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Mislabeled a Sex Offender: The Kelmar Family’s Fight for Justice

/in /by The Arc

My name is Brian Kelmar, and I am the father of a 24 year old son who has autism and auditory and sensory processing disabilities. Our nightmare began almost six years ago, right after my son graduated high school. It’s a case of the “perfect storm” that resulted in my son being punished and treated as an outcast in our community and in society.

Do words like “trusting, bullied, eager to please, and not understanding social situations” sound familiar? These words describe my son and how he interacts and/or experiences the world around him.  Like others with autism, he had few friends growing up, let alone a girlfriend.  That core need for friendship hasn’t changed. He continues to long to fit in and feel included, and have friends in his life that he can talk to. So, when a female friend of my younger son started texting my son, he was so happy that he found someone nice to talk to.

The girl’s texts started innocently enough with just small talk.  The communication began when he was away at a college summer orientation where he was learning about the autism program he was to begin in the fall. The texting from her soon became very sexually aggressive, and he did not understand what the texts were about. He answered her questions with short words or answers, such as “like”, “what”, “ok”, and “huh”? She pointed out to him, “you really don’t understand what I am talking about” in regards to her sexual statements like “friends with benefits” and “hooking up,” along with more graphic content which he did not understand. When reading the back and forth texting, it’s clear to anyone reading these messages that they were going right over my son’s head.

After he returned from orientation, she repeatedly began asking him to meet with her. He had no idea of how to handle her sexually aggressive messages, and he certainly didn’t foresee what would happen next. When he met her in person, she became very sexually aggressive.  Like other people with autism and sensory issues, he can easily become overwhelmed and shut down, similar to a computer that has too many programs open at the same time.  This is exactly what happened during her sexual advances. When his mind “rebooted” and his thought process reengaged, he told her to stop.  She did and he took her home.

That same evening the police came to our house in the middle of the night. Since the front door is closest to my son’s room, he answered it.  Not understanding the situation and thinking the girl was in trouble because she was the aggressive one, he answered their questions before I got to the door.  The police took him to jail for two days until I could get him released on $100,000 bail.

In an instant, my son’s life was changed forever.

My son and our family entered a criminal justice system that we had no idea how to maneuver, and a system that had no idea about autism. Our lawyer had no experience with autism or working with people with disabilities. We were told by the attorney that the only option was to plea bargain. Later I discovered that is how most cases are resolved, through plea bargaining (experts estimate that 90 to 95 percent of both federal and state cases are resolved through plea bargaining).

 

During the sentencing phase, the judge heard testimony from the court appointed forensic psychologist with comments like:

“It was the alleged victim that was grooming him for a sexual encounter”
“He did not understand the situation”
“She was the aggressor”

These statements were all true based on the evidence of the text messages.  The judge understood the situation, and gave my son a ten year suspended sentence.  We never had any written plea bargain agreement. Then he was sentenced to 10 years probation. What we did not find out until after the sentencing was that due to the way the law was written, he would not only be on the sex offender registry, but he would be put on the violent sexual predator list for life.

This was absolutely devastating and the consequences last a lifetime.  This punishment will limit his ability to be employed, where he or our family can live, where he can travel to visit family members or even his future family (if they are under 18).  He can’t even travel to see his own grandmothers now because of the laws affecting travel between states.  This whole experience has been like a slow, agonizing psychological death sentence for him, and for our entire family.

Our hope is that other people with intellectual and developmental disabilities (I/DD) and their families can learn from our experience. Here are some lessons learned:

1. Never let your child (regardless of age) speak to authorities without you or another advocate and a lawyer present – no matter what.  While there are various organizations like The Arc’s National Center on Criminal Justice and Disability® (NCCJD) and some state agencies which can step in and mitigate the situation, the best scenario is to ensure the person’s rights are protected during questioning.

2. Contact NCCJD which can provide assistance in cases like this, and can also provide quality, effective training for criminal justice professionals in your state.  You will often find that many law enforcement, attorneys and other criminal justice professionals in the criminal justice system have had no training on I/DD. Through NCCJD’s information and referral and technical assistance services, their staff can work with your local chapter of The Arc and other community or state agencies to provide practical solutions that avoid destroying people’s lives before the snowball effect of the criminal justice system starts rolling.

