ERIC ED411627: Persons with Developmental Disabilities and the Justice System.

31 Pages·1997·0.63 MB·English

by  ERIC

DOCUMENT RESUME
EC 305 817
ED 411 627
Hayden, Mary, Ed.; Ransom, Barbara, Ed.; Obermayer, Liz, Ed.
AUTHOR
Persons with Developmental Disabilities and the Justice
TITLE
System.
Minnesota Univ., Minneapolis. Inst. on Community
INSTITUTION
Integration.
National Inst. on Disability and Rehabilitation Research
SPONS AGENCY
(ED/OSERS), Washington, DC.; Administration on Developmental
Disabilities (DHHS), Washington, D.C.
1997-00-00
PUB DATE
NOTE
30p.
90D0032301; H133B30072; 90DN0019/02
CONTRACT
-- Reports - Descriptive
Serials. (022)
Collected Works
PUB TYPE
(141)
Impact; v10 n2 Sum 1997
JOURNAL CIT
MF01/PCO2 Plus Postage.
EDRS PRICE
Advocacy; *Civil Rights Legislation; *Criminal Law;
DESCRIPTORS
*Developmental Disabilities; *Equal Protection; Law
Enforcement; *Mental Retardation; Resource Materials;
*Victims of Crime
*Americans with Disabilities Act 1990
IDENTIFIERS
ABSTRACT
This feature issue of "Impact" focuses on persons with
developmental disabilities and the justice system. Articles include: "The
high rate of
Invisible Victims" (Daniel D. Sorensen), which discusses the
victims of
people with developmental and other severe disabilities who become
which
crime; "The ADA in the Justice System" (Frank Laski and Kirsten Keefe),
discusses the application of the Americans with Disabilities Act to the
disabilities;
justice system to prevent discrimination against people with
Developmental
"ABA Mental Health Standards: The Impact on Persons with
Association's
Disabilities" (B.J. George), which summarizes the American Bar
Crime Victims with
mental health standards; "Equal Protection of the Law for
Developmental Disabilities" (Dick Sobsey); "The Arc: Tackling Criminal
Reynolds and
Justice Issues at National, State and Local Levels" (Leigh Ann
Houchins), which
Rick Berkobien); "Breaking the Cycle: 'Justice Now!'" (Jeri
of people
describes a program that works to prevent discriminatory treatment
"Educating
with developmental disabilities in the criminal justice system;
for Change: 'Equal Justice'" (Lisa Sonneborn), which highlights a program
the criminal
designed to support people with mental retardation who encounter
"Defending
justice system as victims of crime or as people accused of crimes;
Mental Retardation in the
and Advocating on Behalf of Individuals with 'Mild'
Reynolds); "The
Criminal Justice System" (William M. Edwards and Leigh Ann
and Mental
Expert Witness: Issues of Competence, Criminal Justice,
Lapointe"
Retardation" (Denis W. Keyes); "The Bewildering Life of Richard
with disabilities accused
(Robert Perske), which details the story of a man
and Ignorance: The San
of murdering a grandmother; "Challenging Stereotypes
There: The Role of
Francisco Police Department" (Forrest Fulton); "Being
Who Have Cognitive
Advocates" (Dolores Norley); "Communicating with People
need to be
Disabilities" (Mary F. Hayden), which discusses factors that
disabilities within
considered in communicating with people with cognitive
Consortium Diversionary
the context of the justice system; "Pueblo DD/MH
in the Criminal
Program" (Larry Velasco); and "The Education of Juveniles
+++++ ED411627 Has Multi-page SFR---Level=1 +++++
Justice System: A Mandate?" (Barbara E. Ransom and John Chimarusti). A list
of relevant additional resources is provided. (Most articles contain
references.)
(CR)
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*
Reproductions supplied by EDRS are the best that can be made
*
*
from the original document.
*
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Feature Issue on Persons with
Developmental Disabilities and
the Justice System
Published by the Institute on Community Integration (UAP) Research and Training Center on Community Living
Volume 10 . Number 2 Summer 1997
The invisible Victims
by Daniel D. Sorensen
People with developmental and other severe disabilities suffer violent crime at an
alarming rate. Yet there is very little written or, more importantly, done about it. This
is not an abstract problem of trends and statistics, but a brutal reality in the lives of
the human beings who are victims of these crimes.
Five women whom I knew, all with intellectual disabilities and in their late 20s and
early 30s, lived in a licensed, small family home in a rural town. They were solid citi-
zens, dependable, productive workers, and kind, considerate human beings. And they
were all systematically and repeatedly raped and terrorized by the owner of the facil-
ity over a 5-year period. When one of these women finally found the courage and op-
portunity to report these crimes, the District Attorney (DA) refused to prosecute. It
was only after the licensing authority secured the testimony of the other women and
took the matter to a licensing revocation hearing that the DA agreed to prosecute.
A happy, well-adjusted, shy man in his 30s lived in a small family home. I met with
him on occasion and got to know him. He loved taking long walks through the coun-
If individuals with disabilities such as Richard
tryside. He had an intellectual disability and limited physical dexterity. He often com-
Lapointe become involved with the justice system,
plained that the woman whose house he lived in did not feed him enough and that she
questions often arise about the system's ability to
was always trying to save money on the food bill. He died from mushroom poisoning
treat them justly. See story on page 16.
when the care provider collected and served wild mushrooms to him for dinner, ap-
From the Editors
parently to save money. No arrest was made.
