Should the Mentally Disabled Be Expected to Know Right From Wrong? Cont'd

Editor’s Note: This article previously appeared in a different format as part of The Atlantic’s Notes section, retired in 2021.

Atlantic reader Martha quotes a previous one, Genuine Realist, whose daughter is intellectually disabled:

My child and most of her friends function quite effectively in the community, thanks, and they ALL are quite capable of understanding the ordinary moral rules by which we all live—the rubrics against theft, lying, assault, and so on.

Perhaps. My 60-year-old sister, however, with severe autism and significant intellectual impairment (IQ 40-50), cannot understand these concepts.  She is amoral and with no empathy or scruples, unable to form any but the most shallow emotional attachments. In effect, she’s a sociopath.

Not all people with mental impairment are created equal, and it is simply wrong and unfair to insist that is so. These people are individuals and must be judged on a case-by-case basis.  Holding someone like my sister accountable would be truly cruel and unusual punishment—the equivalent to holding a two-year-old accountable.

Jim Elliott, one of our long-time readers, has some professional experience on the question:

I am a public policy and legal affairs manager for California’s developmental disabilities services system. So I have dealt with the question of how to deal with intellectually disabled people who are accused of committing heinous crimes (from theft to rape to murder).

I agree with Genuine Realist that the assumption that it is immoral to prosecute the developmentally and intellectually disabled— that they should not be held to the same standards of conduct—is denying them their very humanity. Their disability may possibly mitigate, but does not extinguish, their culpability.

What I have learned over the past ten years, however, is that the very issue of their disability often means there will, in fact, be no resolution, and no real justice, even for the worst of offenses. This has led me to conclude that such people’s disability requires a commitment to procedural fairness, if there is to be any hope of resolution. And, just as importantly, that their disability is a mitigating factor in terms of the nature of their punishment.

Most states, to my knowledge, provide the ability to raise a question of an individual’s ability to stand trial, based on either their mental illness or cognitive impairment through developmental disability. Texas, interestingly enough, did not appear to have had the latter until 2004 (Code of Criminal Procedure, Chapter 46B). Of course, this means that Jerry Hartfield’s prosecution came at a time when this question wasn’t even legally available to his counsel. So, as Genuine Realist says, his lawyers acted appropriate to give their intellectually disabled client the best possible resolution.

Over 30 years later, however, we have recognized that while absolutely legal at the time, it was a deeply unfair system, and since then have moved, as a professional community, to redress that wrong. The question of competency does not necessarily free the accused. But it does ensure that their inclusion in the criminal justice system takes their disability into account.

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