Interview with Elizabeth Kelley

You've built a truly nationwide practice specializing in the representation of individuals with mental illnesses and disabilities. Tell us about your practice.

 At this point, I have represented people with mental disabilities in criminal cases in approximately fifty jurisdictions, federal and state, throughout the U.S..  (“Mental disabilities” is my global term which includes mental illness like bipolar disorder and schizophrenia; intellectual and developmental disabilities like autism spectrum disorder; and neurocognitive issues like dementia.)  My success is largely contingent on a good working relationship with the local attorney.  I rely on their strong reputation in the legal community as well as with their contacts in the courthouse.  My focus is identifying the right forensic mental health expert or team of experts and working closely with those experts in order to achieve the best result possible for the client. 

What are the challenges that clients with mental illnesses and disabilities face when charged with a criminal offense? 

 There is frequently a misunderstanding about different types of disabilities, whether it is autism spectrum disorder, or bipolar disorder, or schizophrenia, or some other type of mental disability. There is often a lack of appropriate community-based resources to assist those individuals. Indeed, the lack of suitable facilities or resources is probably one of the reasons why that individual got in trouble. Finally, if it is likely that the individual will be sentenced to some period of incarceration, the resources in jails and prisons at both the state and federal level are completely inappropriate for someone with a mental disability.

Are there significant differences in the level of education about mental health issues around the country?

 Thankfully, nationwide over the past few years we have seen a growing recognition of the special challenges that people with mental disabilities face in the criminal justice system and more professionals are trying to avail themselves of specialized training.

For instance, there is a growing movement to educate law enforcement about proper procedures to employ when encountering people with mental disabilities. We now know that, depending upon the type of disability, it is counterproductive for law enforcement to show up in uniform, or touch a individual, or yell, or not to have someone trained in mental health issues, like a social worker, as part of the team.

Are there any common misconceptions that you encounter regarding people with mental illnesses or disabilities?

 There is a misconception or an unfamiliarity with mental health issues that causes people to forget that mental disabilities—whether it's autism spectrum disorder, or bipolar disorder, or dementia, or schizophrenia, or what have you—touch people of all backgrounds, no matter their economic status, their educational background, their profession, or where they live. The guy wrapped in a blanket talking to himself on the subway could very well be a graduate of an Ivy League Institution. There are people charged with white collar crimes who suffer from mental health issues every bit as much as someone charged with a misdemeanor in a village court.

Last year, the ABA published a new edition of your book, Representing People with Mental Disabilities: A Practical Guide for Criminal Defense Lawyers, which was originally released in 2018. While editing the new edition, what changes stood out to you?

 One of the reasons why we published a second edition is because there were developments in the law. For instance, in the chapter centered around youthful offenders, there were thankfully a number of changes made in state laws consistent with developments in brain science, which have very clearly shown us that the brain is still developing up until the mid 20s.

We also widened and reframed some of the chapters. In fact, the chapter titled “Juveniles” in the first edition is now called “Youthful Offenders” in harmony with the fact that, in many circles, the term juveniles is seen as reductive and under-inclusive, so the term youthful offenders is preferred. The chapter on competency to stand trial now deals significantly with the issue of restoration. The chapter on false confessions now includes a significant discussion of Miranda waivers. The chapter on mental health courts has been expanded to include other diversionary options.

Finally, we added several new chapters in the book. For example, there is now a chapter dealing with post-conviction remedies for people with mental disabilities and a chapter on substance use disorders.

I want to give a shout-out to the ABA for always being supportive of my writing projects.  They have published my two other books including Representing People with Autism Spectrum Disorder and Representing People with Dementia.  My upcoming book will be Representing People with Trauma. 

What changes would you hope to see in the years to come?

 I hope to see an expansion in the scope and reach of problem-solving courts which we have seen implemented throughout the country. These specialized courts, like mental health courts, drug courts, and veterans’ courts, are designed to divert special categories of people out of the criminal justice system. Sadly though, in many jurisdictions only first-time offenders, or individuals charged with non-violent offenses, or offenses which are not sexually motivated are eligible. I believe we need to make diversionary programs as broadly accessible as possible, because it is manifestly unjust to punish someone for acting out the symptoms of their disability and because we know that jails and prisons are the worst places in the world for someone with a mental disability.

 I would also like to see a deeper understanding among prosecutors and judges that attorneys who advocate on behalf of clients with mental disabilities are not trying to use the illness or disability as an excuse for the charged conduct. Rather, we are explaining how our client’s disability—be it dementia, or fetal alcohol syndrome, or autism spectrum disorder, or an intellectual disability—made him or her more vulnerable to committing that type of offense.