3. If at all possible, hire a lawyer who is has experience/expertise in both the specific crime specialty (i.e., sex offenses) and defending people with I/DD. Since few attorneys have this experience, at the very least, he or she should be open to learning more about disabilities and working with NCCJD and other advocacy organizations to provide the best defense possible.

4. Finally, never agree to a plea bargain until it is written down for your approval and you know all of its consequences before you agree to it.

The sex offender registry laws must take into account a person’s disability so that true justice is served. If you or your family has experienced a similar situation, and are willing to share it, please send your story to NCCJD at NCCJDinfo@thearc.org. It’s time to bring this issue to light, and reveal the real life implications these laws have on people with I/DD and their families. We are well aware that ours is only one story of many, but together – our collective stories have the potential to become the catalyst for nationwide change. If we don’t speak out, who will?

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“The Times, They Are a-Changin”… But Will Criminal Justice Reform Measures Leave Some People Out?

/in /by The Arc

By Leigh Ann Davis, Program Manager, NCCJD

A recent Huffington Post article stated: “America must turn the page on its over-dependence on the criminal justice system. In order to break arrest cycles and end inappropriate criminalization of people with mental illness, we must support community based behavioral health care. We need…systems dedicated to recovery for adults, resiliency for children and self-determination for people with intellectual disabilities. It is a new year, a time for reflection and new resolve. America needs a new approach to mental health care – it is a matter of life and death.”

It’s becoming increasingly apparent to those outside of the disability community just how often people with intellectual and developmental disabilities (I/DD) are suffering at the hands of a criminal justice system that struggles both to identify their disability or, once identified, respond effectively to them as either victims, suspects or offenders. For example, the popular Netflix documentary “Making A Murderer” showcasing Brendan Dassey’s coerced confession provided a view into how a person with a disability can be easily manipulated in the criminal justice system, and people with little or no direct involvement in disability and justice issues are witnessing how hard it can be for suspects with I/DD to experience a fair system of justice.

No matter what your opinion on the guilt or innocence of Brendan or his uncle, watching the episode where Brendan “confessed,” and seeing the techniques used to force the so-called confession, may cause some sleepless nights. Yes, it’s that disturbing. People new to this issue who are learning about forced confessions for the first time become outraged when they discover just how often this is going on. The hard reality is that there are countless other Brendans who are stuck in a criminal justice system that often doesn’t recognize their disability and isn’t equipped to serve them.

Bob Dylan wrote the hit song “The Times, They Are a-Changin” in the mid-60’s as a deliberate attempt to create an anthem of change for his time. Thankfully, criminal justice reform is in the air as evidenced by the President’s Task force on 21st Century Policing, which addresses “mental health” issues. There are bipartisan coalitions working together to achieve some level of success in reducing mass incarceration through sentencing reform and other measures. President Obama also emphasized criminal justice reform in his State of the Union address. But the question remains, will people with intellectual and developmental disabilities – who are overrepresented in the criminal justice system – be left out? Even if “the times are a-changin” with regard to criminal justice reform, how will people with disabilities be included in this conversation, or will they even be invited to the table? When the President’s report mentions “mental health” does that include people with I/DD too? If we are to effectively change our criminal justice system, how do we take into account people with I/DD who are overrepresented in the system (both as victims and suspects), and at the same time, often invisible as well (since their disability is often not immediately recognizable)? NCCJD is researching this issue, diving deep into these difficult questions and seeking achievable solutions. We are on the front-lines, actively working to support policy that will:

  • Create systemic protocols to better identify individuals with I/DD in all stages of the criminal justice system, whether victim or suspect/offender
  • Support quality training for law enforcement, attorneys and victim service providers so that individuals with I/DD are appropriately identified as having a disability, and are provided with critical supports/accommodations that enable full access to justice
  • Ensure individuals with I/DD are included in key criminal justice reform programs, such as pre-trial diversion and sentencing reduction initiatives

NCCJD’s mission is to bridge the gap between the criminal justice and disability worlds. Over the next two years, with the continued support of DOJ’s Bureau of Justice Assistance, we will be addressing timely issues like competency to stand trial, and the intersection of race and disability in policing in white papers, media interviews, infographics, and other publications. We are expanding our Pathways to Justice™ training program to include an elective module for Crisis Intervention Teams (CITs) that will bring targeted attention and training to the issue of I/DD for law enforcement nationwide. We will continue to offer much needed support through our information and referral and technical assistance services to a broad audience of criminal justice professionals, as well as chapters of The Arc, advocates and family members.

