
    UNITED STATES of America v. Courtney JOHNSON.
    Criminal Action No. 2:12cr84-MHT.
    United States District Court, M.D. Alabama, Northern Division.
    Aug. 17, 2015.
    Alexander Effendi, Jason Hudson Poole, Michael C. Boteler, U.S. Department of Justice, Tax Divisipn, Washington, DC, Todd A. Brown; U.S. Attorney’s Office, Montgomery, AL, for United States of America.
    Federal Defender, Stephen P. Ganter, Federal Defenders, Middle District of Alabama, Roianne Houlton • Conner, Law Office of Roianne Houlton Conner, Montgomery, AL, for Courtney Johnson.
   OPINION AND ORDER

MYRON H. THOMPSON, District Judge.

Courtney Johnson is a defendant with an intellectual disability, who came before this court for violating his probation by failing to complete a drug-treatment program. The central dispute between the parties was whether he should receive custody or whether continuing drug treatment was a more reasonable sentence.

Years ago, we would not have had this discussion,- because Courtney Johnson would have been put in a mental-health facility and would not have received any treatment at all. He would have just been housed away as someone who is perhaps ‘mentally retarded,’ forgotten and potentially abused. We no longer do that.

And yet, Johnson was still before this court, with the potential of being locked up. The court refused to sentence Johnson to custody, reasoning that we should not take people with intellectual disabilities out of mental-health facilities simply to put them in prison instead. We cannot just substitute one institution for another. This opinion explains how we, as a country, have moved people with intellectual disabilities from one institution to another and why the court refused to continue that pattern in this case.

I. BACKGROUND

Johnson is a 24 year-old man who was born and raised in Montgomery, Alabama. He is the youngest of his mother’s seven children, and he continues to live with his mother in Montgomery. He has no relationship with his father. Johnson testified that he did not have many friends and relied on family for support.

Although Johnson had a relatively stable home life with his mother and siblings, he grew up with violence around him. Drug dealing and shootings were common in the neighborhood. Three of his cousins have been killed by violence. His older brother, whom Johnson described as the backbone of the family, also passed away four years ago, from natural causes. Despite the hardship, Johnson never became involved in the violence himself; however, he did begin to use marijuana daily at age 16.

Johnson struggled in school. He was held back in the second, fifth, sixth, and ninth grades. Although he had failed a number of grades, the school did not recognize his intellectual disabilities until seventh grade, at which point he received one year of instruction tailored to his needs. He did not receive this tailored instruction, or any other additional help, before or after seventh grade. After ninth grade, Johnson “aged out” of high school. He was 18 years old at the time.

Soon after Johnson “aged out” of school, he was recruited by his aunt and cousins to take part in a tax scheme they had started at least one year earlier, in 2008. His aunt owned a tax-preparation business and used the business to file false returns. The aunt sought out certain members of the family to whose bank account she could route the fraudulent returns, presumably in an attempt to mask the source of the returns. After being recruited by his aunt and cousins, Johnson agreed to allow some of the money into his bank account. The scheme was discovered, Johnson was charged, and he pled guilty to conspiracy to defraud the United States, pursuant to 18 U.S.C. § 371. After taking into account Johnson’s limited participation in the scheme, his young age, his addiction to marijuana, and his susceptibility to influence by family because of his intellectual disability, the court sentenced Johnson to five years of probation in October 2012. He started probation in February 2013.

After ten months of probation without a violation, Johnson tested positive twice for drugs towards the end of the first year (October and December 2013). Before the revocation hearing on these violations, he had a psychological evaluation by Dr. Catherine Boyer, a clinical and forensic psychologist. Boyer found that Johnson has a full scale IQ of 72, which puts him at the bottom end of the range for borderline intellectual functioning and close to the 70 cutoff for mild mental retardation. He is below the fifth percentile in working memory, processing speed, and verbal comprehension, and he has the receptive vocabulary of a 10 year old. He testified, and probation confirmed, that he has trouble with basic reading and writing. While he can add money, he has difficulty with addition and subtraction, which has prevented him from being able to complete job applications in the past, such as one to Subway. His strength is perceptual reasoning and visual spatial abilities, where he is in the twenty-first percentile.

