Spotlight

SCOTUS Rules Texas Can’t Use Junk Science to Justify Executing the Intellectually Disabled

By Mark Joseph Stern - writer for Slate. He covers the law and LGBTQ issues.

Supreme Court Justices Samuel Alito, Ruth Bader Ginsburg
Supreme Court Justices Ruth Bader Ginsburg, Stephen Breyer, and Samuel Alito at the inauguration on Jan. 20. Ginsburg authored the majority opinion in Moore v. Texas.

On Tuesday, the Supreme Court struck down Texas’ test for determining which inmates are intellectually disabled and therefore constitutionally protected from capital punishment. Texas’ use of outdated and unscientific “medical guidance” to gauge “intellectual functioning,” the majority held, violated the Eighth Amendment’s ban on “cruel and unusual punishments.” The 5–3 decision in Moore v. Texas marks the court’s latest attempt to prevent states from justifying the execution of disabled inmates using arbitrary or capricious standards.

Under 2002’s Atkins v. Virginia, states are forbidden from executing individuals with intellectual disabilities. But Atkins allowed states to create their own rules for determining when an inmate fit this category. In 2014’s Hall v. Florida, the court noted that states’ discretion here is not “unfettered”—it must be “informed by the medical community’s diagnostic framework.” If states had “complete autonomy to define intellectual disability as they wished,” the court explained, “Atkins could become a nullity, and the Eighth Amendment’s protection of human dignity would not become a reality.”

Texas, however, currently rejects the medical community’s current framework in favor of obsolete standards. To determine whether an inmate is disabled, the Texas Court of Criminal Appeals held that courts must use intellectual disability guides written in 1992. In addition, the CCA allowed courts to use pseudoscientific “evidentiary factors” drawn from stereotypes of disabled people and the character of Lennie from John Steinbeck’s Of Mice and Men. (Seriously.) For instance, the CCA fixated on the fact that the inmate in this case, Bobby James Moore, demonstrated “adaptive strengths,” such as the ability to mow lawns and play pool. The CCA seemed to believe that all intellectually disabled people are, as one amicus brief put it, “incapable of any but the most rudimentary tasks,” and that individuals with any “adaptive skill” cannot be disabled.

Current medical consensus rejects this misconception as little more than a “lay stereotype.” But that didn’t matter to Texas. In fact, the CCA actually barred lower courts from using more recent science in evaluating a death row inmate’s claim of intellectual disability.

In a decision written by Justice Ruth Bader Ginsburg, the Supreme Court found that these standards clearly violated Atkins and Hall. “As we instructed in Hall,” Ginsburg explained, “adjudications of intellectual disability should be ‘informed by the views of medical experts.’ That instruction cannot sensibly be read to give courts leave to diminish the force of the medical community’s consensus.” Moreover, Texas uses several alleged “indicators of intellectual disability” that “are an invention of the CCA untied to any acknowledged source.”

“Not aligned with the medical community’s information,” Ginsburg wrote, “and drawing no strength from our precedent,” these factors create “an unacceptable risk that persons with intellectual disability will be executed.” Accordingly, Texas must permit the use of “current medical standards” in determining whether an individual is intellectually disabled and may not use the “wholly nonclinical” factors concocted by the CCA.

In dissent, Chief Justice John Roberts, joined by Justices Clarence Thomas and Samuel Alito, complained that the court looked to “medical assessment[s] of clinical practice” rather than “societal standards of decency” to determine whether Texas’ guidelines violate the Eighth Amendment. According to Roberts, the court should’ve looked to see whether other states operated under similar rules; if a sufficient number of them did, then Texas could not, by definition, have breached “societal standards of decency.” But even Roberts admitted that the factors drawn from stereotypes and literature cannot possibly comport with the Eighth Amendment.

Tuesday’s decision is a significant contribution to the Supreme Court’s developing—and increasingly progressive—case law regarding capital punishment and intellectual disability. Justice Anthony Kennedy, Ginsburg, and the court’s three other liberals have made great strides in limiting states’ ability to execute inmates with mental impairments. The bad news is that the ruling split 5–3 on predictable ideological grounds. This line of cases is recent and controversial, making it a tempting target for reversal by a future conservative majority. As Moore makes clear, the lives of intellectually disabled inmates still depend upon the balance of the Supreme Court.

