DSM 5 Worries Attorneys…..Deportation By Association…The New World of Bi-Partisan Sentencing Reform…..and More

CHANGES IN THE OFFICIAL DEFINITION OF MENTAL DISABILITY WORRIES DEFENSE LAWYERS

The newest revision of the Diagnostic and Statistical Manual of Mental Disorders—the DSM 5-–AKA the bible of psychiatric conditions, published by the American Psychiatric Association, will be released later this month.

Among its changes and updates, the DSM 5 has revised the definition for what it considers to indicate intellectual disability (mental retardation)—a development that has a lot of defense lawyers worried because of its implications in sentencing, particularly when it comes to capital punishment.

Reuters’ Elizabeth Diltz has the story. Here are some clips:

The fifth edition of the book since it was first published in 1952, or DSM-V, is due to be released May 22. Already it has prompted concern from death penalty lawyers because of the change in the way the manual defines mental illness, or intellectual disability, the new name given in DSM-V.

Earlier editions of the DSM defined mental retardation as an IQ score below 70 accompanied by an inability to meet certain developmental norms, such as bathing regularly or maintaining work. Based on that IQ benchmark, the U.S. Supreme Court ruled in Atkins v. Virginia in 2002 that it is illegal to execute a mentally handicapped person.

But the editors of DSM-V have dropped the 70 IQ score as an indicator of mental retardation and instead recommend that clinicians consider IQ scores while analyzing an individual’s behavior to determine if he or she meets the developmental standards.

Clinically speaking, most consider the change to be a welcome one. Intellectual ability is not even remotely a cut-and-dried matter, as anyone who has worked in or around the mentally disabled can describe. The nature and range of human intelligence is more complex than that which can be measured with such conventional tools as IQ tests.

However, courts tend to like firm definitions, bright lines on that ground that separate this from that, all of which concerns defense lawyers.

However, according to Reuters, some of those who were responsible for the DSM 5’s revisions are hoping the courts will embrace the new complexity, rather than using it as a cudgel.

James Harris, the founding director of the Developmental Neuropsychiatry Program at the Johns Hopkins University School of Medicine and a member of the DSM-V work group, said the criteria focus on three areas of adaptive functioning: academic, social and practical.

Looking at a death row inmate’s social adaptive area, an expert can examine how gullibility may have led the inmate into a crime, which could support a claim of mental retardation, Harris said in an email.

“We believe that we are providing the courts with a more fine-grained means to consider adaptive functioning more comprehensively and more meaningfully,” Harris said.

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KNOW A GANG MEMBER, BE DEPORTED

As the bipartisan immigration reform put forth by the so-called Gang of 8 begins its journey through the congressional process, those who are less-than-friendly toward the reform are seizing the moment to tack on a string of poison pill amendments to the original bill.

One of the most loathsome of these is an amendment proposed by Sen. Charles E. Grassley (R-Iowa), which would mandate the deportation of anyone who appears in either a gang database or in a gang injunction.

WLA has written before about the dangers of being falsely named in an injunction, and of the impossibility of getting off CAL GANG, California’s gang database, once you’ve been put on.

Tuesday’s LA Times editorial board has a short but excellent editorial about the creepy Grassley Amendment (penned by the very smart Sandra Hernandez).

Here are a couple of clips:

The Senate Judiciary Committee is just beginning its markup of the bipartisan immigration bill, but already opponents and supporters of the sweeping legislation are fighting over which immigrants should be allowed to legalize their status and which should be deported.

[SNIP]

Keeping immigrants from legalizing their status because of accusations, rather than convictions, is unjust. Gang databases and injunctions are useful but imperfect tools with a troubled history. Individuals can find themselves on those lists because of such factors as tattoos, style of dress or identification by an informant. Moreover, critics say individuals who may not be in a gang but have relatives or friends who are can end up in the databases. That’s guilt by association.