Taking into account the difficulty of fighting drug addiction and Johnson’s intellectual disability, the court ordered Johnson to complete five months at an inpatient halfway house. On his first day at this halfway house (April 2014), he tested positive for “spice” and was not able to attend at all. He also tested positive for spice several months later (June 2014), when he was arrested for a crime that was eventually nol-prossed. Upon consideration of a second revocation petition due to these violations, the court ordered Johnson to spend six months in a different inpatient treatment center, which he began in October 2014. He completed five months and three weeks before being removed for smoking a cigarette in the bathroom as well as for losing his job and being in possession of an unidentified liquid outside of the cafeteria. Johnson pled guilt to smoking a cigarette in the bathroom and being removed from the inpatient facility for that reason. The court accepted his guilty plea, on those grounds alone. Although Johnson tested negative for drugs several days after being removed, and presumably stayed clean in the halfway house, he has since admitted to using spice in the two months since being out of the inpatient facility (around May 2015). He has not tested positive for any drug except marijuana and spice.

Although Johnson has relapsed several times on his spice addiction, he has maintained relatively steady employment. From 2010 to 2012, he worked at a recycling firm as a laborer and a forklift driver at least part time. In the fall of 2012, he obtained a job at a Hyundai supplier, where he again worked as a laborer. While Johnson’s job history from 2013 to 2014 is unclear, he started another job at Big Lots when he enrolled at the second halfway house in October 2014. After working that job for several months, he spent three to four months at a food-processing plant, where he suffered an on-the-job injury. He could not work for several weeks due to the injury, but he subsequently found another job at a Hyundai supplier and now works on call delivering packages for a relative who is a FedEx contractor. Wfliile. many of these were temporary jobs, Johnson has demonstrated continual effort to obtain employment and has done so despite his intellectual disability-

Johnson was before the court to determine whether it should revoke his probation or modify- its conditions.

II, SENTENCING GUIDELINES

When a defendant violates probation, a court may either “continue him on probation, with or without extending the term or modifying or enlarging the conditions; ... or revoke the sentence of probation and resentence the defendant____” 18 U.S.C. § 3565. In making its decision, the distinct court must determine what is a reasonable sentence by applying the sentencing factors listed in 18 U.S.C. § 3553(a):

“(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

“(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

“(3) the kinds of sentences available;

“(4) the kinds of sentence and the sentencing ránge established for—

(A) the applicable category of offense committed by the applicable category, of defendant as set forth in the [sentencing] guidelines ...

“(5) any pertinent policy statement [by the Sentencing Commission] .. -

“(6) the need to avoid unwarranted sentence disparities among defendants with similar récords who have been found guilty of similar conduct; and

“(7) the need to provide restitution to any victims of the offense.”

To aid the court in determining a- reasonable sentence, the United States Sentencing Guidelines provide potential sentencing ranges should the court revoke probation. See USSG ch.7, pt. A. These ranges are advisory policy statements and are not binding; however, courts must at least consider them when imposing a sentence. See id

The policy statements on revocation are based on the ■ seriousness of the violation and the defendant’s prior criminal history at the time he was originally sentenced.

Johnson’s failure to complete all six months at the inpatient facility is a class C violation. Class C violations are the least serious violations and include conduct constituting a federal, state, or local offense punishable -by one year or less, or any violation of any condition of probation. See USSG § 7B1.1. The failure to stay at the halfway house was a violation of probation conditions., When Johnson committed his original crime, he had no criminal history, which puts him in criminal history category I. The range of imprisonment is 3 to 9 months.for a Grade C violation by an offender with a criminal history category of I. See USSG § 7B1.4.

III. DISCUSSION

Johnson played- a minor role in a nonviolent crime when he was 18 years old, soon after he “aged out” of a school .that provided him one year of special education despite his intellectual disability. , He continues to be part of the criminal justice system based on. repeated positive drug tests on probation. - As stated, the issue raised by the parties was whether Johnson should receive custody for his probation violation.

