TO WHOM IT MAY CONCERN

ATTENTION: 

An Act to accommodate criminal defendants during the criminal justice process who have a diagnosed recognized mental or neurological disability or low executive functioning under the American with Disabilities Act or State Disability Act, by ensuring the Defendant has adequate assistance from support specialist or behavioral health professionals for the reception, processing or expression of communication and assistance with decision making. This assistance must be considered as a right parallel with the right to counsel and possess and maintain the same privileged communication as counsel.

1. Criminal defendants who have a diagnosed recognized mental or neurological disability or low executive functioning under the American with Disabilities Act or Sate Disability Act, must be afforded:

 

(a) Adequate assistance from support specialist or behavioral health professionals for the reception, processing or expression of communication and assistance with decision making. This assistance must be considered as a right parallel with the right to counsel and possess and maintain the same privileged communication as counsel.

 

(i) This assistance must be afforded at all stages of the criminal justice process, including during critical advice of counsel as to plea advisement and trial strategy, interviews by police or prosecution, and to assist the defendant during their own testimony.

 

(b) The use of their mental or neurological disability or low executive functioning as a mitigating factor at Sentencing, a substantive reason not to impose a mandatory minimum Sentence or a Sentence of life without parole (even though a sentence of life with parole by be imposed) and their condition must not be used to prevent or delay their release from custody except as otherwise provided by law.

 

2. Criminal defendants who have a diagnosed recognized mental or neurological disability or low executive functioning under the American with Disabilities Act or State Disability Act, who were convicted without being afforded the assistance under 1(a) or the considerations under 1(b), must be afforded;

 

(a) The absence of such assistance creates a presumption that the Defendant could not have received the effective assistance of counsel at plea, trial or sentencing. Under this section a claim may based on the totality of the circumstances in the absence of assistance under 1(a) and not require ineffective assistance solely on the omission or performance of counsel.

 

(b) In the absence of the considerations under 1(b), a Resentencing in accordance with 1(b).

 

(c) This section must be considered a retroactive change of law and a defendant who files a motion for relief from judgement in conjunction with this section must have that motion for relief from judgement to be considered defendants first motion and not a successive motion.