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The Supreme Court Rules In Favor Of A Special Education Student

Supreme Court Chief Justice John Roberts
ANYA KAMENETZ, NPR March 22, 201712:04 PM ET

School districts must provide students with disabilities the chance to make meaningful, "appropriately ambitious" progress, the Supreme Court said today in an 8-0 ruling. Download the Endrew F v. Douglas County decision here

The decision in Endrew F. v. Douglas County School District could have far-reaching implications for the 6.5 million students with disabilities in the United States.

The case centered on a child with autism and attention deficit disorder whose parents removed him from public school in fifth grade. He went on to make better progress in a private school. His parents argued that the individualized education plan, or IEP, provided by the public school was inadequate, and they sued to compel the school district to pay his private school tuition.

The Supreme Court today sided with the family, overturning a lower court ruling in the school district's favor.

The federal Individuals With Disabilities Education Act, or IDEA, guarantees a "Free Appropriate Public Education," or FAPE, to all students with disabilities. Today's opinion held that "appropriate" goes farther than what the lower courts held.

"It cannot be right that the IDEA generally contemplates grade-level advancement for children with disabilities who are fully integrated in the regular classroom, but is satisfied with barely more than de minimis progress for children who are not," read the opinion, signed by Chief Justice John Roberts.

The case drew a dozen friend-of-the-court briefs from advocates for students with disabilities who argued that it is time to increase rigor, expectations and accommodations for all.

"A standard more meaningful than just above trivial is the norm today," wrote the National Association of State Directors of Special Education.

The ruling seems likely to increase pressure from families and advocates in that direction.

Significantly, Judge Neil Gorsuch, currently in confirmation hearings for the Supreme Court's vacant ninth seat, has repeatedly ruled the other way on similar cases.

Gorsuch's opinions in eight out of ten cases involving students of disabilities all tended toward limiting the responsibilities of school districts — for example, if they leave school of their own accord out of frustration. IDEA's standard of a "free appropriate public education," reads Gorsuch's opinion in one of these cases, "is not an onerous one."

When questioned on his record, in light of this new ruling, during his hearing today by Texas Sen. John Cornyn, he said "I was wrong, Senator, because I was bound by circuit precedent, and I'm sorry."

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What’s at Stake for Americans with Disabilities in the Trump Era

President Donald Trump made his disregard for the 1 in 5 Americans with disabilities abundantly clear during the campaign when he mocked a disabled New York Times reporter. But that disregard is no longer just hateful words. Now Trump’s administration, as well as his Republican colleagues in Congress, are pursuing policies that would put the health, education, and economic security of people with disabilities and their families at grave risk.

The GOP plan for health insurance would make dramatic cuts to Medicaid, decimating services that enable people with disabilities to live independently and work. Meanwhile, Trump and his colleagues in Congress are poised to slash Supplemental Security Income, nutrition and housing assistance, early childhood education, funding for civil legal aid, and more, all while protecting tax cuts for the wealthy and corporations. Betsy Devos, recently confirmed as Trump’s secretary of education, was not even aware of the Individuals with Disabilities Education Act, the longstanding federal law that ensures that students with disabilities have access to a free and appropriate public education.

Join the Center for American Progress for a discussion of what is at stake for people with disabilities under the new administration and Congress and where the progressive movement must go from here to effectively champion a policy agenda that ensures that people with disabilities have a fair shot. CAP will also be releasing a video showcasing the voices of people with disabilities and how they and their families would be impacted by the Trump policy agenda.

Neera Tanden, President and CEO of the Center for American Progress

Keynote remarks:
Anastasia Somoza, disability activist and Democratic National Convention speaker

Featured panelists:
Marty Ford , Senior Executive Officer, The Arc of the United States
Valerie Williams, Director of Government Relations, ‎National Association of State Directors of Special Education
Ari Ne’eman, CEO, MySupport.com
Andraea Lavant, Inclusion Senior Specialist, Girl Scouts Nation’s Capital
Marta Conner, mother and advocate

Moderator:
Rebecca Vallas, Managing Director, Poverty to Prosperity Program, Center for American Progress

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What A Waste Of Money

Southbury Training School

Southbury Training School
The institution for the intellectually disabled is serving a dwindling population at the huge cost of $1,000 per client a day. (Carolyn Lumsden / Hartford Courant)

The Southbury Training School is an obsolete, rundown institution that hasn't admitted any new residents in 30 years. The state has to commit to closing it. Its wild overtime costs continue to suck taxpayer money that could be better spent serving many more people with intellectual disabilities at much more reasonable cost in smaller private facilities.