A friend of mine told me of a woman with a major mental disorder who lived
When persons with developmental
alone in her own apartment. Her condition worsened until she was unable to care for
disabilities become victims of crimes or are
or protect herself. First one man then others noticed her vulnerability and forced their
accused of committing crimes, they face a
way into her apartment and raped her. No arrests were made in this case.
legal system that is often unprepared to take
The stories of crime victims with developmental and other severe disabilities are
into consideration their unique needs. As a
powerful and usually do not end with the arrest or prosecution of perpetrators. But
result, questions of fairness and equal access
are they isolated events, a "fair share" of violent crime reported so widely in our soci-
ety, or are they part of a pattern of substantially higher rates of violent crime against
have been raised in a number of cases. This
a more vulnerable population?
issue of IMPACT represents the growing
In study after study, rates of violent crime against people with developmental or
collaboration between the justice system and
other severe disabilities are found to be 4 to 10 or more times higher than the rate
the disabilities field in seeking to address
against the general population. The rate of sexual assault is particularly chilling. One
those questions and ensure that rights are
study found that 83% of women and 32% of men with developmental disabilities in
protected and reasonable accommodations
their sample had been sexually assaulted (Hard, 1986). Other studies have found from
are made.
86% to 91% of women in their samples had been sexually assaulted. Another study
DENOMIENT CO it
U
firsono...00rorsr.orroorm
o
found that of those who were sexually assaulted, 50% had been assaulted 10 or more
CENTER iErel
a Ur dormer Oro Oro roporluer r
What's Inside
no*
canon or cornaron
times (Sobsey & Doe, 1991). These rates compare with 13% for sexual assault for
a %War ...ram ore tor MPS 10
women in the general population.
*MM.* 110/MCIAM
Overview of Issues
PPM 01. Ca COM.% =WI me
These dramatically higher rates of sexual assault are consistent with the experience
...MOM Of not rorroN rooror
Strategies & Profiles
crow CEM power a Oorl,
of a clinical psychologist who treats victims with developmental disabilities. She re-
Resources
ports that she must not only help the victim deal with the latest sexual assault, but
must also help her become better able to deal with the probability of future assault.
And it is not just sexual assault that occurs more frequently. Another study found that
The College of Education
people with intellectual disabilities were robbed 12.8 times more often than people
& Human Development
(Sorenson, continued on page 26]
UNIVERSITY OF MINNESOTA
2
BEST COPY AVAILABLE
2
The ADA in the Justice System
by Frank Laski and Kirsten Keefe
During Congressional debates on the
ties as a result of a stroke. He asserted
The Americans with Disabilities Act
ADA, representatives explicitly stated
the Town violated the ADA by failing to
the most comprehensive civil
(ADA)
that "it is not rare for persons with dis-
properly train its police officers regard-
has made sub-
rights law ever enacted
abilities to be mistreated by the police."
ing disabilities. The court allowed Jack-
stantial impacts upon every aspect of
Furthermore, it was acknowledged that
son to sue for unlawful arrest, use of ex-
our social processes. Yet, seven years af-
mistreatment may be due to "persistent
cessive force, and unlawful detention.
ter enactment, its effective application
myths and stereotypes" regarding
In a recent Pennsylvania case, two
to our justice system remains in doubt.
police officers threw to the ground and
It is clear that Congress intended to en-
handcuffed John Washington in front of
sure equal protection under the law for
his house, mistakenly thinking him to be
individuals with disabilities by removing
Congress intended to ensure
a "peeping Tom." Washington is an 18-
barriers that prevent their effective par-
year- old young man who has autism
ticipation in all aspects of citizenship,
equal protection under the
and lives with his mother. He frequently
including the justice system. Title II,
walks back and forth on the sidewalk
Part A of the ADA states that "no other-
law for individuals with
outside their home. As a result of his en-
wise qualified individual with a disabil-
counter with the police, Washington suf-
ity shall, by reason of such disability, be
disabilities by removing
fered a separated shoulder and was trau-
excluded from participation in or denied
matized by the incident. It was apparent
the benefits of the services, programs or
barriers that prevent their
from the court testimony that neither of
activities of a public entity, or subjected
the two officers properly identified
to discrimination by any such entity."
effective participation in all
Washington as an individual with a dis-
"Public entity" encompasses all police,
ability, even after they were in close con-
probation and law enforcement agen-
aspects of citizenship.
tact with him. Both officers described
cies; correctional facilities; and state and
John's conduct by using terms such as
local court systems. Yet, many questions
"not normal," "odd," "very strange," and
relating to accommodating people with
"peculiar," highlighting the fact that if
mental and physical disabilities have yet
people with disabilities, as well as "due
properly trained, the officers would have
to be answered.
to mistaken conclusions drawn by the
been likely to recognize him as an indi-
The following briefly discusses the
police officer witnessing a disabled
vidual with a disability.
current application of the ADA in the
person's behavior."
