Blaine Milam is an East Texas man who’s on death row for the 2008 beating death of 13-month-old Amora Carson. Milam was scheduled to be executed back in 2021, but a Texas appeals court granted a request to stay his execution; his lawyers argued he displayed significant limitations in intellectual functioning.
Back in 2002, the U.S. Supreme Court barred the execution of people with intellectual disabilities, though it gave states some discretion to decide how to determine such disabilities. Last week, the Arc, a disability rights advocacy group, was among several organizations filing a “friend-of-the-court” brief with the Texas Court of Criminal Appeals.
Shira Wakschlag, legal director for the Arc of the United States, joined the Standard with more.
This transcript has been edited lightly for clarity:
Texas Standard: Tell us about what this brief is urging the court to do here.
Shira Wakschlag: So the Arc’s advocacy led to the U.S. Supreme Court’s ruling more than 20 years ago that you mentioned that bars the execution of defendants with intellectual disability. But too often, outdated stereotypes and misconceptions are leading to unjust outcomes, particularly in these capital cases.
So the Arc, alongside our partners, are fighting to ensure that courts are relying on clinical standards, as the Supreme Court requires, to ensure that people with intellectual disability are properly identified and protected from execution
When you say clinical standards, what are the legal standards for making that determination currently?
So the Supreme Court has barred people with intellectual disability from execution. It’s cruel and unusual punishment under the Eighth Amendment. To determine intellectual disability, there’s a three-prong standard and we talk about this extensively in the brief.
To sum it up, the three prongs are determining significant impairment and intellectual functioning, significant impairment in adaptive functioning and conceptual, social and/or practical skills; and then the third prong is the onset of the disability during the individual’s developmental period.
And so there can be a number of ways to determine each of those pieces. Some of it may come from a doctor’s note. Some of it may come from an IQ score. Some of it may come from records during the developmental period – for example, school records or psychological records.
And so it’s really a comprehensive look at the individual’s overall development and really taking into account each of these three prongs: intellectual, adaptive: and age of onset.
» GET MORE NEWS FROM AROUND THE STATE: Sign up for Texas Standard’s weekly newsletters
We’ve been talking about the legal theory behind what this amicus brief is calling for. But I’m curious about Blaine Milam’s situation in this case. Was intellectual disability a factor at his trial?
Absolutely. This is an interesting case because he was actually already determined to have intellectual disability. But then the state’s evaluator brought in a second expert who used a partial IQ score rather than the full score that’s required by clinical standards.
By using a partial IQ score, the state’s second expert determined that Blaine Milam did not have intellectual disability. And so the brief is urging the court to really go back to rely on well-established clinical standards rather than using partial scores.
Another issue with the state’s second state evaluator was misusing clinical judgment and relying upon isolated strengths, such as reading ability, to rule out the possibility that Mr. Milam may have intellectual disability. But people with intellectual disability have both strengths and weaknesses. And so one isolated strength does not determine that an individual does not have an intellectual disability diagnosis.
Why file this amicus brief now? What is the posture of the case, and what are we looking at in terms of a timeline?
So the reason now is because the Texas Court of Criminal Appeals is going to be making its ultimate determination on Mr. Milam’s habeas petition. And it is the first time that this second expert’s assessment which does not comport with clinical standards is before the Texas Court of Criminal Appeals.
So even though this case has been back and forth, this is the first time this court is reviewing this new, expert report. And it is our opinion that this expert report does not comport with clinical standards. And so it is critical that the Arc and our partners give guidance to the court on why this new expert opinion should not be considered and does not comply with Supreme Court precedent.
If the Texas Court of Criminal Appeals agrees with the case that you’re making here, what does this mean more broadly?
Well, it simply reaffirms what is already very well established in many cases in Supreme Court precedent, which is that it’s critical that courts rely on clinical standards and not their own modes of diagnosis of intellectual disability. They have to rely on well-established standards. And it’s not acceptable for courts to make up their own standards on what it means to have intellectual disability.
So while it may be true that there is some discretion that the court left to the states, the court continues to affirm year after year, case after case, that it is absolutely critical that these well-established standards be relied on. It’s critical that groups like the Arc and our partners in the disability community really remind the court what that means and how to make sure that they’re complying with Supreme Court precedent.