Few would argue it’s become clear America needs a new approach when it comes to criminal justice issues. Whether professional, family member or other advocate, we must do all that is in our power to ensure citizens with intellectual and developmental disabilities are not left behind in this new era of criminal justice reform.

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Is Justice Delayed Really Justice?

/in /by The Arc

By Leigh Ann Davis, Program Manager, Justice Initiatives

If you had been in prison since 1987 for a crime you didn’t do – missing nearly three decades of your life – and then were released and had charges dismissed, would you believe you had received justice? I would not.

While attending The Arc’s national convention in Indianapolis this month, I received news that so many of us had been waiting for: charges against Richard Lapointe, a man with intellectual disability who had been in prison since 1987 until April of this year for a rape and murder he did not commit, were dismissed and he was finally a free man! After a lengthy, coercive interview with police, Lapointe falsely confessed to the crime, which was committed against his then-wife’s grandmother. Since then, his legal team and advocates (including advocates within The Arc at the local, state and national levels) have been fighting for his case to be reconsidered because of his intellectual disability.

In the spring, the Connecticut state Supreme Court raised concerns about the circumstances of the interrogation and the truthfulness of the alleged confessions, and ordered that he be released or given a new trial. Then prosecutors agreed not to pursue the means to keep him in prison while they decided whether to challenge the state Supreme Court decision. Richard lived in an unbearable stage of limbo – until last Friday, when charges were formally dropped.

“Freedom is when I can walk down the street and wave to somebody and not worry that, that they’re gonna think I’m trying to be trouble,” Lapointe said in the Hartford Courant, June 15, 2015

The decades of advocacy it took to right this monumental wrong was thanks to dedicated advocates who never gave up hope that Richard would one day be a free man. Robert Perske founded The Friends of Richard Lapointe more than 20 years ago when, during Lapointe’s first week in court, he noticed that not one person was sitting on Richard’s side of the courtroom – except Perske. By the next Monday morning, some 30 people sat behind Richard in court thanks to Perske’s quick and persuasive advocacy work. Since that time, many have joined the cause and The Friends of Richard Lapointe was born. Perske is a legendary giant in the field of false confessions of people with intellectual disabilities. He is also a respected author, advocate and long-time supporter of The Arc. He compiled a list of people with intellectual disabilities who gave false confessions in order to document just how often false confessions are coerced out of people with intellectual disabilities, and to show how devastating the outcome can be. Those accused of crimes they did not commit often face the greatest injustice of all, some losing their lives when coerced into giving false confessions. Since 1983, over 60 people with intellectual disabilities have been executed based on false confessions. Lapointe, who became one of Perske’s closest friends throughout this ordeal, was on Perske’s list – until last Friday.
Learn more

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Recognizing Disability Leads to Better Outcomes in Criminal Justice System

/in /by Guest Blogger

Adapted for The Arc’s blog by Janet Keeler, Ph.D., Cuyahoga County Board of Developmental Disabilities, Cleveland, OH

The Cuyahoga County Board of Developmental Disabilities’ (CCBDD) Forensic Unit and Cleveland State University recently completed a seven-year collaborative research project focusing on the characteristics and offense patterns of 160 individuals with developmental disabilities (DD) in a large urban setting. This kind of research has never been done and conclusions are being used to inform criminal justice work in this community.

The findings are important because far too many people with intellectual and developmental disabilities (I/DD) are in our criminal justice system, with no recognition of their need for accommodations. People with I/DD and other disabilities often find themselves in the criminal justice system due to a lack of awareness of how to identify and meet the needs of this population when law enforcement encounters them as victims, offenders, or suspects. Too often there is little or no consideration for their diagnosis throughout the legal process, leading up to a decision in their case. The Arc’s National Center on Criminal Justice and Disability (NCCJD) is working to change this reality. For resources, training, and assistance, go to http://www.thearc.org/NCCJD.