Congressional reports indicate that
justice system to prevent discrimination
The court in Sanford found that
Congress contemplated and recognized
against people with disabilities.
Jackson's situation was of the kind an-
that the ADA requires police training.
ticipated by Congress when it passed the
The Jackson Court quoted the House Ju-
Law Enforcement Agencies
ADA. Likewise, John Washington's be-
diciary Committee, which stated:
havior, typical of an individual with au-
The ADA provision calling for "reason-
tism, was of the kind Congress intended
In order to comply with the non-dis-
able accommodation" has been inter-
to protect. The House stated that these
crimination mandate, it is often nec-
preted by the Congress and U.S. Depart-
mistakes are "avoidable and should be
essary to provide training to public
ment of Justice to require training for
considered illegal under the Americans
employees about disabilities. For ex-
police so that they recognize disabilities,
with Disabilities Act." Moreover, the
ample, persons who have epilepsy,
respond appropriately, and provide ser-
House stated such mistakes "constitute
and a variety of other disabilities, are
vices to persons with disabilities in a
discrimination, as surely as forbidding
frequently inappropriately arrested
non-discriminatory manner. Examples
entrance to a store or restaurant is dis-
and jailed because police officers
of police officers mistaking individuals
crimination."
have not received proper training in
with disabilities to be public offenders
As a matter of public policy, police
the recognition of and aid of sei-
abound. In Jackson v. Inhabitants of the
officers should be trained to recognize
zures. Such discriminatory treatment
Town of Sanford (1994) a police officer
when someone has a disability and how
based on disability can be avoided by
mistakenly perceived Roland Jackson to
to address, communicate with, and
proper training (H.R.Rep. No. 101-
be operating a motor vehicle while un-
work with individuals with disabilities.
485(111), 1990).
der the influence of alcohol or drugs. In
A special component can be added to
fact, Jackson suffered physical disabili-
Disability & the Justice System
3
qualified immunity from suit under the
the training police officers receive prior
victims, defendants, witnesses, jurors,
to certification and as part of their in-
ADA and the Rehabilitation Act on the
and observers. Courts must be readily
service training. Any administrative or grounds that they should not have ex-
accessible to and usable by the general
fiscal inconveniences to the department
pected the Act to apply to prison in-
population. In addition, courts must
are insignificant compared to the conse-
mates (Toracasio v. Murray, 1995). Like-
make specific reasonable accommoda-
wise, the Indiana District Court held
quences when civil rights are abridged.
tions for individuals with disabilities
that the ADA does not apply to state
when requested.
prisons, denying a legally blind pri-
Removing physical barriers, or mak-
Detention and Correctional Facilities
soner's petition to be accommodated so
ing buildings "facility accessible," is an
Congress expressly stated that the ADA
that he could gain access to services
important first step towards ADA com-
covers state governments and "any" or
available to other prisoners (Crawford v.
pliance. Architectural barriers must be
"all" of the operations therein. Some
Indiana Department of Corrections,
removed to allow individuals who use
1996). The court reasoned that applying
courts have found this language clear
wheelchairs full access to the courts.
the ADA to state prisons, "a core state
and have applied the ADA to prison fa-
Equipment may be redesigned or added,
function," would disturb the balance of
cilities in certain circumstances; other
such as furnishing telecommunications
power between the states and the federal
courts, however, reject this view and
devices for individuals who are deaf. Ad-
government. Congress must therefore be
refuse to apply the ADA to correctional
ditional steps may be taken, such as pro-
"unmistakably clear" and "manifest" if
facilities absent more specific language
viding personal assistants or scheduling
(Robbins, 1996).
it wants to make the ADA applicable to
hearings at more accessible sites. Fur-
state prisons. The Ninth Circuit found
Generally, courts have held that Title
thermore, courts must provide aids and
that the ADA does not apply to state
I of the ADA, the provision covering em-
services to facilitate understanding and
ployment rights, is inapplicable to incar- prisons when a prison regulation im-
communication for all persons. The in-
cerated persons in the prison setting. pinges on inmates' constitutional rights
dividual with the disability has the right
if that regulation is reasonably related to
The reasoning is that other federal em-
to request the type of accommodation
ployment statutes, such as Title VII and
legitimate penological interest (Fowler v.
they prefer. The court is obligated to
the National Labor Relations Act, do not
Gomez, 1995). Even in the face of clear
provide such accommodation unless it
apply to prison inmates.
constitutional violations courts have tra-
can show that an alternative, equally ef-
ditionally taken a "hands off" approach
However, more often than not, courts
fective means of communication is avail-
to prison administration.
have found that Title II of the ADA, the
able. Courts are excused from providing
provision covering public accommoda- In time, it should become clear that
an accommodation only when it will
tions, does apply to prison settings. In Title II of the ADA applies to detention
fundamentally alter the activity or struc-
and correctional facilities. Prisons must
ture, or when it presents an undue finan-
Inmates of the Allegheny County Jail v.
take at least minimal steps to provide ac-
Wecht (1983) the Third Circuit Court of
cial burden (Land & Water 1994).
