People with Intellectual and Developmental Disabilities in the Criminal Justice System
By: The Arc
How many people with intellectual and developmental disabilities are in the criminal justice system?
Based on the 1990 census, an estimated 6.2 to 7.5 million people in the United States have intellectual and developmental disabilities. Various studies have suggested between 2 percent to 10 percent of the prison population have intellectual and developmental disabilities. Denkowski & Denkowski (1985) found that about 2 percent of all inmates in either state or federal prisons have intellectual and developmental disabilities (about 14,000 people). Another study conducted by the state of New York found similar results: between 1.8 percent and 2.2 percent of people with intellectual and developmental disabilities were imprisoned (Sundram, 1990). Residential programs that house offenders with intellectual and developmental disabilities support another 12,500 people who have been convicted, or suspected of, committing a crime (Noble & Conley, 1992).
The total number of people with intellectual and developmental disabilities in prisons and residential programs (26,500 to 32,500) underestimates the extent of the problem since the number of those who are on probation, in local jails or placed in programs for people with mental illness remains unknown. While those in the criminal justice system constitute a small portion of all people with this disability, the number is significant enough to warrant the attention and concern of self-advocates, parents, criminal justice personnel and policy-makers. Standardized procedures which gather data nationwide are necessary before a more accurate number of people with intellectual and developmental disabilities involved in the criminal justice system can be determined (Noble & Conley, 1992).
Do people with intellectual and developmental disabilities commit crimes more often than people without this disability?
Some people with intellectual and developmental disabilities may commit crimes, not because they have below-average intelligence, but because of their unique personal experiences, environmental influences and individual differences. During the early 1900s, intellectual and developmental disabilities professionals believed that individuals with intellectual and developmental disabilities were predisposed to becoming a criminal due to their disability. This "alarmist" view lost support during the 1930s as its leaders rescinded their original beliefs. By the 1950s, and since that time, any findings suggesting a significant link between intellectual and developmental disabilities and criminal behavior have been proven incorrect and, consequently, rejected (Ellis & Luckasson, 1985).
What crimes are people with intellectual and developmental disabilities usually charged with committing?
The misconception that people with intellectual and developmental disabilities usually commit serious crimes is unwarranted. Data taken from state and federal prisons reveal that people with intellectual and developmental disabilities are more likely to commit serious felonies, but this information is misleading since prisons typically house inmates who commit serious crimes (Brown & Courtless, 1971). On the other hand, data gathered from a specialized community program for offenders with intellectual and developmental disabilities found that most offenders were arrested for committing misdemeanors and other less serious felonies (White & Wood, 1986). Similar research also finds that people with intellectual and developmental disabilities commit less serious crimes, such as misdemeanors and public disturbances (Illinois Mentally Retarded and Mentally Ill Task Force, 1988).
What disadvantages do people with intellectual and developmental disabilities face in the criminal justice system?
As more people with intellectual and developmental disabilities move out of institutions and into the community, their susceptibility to becoming involved in the criminal justice system as a victim, witness or suspect of a crime may increase dramatically. Individuals with this disability are frequently used by other criminals to assist in law-breaking activities without understanding their involvement in a crime or the consequences of their involvement. They may also have a deep need to be accepted and may agree to help with criminal activities in order to gain friendship. Many individuals unintentionally give "misunderstood responses" to officers, which increases their vulnerability to arrest, incarceration and possibly execution, even if they committed no crime (Perske, 1991). Some common responses from those with intellectual and developmental disabilities that may effect their ability to protect their rights during police contact include the following. The person may:
- not want disability to be recognized (and try to cover it up)
- not understand rights (but pretend to understand)
- not understand commands
- be overwhelmed by police presence
- act upset at being detained and/or try to run away
- say what he or she thinks others 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
Upon arrest, individuals with intellectual and developmental disabilities usually answer affirmatively when asked if they understand their rights, even when they do not understand, in order to gain approval or to hide their disability.
Law enforcement officers often receive little or no training in the area of intellectual and developmental disabilities and have difficulty recognizing a person who has this disability. They may be mistaken as someone who is drunk, on drugs or who has mental illness. Court officials face the same dilemma. Attorneys may represent people with intellectual and developmental disabilities without realizing a disability exists and judges may impose sentences without taking intellectual and developmental disabilities into account.
Considering such extreme disadvantages, it is not surprising that people with intellectual and developmental disabilities are more likely to be arrested, convicted, sentenced to prison and victimized in prison (Santamour, 1986). Once in the criminal justice system, these individuals are less likely to receive probation or parole and tend to serve longer sentences due to an inability to understand or adapt to prison rules. Should the death penalty be allowed for people with intellectual and developmental disabilities?
