Never a Number

A Journalist, a murderer, an improbable friendship

EIGHT

Falling through the cracks...

An individual with an IQ of 58 slot at the low end of cognitive impairment on the Wechsler Adult Intelligence Scale and functions in the intellectual range of an eight-to-eleven-year-old child.

Which is to say Ben Brim can calculate the value of currency in small amounts, loosely follow televised football, basketball and NASCAR, and sing along with country and soul oldies. He has of late more or less mastered FaceTime calls on a digital device that was the stuff of science fiction when he went away in 1975.

On the flip side, Brim is dependent on others to perform basic tasks, such as grocery shopping, cooking, and making doctor’s appointments.

Brim (72 in May) has never had a girlfriend, a driver’s license or steady employment beyond a handful of non-skilled jobs prior to his arrest.

Roughly three percent of U.S. adults have a diagnosis that meets the clinical definition of a lifelong intellectual disability - a number that balloons to one in four residents of state and federal prisons, according to a Justice Department survey.

The preponderance goes to an over-arching question raised by Linda Bryant at Brim’s parole hearing - why did the Virginia Department of Corrections do nothing to prevent a cognitively impaired inmate from falling through the cracks?

Studies on disability among prison populations provide clues, but few answers. Most lump physical, intellectual, sensory, and mobile impairment under a single umbrella.

A secondary issue is the conflation of intellectual disabilities and mental illness in the context of mass incarceration.

Jennifer Sarrett, a researcher and social scientist with the Emory University Center for the Study of Human Health, cites a critical distinction.

“Mental illness ebbs and flows,” she told me. “It can be tamped down with medication. That’s not the case with disability. It’s lifelong. There is no pill to treat autism or an intellectual disability.”

Sarrett shelved an objective to research on cognitive impairment in the framework of mass incarceration and parole.

“I realized it is very hard to study because there is no foundational data out there. Assessing disabilities is very difficult in a setting like a prison or a jail, it’s murky, it’s hard and that is why no one wants to do it.”

Left Behind: Developmental Disability and the Pursuit of Parole, a report by the Stanford Law School’s Intellectual & Developmental Disabilities Law & Policy Project looks at the issue from the perspective of development disability as an impediment to participation in the educational and personal development programs that influence parole board decisions on release.

The paper focuses on California policies. But one finding applies to Brim in a significant way:

“The disconnect in a system that relies so heavily on programming and specific achievements to indicate suitability for release is that it assumes that failure to program or achieve successfully is due to lack of motivation when it can, instead, be solely due to lack of basic ability.”

Virginia, like California and other states, ostensibly incentivizes sentence reduction with “good conduct credits.”

“Class Four” felons, offenders convicted of the most serious crimes, cannot earn credits. Brim’s 1976 incarceration also exempted him from Virginia truth-in-sentencing legislation that five years later (again ostensibly) eliminated parole.

Consequently, Brim’s sole chance of navigating a byzantine parole process rested on the intellectual capacity to answer questions posed by parole examiners who repeatedly declined to grant him a formal hearing.

Simply put, he had no chance at all.

“All sorts of factors had to come into play (for Brim to win over a parole examiner), including personality and education level,” said Nazgol Ghadhandnoosh, the co-director of research at the Washington-based Sentencing Project.

“Even if a person does not pose a public safety risk, parole officers put a lot of weight on storytelling. You’re at a disadvantage if you’re not able to deliver that narrative. But that isn’t even an issue here because (Brim) never made it to a parole hearing.”

Sarrett, the Emory social scientist, said the scarcity of research on the obstacles standing between the developmentally disabled and parole may ultimately offer the best explanation of how, and why, Brim fell through the cracks.

“We don’t even know the scope of the problem. But we know (issues unique to cognitively impaired inmates) it is definitely a problem.”

To that end, the Virginia Department of Corrections did little to nothing to address Brim’s disability or to look at how his limitations figured into the arrest and conviction that landed him in DOC custody of for over 44 years

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