commodations for inmates with disabili-
Appeals found that a consent decree
Regarding jury service and persons
ties. Physical barriers should be re-
that excluded mentally ill inmates with
with disabilities, exclusion of potential
past histories of violence from services
moved to allow all inmates equal access
jurors based on a disability, primarily
provided to other inmates violated Sec-
to facilities and services, especially the
through the use of the peremptory chal-
tion 504 of the Rehabilitation Act and
most basic of services such as shower
lenge, is a violation of the ADA absent a
and bathroom facilities. Educational,
the ADA. More recently, the Ninth Cir-
compelling state interest. In Batson v.
cuit held that a hearing impaired inmate vocational, and rehabilitation programs
Kentucky (1986), the Supreme Court
need to be redesigned to ensure equal
had a legal right under the ADA to a
stated that "competence to serve as a ju-
access to all people. Regulations which
ror ultimately depends on an assess-
qualified interpreter (Duffy v. Riveland,
are not in compliance with the ADA be-
ment of individual qualifications and
1996). Several district courts have
ability impartially to consider evidence
cause they are "reasonably related to le-
agreed with these decisions. The Sev-
gitimate penological interests" must still
enth Circuit District Court has consis-
presented at a trial." In People v. Guzman
be scrutinized so that they provide equal
tently held that an outright refusal by a
(1990) the New York Court of Appeals
protection for all inmates.
prison to accommodate an individual
found a person who was hearing im-
paired competent to "understand all of
covered under ADA is a violation of that
the evidence presented, evaluate that
individual's rights (Love v. McBride,
The Court System
1995). The Eleventh Circuit required city
evidence in a rational manner, commu-
Courts are required, under the ADA, to
jail cells to be readily accessible for pris-
nicate effectively with the other jurors
meet the accessibility needs of all indi-
during deliberations, and comprehend
oners with disabilities (Outlaw v. City of
viduals with disabilities, including
Dothan, 1993). The Fourth Circuit, how-
the applicable legal principles, as
[Laski, continued on page 26]
judges, employees, lawyers, plaintiffs,
ever, held that state officials could claim
4
4
ABA Mental Health Standards: The Impact
Developmental Disabilities
on Persons with
by B.J. George
[Standards 7-4.8, 7-4.9J. The court should
with special mental health or mental re-
The American Bar Association's (ABA)
order treatment or habilitation for a de-
tardation training in effectuating emer-
Standards for Criminal Justice have been
fendant found to be incompetent [Stan-
gency detention [Standard 7-2.4].
adopted and revised over the past two
dard 7-4.9(9)), although the defendant
If a person with a developmental dis-
decades as guides for courts, legislators,
has the right either to receive treatment
ability has been arrested for a crime, and
and rule-makers in modernizing crimi-
or habilitation or to refuse it [Standard 7-
police have reasonable grounds to believe
nal procedure and evidence. The impact
4.10]. If a defendant is permanently in-
the arrestee meets the criteria for emer-
of the standards has been substantial,
gency detention on mental health
particularly on federal and state appel-
grounds, they should arrange for a men-
late courts. Unfortunately, the present
tal health or mental retardation profes-
decade has not been receptive to statu-
The ABA Criminalfastice
sional to provide evaluation, treatment or
tory reform, so only a few states have re-
habilitation; the underlying facts should
flected the standards in their statutes.
Mental Health Standards
be transmitted promptly to the prosecu-
Within the standards, the chapter
tor or court [Standard 7-2.5]. Criminal
Criminal Justice Mental Health Standards
address many problems that
justice personnel who observe a de-
addresses many of the problems that
tainee's conduct or demeanor as indicat-
persons with developmental disabilities
persons with disabilities
ing mental abnormality, or reflecting self-
might encounter within the criminal jus-
injurious or suicidal conduct, must report
tice system. Below is a summary of
might encounter within the
their observations promptly to the offi-
those standards.
cial in charge of a detention or holding
criminal justice system.
facility; that official, after confirming the
Police Emergency Detention
need for action, must summon a mental
health or mental retardation professional
The ABA standards urge that persons
to provide emergency evaluation, treat-
with mental retardation should not be
competent to undergo trial, he or she
ment or habilitation [Standard 7-2.6(b)].
taken into emergency custody by the po-
should be released from the special com-
lice unless their conduct represents a
mitment based on procedural incompe-
danger to themselves or others, or they
Competence to Stand Trial
tence and be dealt with under ordinary
appear to be so gravely disabled that
mental health civil commitment statutes,
Under the Constitution, due process of
they are unable to provide themselves
if appropriate [Standard 7- 4.13].
