a 15-year-old girl. He whiled away the time in his prison cell playing with toy trains, and reportedly did not even understand he was about to die as he was brought to the gas chamber. He was executed in 1939.

“In my research of people who falsely confessed and were subsequently exonerated by DNA evidence, one-third were intellectually disabled or mentally ill,” Brandon Garrett, a Professor of Law at University of Virginia who studies false confessions, said. One of the problems facing police is that they may not realize that the same techniques that are effective for inculpating guilty people without ID may be counterproductive for innocent people with ID. “Very few agencies offer police any specific guidance or training on how to question people with ID,” said Garrett.

Allison Redlich, Associate Professor at the School of Criminal Justice, University at Albany, SUNY, also researches false confessions. She noted in an interview that it’s difficult to determine sometimes whether police have unintentionally impelled a false confession or have browbeaten a suspect. “Interrogations by their nature are guilt-presumptive, so there may be confirmation bias on the part of the interrogators,” she said. “People with ID are more susceptible to falling for certain interview techniques. They have a lower tolerance to withstand the interrogation.”

As with all criminal suspects, far too few police interrogations of people with ID are videotaped or only partially videotaped. It is difficult, then, to know what interview techniques were used in any given interrogation. Andrew St. Laurent has been a criminal defense attorney in New York for 16 years, five of those years as a public defender for Legal Aid. He told The Daily Beast, “We’re moving toward videotaping the entire interrogation. What’s being done now is police only videotape at the end, when the suspect has already confessed. This means that the usual practices of interrogation, including coercion and threats, go unrecorded."

One way that police may wind up with a false confession from someone with ID is by, consciously or unconsciously, asking leading questions. A blatant case of interrogators asking leading questions is that of David Vasquez. Vasquez confessed to the 1984 sexual assault and murder by hanging of a woman in Arlington County, VA. Vasquez, who has borderline ID, was exonerated in 1989, four years after his conviction. In the course of his confession, he supplied details that should only have been known to the killer. Although often this is considered proof positive of guilt at trial, it is not an uncommon occurrence in false confessions. “People falsely confess, and police often claim they did so in detail. These details can include ‘inside information’ that no one could have known, such as the brand of beer and cigarettes found at the crime scene, or the way a victim was asphyxiated,” said Garrett.

Some of Vasquez’s interrogation was videotaped, which makes it possible to see how such a thing can happen. Garrett cites a portion of Vasquez’s interrogation in his 2011 study on false confessions. The murder victim had been bound with string cut from Venetian blinds and hung with rope that had been found in her basement.

Det. 1: Did she tell you to tie her hands behind her back?

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Vasquez: Ah, if she did, I did.

Det. 2: Whatcha use?

Vasquez: The ropes?

Det. 2: No, not the ropes. Whatcha use?

Vasquez: Only my belt.

Det. 2: No, not your belt . . . . Remember being out in the sunroom, the room that sits out to the back of the house?...and what did you cut down? To use?

Vasquez: That, uh, clothesline?

Det. 2: No, it wasn’t a clothesline, it was something like a clothesline. What was it? By the window? Think about the Venetian blinds, David. Remember cutting the Venetian blind cords?

Vasquez: Ah, it’s the same as rope?

Det. 2: Yeah.

Det. 1: Okay, now tell us how it went, David—tell us how you did it.

Vasquez: She told me to grab the knife, and, and, stab her, that’s all.

Det. 2: (voice raised) David, no, David.

Vasquez: If it did happen, and I did it, and my fingerprints were on it . . .

Det. 2: (slamming his hand on the table and yelling) You hung her!

Vasquez: What?

Det. 2: You hung her!

Vasquez: Okay, so I hung her.

Vasquez had also been told, falsely, that his fingerprints had been found at the scene. Redlich noted that this is another common thread in false confessions. “They present evidence they don’t really have against the witness,” she said. People with ID may be less able to withstand this sort of interview technique.

It seems hard to believe that the detectives interviewing Vasquez were not aware that they were asking leading questions, although they may well have believed he really was guilty. But it is certainly possible that police officers could unknowingly feed suspects information. James Trainum was a police officer with the Washington, DC Metropolitan police force. He described to the Maryland House of Delegates Judiciary Committee in 2007 how he interviewed a suspect (without ID) and unintentionally obtained a false confession. “Thank God that for some reason we started the video early on in the interrogation and chose to keep it on for the duration,” he testified. “To show her the strength of our case, we showed her our evidence—and unintentionally fed her the details that she was able to parrot back to us at a later time. It was a classic false confession case, and without the video we would never have known.”