Here are four takeaways from the research project:

  1. Early identification of individuals with DD in the criminal justice system is incredibly important. The research demonstrates that individuals with disabilities have better dispositions (the court’s final determination of a criminal charge) and access to targeted service delivery models when disability is identified at the start of the criminal justice process. The CCBDD Forensic Unit has developed multi-system identification methods to detect individuals all across the criminal justice system. This identification includes individuals already eligible for the CCBDD services who are identified via InJail, a shared electronic database with the County Sheriff’s office that provides notification upon booking in all jails in Cuyahoga County. Individuals who are not associated with the CCBDD but could be eligible for services are identified through a questionnaire administered at booking, followed up by outreach services.
  2. Access to trained criminal justice personnel leads to more appropriate outcomes. Through disabilities specific training and one on one consultation on each case, the Forensic Unit assists the specialized mental health/developmental disabilities (MH/DD) court personnel to understand individuals’ statuses, needs and the risks they face while incarcerated. The Forensic Unit liaisons are dispatched upon identification to support those individuals with disabilities who find themselves in the Cuyahoga County Corrections Center and assist with the challenges of being incarcerated. The forensic liaison meets and assists individuals in acclimating to jail, consults with attorneys and judges, and attends all court hearings until completion of the case, with the goal of collaborating in the process in the best interest of the individual. Due to this approach, many individuals in this study were sentenced to community control, an alternative to prison that usually involves intense monitoring and sometimes confinement to the person’s home rather than jail or prison.
  3. Repeat offense rate drops for those with access to disability supports. When successful service delivery models are used for people with disabilities in the criminal justice system, recidivism (the incidence of committing another crime that leads to re-arrest, reconviction or return to prison) is most often used to determine the success or failure of individuals sentenced to probation. This research study revealed very different recidivism rates for individuals who received specialized services – 14% re-offended, versus 28% of those individuals who experienced the process without appropriate access. The two factors attributed to this difference were the personal attention and additional advocacy in the process from the Forensic Unit liaisons and the impact of the knowledge of the judges who were trained in working with defendants with disabilities.
  4. Training criminal justice professionals can make all the difference for individuals with disabilities. This research confirmed that criminal justice professionals exposed to disability-specific training results in better outcomes for individuals with disabilities. And in addition to judges, lawyers, as well as probation/parole/corrections officers, training should be provided to school personnel (School Resource Officers or SROs), police departments, treatment professionals, and victim assistance agencies staff in order to facilitate communication, collaboration, early identification, and ultimately effective service provision for people with disabilities.

This groundbreaking research has led to many more questions to explore for the research team. The NCCJD staff would like to explore ways to gather data nationally on the number of people with I/DD who are in prison. We also need further research on what comprises effective training on disability issues for criminal justice professionals. What exactly made THIS training effective in reducing recidivism? It begs the question – what is more important, the “personal attention” or the training?

For a more in-depth look at a sub-topic in criminal justice and I/DD, join NCCJD on July 30 from 1:30 to 3:30 for their white paper release and accompanying webinar, “Sex Offenders with Intellectual and Developmental Disabilities: Problems and Solutions from Around the Nation.”

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GTO Cadets: A Law Enforcement Internship Program for Young Adults With Disabilities

/in /by Guest Blogger

NCCJD Promising Program Spotlight

By Officer Travis Akins

On November 10, 2014, the Roanoke Police Department held a press conference to officially launch GTO CADETS—“Grow Through Opportunity.” The GTO CADETS program allows young adults with disabilities to intern within the department. Cadets grow their professional skills and round out their resumes, and simultaneously provide law enforcement officers with coworkers with disabilities.

Officer Travis Akins worked closely with Chief Perkins to incorporate GTO CADETS into department life, establishing an internal policy and volunteer application process. The inaugural class included three young adults with Autism Spectrum Disorders and one with Down syndrome. A professional job coach, contracted through the Commonwealth of Virginia’s Department of Aging and Rehabilitative Services (DARS), is on site Monday through Friday to ensure GTO CADETS get the most out of their time with the department.

What exactly are GTO CADETS doing with their day?