law is denied if mentally incompetent
with the basic necessities of life [Stan-
the
persons are forced to undergo trial;
dard 7-2.1(a)]. Detention ought to be
ABA Mental Health Standards restate that
solely for the purpose of providing
Nonresponsibility for Charged Crimes
principle (Standard 7-4.1(a)]. The consti-
transportation to an appropriate mental
The so-called "insanity defense," in vari-
tutional criteria for competence are a
health, mental retardation or medical fa-
for centu-
ous forms, has been recognized
defendant's sufficient present ability to
cility, where a detainee can be examined
ries in Anglo-American criminal law. The
consult with counsel with a reasonable
and, if appropriate, provided appropri-
ABA Mental Health Standards, using the
degree of rational understanding and
ate evaluation, treatment or habilitation
label of "mental nonresponsibility," ad-
otherwise to assist in her or his defense,
[Standard 7-2.1(b)]. If possible, police
vance as the desirable test whether, "at
and a rational as well as a factual under-
guidelines should allow for voluntary
the time of [charged criminal] conduct,
standing of the proceedings. Incompe-
dispositions in such cases; those may be
and as a result of mental disease or de-
tence may stem from many causes includ-
accomplished through a person's friends
fect, the person was unable to appreciate
ing mental retardation or other develop-
or relatives, or by referral to a commu-
the wrongfulness of [the] conduct" [Stan-
mental disability [see Standard 7-4.1(a),
nity mental retardation or other appro-
dard 7- 6.1(a)]. Mental retardation is com-
(b)J. If the issue of trial competence has
priate facility [Standard 7-2.3]. If physi-
prehended within the term "mental dis-
been raised, a court in which criminal
cal force must be used, it should be the
affected
ease or defect" if it substantially
charges are pending should order profes-
minimum necessary to protect the per-
the mental or emotional processes of the
sional evaluations of the defendant and
son with a disability; where feasible, po-
defendant at the time of the alleged of-
conduct a formal hearing on the matter
lice should seek assistance from persons
Disability & the Jpstice System
5
functioning existing concurrently with
fense [Standard 7-6.1(b)]. In fact, in re-
transfers [Standard 7-10.3] or court-
cent years a number of legislatures, in- substantial deficits in adaptive behav-
authorized transfers [Standards 7-10.4
cluding Congress, have adopted statutory
ior" [Standard 7-9.1(c)]. Convicted of-
7.10.7] should be possible to treatment
definitions of mental nonresponsibility fenders should not be denied probation
or habilitation facilities operated by a
state department of mental health ser-
solely because they require mental
(insanity) closely resembling the ABA
health or mental retardation treatment
standards definition.
vices. Prisoners so transferred should
Assessment of a defense claim of
or habilitation [Standard 7-9.2]. More-
have the same right as civilly-committed
mental nonresponsibility is a trial jury's
over, such a condition should be consid-
patients to refuse treatment or habilita-
ered a possible mitigating factor in sen- tion [Standard 7-10.10]. When treat-
responsibility; the ABA Mental Health
tencing [Standard 7-9.3]. If defendants
Standards set forth detailed provisions as
ment or habilitation no longer is neces-
sary or appropriate, the prisoner should
with severe mental illness or retardation
to how evidence is to be prepared and
be returned to correctional custody after
presented on the nonresponsibility issue. are sentenced, it should be to a mental
health or mental retardation facility; if a
If a defendant is found not guilty by rea-
appropriate administrative review [Stan-
son of mental nonresponsibility (insan-
condition is less severe, an adult correc-
dard 7-10.11]. A committed prisoner
with mental retardation must either be
tional facility should make available
ity) (NGRI) [Standard 7-6.10], the stan-
needed treatment or habilitation [Stan-
dards urge the establishment of special
discharged or civilly committed in a
commitment proceedings to determine
separate proceeding at the expiration of
dard 7-9.7]. Prisoners committed to a
mental health or mental retardation
whether the acquittee should be commit-
the underlying criminal sentence [Stan-
ted to a mental health or mental retarda-
treatment facility should not be releas-
dard 7-10.12].
able by mental health or retardation of-
tion treatment facility [Standard 7-7.3].
Commitment should not be ordered un-
ficials without an advance authorization
Impact of the Standards
less a court finds that an acquittee cur- from either a correctional official or the
As noted at the beginning of this article,
rently has a mental illness or mental re- sentencing court [Standard 7-9.11]. The
implementation of the ABA Mental
tardation and, as a result, poses a sub- right of offenders placed in mental
stantial risk of serious bodily harm to
health or mental retardation facilities to
Health Standards turns on the willing-
decline habilitation or mental health
ness of state lawmakers to pattern legis-
others [Standard 7-7.4(b)]. The ABA stan-
dards recommend that mental health
treatment is recognized to the same de-
lation after them, and few have done so.
gree that civilly-committed patients
commitment following NGRI should not Consequently, no statistical evaluation
exceed the maximum period of incarcera- of the standards' effectiveness is pos-
have it [Standard 7-9.12].
tion authorized for the offense(s) of
sible. However, it is hoped that the
If an offender with severe mental ill-
rights of persons, including persons
which a defendant has been acquitted; ness or mental retardation is still in
prolonged commitment beyond that time mental health custody at the expiration
with developmental disabilities, are en-
of the underlying criminal sentence, he hanced through the use by courts, law-
should require a new regular mental-
yers, and mental health professionals of
or she should either be released or civilly
health civil commitment order after
the standards as a guide or reference
committed on the basis of separate judi-
proper proceedings [Standard 7-7.7(a)].
text. In short, the system can function
Special commitment orders should be re-
cial proceedings [Standard 7-9.16]; this
appreciably better with the standards
restates federal constitutional require-
viewed periodically by the committing
than without them.
court [Standard 7-7.8], and should be ter-
ments.
minated at any time if the acquittee no
longer is dangerous [Standard 7-7.9].