In a recent heart-breaking case, two half-brothers with ID, Henry Lee McCollum and Leon Brown, were exonerated by DNA evidence and released after spending 30 years in prison after falsely confessing to the rape and murder of an 11-year-old girl. Brown had been serving a life sentence; McCollum had been on Death Row. Vernetta Alston was one of the attorneys who represented McCollum. Emphasizing how people with ID are vulnerable at so many stages of the process of criminal justice, Alston told The Daily Beast, “The interrogations of Henry and Leon went wrong at every possible point. First, law enforcement relied on an unfounded rumor by a teenager to justify taking Henry from his home late at night and questioning him. When he arrived, he was threatened by law enforcement and prevented from seeing his mother who went down to the police station after they took him in.”

Police then lied to Henry by telling him that if he admitted his guilt, he could go home. It is, in fact, legal for police to lie to suspects during interrogations. Alston said, “Even after Leon told the officers that he did not read well, he was made to sign a statement; as was Henry. Henry only signed the statement because he believed that he had to do that in order to go home. After he signed, he asked ‘can I go home now?’”

Steps can be taken to protect people with ID when they are involved with the criminal justice system. First and foremost, police, judges, and lawyers need training on the unique needs and challenges that people with ID face when dealing with the criminal justice system, from arrest through sentencing. This is true not only for the innocent, but for the guilty who still require fair treatment. There have been scattered initiatives to this end across the country, but they are few and far between.

Also, every person I interviewed for this story with agreed that it is crucial that interrogations be videotaped in their entirety. Presumably, had the deputies who pinned Saylor wore body cameras, video evidence would have helped determine what happened to him. Given that Saylor’s death occurred when the deputies were acting in the role of mall security, a rule requiring police to wear body cameras might not have helped Saylor specifically. But they might help people in similar situations in the future.

Reading Vasquez’s testimony, it becomes clear how important it is for police to ask people with ID (or those, like Vasquez, on the borderline) only open-ended questions. Vasquez’s case also demonstrates how important it is not to feed people with ID false information that implicates them in the crime. His belief that officers really did find his fingerprints at the scene seems to have encouraged his false confession.

Another step is to require a lawyer or advocate present during questioning of people with ID. According to Garrett, "Very few people respond to the famous Miranda warnings by saying, 'I need to see a lawyer.' Innocent people may actually be at a particular risk. They may think, 'I should talk to police because I have nothing to hide.’" People with ID, who might be more inclined to trust authority figures and wish to please them, might be further inclined to waive their rights to legal representation with dire consequences.

“A disability can be identified before interrogations begin. When reading Miranda rights to people with I/DD officers can ask, ‘Can you repeat what I just said back to me in your own words,' - that’s a good way to tell if they have a clear understanding or not (and most of the time they don’t understand),” Davis suggested. “When it’s clear the person doesn’t understand, it’s a red flag to get an advocate, get an attorney, help them understand they need an attorney. Unfortunately, some officers don’t think of that as part of their job.”

St. Laurent, however, pointed out why this step might be especially difficult to implement. “Police are working against the clock. Evidence that is developed within first 24 hours is often the most important evidence. Why would they tie their hands?” There would, then, likely be significant police resistance to this measure. Also, as Holsey’s case demonstrates, simply having legal representation may not be enough to ensure justice. But it is likely an important start.

Alston also noted that police should not write statements, which played a role in the conviction and decades-long unjust imprisonment of her client. “None of the details came from Henry or Leon, they came from the officers and that is shocking pattern in many signed statements. Law enforcement officials should not be permitted to do that,” she said.

Davis urged that people with disabilities or their advocates who require assistance with the criminal justice system contact The Arc’s Center on Criminal Justice and Disability. “Our website offers a way to request assistance: and our Facebook page keeps law enforcement, legal professionals and advocates updated on current cases/events/resources. It’s important to remember that cases like these could be going on in your own backyard and we all can play a role in supporting justice.”