After being outfitted with custom-designed GTO CADET uniforms—including badges—cadets complete tasks such as filing documents, shredding papers, copying and folding safety brochures, and providing department tours. Working up to 12 hours a week, each cadet receives assignments that play to their strengths. For example, one young man with autism disseminates daily assigned patrol vehicle keys to officers beginning their shifts. The position—which did not exist before the program—requires officers and detectives to sign for their patrol keys, ultimately both enhancing accountability and forcing interaction between officers and cadets.

GTO CADETS are also provided high community exposure. They assist the department with crime prevention presentations; role playing, co-training and molding the minds of young recruits in the police academy; acting as “McGruff the Crime Dog” for Senior Centers and elementary schools; changing Project Lifesaver transmitter batteries and bands on individuals with cognitive impairments who may wander; and riding in police vehicles in Christmas Parades and other popular events—in short, they act as a new face of law enforcement. Recently, a GTO CADET with Down syndrome co-presented with the Police Chief at a Bar Association luncheon. The cadet was responsible for the portion of the presentation focusing on the GTO CADET initiative.

Finally, each GTO CADET shift ends with 30 minutes of cardiovascular training in the department’s fitness facility.

Testimonials

Officers in the department have noticed preconceived perceptions morphing into positive interactions, empathy, and camaraderie. Police personnel expect to see the GTO CADETS around the building and look forward to daily interactions—many employees see the GTO CADETS as the highlight of their week! The Department is now totally committed to an inclusive work place, and increasing job, life, and social skills for young adults with disabilities.

Officer Travis Akins, a contributing author for this blog, says, “As a sworn law enforcement officer in the Commonwealth of Virginia, I firmly believe our criminal justice system desperately needs to develop creative programs nationwide, specific to individuals with disabilities. All human beings, regardless of their unique challenges, deserve a fair and equitable opportunity to enhance their own quality of life. Every person fully deserves the opportunity to be active, engaged, informed, and included, regardless of ability. Recognizing such, our department created a truly innovative program specific to individuals with disabilities!”

For assistance implementing the GTO CADETS program, e-mail Officer Travis Akins at GTOcadets@gmail.com or call at (540) 632-7326. Follow and Like GTO CADETS on Facebook.

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The Arc Celebrates Release of Richard Lapointe on Bond, Urges Prosecutors to Drop Case

/in , /by The Arc

Washington, DC – The Arc is thrilled to see the release today of Richard Lapointe, who has been in prison since 1987 for a rape and murder he did not commit. After a lengthy, coercive interview with the police, Lapointe falsely confessed to the crime, which was committed against his then-wife’s grandmother. Since then, his legal team and advocates have been fighting for his case to be reconsidered, because of his intellectual disability.

Last week, the Connecticut state Supreme Court raised concerns about the circumstances of the interrogation and the truthfulness of the alleged confessions, and ordered that he be released or given a new trial. Then this week, prosecutors agreed not to pursue the means to keep him in prison while they decide whether to challenge the state Supreme Court decision.

“This nightmare has gone on far too long for Richard. Finally, the state Supreme Court has recognized how the police treated Richard, and for the first time in more than 27 years, he will step outside of prison a free man. The prosecutors should now take the next and final step to end this and dismiss the charges, once and for all,” said Peter Berns, CEO of The Arc, who attended the oral argument of the case when it was heard by the Connecticut Supreme Court.

The Arc runs the National Center on Criminal Justice and Disability (NCCJD), the first national effort of its kind to bring together both victim and suspect/offender issues involving people with intellectual and developmental disabilities (I/DD) under one roof. NCCJD is a national clearinghouse for research, information, evaluation, training and technical assistance for criminal justice and disability professionals and other advocates that will build their capacity to better identify and meet the needs of people with I/DD, whose disability often goes unrecognized, and who are overrepresented in the nation’s criminal justice system.

“Far too many Richards are living in prisons, without the level of support Richard had from advocates and his attorneys – and it took more than 27 years for this injustice to be uncovered. How many more Richards are out there? False imprisonment of anyone, including people with I/DD, is an ugly mark on our nation’s conscience. The National Center on Criminal Justice and Disability is working every day to ensure justice for people with intellectual and developmental disabilities,” said Berns.

Those accused of crimes they did not commit often face the greatest injustice of all, some losing their lives when coerced into giving false confessions. Since 1983, over 60 people with intellectual disabilities have been executed based on false confessions. Robert Perske, respected author, advocate and long-time supporter of The Arc, compiled a list of people with intellectual disabilities who gave false confessions to begin documenting these otherwise hidden-away cases. Lapointe is on Perske’s list.