One state worker at Southbury, for example, pumped up her $60,000 base salary to a hard-to-believe $196,000 with overtime this past fiscal year, The Courant's Josh Kovner has reported. With fringe benefits, she earned $237,886 — more than Gov. Dannel P. Malloy makes.

Overtime Extravagance

Four of her colleagues earned an are-you-kidding-me $100,000 each in overtime. Another 50 earned $50,000 or more in OT.

Altogether, Southbury's 615 full- and part-time employees (serving just 229 clients) earned an average of $20,000 each in overtime.

This is an extravagant waste of public money. Moreover, it's inhumane to work people too many hours. Long hours lead to high injury rates and poor performance, and that could endanger the elderly, vulnerable residents of Southbury.

The state is paying too steep a price to keep open an outmoded institution serving a dwindling population at the huge average cost of $360,000 per client per year — nearly a thousand dollars a day. It costs half of that or or less to care for a client in a private facility.

But the state agency that runs Southbury Training School has yet to report to a legislative committee on how to close the exorbitant institution, as it was ordered to do back in late 2015. You'd think a state financial crisis would speed the agency up.

A spokeswoman for the agency, the state Department of Developmental Services, says that personnel spending is actually down at Southbury. What's driving costs up are such things as state pension debt, she says.

Well, no wonder. Overtime is part of state workers' pension calculation. Pension padding is helping to put Connecticut state government in a financial ditch, yet it continues.

Money For Some, Not Others

Southbury isn't alone among state-run institutions with out-of-control overtime costs. A worker at an institution in Newington was paid $150,000 in OT in the last fiscal year, on top of his $57,000 salary. For two years in a row, his total compensation was at least $262,000.

Yet there's no money in the governor's budget proposal for day programs for the intellectually disabled. Nor is there money for the 2,100 families on the waiting list for services or residences for their disabled relatives.

While state employees run up overtime to astronomical levels, the vast majority of intellectually disabled people are served by the private sector, where the cost is half or less, with no difference in quality — or they're not being served by the state at all, but are being cared for at home, often by aging parents.

Some of the families of those on the waiting list and others have called for Southbury to close by 2020 and for its clients to be moved to smaller private facilities, where they'll be cared for well but not so wastefully. The families have been unable to get a commitment from either the governor or the legislature.

So they wait for years, sometimes decades, for a place for their disabled loved ones to live, while workers at state institutions earn outrageous sums that eat up state funds. How is this fair?

Copyright © 2017, Hartford Courant

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AUCD, NDRN and NACDD Statement

Joint Statement – Concerns about the Proposed Changes to Medicaid in the House Republican Policy Brief

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DOWNLOAD THE JOINT STATEMENT

As the three national Developmental Disabilities (DD) Network partners that represent the entities authorized in the DD Act whose members annually advocate for and provide hundreds of thousands of clinical services and home and community based supports to people with disabilities and their families, the Association of University Centers on Disabilities (AUCD), the National Disability Rights Network (NDRN), and National Association of Councils on Developmental Disabilities (NACDD) are concerned about the policy brief distributed by the House Republican leadership on Thursday, February 16th to its Members about repealing and replacing the Affordable Care Act (ACA).

The goals of the policy brief distributed last week are to "put Medicaid on a budget" and to "return the focus of the program back to helping those most in need."

While these two goals sound reasonable, they will likely result in constraints that will harm people with disabilities and those who support and serve them. We are concerned about three specific items in the policy brief: 1) proposed per capita caps with the option for block grants, 2) proposed Health Savings Accounts, and 3) "next generation high risk pools."

The proposed per capita allotment to be paid to states for each person eligible for Medicaid will threaten the long-standing guarantee to provide health care and support services to people with disabilities. Block grants would similarly cap the amount of money each state receives without allowing for adjustments when there are changes to health care costs, population growth, or in response to economic downturns, or natural disasters. In 2014, there were almost 600,000 people with disabilities waiting for home and community based services from Medicaid. With the introduction of per capita allotments to states, it is only likely this number will increase. We have only to look at the cuts to Medicaid Texas made last year to see the reduction in services for those with disabilities.

