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    June 04, 2025

    Mental Disability Matters: Rethinking Criminal Defense with Elizabeth Kelley

    Elizabeth Kelley

    How did you become interested in the topic of representing people with mental disabilities?

    Many years ago, my first client had an intellectual disability, and was charged with being a lookout for his “friends” during a string of burglaries. I knew that his level of participation and responsibility were vastly different from those of his codefendants. I worked closely with his case worker, and that experience stayed with me, so I started representing more clients with intellectual disabilities. Then I represented my first person with a co-occurring disorder—an intellectual disability and a mental illness. Fast forward to now, the focus of my practice is representing people with all kinds of different mental disabilities who are charged in criminal cases. 

    Can you describe an experience representing a client that highlights the kinds of challenges people with mental disabilities face in the criminal legal system?

    I represent all kinds of people charged with all sorts of crimes and who have all sorts of mental disabilities. There is not one experience that exemplifies everyone’s experience. But, for instance, I represented a young man with an intellectual disability and a traumatic brain injury who was charged with attempted murder. He had gotten into an argument with his girlfriend and lashed out at her. Because he was younger and his brain had not fully developed—and because of his brain injury as well as his intellectual disability—he had difficulty communicating and understanding other people's reactions. He never meant to hurt her. With the work of a forensic neuropsychologist and a forensic psychologist, we presented a couple of compelling reports that persuaded the district attorney to reduce the charges such that prison would not be mandatory in this case. He was not only given probation by the judge but also was also able to get the treatment and other support systems he needed to manage his various disabilities.

    What misunderstandings often arise among criminal defense lawyers about their clients with mental disabilities?

    It all depends upon the nature of the disability. For instance, I represent many individuals on the autism spectrum. And the term “spectrum” is key. Some clients appear high functioning, but that can obscure the fact that they still face significant challenges—particularly with language processing and communication. These difficulties are often misunderstood, even by attorneys.

    And when working with people with mental illness, it is important to understand that their symptoms may be fluid and, at bottom, mental disabilities are largely invisible. Unless the symptoms are obvious, attorneys might miss them.

    Beyond that, another strategic mistake that attorneys make is they think a client’s mental disability does not matter. There may very well be creative ways to present the mental disability to divert the client out of the traditional court system, or negate an element of the statutory mens rea, or simply reduce the charges. 

    A final mistake that many attorneys make is that they do not get a forensic mental health expert and simply assert that someone is on the autism spectrum, has bipolar disorder, or has post-traumatic stress disorder. They need to have a forensic mental health examination report that establishes the nexus between the disability or constellation of disabilities and the conduct charged. They also need to demonstrate or perhaps explain the accused’s conduct during the pendency of their case. 

    How can attorneys break the stigma associated with mental illness within the criminal legal system?

    Attorneys must educate themselves. Again, that is where the forensic mental health expert comes in. And then attorneys must convey to the prosecutor, as well as the court and perhaps the jury, that their client is very different—but that with proper treatment and management, people with mental disabilities are not any more dangerous than anyone else in our society, and are more often than not the victims not the perpetrators of crime. 

    What is your perspective on mental health courts?

    For many people, they are a wonderful option. And there are a variety of diverse kinds of problem-solving courts, mental health (sometimes referred to as behavioral) courts, as well as special courts for younger offenders, domestic violence and trafficking survivors; drug courts, et cetera. My hope is that the reach of those courts will grow. People who are charged with certain kinds of offenses like sexually oriented offenses and crimes of violence or are repeat offenders should be covered by those courts, as well as issues like a motion to suppress can still be litigated in a traditional court. 

    What takeaway do you hope people will draw from your book, Representing People with Mental Disabilities: A Practical Guide for Criminal Defense Lawyers (Second Edition)?

    Attorneys should zealously advocate for their client, incorporating the client’s disability into the defense. Our system is built on a system of individualized justice, and the accused’s disability should be considered.

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