B.J. George is Professor of Law Emeritus at
Prisoners with Developmental
New York Law School, former General
Disabilities
Reporter of the ABA Criminal Justice
Convicted Defendants with
Mental Health Standards, and a former
It is possible for persons with mental re-
Developmental Disabilities
tardation to be convicted and sentenced
chairperson of the ABA Section of Criminal
to correctional institutions; that will be
Some persons with developmental dis-
Justice. Copies of the ABA Criminal Justice
true in the overwhelming majority of
Mental Health Standards (2d ed. 1986,
abilities will be competent to undergo
American jurisdictions that have not
1989) can be obtained by writing to the
trial and will be convictable of their of-
adopted the special sentencing and com-
American Bar Association, Publication
fenses. The ABA Mental Health Standards
mitment procedures recommended in
advocate the adoption of special stan-
Orders, P.O. Box 10892, Chicago, Illinois
dards governing the sentencing and dis-
60610-0892, or by calling 312/988-5522.
Part IX of the ABA Mental Health Stan-
dards. In such cases, the correctional sys-
position of offenders with severe mental
Please reference Publication #5090041.
tem should provide an appropriate array
illness or serious mental retardation; the
of mental retardation services and ha-
latter is defined as a person "with very
bilitation [Standard 7-10.2]. Voluntary
significant subaverage general intellectual
6
6
Disability & the Justice System
Equal Protection of the Law for Crime
Victims with Developmental Disabilities
by Dick Sobsey
words, what might constitute an assault
abuse appears to be more than three
Civil rights consist of two essential
and battery and be treated as a police
parts: equal protection and due process.
times higher for adolescents with dis-
matter in the community, is frequently
abilities than for other adolescents.
Equal protection of the law is a funda-
called "abuse" and treated as a personnel
There has been less research on the rela-
mental principle of justice in every mod-
matter in institutions.
ern democracy. In the United States, the
tive risk of violence for adults with dis-
In many cases, prosecutors fail to
abilities, but the research available to
promise of equal protection of the law
bring cases to court because they fear
date suggests that the risk of being
was made to every citizen with the ratifi-
that witnesses with disabilities will be
physically or sexually assaulted for
cation of 14th Amendment to the Con-
excluded or disbelieved. While it is true
adults with developmental disabilities is
stitution in 1868. It says that no state
that some people with developmental
likely 4 to 10 times as high as it is for
may "deny to any person within its juris-
disabilities have profound impairment
diction the equal protection of the
other adults.
of memory or communication, many
Statistics, however, do not tell the hu-
laws." The importance of this simple
others who could provide accurate testi-
man stories, many of which are hard to
statement is unquestionable, and many
mony are denied the opportunity to give
hear. For instance, in February of 1997,
of its vast implications go far beyond the
evidence because of their disabilities.
a parentadvocacy group offered a
scope of this article. But, in regard to
Police, in turn, are often reluctant to in-
$15,000 reward for the arrest and pros-
crime victimization, its meaning is clear.
vestigate these cases because they do not
ecution of a suspect in the rape of a
Efforts to deter and prevent crime must
think that they can be successfully pros-
woman with severe developmental dis-
attempt to protect all citizens to an
ecuted. People with disabilities and their
abilities in a state-run institution. They
equal extent. A crime committed against
advocates often do not report violence
offered the reward after the state issued
any citizen must be investigated and
to the police because they lack confi-
a report indicating that the rape may
prosecuted as vigorously as it would be
dence that their complaint will be acted
have been committed by a staff member
if the crime were committed against any
upon. In a study of more than 300 cases
and that there were dozens of suspicious
other. Sentencing of offenders must be
of sexual abuse and assault conducted
injuries in the same building, but offer-
based on the seriousness of their crimes
by the University of Alberta, we found
ing no solution to these problems. In
and not the status of their victims.
some evidence of the system breaking
March, 1997, courts in Massachusetts
Sadly, the promise of equal protec-
down at every level, but more frequently
heard that one of six people who beat,
tion of the law has never been fully
the cases were simply never reported. As
scalped, and raped a 22-year-old man
achieved for all citizens, and no group of
a result, the negative expectations at ev-
for three months before killing him told
citizens has been more consistently de-
ery stage are self-fulfilling. The justice
police that torturing him with electric
prived of equal protection than people
system fails because everyone believes
shocks "looked like fun." As that trial
with developmental disabilities. Thir-
that it will fail. The police cannot inves-
proceeded, the media also carried news
teen decades after the ratification of the
tigate and the prosecutor cannot pros-
from another investigation of two men
14th Amendment, people with develop-
ecute until people with disabilities and
mental disabilities are among the most
with developmental disabilities who
their advocates report the crimes that
were kept chained in the backyard by
frequent victims of crime, and remain
are committed against them. In our
their caregivers, were forced to eat dog
severely disadvantaged by the justice
sample, when cases were reported, in-
food, had teeth pulled out with pliers,
system that is designed to protect them.
vestigated, and prosecuted, about one-
and had boiling water poured on them.
Since the 1960s, research has repeat-
third resulted in convictions.
The rape, torture, and murder of vulner-
edly established that children with all
Some cases suggest that even when
able people is an outrage, and punish-
kinds of disabilities, but particularly de-
convictions occur, crimes against people
ment for such offenses should be swift
velopmental disabilities, are much more
with disabilities result in lesser penal-
and severe. Unfortunately, it is some-
likely to be abused than other children.
ties. In recent cases, an American
times nonexistent and often lenient.