Your work requires you to be knowledgeable about a wide range of mental illnesses, disorders, and disabilities. What advice would you give to attorneys, particularly defense attorneys, who want to educate themselves but may be intimidated by the technical or scientific aspects of what you do?

 I understand only too well, and I hope other defense attorneys will too, that we are just that: we are criminal defense lawyers. We are not psychiatrists, we are not psychologists, and, particularly when we are in court, we need to function within our role. That is why securing experienced, qualified forensic mental health experts is absolutely key.

We cannot simply assert that, because our client has bipolar disorder, the sentence should be mitigated, or that, because our client has autism spectrum disorder, he was vulnerable to or inclined to commit this particular type of offense. Those opinions need to be rendered by a forensic mental health expert who has deep expertise in a given client’s mental disability, knows the relevant research, has reviewed the discovery, has interviewed the individual and conducted collateral interviews, who writes a compelling report, and who can provide strong testimony at a hearing or a trial.

So, while it is important that a criminal defense lawyer be aware of and relatively conversant about the disability or disabilities that a client is diagnosed with, the true expertise is with the forensic mental health professional.

I have learned so much from working with highly experienced mental health experts. Engage them in dialogue and ask questions.

What part of defending a client most fuels you?

At the risk of sounding trite, making a difference in someone's life by giving them the comfort that they have been heard, that their mental disabilities have been understood, and that they have someone who is willing to fight for them.

What do you find most draining in your work?

The misunderstanding on the part of actors within the criminal justice system—not just prosecutors and judges, but sometimes even criminal defense lawyers—who feel that the mental disability does not matter. It indeed does matter. Certain kinds of mental disabilities or mental illnesses create challenges that an individual is going to have to learn to manage their entire life. The criminal justice system needs to accommodate those disabilities through evidence-based interventions, not take people who are already traumatized and traumatize them further.

If you could go back and give one piece of career advice to your 30-year-old self, what would it be?

There are so many. At the top of the list would be to get an executive coach as early as possible.  This was essential for sustainably growing my practice.  I only wish I had done it earlier.   

You have had opportunities to present your work internationally. In your experience, how does the perception of mental illnesses and disabilities in the American criminal system compared to other systems with which you're familiar? Do you feel that there are other systems more effectively taking into consideration these kinds of concerns for defendants?

Generally speaking, most of the world is appalled by the fact that the United States still has a death penalty and that, notwithstanding court decisions like Atkins, we are still executing people with intellectual disabilities. The rest of the world, broadly speaking, is also amazed by how long our prison sentences are and by how we treat people incarcerated in our prisons. In many other countries, particularly European countries, they understand that one day these individuals will be released, and they want those individuals to return to their communities as productive, law-abiding citizens.

You traveled to Liberia in 2009 and 2014 as part of a delegation sponsored by the U.N. Commission on Drugs and Crime and NACDL to train Liberian attorneys and strengthen their criminal defense bar. How did those experiences change your perspective on your practice here at home?

They underscored for me the importance of the rule of law, and indeed how precious the rule of law is. I saw firsthand what civil war can do to a country, not only by traumatizing its people, but also by devastating the resources that are needed for a functioning judicial system. I will never forget sitting in a courtroom and seeing a sign with dollar signs on it that said, “No bribery allowed in the courtroom.” I mean, that image still burns in my brain.

So, as often as we, as criminal defense lawyers, are troubled by what we perceive as the manifest unfairness of the system, we are fortunate to have the legal system we do have, and we need to do everything possible to ensure that our country does continue to respect the Rule of Law. We need to continually work to make sure that our courts are adequately funded, and that our judiciary remains independent.

As a final question, what women criminal defense lawyers do you admire and why?

Right off the top of my head, Judge Bernice Donald, who is now retired from the Sixth Circuit. She is smart. She is savvy. She is also tremendously affirming and supportive of everyone in the legal system.  Judge Donald lights up a room – and knows everyone in that room! I have same admiration for Professor Sarah Redfield who has spent her entire academic career lifting up other people, particularly women.  I am currently enrolled in Columbia University’s Narrative Medicine Program, and Professor Redfield’s encouragement was key to my applying.  I know both Judge Donald and Professor Redfield from the ABA Criminal Justice Section.  They are the co-editors of two books on implicit bias, both of which were ground-breaking.