“It’s been a tough road – all the things Richard had to go through to get to this point are unfathomable. I’m feeling very good about all the troops that have stood by Richard all these years. Richard’s situation needs to teach everyone in the system,” said Perske.

“This is an extraordinary day. Richard never gave up hope and neither did his supporters. The truest form of justice is being served today!” Leslie Simoes, Executive Director, The Arc of Connecticut.

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How Oprah’s Story and Show Helped One Sexual Abuse Survivor With Down Syndrome Beat the Odds

/in /by The Arc

It started with one jarring phone call: “Conny, it’s Tammy. I think Jenny has been molested.” The grave tone of my sister Tammy’s voice told me that there was no doubt it was true.

How could anyone have hurt our precious, precious sister? Our sister, Jenny, has Down syndrome and an accompanying intellectual disability. Jenny is a person who would not hurt a fly, whose kindness and sensitivity are legend in the family; a person who could not stay in a room with a crying baby because it so upset her that she started crying too. A person with empathetic response to the world around her and a limited understanding of the evils of human nature, and a person whose disability influences her trusting nature.

My sister, Tammy, was home from college and doing what she always did when home, enjoying hang time with her big sister Jen. This often meant watching some of Jen’s favorite TV shows. Jen has a set schedule of shows she loves to watch so much that you look forward to the treat of watching them with her. Jenny’s usual routine is to return home from her supported day work program (currently she works as a candy striper at a hospital) and watch TV. On this particular day, like legions of other Americans, it was the Oprah Winfrey Show.

Tammy and Jen were about to catch one of Oprah’s most talked about shows. It ran on April 26, 2002, and was called “The Secret World of Child Molestation.” Oprah, a victim of child molestation herself, had a record of discussing the issue—even back when it was still largely taboo to discuss such matters in public. Even by 2002, when the topic had become more commonly discussed, this show still caused a stir because it presented a “deep dive” portrait on how often molesters are known and trusted members of your own family or community. The episode aired roughly concurrent to the still unfolding horror of the Catholic Church’s child molestation scandal in which known child abusing priests were left in parishes or moved from parish to parish, leaving epic numbers of devastated children in their wake.

Tammy found the show unsettling but was shaken to the core when Jen almost casually commented after then show, “Well that happened to me. But I’m over it now.” . . .

If you or someone you know is experiencing abuse or victimization:

  • Report to your local authorities or call The National Sexual Assault Hotline at 1-800-656-HOPE. Often, people with communication limitations will need support when calling the hotline.
  • Once any emergency situations have been handled, contact The Arc’s National Center on Criminal Justice and Disability (NCCJD) for more information about this issue, assistance when pressing charges, and to learn how you as a crime victims can “beat the odds” in your journey from crime victim to survivor. Submit a request online.
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The Arc Responds to Denial of Clemency for Warren Hill

/in , /by The Arc

Washington, DC – This morning, the Georgia Board of Pardons and Paroles voted to deny clemency in the case of Warren Hill, a man who has an intellectual disability (ID). Mr. Hill’s diagnosis of intellectual disability allows for protections found within the U.S. Supreme Court’s decisions in Atkins v. Virginia and Hall v. Florida. There is a stay motion and a petition for a writ of certiorari with the U.S. Supreme Court. They can still intervene and stay the execution, sparing Mr. Hill’s life.

“A gross miscarriage of justice has been committed in Georgia today. It is extremely disappointing that the Georgia Board of Pardons and Paroles failed to listen to pleas from The Arc, other organizations and experts to commute Mr. Hill’s sentence to life in prison without possibility of parole. The facts in this case are clear – and the state’s action clearly goes against the U.S. Supreme Court’s previous decisions in Atkins v. Virginia and Hall v. Florida. We hope that the Supreme Court will intervene and stay the execution, they are the last and only chance for justice in this case,” said Peter Berns, CEO of The Arc.

Warren Lee Hill, was found by a state court judge to have an IQ of approximately 70 and to meet the criteria for intellectual disability overall by a preponderance of the evidence. Georgia’s “beyond a reasonable doubt” legal standard for proving intellectual disability claims prevents Mr. Hill from being protected by Georgia and federal law prohibiting the execution of people with intellectual disability.