This increased risk exists for physical
mother received a sentence of 240 hours
Several things can stand in the way
and sexual abuse, and neglect (Sobsey,
community service for killing her daugh-
of equal justice. In many caregiving set-
1994). While the risk of abuse is only
ter who had a brain injury, and a French
tings, internal administrative investiga-
slightly higher for young children with
mother was only sentenced to probation
tions take the place of or interfere with
disabilities, it continues to increase
for killing her daughter who had autism.
throughout childhood, and the risk of
the criminal justice system. In other
7
7
In an earlier Canadian case, only one of
mentally handicapped from birth." In
tims of violence and the same kinds of
help are often required. Unfortunately,
four young men who beat a young man the other, the victim was described as "a
with a cognitive disability to death re-
26-year-old professional." The results of counselling and victims' assistance pro-
ceived any jail time. When a Canadian
the two studies were significantly differ-
grams often exclude them or are unable
father was sentenced to a minimum
ent. Eight times as many people thought
to accommodate their special needs.
term of 10 years for killing his daughter This is especially unfortunate because
a suspended sentence was adequate
with multiple disabilities, there was when the crime victim was described as
people with developmental disabilities
widespread public outrage because he having a developmental disability, and
often lack the informal support net-
almost twice as many people felt that
was sentenced too severely. Although
works and the resources required for
this was the minimum sentence allowed time in jail should be required when the
self-help. Making counseling and sup-
victim was described without a disabil-
by law for second-degree murder, and
port accessible is generally best achieved
through interdisciplinary cooperation,
many of the facts of the case suggested
ity. In addition, when jail time was rec-
ommended, the average sentence was
the possibility of conviction for first-de-
maintaining the basic function and pro-
gree (planned and deliberate) murder
shorter for the crime when it was com-
cedures of the generic service, and
which carries a minimum sentence of 25
mitted against a victim with a disability. modifying it only to the extent required
years, the Canadian Senate responded
for inclusion.
While this picture is bleak, it is far
We are only beginning to understand
from hopeless. Much can be done to im-
proposing a bill that would create a spe-
prove the situation and much important
cial category of third-degree murder
the factors that make people with dis-
that would allow "Compassionate Homi-
work is already in progress. The goal is
abilities more vulnerable to crime. We
clear: Crime victims with disabilities
cide" or mercy killing in such cases.
need more research that specifically ad-
While the stated purpose of such leg- must have equal access to and equitable
dresses the experiences of people with
islation is to consider the intent of com-
treatment in the criminal justice system. developmental disabilities as victims of
passion, there are two serious problems.
crime, and we need evaluation of the
How can this be achieved? Part of the
First, no one proposing such legislation
answer lies in community inclusion and
criminal justice system in relation to ad-
has proposed it be extended to compas-
dressing the unique needs of people
community-based law enforcement, and
sion for anything other than illness or
in appropriate counseling and support.
with developmental disabilities. The
disability of the person murdered. If
linking together of people who share the
While most of the evidence suggests
that people with developmental disabili-
goal of equal justice for people with dis-
compassion for people who live in pov-
ties are more likely to be victimized in
erty, who lose loved ones, who are dis-
abilities is a key factor in successful ef-
institutional than community settings,
criminated against, who simply are not
forts. People who are already involved
community inclusion in itself is not
with groups advocating for people with
satisfied with their lives does not justify
murder, why should "compassion" for disabilities can work to ensure that this
enough to protect people from violence.
issue is on the group's agenda and re-
As more people with developmental dis-
people who live with a disability justify
abilities remain in or return to our com-
the same act? Second, since intent can
ceives the priority it deserves. And net-
never be objectively measured, the mere
working between local police, victims'
munities, community-based law enforce-
claim of the intent of compassion would rights groups, and disability organiza-
ment must prepare to meet their needs.
tions can also be an important tool to
be impossible to refute beyond any rea-
Fortunately, community-based policing
change attitudes and practices, and en-
sonable doubt. The effect would be the
has emerged as a valued tool in fighting
sure equal protection of the law for
creation of a law that makes killing
crime during the 1980s and 1990s, link-
crime victims with developmental dis-
people with disabilities a less serious
ing police agencies more closely with the
crime than killing other citizens.
abilities.
communities they serve. Establishing
positive links between police and people
To test the hypothesis that it is dis-
Sobsey, D. (1994). Violence and abuse in the lives at people with
ability rather than the notion of com-
with developmental disabilities prior to
disabilities: The end of silent acceptance. Baltimore: Paul H.
passion that makes a crime less serious the development of crimes can be an ex-
Brookes.
cellent deterrent to crime, and help en-
in some people's minds, we conducted
sure that police are prepared to act if a
some simple research. We gave 84 law
Dick Sobsey is Director of the JP Das
students short vignettes describing a se-
crime should occur. For example, people
Developmental Disabilities Centre,
with developmental disabilities can of-
vere physical assault that took place at
University of Alberta, Edmonton, Alberta,
work and asked them what sentence
ten play valuable roles in neighborhood
Canada. He may be reached at 403/492-
would be appropriate upon conviction. watch and other similar programs.
