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The Fight for Disability Rights Must Extend to Death Row

Why didn't more disability rights groups work to stop the execution of Ledell Lee in Arkansas?
The Arkansas State Capitol in Little Rock.

The Arkansas State Capitol in Little Rock.

Last night the state of Arkansas executed Ledell Lee. Lee was sentenced in 1995 for the murder of Debra Reese in a trial marked by numerous examples of the unequal treatment that the most vulnerable defendants routinely experience in the legal system.

During the trial, Lee’s lawyer was so drunk he literally started babbling the words “blah blah blah.” The judge and prosecutor were having a sexual affair at the time, and would later marry. Microscopic analysis of hair found at the scene seemed to match Lee’s, but the American Civil Liberties Union says that the “unsophisticated” method of analysis used in the case has been determined to be scientifically unsound. Both the ACLU and the Innocence Project sought stays of execution until a DNA test could be performed. Lee has always maintained his innocence. They have no evidence one way or another as to what that DNA test would have shown. The point is: neither did the state of Arkansas.

Like DNA testing, science only helps if states choose to apply it.

Lee was also disabled. He had fetal alcohol syndrome, a condition that can lead to significant intellectual disability. The extent of this incapacity, like his DNA, was never tested. It is possible, according again to the ACLU, that his disability exempted him from the death penalty under the Supreme Court decision in Atkins v. Virginia, a decision that excluded people with intellectual disabilities from execution. Furthermore, as I wrote for Pacific Standard a few weeks ago, in Moore v. Texas, the Court had explicitly endorsed the principle that determination of disability should be held to the best practices of the scientific community, rather than relying on guesswork or bias. Moore v. Texas is a good ruling, but, like DNA testing, science only helps if states choose to apply it.

Was Lee sufficiently disabled — a terrible framing, but that’s what the law requires — to have his life spared? We don’t know. His lawyer did not pursue that angle of defense. Courts from Arkansas to Washington, D.C., ultimately refused requests from the ACLU and the Innocence Project to make such a determination before the execution.

Arkansas is in a rush to kill people. The state’s lethal injection drugs are expiring. Some of the condemned will be guilty, but not all. Some of the condemned will be disabled, but not all. The violence of the state always falls hardest on those multiply marginalized by otherness, whether race, class, gender identity, disability, religion, or other categories of difference.

I cover the disability rights community. Well-resourced organizations need to get more involved in fighting for the Ledell Lees of America. The Arc, an organization that promotes and protects the human rights of people with intellectual and developmental disabilities, sent a clemency letter to Governor Asa Hutchinson of Arkansas. More groups should emulate the Arc’s commitment to serving the most marginalized disabled Americans. Most other well-funded and -connected disability rights organizations and leaders, though, said nothing. They aren’t focused on the death penalty. Lee is not the most telegenic figure around which to galvanize sympathetic fundraising. You can’t have a telethon — not that telethons are so great — for the Ledell Lees of this world. The silence of the movement, focused on sympathy for cute kids, not protection for convicted men, reveals their priorities.

It is precisely at the margins of society, in case of violence and abuse at both state and private hands, where our movement must concentrate our efforts. The fight for disability rights goes on. But not for Ledell Lee.