Shining a Light on Traditionally Hidden Disabilities – The National Center on Criminal Justice and Disability (Part One)
“Jesse is 18 years old, has Fetal Alcohol Spectrum Disorder (FASD) and borderline IQ, and functions socially at the level of a six-year-old, but has no outward signs of disability. He is on probation for second-degree assault with intent to commit sexual abuse and burglary. The assault charge involved touching, not rape or violence, and burglary means he was in a room where he did not have permission to be, no theft involved. He was arrested for violating his no-contact order and is now in jail. All we (his parents) were told is that he hugged a child on his special education bus. The bus aide was present, right behind the boy who had just gotten on the bus, but it happened anyway. This is what's really scary and why I'm thinking we shouldn't bring him home right now, as much as we hate having him in jail. No one wants him in prison, but his counseling and therapy group don't seem to be helping much, either. The threat of consequences is so meaningless when a person lacks the ability to stop and think before he acts.”1
Every day, in every city across America, both adults and youth with hidden disabilities are becoming involved in the criminal justice system as victims and suspects at alarmingly high rates, but without much fanfare—until a crisis happens. And the crisis doesn't necessarily happen due to the person having a disability, but more often because the disability was never recognized in the first place or the disability is not considered as a factor to be considered in any way during encounters with police or within the legal system. Hidden disabilities affect a person's brain and can cause difficulty with mental tasks such as learning, reasoning, planning, abstract thinking, and judgment. The broad term for these types of disabilities is “developmental disabilities,” which can include intellectual disability, autism, epilepsy, cerebral palsy, developmental delay, Fetal Alcohol Spectrum Disorder (FASD), and other disorders that occur during the developmental period (birth to age 18).
It can be quite challenging for law enforcement to spot disabilities that have no outward distinguishable signs. Yet it is critical to be on high alert and open to the possibility that a hidden disability, such as “mild” intellectual disability, autism, or Fetal Alcohol Spectrum Disorder (FASD) may be present. Once a disability is recognized, appropriate proactive strategies can be employed to increase the likelihood of a successful outcome.
People with disabilities are more likely to be involved in the criminal justice system than those without disabilities. They are more likely to be victimized and more likely to become a suspect. In 2012, the age-adjusted rate of violent victimization for persons with disabilities (60 per 1,000 persons with disabilities) was nearly three times the rate among persons without disabilities (22 per 1,000 persons without disabilities).2 They are also overrepresented in the criminal justice system as suspects and offenders. While those with intellectual disabilities comprise 2 percent to 3 percent of the general population, they represent 4 percent to 10 percent of the prison population, with an even greater number of those in juvenile facilities and jails (Petersilia, 2000).
Common problems
People with Intellectual or Developmental Disabilities (I/DD) have a hard time understanding legal terms. For example, many of the participants in one study (45 percent) did not understand the concept of "guilty" and some reversed the meaning of "guilty" and "innocent."3 One survey asked people with I/DD questions about their understanding of these issues and found the following:
- 38 percent think they could be arrested for having a disability
- 50 percent would disclose that they have a disability when arrested
- 58 percent would talk to police before talking to a lawyer
- 68 percent believe the arresting officer would protect them
Suspects or offenders with I/DD may experience disadvantages because they
- may not be recognized as having any disability by police, lawyers and other court personnel;
- may not understand the implications of their Miranda rights;
- may confess quickly when arrested and say what they think another person wants to hear;
- may have difficulty communicating with an officer, lawyer, and other court personnel;
- are more likely to plead guilty, are more often convicted of the arresting offense, and are less likely to plea bargain for a reduced sentence than a person without I/DD;
- are less frequently placed on probation or in other diversionary non-institutional programs;
- are often the recipients of practical jokes and sexual harassment in correctional institutions;
- are more frequently denied parole and serve longer sentences than those without I/DD when incarcerated for the same crimes.4
It's also not uncommon for people with hidden disabilities to give false or coerced confessions. The criminal justice system needs safeguards in place to ensure the following:
- People with I/DD will be identified by police officers before an interrogation occurs.
- Steps are taken to ensure understanding of Miranda warnings and their right to waive them.
- Specific interrogation tactics are used to avoid eliciting false confessions.5
Standard interrogation tactics (such as trickery and deceit) do not work on people with I/DD because of the likelihood they will succumb to psychological pressures and give false confessions.
For many years, people with disabilities themselves, their family and friends, and disability agencies and advocates have been working to educate the criminal justice system about how important it is for disabilities to be acknowledged and appropriate accommodations or supports provided. In 2013, The Arc received funding from the U.S. Department of Justice Bureau of Justice Assistance to create the National Center on Criminal Justice and Disability (NCCJD). This is the first national effort of its kind to bring together both victim and suspect/offender issues involving people with intellectual and developmental disabilities under one roof. NCCJD is partnering with a broad spectrum of criminal justice organizations and professionals, including those in the law enforcement, legal, and disability fields at the national, state, and local levels to create safer lives for people with I/DD who become involved in the criminal justice system.
NCCJD's goal is to build the capacity of the criminal justice system to respond to gaps in existing services for people with disabilities, focusing on people with I/DD who remain a hidden population within the criminal justice system with little or no access to advocacy supports or services. Police officers and other first responders are key to ensuring positive outcomes for people with I/DD and their families. To learn more about NCCJD, request assistance with a specific case or training, visit the NCCJD website. Be sure to read next month's article (Part 2) in the Dispatch to learn more about hidden disabilities, how to identify them, and effective tips for response.
Leigh Ann Davis
Program Manager, Justice Initiatives
The Arc
References
1 “Joan's Journal,” accessed October 14, 2014, http://www.come-over.to/FAS/joanjournal.htm.2 Bureau of Justice Statistics. 2014. “Crime Against Persons with Disabilities, 2009–2012 - Statistical Tables.” Last modified July 8, 2014. http://www.bjs.gov/index.cfm?ty=pbdetail&iid=4884.
3 K.I. Ericson and N.B. Perlman, “Knowledge of legal terminology and court proceedings in adults with developmental disabilities.” Law and Human Behavior 25 (2001), 529–545. http://thenadd.org/modal/bulletins/v11n3a1~.htm
4 M.B. Santamour, “The criminal justice system,” in The mentally retarded offender, edited by C.M. Nelson, R.B. Rutherford, and B.I. Wolford, 106–118. Columbus, OH: Merrill.
5 P. Devoy, (2014). “The trouble with protecting the vulnerable: Proposals to prevention developmentally disabled individuals from giving involuntary waivers and false confessions,” Hamline Law Review 37(2) (2014),253–291. http://digitalcommons.hamline.edu/cgi/viewcontent.cgi?article=1037&context=hlr.
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