Those placed on such lists often face a near-impossible task when they try to remove their names. Just consider Orange County Dist. Atty. Tony Rackauckas’ appalling tactics in trying to secure an injunction against 115 alleged members of the Orange Varrio Cypress gang. Dozens of them went to court to challenge the designation. However, they never got a chance to present their case because prosecutors dropped their names from the list before a judge could rule

The violence prevention program Homies Unidos, is among those youth advocate groups that oppose this amendment. Here’s what they had to say:

This kind of dragnet approach targets the wrong people and risks deporting and separating from their families individuals who are not gang members. Young people living in “bad” neighborhoods will certainly be vulnerable. Moreover, these provisions do not adequately protect people who have left gangs and have stable and productive lives.

These proposals impose guilt by association and collective punishment by targeting people not for their own individual culpable conduct, but for their associations with groups considered to be dangerous. For example, this provision could impact a person who resides with or associates with a family member known to be in a gang or lives in a neighborhood where there is a high concentration of gangs…

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ONCE OBSTRUCTIVE REPUBLICANS NOW LEAD ON SENTENCING REFORM IN HOUSE JUDICIARY COMMITTEE

More cheers for the Right on Crime group that is increasingly providing leadership on many criminal justice issues.

In this week’s Congressional Quarterly, for instance, the CQ’s John Gramlich notes the following:

Congressional Democrats have argued for years that too many low-level drug offenders are locked away in federal prisons and that mandatory-sentencing laws disproportionately harm minorities and tie judges’ hands. Lately, they have been joined in those criticisms by Sen. Rand Paul, a tea-party-backed Republican with White House aspirations.

“I think the Republican Party could grow more if we had a little bit more of a compassionate outlook,” the Kentuckian says.

Paul is emblematic of a quiet but unmistakable shift among conservatives in Congress when it comes to criminal justice. Not only are Republicans engaging in a serious debate about relaxing federal criminal penalties — an idea that was once anathema to lawmakers who worried that their next campaign opponent would label them “soft on crime” — they are leading the discussion.

The House Judiciary Committee, which has poured cold water on Democratic priorities since Republicans regained control of the chamber in 2010, last week created a bipartisan, 10-member task force that will conduct a six-month analysis of the estimated 4,500 crimes on the federal books. (Story, p. 848)

The task force will examine “overcriminalization” in the federal justice system and evaluate what Judiciary Chairman Robert W. Goodlatte calls an “ever-increasing labyrinth” of criminal penalties, some of them for relatively minor crimes in which perpetrators may not have realized they were breaking the law. The Virginia Republican cited the example of an 11-year-old girl who “saved a baby woodpecker from the family cat” but received a $535 fine because of a federal law banning the possession of a migratory bird.

The panel will be led by law-and-order Wisconsin Republican Jim Sensenbrenner and Virginia Democrat Robert C. Scott, an outspoken critic of more-contentious criminal policies such as mandatory minimum sentencing, which the task force will also evaluate. A diverse range of groups endorses the effort, including the American Civil Liberties Union, the Heritage Foundation and the U.S. Chamber of Commerce….

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LA UNIONS MARCH ON TUESDAY TO PROTEST POSSIBLE SALE OF LA TIMES TO KOCH BROTHERS

Members of the County Federation of Labor and others marched on Tuesday to protest the rumored possible sale of parts or all of the Tribune Co., including the LA Times, to the company owned by the conservative Koch siblings.

Here’s what Rory Carroll of the Guardian said about the march:

Unions, activists and artists held a rally on Tuesday, to protest the possible sale of the Los Angeles Times to the Koch brothers, warning that such a sale would turn one of the US’s great newspapers into a right-wing mouthpiece.

Hundreds gathered outside the downtown Los Angeles office of Oaktree Capital Management, the largest shareholder in Tribune Co, which owns the LA Times, to deter it from making such a deal. Some carried signs saying “No Koch Hate in LA”.

“The idea that the LA Times could be taken over by right-wing radical extremists just boggles the mind,” said Glen Arnodo, staff director of the LA County Federation of Labor, as protestors prepared to picket. “It’s impossible to believe with their brand of extremism that there would be any objectivity whatsoever.”

Musician Ry Cooder reportedly even wrote a song about the matter, with which he serenaded the crowd.