A.

To understand the reason why Johnson became part of and remains within the criminal justice system, it is important to understand the historical context of how courts have treated individuals with intellectual'disabilities in the past.

The 'court system — and this country— have struggled with how best to support individuals 'with intellectual disabilities. Before the 1970s and 1980s, people with intellectual disabilities were routinely committed involuntarily to state institutions. See Gunnar Dybwad & Stanley S. Herr, Unnecessary Coercion: An End to Involuntary Civil Commitment of Retarded Persons, 31 Stan. L.Rev. 753, 754 (1979). This solution, likely born out of the pseudo-science of eugenics, see id; James W-Ellis Ruth A., Mentally Retarded Criminal Defendants, 53 Geo. Wash. L.Rev. 414, 419 (1985), saw intellectual disability as -a “hopeless and incurable static condition,” that could not be affected by an individual’s “learning and living environments,” Stanley S. Herr, The New Clients: Legal Services for Mentally Retarded Persons, 31 Stan. L.Rev. 553, 561 (1979) (internal quotation marks omitted). “Since retarded people were seen as ‘going nowhere,’ lawmakers and caretakers had little incentive to fund or operate adequate training programs.” Id

This court has experience with the consequences of that view. In Wyatt v. Stickney, Judge Frank M. Johnson, Jr. described the unconstitutional conditions at an Alabama institution for individuals with intellectual disabilities:

“The evidence ... has-vividly and undis-putedly portrayed Partlow State School and Hospital as a warehousing institution which, because of its atmosphere of psychological and physical deprivation, is wholly incapable of furnishing habili-tation to the mentally retarded and is conducive only to the deterioration and the debilitation of the residents.[] The evidence has reflected further that safety and sanitary conditions at Partlow are substandard to the point of endangering the health and lives of those residing there, that the wards are grossly understaffed, rendering even simple custodial care impossible, and that overcrowding remains a dangerous problem often leading to serious accidents, some of which have resulted in deaths of residents.”

344 F.Supp. 387, 391 (M.D.Ala.1972) (Johnson, J.) (internal quotation marks omitted) ajfd in part, rev’d in part and remanded sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir.1974). In a later law review article, Judge Johnson continued,

“Indeed, the evidence reflected that one resident was scalded to death when a fellow resident hosed water from one of the bath facilities on him; another died as a result of the insertion of a running water hose into his rectum by a working resident who was cleaning him; one died when soapy water was forced into his mouth; another died of a self-administered overdose of inadequately stored drugs; and authorities restrained another resident in a straitjacket for nine years to prevent him from sucking his hands and fingers. Witnesses described the Partlow facilities as barbaric and primitive; some residents had no place to sit to eat meals, and coffee cans served as toilets in some areas of the institution.”

Frank M. Johnson, The Constitution and the Federal District Judge, 54 Tex. L.Rev. 903, 909 (1976) (emphasis in original).

While the Wyatt lawsuit and those like it ameliorated conditions in these institutions, id. at 909-910, advocates maintained that “involuntary commitment by its very nature imposes a grave and irreversible stigma on both retarded persons and their families.” Dybwad and Herr, supra, at 756. The gist of this deinstitutionalization argument is that ameliorating institutional conditions attacks a by-product of segregation of individuals with intellectual disabilities but does not address the ideology of segregation itself. Segregation signals that those with intellectual disabilities are hopeless, unworthy, of family, and pose a threat or burden the community cannot bear. In other words, segregation suggests that individuals with intellectual disabilities are not full human beings. And, when individuals are not thought of as human beings, dehumanizing conditions such as those in Wyatt probably will reoccur, despite the best efforts of courts and those who manage the institutions.

Responding to these ' arguments, the World Health Organization, United Nations, and American Association on Mental Defieiéncy all endorsed the position that individuals with intellectual disabilities live in the least restrictive environment by 1980. Herr, supra, at 558-559. In the late 1990s, the Supreme Court recognized that Congress came to the same conclusion in the Americans with Disabilities Act. The Court stated,

“Recognition that unjustified institutional isolation of persons with disabilities is a form of discrimination reflects two evident judgments. First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life. Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, wprk options, economic independence, educational advancement, and cultural enrichment.”

Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 601-602, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999) (internal citations omitted).

The success of the deinstitutionalization movement has brought its own challenges with the criminal justice system and addiction that intersect in this case. Since deinstitutionalization, scholars have predicted an increased number of individuals with intellectual disability interacting with the criminal justice system for several reasons. "

First, deinstitutionalization rightly allows people with intellectual disabilities to be part of their community, but a small subset of this group, just like anyone else in the community, may commit • crimes. See H. Rutherford Turnbell III, The Mental Retardation Services System in The Criminal Justice System and Mental Retardation 4, 4-5 (Ronald W. Corley et al., eds., 1992) (“None of ús should say that people with mental retardation do not commit crimes”). Of course, people who commit crimes interact with the criminal justice system.

Second, people with intellectual disabilities often have “a susceptibility to being involved in criminal activity by others who exploit their naiveté.” Diane Courselle, Mark Watt, Donna Sheen, Suspects, Defendants, and Offenders with Mental Retardation in Wyoming, 1 Wyo. L.Rev. 1, 5 (2001); see also Joan Petersilia, California Policy Research Center, University of California, Doing Justice? Criminal Offenders with Developmental Disabilities, 10 (2000) (In relation to her study on California prisons, noting that “[w]ith the growth of gangs in urban areas, there appears to be a"greater incidence-of exploitation >of people with mental retardation in criminal activities”). ■ As examples of this susceptibility, .people with intellectual disabilities “may act as lookouts, transport drugs or other contraband, carry a ; forged check into a bank, or attempt to sell merchandise stolen by others” at another’s request. President’s Committee on Mental Retardation, Report to the .President: Citizens with Mental Retardation. and the Criminal Justice System 5 (1991).

. Third, “the overall trend towards deinst-itutionalizing people with developmental disabilities has led to a rise in the number who live on the streets or in shelters.” Petersilia, supra, at 11. Scholars have warned that “deinstitutionalization in many states simply moved people from the back wards to the back alleys [and the] promise of freedom has often proved to be as chimerical as the promise of treatment.” Martha Minow, Law and Social Change, 62 UMKC L.Rev. 171, 180 (1993) (internal quotation marks omitted); see also id. (commenting that, while “the link between homelessness and deinstitutionalization has been exaggerated in the press and in public imaginations!!,] ... [i]t is difficult .... to challenge the widespread public perception that reformers have granted people with mental disabilities a right to live on the sidewalk.”). People with intellectual disabilities who do not receive the proper treatment while homeless or in shelters may “flounder and eventually come to the attention of the police and the courts.” Petersilia, supra, at 11.

Last, although individuals with intellectual disabilities tend to have the same or lower rates of substance abuse as others, see Karen M. Coceo and Dennis C. Harper, Substance Use in People with Mental Retardation: A Missing Link in Understanding Community Outcomes?, 46 Rehabilitation Counseling Bulletin 34, 35-37 (2002), “little is known ... about how to best address alcohol or drug addiction among people with [mental -retardation] with or without cooccurring [mental illness],” Elspeth Slayter and Shelley A. Steenrod, Addressing Alcohol and Drug Addiction Among People with Mental Retardation in Nonaddiction settings: A Need:for Cross-System Collaboration, 9 J. of Soc. Work Practice in the Addictions 71, 72 (2009). This lack of specialized drug treatment for those with intellectual disabilities potentially leads to repeated violations of supervised release or probation. Cf. Frank J. Laski, Sentencing the Offender with Mental Retardation in The Criminal Justice System and Mental Retardation 137, 138 (Ronald W. Corley et al., eds., 1992) (“Characteristics associated with the disability of mental retardation frequently result in the defendants being viewed as poor risks for probation and other diversionary noninstitutional programs.”).