3755.
When people with developmental
Two versions of the vignette differed
only in the description of the victim. In
disabilities do become victims of vio-
lence, the same emotional responses oc-
one, the victim was described as "a 26-
year -old man who has been moderately
cur that would be expected in other vic-
Disability & the Justice System
8
The Arc: Tackling Criminal Justice Issues
Levels
at National, State and Local
by Leigh Ann Reynolds and Rick Berkobien
accepted by the judge and the offender
concert with their local judiciary sys-
As the nation's largest voluntary organi-
is placed on probation or parole, DDOP
tems, can help ensure that these indi-
zation committed to the welfare of per-
then monitors the PJP until the person
viduals receive services, such as residen-
sons with mental retardation, The Arc ad-
completes his or her sentence.
tial supports, vocational training or
dresses a wide range of issues including
Not only does the DDOP provide di-
specialized service coordination, giving
the treatment of persons with disabilities
rect services for people with mental re-
the individual a better chance for reha-
within the criminal justice system. With a
tardation, it provides training and edu-
bilitation that may be unattainable in
national headquarters and approximately
cation as well. DDOP provides technical
another setting.
1,100 state and local chapters, The Arc
assistance to attorneys who represent
On a state level, chapters of The Arc
advocates, educates, and informs in rela-
people with mental retardation, edu-
are active in the criminal justice arena.
tion to legal system issues at each of its
cates individuals with developmental
State chapters monitor statutes that im-
three organizational levels.
disabilities about confusing aspects of
pact individuals with developmental dis-
Locally, chapters of The Arc are often
the criminal justice system, and immedi-
abilities and many operate programs or
the "first-line of defense" for people with
ately intervenes on the client's behalf
conduct initiatives to protect the legal
developmental disabilities caught unex-
when necessary. With funding from the
rights of such individuals. Chapters in
pectedly in the criminal justice system.
New Jersey State Bar Foundation, the
New Jersey, New Mexico, and California
Because most communities lack special-
program recently produced materials for
provide outstanding examples of how
ized diversionary programs specifically
self-advocates to help individuals know
The Arc is making an impact.
for offenders with disabilities, a local
what to do if they are ever arrested.
The Arc of New Jersey operates the
chapter of The Arc may provide services
They also produced a guide for attorneys
Developmentally Disabled Offenders
to "fill in the gap." Families and local ser-
that explains the specific disadvantages
Program (DDOP), one of the few pro-
vice providers may directly contact a local
faced by defendants who have a disabil-
grams nationwide that provides alterna-
chapter upon the arrest of a family mem-
ity and assists them in identifying some-
tives to incarceration for defendants
ber or individual to obtain general infor-
one with mental retardation.
with developmental disabilities. The
mation and to learn how to most effec-
The Arc of New Mexico operates a
program, directed by an attorney with a
tively advocate on behalf of the person.
similar program called The Justice Advo-
background in criminal defense law,
Having little or no information about de-
advo-
cacy Project (JAP). JAP provides
serves as a clearinghouse for informa-
velopmental disabilities, attorneys may
adults and ju-
cacy services statewide to
tion about offenders with developmen-
seek advice on what, if any, legal recourse
veniles with developmental disabilities
tal disabilities and acts as a liaison be-
can be made on a client's behalf. In some
who are detained by the police or who
tween the criminal justice and human
cases, local chapters that are called upon
They
are accused or convicted of crimes.
services systems. Quality of care and
in situations where a person may be inap-
provide individual advocacy and a coor-
services is monitored as individuals
propriately detained or accused of a
dinated system of follow-up or aftercare.
move from one system to another, and
crime have established contacts with lo-
JAP also provides systems advocacy by
the DDOP continually investigates how
cal law enforcement agencies and courts.
actively supporting legislation that pro-
linkages between state service systems
Some local chapters may also operate
motes improved treatment, habilitation,
and
can be established, strengthened,
specialized intervention programs in or-
and the development of specialized pro-
maintained to benefit offenders with de-
der to work with the courts in providing
grams for offenders with developmental
velopmental disabilities.
not to avoid ap-
diversionary services
disabilities. JAP believes education is a
DDOP, through the use of a Person-
propriate punishment, but to prevent un-
key component of its services. People
alized Justice Plan (PJP), offers the court
necessary incarceration. In other cases,
with disabilities are educated about indi-
alternatives to incarceration for people
local chapters collaborate with their state
vidual rights, rights when arrested, what
with developmental disabilities. PJPs
chapters and even call upon the resources
constitutes illegal behavior, and conse-
identify community supports and pro-
of the national headquarters for assis-
quences for breaking the law. Special-
vide least restrictive, community-based
tance. Courts often encounter offenders
ized training is also offered to law en-
alternatives for offenders, while holding
with developmental disabilities who re-
forcement, the judiciary, and probation,
them accountable for their actions. The
quire intervention, but who, if incarcer-
correctional, and parole officers. Cur-
PJP is presented to the court as a special
ated in a regular penal system, may be-
rently, JAP is advocating for a change in
condition of probation or parole. If it is
come victimized. Chapters, working in
9