Left Behind, Again: Intellectual Disability and the Resentencing Movement

Abstract

This Article examines the exclusion of individuals with intellectual disability from much of the current resentencing movement. Across the country, incarcerated individuals are filing motions in federal and state courts seeking release as part of a nationwide movement toward decarceration. These motions are possible because new legislation and case law have been moving away from the “law and order” policies that permeated the criminal legal system for the last several decades. Those eligible for release include individuals sentenced to long terms of imprisonment for non-violent drug offenses or offenses they committed as children. In addition, elderly and very sick incarcerated individuals can seek review of their sentences in many jurisdictions.

Although the current resentencing movement has its roots in Atkins v. Virginia—in which the Supreme Court held that execution of individuals with intellectual disability violated the Eighth Amendment—individuals with intellectual disability have not been an explicit part of this movement. The Article uniquely considers the role of practical concerns that impede incorporation of individuals with intellectual disability into the resentencing movement, such as difficulties identifying individuals with intellectual disability in the criminal legal system. This Article also examines the Court’s opinions both on proportionality in sentencing and individuals with intellectual disability to argue that the Court’s delay in defining “intellectual disability,” history of discriminatory opinions, and failure to extend Atkins beyond the death penalty context have contributed to individuals with intellectual disability’s exclusion from resentencing.

Finally, this Article proposes both litigation and legislative strategies to more explicitly include individuals with intellectual disability in resentencing and early release efforts. Relatively small changes can have a substantial impact on individuals with intellectual disability who are incarcerated and on the resentencing and criminal legal system reform movements.

Keywords: sentencing, intellectual disability, compassionate release, second look acts, criminal law, criminal procedure, decarceration, Eighth Amendment