As increased numbers of defendants with intellectual disabilities do come before the court, one issue is how to account for such a disability in sentencing. Although a goal of deinstitutionalization is ‘normalization’ — that is, for people with disabilities to live in and interact with the community — the emerging consensus is that courts must still take into account a defendant’s intellectual disability upon sentencing. See Courselle et ah, supra, at 4; Petersilia, supra, at 9 (“The consensus within the profession, and endorsed by The Arc of the U.S., the President’s Committee on Mental Retardation, and the American Association on Mental Retardation, is that because of the unique aspects of the law enforcement and correctional environments, the normalization goals for people who are mentally retarded should not fully apply to those settings.”) (emphasis in original). That does not mean that people with intellectual disabilities should not face consequences for them crimes, but instead that courts should consider intellectual disability when' addressing culpability for a crime and appropriate punishment. The Sentencing Guidelines recognize this need through the downward departure for diminished capacity. See USSG § -5K2.13. Courts have recognized this need as well,, granting downward variances pursuant to 18 U.S.C. § 3553(a) based on intellectual disability. See United States v. Piggott, 2015 WL 1894319, at *4 (M.D.Ala.2015) (Thompson, J.) (varying downward where defendant had IQ in the mid-70s because the defendant was “in many ways like a child in his ability to grasp the consequences of his actions”); see also United States v. Blair, 565 Fed.Appx. 548, 557 (7th Cir.2013) (affirming lower-court opinion granting downward variance based on the defendant’s decreased culpability due to his intellectual disability); United States v. Allen, 250 F.Supp.2d 317, 321 (S.D.N.Y.2003) (Scheindlin, J.) (varying downward based; in part, on the defendant’s low-average to borderline IQ scores). In sum, if twin objectives of sentencing are punishment for culpable behavior and (re)habilitation, those two objectives should be tailored to a person with intellectual disabilities who is likely less culpable and needs specialized treatment.

With this background in mind, the court turns to why it did not revoke Johnson probation and instead modifiéd the conditions.

B.

Even if Johnson did not have intellectual disabilities, the question of whether to sentence him to a custodial sentence, would have.been difficult.- For his original crime, he was pulled into a family tax-fraud scheme the year he dropped out of school; moreover, he played a minor role. During probation, he — like any person addicted to drugs — has gone through clean periods and relapses. While he has been given two chances at. an inpatient facility, he never entered the first one because he tested positive on the first day, and he completed all but ten days of a six-month term at the second facility. At the second facility, he did not use any illegal substance for six months, and. he was kicked out, not because of a positive drug test, but rather because he smoked a cigarette. Although sending him to prison for three months could be a wake-up call, it is unclear whether a wake-up call helps solve the underlying addiction. And, from this court’s experience, drug-treatment programs in prison have decidedly mixed results. It is also questionable in general whether a non-violent felon, who committed one crime when he was 18, should be put in prison more than five years later for drug addiction.

Johnson’s intellectual disability made it an easier case. Johnson received little special education at school, and, soon after he aged out, his family pulled him into a crime. As noted above, his intellectual disability likely made him more-susceptible to these negative influences. On probation, he has made good-faith efforts to maintain employment and currently has a part-time job. His problem has been illegal drugs, and he has shown the ability to refrain from using them for long periods, including the almost six months that he resided in the inpatient facility. However, these periods of sobriety have been followed by relapses, perhaps because the drug treatment has not been tailored to his disability. ■

Given these circumstances, the court determined that specialized treatment is more reasonable punishment than custody. Specifically, as the following order lays out, the court will require drug counseling, adult-education classes, and vocational rehabilitation. The drug counseling both will reinforce the need to avoid spice and will give Johnson someone to talk to, a desire that he emphasized at sentencing. The adult-education classes and vocational rehabilitation will help Johnson with reading, writing, arithmetic, and communication skills that will help him in his daily interactions and his work. Combined, these treatments, the court hopes, will help Johnson to be part of the community.