The proposed health savings accounts also are of great concern. While designed to increase consumer control over health care costs, this is often not possible for people with disabilities. Living in rural or frontier America, or even in medium size cities, people with disabilities often have no choice about their health care and durable medical equipment providers. In addition, the amount of money allotted in a health savings account is often only a fraction of the cost of annual care for a person with a disability.

We are also concerned about the high risk pools described in the policy brief as State Innovation Grants. Without adequate funding, high risk pools will either deny coverage to some of those in need or the state pools will offer limited services. Either way, those with disabilities will suffer.

We urge the House Republican leadership to offer a plan that protects people with disabilities from the discrimination they experienced prior to the implementation of the Affordable Care Act and to ensure people with disabilities will have access to health care and support services. Health care coverage that does not include durable medical equipment; rehabilitative, habilitative, and mental health services; and preventative services will greatly harm the health and well-being of people with disabilities.

We look forward to working with the House leadership and all Members as Congress considers revisions to the ACA and Medicaid. For more information please contact: Kim Musheno (kmusheno@aucd.org), Eric Buehlmann (eric.buehlmann@ndrn.org), and Cindy Smith (csmith@nacdd.org)

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WE DID IT: Self-Advocates Change the Handicapped Parking Sign in Connecticut!

Thanks to the initiative of Self-Advocates at Favarh, HB 5050 – An Act Concerning the Modernization of Parking Spaces for People with Disabilities, passed both the House and the Senate today and awaits the expected signature from the Governor. With that, Connecticut becomes the second state in the country to both remove the word “handicapped” from parking signs and to change the static wheelchair to a more active, independent, and modern icon.

parking-sign-image

The measure is a ZERO COST bill which means the new signs will only be installed when existing signs need replacing and with new construction.

This change will create greater disability awareness, particularly around parking. The updated signs are eye catching and as they come online over the next few years, people will take notice. We hope that this leads to less abuse of those parking spots so that they are available to the people who really need them. Let’s face it, if we live long enough, every one of us will need accessible parking at some point in our lives. We all benefit from a more accessible community!

Senator Ted Kennedy, Jr. spoke in support of the bill Wednesday evening. “I want everyone to know that the symbols we use are very important and we understand that it is not a physical or mental condition that creates a handicap…it is peoples’ attitudes about the condition that create disabilities.”

This issue is important to Self-Advocates at Favarh because they understand better than most the power of misperceptions regarding the capabilities of people with disabilities. While the root of these misperceptions is most certainly ignorance, ignorance can be fueled by language and symbols.

Self-Advocate Lauren Traceski thinks that with this bill, “Governor Malloy is saying that we want to be known as the state of equal opportunity…the state that sees everyone, including people with physical disabilities, as capable, confident, and independent.”

All of Favarh’s Advocates and Self-Advocates want to thank the Governor, his staff, and all the legislators who supported our efforts to represent people with physical disabilities as capable, confident, and independent!

Governor’s Office

Governor Dannel P. Malloy

Jonathan Slifka, The Governor’s Liaison to the Disability Community

 

Bill Sponsors

Rep. J. Brendan Sharkey, 88th Dist.
Rep. Joe Aresimowicz, 30th Dist.
Sen. Martin M. Looney, 11th Dist.
Sen. Bob Duff, 25th Dist.

 

Co-Sponsors

Rep. John K. Hampton, 16th Dist.

Sen. Beth Bye, 5th Dist.

Rep. Emmett D. Riley, 46th Dist.

Rep. Mike Demicco, 21st Dist.

Rep. Selim G. Noujaim, 74th Dist.

Rep. Ben McGorty, 122nd Dist.

Rep. Jay M. Case, 63rd Dist.

Rep. Joe Verrengia, 20th Dist.

Rep. Stephen D. Dargan, 115th Dist.

 

Legislative Friends

Tim LeGeyt

Brian Becker

Kevin Witkos

Members of the Committee on Government Administration and Elections

Members of the House and Senate who voted in support of HB 5050

 

Thank You to everyone who supported this bill!

 

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