The Arc has been involved in this case for years. Nationally The Arc has participated in an amicus brief before the U.S. Supreme Court and written multiple letters urging clemency on behalf of Mr. Hill.

In its 2002 Atkins decision, the U.S. Supreme Court recognized the special risk of wrongful execution faced by persons with intellectual disability (formerly referred to as “mental retardation”) and banned the execution of persons with intellectual disability as cruel and unusual punishment under the Eighth Amendment. In its more recent 2014 Hall decision, the U.S. Supreme Court again reinforced its earlier decision that people with intellectual disabilities not be executed, requiring that consideration of evidence beyond IQ tests be taken into account when determining intellectual disability.

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Statement From Brian Kammer, Attorney for Warren Hill

/in /by The Arc

“Today Georgia set an execution date for a man who has had intellectual disability since childhood, and whose execution would be unconstitutional. Twice the lower court found Warren Hill to have intellectual disability by the preponderance of the evidence, a widely-used and appropriate standard. All of the states’ experts have agreed, and in fact no expert who has ever examined Mr. Hill disputes that he has intellectual disability. Many prominent leaders in the field of intellectual disability agree that Mr. Hill should not face execution because he is a person with lifelong intellectual disability. The only reason that he is now at risk of execution is that Georgia’s standard – requiring capital defendants to prove they have intellectual disability ‘beyond a reasonable doubt’ – is not science-based and inherently denies people like Mr. Hill from receiving the protection which the U.S. Supreme Court has ordered. Last year, the U.S. Supreme Court wrote in Hall v. Florida, ‘Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution.’ Georgia’s standard does not allow that ‘fair opportunity.’ It is unfathomable that Georgia is planning the execution of a man with intellectual disability, who is constitutionally protected from execution.” – Brian Kammer, attorney for Warren Hill

The execution order can be accessed here: http://bit.ly/1AoNSaR

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The Arc Calls on Governor McAuliffe to Grant Conditional Pardon for Neli Latson Immediately

/in , /by The Arc

Stafford, VA – Today was another day in court for Neli Latson, a young man with autism who has spent a significant amount of time in solitary confinement. His case has become the symbol for dysfunction in our national justice system for people with intellectual and developmental disabilities (I/DD). As Latson entered a guilty plea today to charges of assault, The Arc is calling on Virginia Governor Terry McAuliffe, who now has the legal authority to take action, to promptly grant a conditional pardon so that Latson can be transferred from the criminal justice system to the developmental disability system, where he will receive the services he needs.

“Mr. Latson is caught in a recurring cycle of prosecution and punishment due to factors related to his disabilities. He is not a criminal. He is a person with autism and intellectual disability whose behaviors can be aggressive, often in an attempt to communicate. Prison is not where Mr. Latson belongs,” wrote Peter Berns, CEO of The Arc, to Governor McAuliffe in early December requesting a conditional pardon.

Latson, who is 22, has been incarcerated since August 2013 as a result of behavior connected to his disability. He has been held in solitary confinement for most of that time and is presently at a Virginia state prison. His tragic situation is the result of events surrounding his initial detention which occurred while waiting for the public library to open, and from subsequent mental health crises resulting from his confinement. A conditional pardon would allow Latson to be moved immediately to a facility in Florida that will provide the support necessary to help him move on from these events.

Advocates from The Arc’s National Center on Criminal Justice and Disability (NCCJD) and The Arc of Virginia have been involved in this case for months, advocating alongside Latson’s legal team. NCCJD is operated by The Arc and is the first national effort of its kind to bring together both victim and suspect/offender issues involving people with I/DD under one roof. NCCJD is a national clearinghouse for research, information, evaluation, training and technical assistance for criminal justice and disability professionals and other advocates that will build their capacity to better identify and meet the needs of people with I/DD, whose disability often goes unrecognized, and who are overrepresented in the nation’s criminal justice system. Currently, NCCJD is developing training for law enforcement, victim service providers and legal professionals that will support police departments, prosecutor’s offices, and other professionals in the criminal justice system to effectively and fairly administer justice for people with disabilities.