Most people agree that capital punishment of people with intellectual and developmental disabilities should be prohibited. Some states have already passed laws which abolish the death penalty for people with this disability. The Arc adopted an official position statement in 1992 titled Access to Justice and Fair Treatment Under the Criminal Law for People with Mental Retardation which advocates for the prohibition of the death penalty for people with intellectual and developmental disabilities. The Arc, along with AAMR, the American Psychological Association and eight other organizations, supported and signed the amicus curiae brief in Penry v. Lynaugh which supports the abolition of the death penalty for people with intellectual and developmental disabilities. These organizations and experts on intellectual and developmental disabilities agree that regardless of how mild the degree of intellectual and developmental disabilities, the death penalty can never be a justifiable method of punishment for individuals with this disability. However, the U.S. Supreme Court maintains that the execution of people with this disability is not considered "cruel and unusual punishment" according to the Eighth Amendment of the U.S. Constitution. Therefore, the U.S. Congress and states can choose to impose the death penalty (Penry v. Lynaugh, 1989).
Do people with intellectual and developmental disabilities become victims of crime more often than those without a disability?
Some researchers have found that people with disabilities are about twice as likely as others to be victimized (Sobsey & Doe, 1991). Crimes committed against people with intellectual and developmental disabilities are often labeled as abuse and neglect which understates the criminal victimization problem. Factors such as impaired cognitive abilities and judgment, physical disabilities, insufficient adaptive behaviors, constant interactions with "protectors" who exploit them, lack of knowledge on how to protect themselves and living and working in high-risk environments increase the vulnerability of people withintellectual and developmental disabilities to victimization (Luckasson, 1992). Many victims with intellectual and developmental disabilities may not report crimes because of their dependency on the abuser for basic survival needs. When victims do report crimes, police and court officials may not take the person's allegations seriously or be reluctant to get involved. Additionally, people with intellectual and developmental disabilities often lack the resources necessary to prosecute (Sobsey, 1994).
What is The Arc doing to promote equal access to justice for people with intellectual and developmental disabilities?
In 1994, The Arc began a project, funded by the U.S. Department of Justice, to create informational brochures on this topic. The Arc developed the first known national resource list of its kind, Access To Justice National Resource List, which includes model programs, training curricula , books, videos and other relevant information.
The Arc has promoted legislation to reform laws which discriminate against people with intellectual and developmental disabilities and has been successful in prohibiting the capital punishment of people with intellectual and developmental disabilities in those federal laws where the death penalty can be invoked.
Families, service providers, law enforcement and court officials frequently call their state or local chapter of The Arc for assistance when faced with a situation involving a defendant or victim with intellectual and developmental disabilities. Some chapters of The Arc also have specialized programs that provide a wide range of services including direct advocacy, creating individualized justice plans (community alternatives to incarceration), training for those involved in the criminal justice system (police officers, lawyers, judges), as well as training for people with intellectual and developmental disabilities.
What can I do to help protect my own rights or the rights of someone with intellectual and developmental disabilities?
Education and training is paramount if individuals with intellectual and developmental disabilities are going to receive equal justice. Children and adolescents with intellectual and developmental disabilities must learn about the possibility of meeting a police officer and how to protect their rights during encounters with police. Contact your school's special education department and local chapter of The Arc to promote the use of such training if it is currently unavailable.
Police officers should be familiar with and understand this disability. Contact your local police department and ask for the training officer or police chief. Determine if intellectual and developmental disabilities is included in their training. If not, advocate for the teaching of intellectual and developmental disabilities as a separate module (apart from mental illness) so officers will not confuse the two disabilities (Norley, 1976). Encourage your local chapter of The Arc to provide training on intellectual and developmental disabilities for police officers.
Educating court officials can begin by contacting the court liaison and requesting a meeting with the judge. Ask the judge what training on intellectual and developmental disabilities is available to court personnel in your county and, if there is none, request the use of such training.
Building alliances among chapters of The Arc, the police departments and the courts prepares the community for situations involving people with intellectual and developmental disabilities who come in contact with the criminal justice system. Such preparation enables the criminal justice system in your community to ensure that the rights of people with intellectual and developmental disabilities are protected.
Contact The Arc for more information on this topic and to obtain a list of The Arc's publications relating to criminal justice issues.
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Ellis, J., & Luckasson, R. (1985). Mentally retarded criminal defendants. George Washington Law Review, 53 (3-4), 414-493.
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