* * #

Having found defendant Courtney Johnson guilty of violating his probation by failing to reside at a residential reentry center for six months, it is ORDERED that the petition for revocation (doc. no. 368) is granted only to the extent that defendant Courtney Johnson’s conditions of supervision are modified as follows:

(1) Defendant Johnson, because he has admitted to use of “Spice”, shall attend and successfully complete an outpatient treatment program at Chemical Addictions Program (CAPS).

(2) Defendant Johnson, when he is not employed, shall attend a vocational rehabilitation course as determined by the supervising probation officer. The probation officer should look for a course that focuses on development of employment and communicative skills.

(3) Defendant Johnson is required to attend adult-education classes to help with his reading, writing, and arithmetic.

(4) Defendant Johnson shall receive mental-health treatment. Defendant Johnson, at the revocation hearing, suggested that, when he was medicated, he felt better. Whoever is responsible for providing defendant Johnson with treatment should assess whether medication is necessary. If so, defendant Johnson shall take his medication as prescribed.

(5)It is recommended that defendant Johnson work toward obtaining his GED. At the revocation hearing, defendant Johnson said that this was a personal life-long goal, and, with this recommendation, the court wishes him best in working toward this goal.

It is further ORDERED that defendant Johnson’s probation is not revoked. 
      
      . Although there is not a full record on Johnson’s education, the school’s seeming failure to recognize his disability until he was at a relatively late stage and the single year of tailored instruction after that recognition raise questions under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. That act requires that "all children with disabilities ... who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and services.” 20 U.S.C. § 1412(a)(3). Based on the available record, it is unclear why it took the school until seventh grade to identify Johnson’s intellectual disability or why his individualized education plan (if he had one) called for only one year of tailored education.
     
      
      . Spice is a form of synthetic marijuana. Its widespread use in Alabama has been deemed a public health crisis. See Michael E, Miller, Inside Alabama’s Deadly Spice Craze, Wash. Post, http://www.washingtonpost.com/news/ morning-mix/wp/2015/04/24/inside-alabamas-deadly-spice-craze/.
     
      
      . Probation did not note drug use on the violation report, and the court therefore did not consider'it as a ground for revocation. Even if the drug use were considered, it would still not warrant a custody sentence.
      Revocation is "mandatory” for certain violations, including if the defendant, "as a part of drug testing, tests positive for illegal controlled substances more than 3 times over the course of 1 year.” 18 U.S.C. § 3565(b). However, in the case of failed drug tests, "the court shall consider whether the availability of appropriate substance abuse treatment programs, or an individual’s current or past participation in such programs; warrants an exception” to revocation. 18 U.S.C. § 3563(e). Here, Johnson did test positive more than 3 times in one year — in October 2013, December 2013, April 2014, and June 2014; Nevertheless, for the reasons stated in this opinion, an exception is warranted based on Johnson’s need for drug treatment.
     
      
      . Throughout the opinion, the court uses "people first” language and will generally use intellectual disability rather than mental retardation. See Joan Petersilia, California Policy Research Center, University of California, Doing Justice? Criminal Offenders with Developmental Disabilities, 1 n. 1 (2000) (noting that "people first” language refers to the "person first, rather than the disability” and that "although the term mental retardation is still used, the preferred term is cognitive, intellectual, or developmental disability”); see also Diagnostic and Statistical Manual of Mental Disorders 33-41 (5th ed.2013) (using intellectual disability). However, the court will not alter quotations to do so.
     
      
      . The court’s opinion defined habilitation as "the process by which the staff of the institution assists the resident to acquire and maintain those life skills which enable him to cope more effectively with the demands of his own person and of his environment and to raise the level of his physical, mental, and social efficiency. Habilitation includes but is not limited to programs of formal, structured education and treatment.” Wyatt v. Stickney, 344 F.Supp. 387, 395 (M.D.Ala.1972) affd in part, rev’d in part and remanded sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir.1974).
     
      
      . The term ‘mental disabilities,’ which the Court used, can refer to individuals with intellectual disabilities as well as those with mental illness. While the needs of individuals with these disabilities differ, Congress determined that it was discrimination for either to be segregated without justification.
     