What 'Making a Murderer' Reveals About the Justice System and Intellectual Disability

Brendan Dassey's story illustrates how vulnerable people with intellectual disabilities are to injustice at every level

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brendan dassey; Making of a murderer
Brendan Dassey, pictured here in 2007, is said to have an IQ of around 70. DAN POWERS/AP

I can't stop thinking about Brendan Dassey. Like everyone with a Netflix account, I've spent the past few weeks riveted by the true-crime documentary Making a Murderer and its depiction of an outrageously compromised justice system. And though wrongly-convicted-and-then-maybe-wrongly-convicted-again Steve Avery is clearly the main subject of the series, his nephew's fate is what haunts me. The young man whose confession of a gruesome rape and murder is possibly coerced is described in the series as "learning disabled," "not very smart," and "really stupid" (that, chillingly, is Dassey's self-assessment). When Dassey's mother asks him what he thinks of his defense attorney, Dassey responds that he knows they both like cats.

Related: 'Making a Murderer' Star Reporter on Sudden Interest in Case

Dassey's IQ is said to be around 70, in the "borderline" range — the border, that is, of intellectual disability. Despite the vague language used in the show, this is not about academic underperformance. A generation ago, Dassey would have been diagnosed with mild mental retardation. Two generations before that, he would have been — officially, medically — a "moron."

These are dehumanizing words — words we rightly no longer use to describe people with cognitive disabilities. I raise them not to impugn Dassey, but rather to point out how implicit, systemic ableism — that is, discrimination against and fear of people with disabilities — has compounded the miscarriage of justice in every step of Dassey's case. Not only was he subject to techniques that have been known to produce false confessions, but he also was isolated from anyone who could properly safeguard his rights as a person with cognitive disability. His public defender — that is, the person whose legal duty it was to be his advocate — showed neither compassion for nor basic understanding of Dassey's disability. But hey, at least they both like cats.

I have a brother whose IQ is a little below Dassey's. My brother is a kind, moral man in his 40s. He lives in a group home for adults with disabilities. He has a high school diploma; he has held part-time jobs. He likes cats, too. From the documentary, I would guess that he is intellectually more limited than Dassey, but socially more competent. My brother is, I think, a person incapable of willful violence. But I couldn't help wondering: What would he do if he, like Dassey, were confronted with police officers, investigators and lawyers who kept accusing him of lying? Would he, eventually, tell them what they want to hear? He knows he's not supposed to lie, but he also desperately wants people to approve of him — for them to treat him like an adult, which they sometimes don't. Which social imperative would win: the need to tell the truth, or the desire to be treated with dignity?

What strikes me as a strange mercy, in this imaginary, is that unlike Dassey, my brother "looks" disabled. If, God forbid, he were in legal trouble, just about any person with authority could be convinced that he was not entirely capable of advocating for his own best interests or understanding the gravity of the situation.

I recognize the irony here. The same logic that has sometimes led to discrimination and ostracism — the assumption that people with cognitive disabilities are fundamentally "abnormal," and thus visibly different from people of average intelligence — just might protect my brother through the judicial process.

I wonder, when the judge denies Dassey's request for a new lawyer in Making a Murderer Episode 4, just what he sees in the child in front of him. Does he take Dassey's reticence and flat affect as defiance, the sulking of a dangerous teenager? Does he see any glimpse of what I keep seeing: a boy who knows, on a deep level, that he is not capable of the kind of self-assertion the system demands of him?

Of course, Dassey's cognitive disabilities do not mean he is incapable of committing horrible acts. People with disabilities are not, despite what my grandma said, angels sent to teach "the rest of us" lessons about being kind to one another. Still, Making a Murderer, incisive as it is, barely grazes the legal and moral implications of Dassey's disability status. Check out The Arc's list of common responses people with intellectual disabilities might have when suspected of a crime:

"As suspects, individuals may:
—not want their disability to be recognized (and try to cover it up)
—not understand their rights but pretend to understand
—not understand commands, instructions, etc.
—be overwhelmed by police presence
—act upset at being detained and/or try to run away
—say what they think officers want to hear
—have difficulty describing facts or details of offense
—be the first to leave the scene of the crime, and the first to get caught
—be confused about who is responsible for the crime and 'confess' even though innocent"

This might as well be called "Brendan Dassey: A Checklist."

I get it: Dassey's story is not as gripping as Steve Avery's, not as Shakespearean. There's no punctured blood vial or smarmy police vendetta. What Dassey's story reveals, though — both in what Making a Murderer shows, and what it declines to — is how vulnerable people with intellectual disabilities are to injustice at every level, from classroom to courtroom. I don't know whether Avery is a murderer; I don't know if he should be a free man. What I can't get over is that, from what I can tell, Brendan Dassey has never been free.

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