There is a great deal of debate surrounding the prevalence of Autism Spectrum Disorders in the United States. One recent federal survey indicates that at least 1 in every 150 people in the United States will be affected by an Autism Spectrum Disorder. Whatever the frequency of occurrence may be, the Federal Bureau of Investigation has estimated that people with Autism Spectrum Disorders, (“ASD”), are seven times more likely to have encounters with law enforcement and other first responders than the general public. This is due to a host of factors including being a victim of a crime, an alleged perpetrator of a crime or as a result of wandering or other distress calls. Furthermore, as individuals with ASD achieve more mainstream status (however that may be defined), in areas such as academia, the work force or life in general, the likelihood of an interaction with administrative/disciplinary authorities also increases. It is axiomatic that an individual who is responsible for enforcing the rule of law, otherwise keeping the peace or providing emergency services is only as effective as his or her training. The problem, typically, is that these “authorities”, collectively, are woefully underprepared to safely and effectively deal with interactions with individuals coping with ASD. What is even more troubling is the fact that current, “one-size fits all” training protocols will often lead these authorities into situations that do more harm than good. The purpose of this article is to stimulate debate, lay the foundation for meaningful dialogue and hopefully change minds in relation to this problem. Hopefully this is the beginning of a meaningful process.
The Emotionally Disturbed Person: One Size Does Not Fit All
According to the New York Police Department’s Patrol Guide, an emotionally disturbed person (“EDP”) is defined as, “a person who appears to be mentally ill or temporarily deranged and is conducting himself in a manner which a police officer reasonably believes is likely to result in serious injury to himself or others.” 1 This is a typical definition. One national report notes that, in 1998, “people with mental illnesses killed law enforcement officers at a rate of 5.5 times greater than the rest of the population,” 2 and “…law enforcement officers were more likely to be killed by a person with a mental illness (13 percent) than by assailants who had a prior arrest for assaulting police or resisting arrest (11 percent).” 3 These are some examples of statistics and concepts that law enforcement and other first responders are bombarded with in their training to deal with emotionally disturbed persons. Relatively speaking, EDP training is only a small percentage of the overall first-responder initial and maintenance training. Training with respect to interactions with individuals with ASD is practically non-existent for the overwhelming majority of first responders throughout the United States. How can these individuals be expected to handle a situation involving an individual with ASD safely and effectively when there is such a remarkable lack of appropriate training? Unfortunately, at times, the consequences can be deadly. The very techniques a police officer is trained to apply to an individual who is psychotic and out of control can have a potentially deadly impact on an individual with Autism or related illness. For instance, the typical police officer is trained to use varying levels of control and contact to subdue a frankly psychotic individual. The same level of force applied to an individual with autism, due to possible related physical anomalies, may cause cardiac arrest and even asphyxiation. Loud noises and sudden movements may also escalate an already volatile situation leading to the officer’s misinterpretation of the level of threat posed by the autistic arrestee. While it is true that these first-responders do not have a crystal ball and they must assess their subjects based upon the facts and observations available at the time of an incident, there must be a mechanism of inquiry in place that may change the course of an interaction when that first-responder learns that the subject has an ASD.More often than not there are cues available to the first-responder which serves to indicate that a subject has an ASD. From family and self-reporting to external observations of behaviors, speech and affect, a first-responder stands a reasonably good chance of determining that the subject has an ASD. With this information, the first-responder could employ an entirely different protocol from that of the standard EDP call in effectuating an arrest or rendering treatment. The possible techniques are numerous and their discussion would be better served by a separate article.
None-the-less, an example of how easily a situation can turn fatal or cause grave physical or emotional harm is as follows: A police officer encounters an individual, “John”, who is believed to have committed a misdemeanor offense. John is screaming the same word repetitively while banging his head with his hand and pacing throughout his parents front yard. The parents are home. The officer approaches John which causes him to yell louder and increase the intensity of his self-abuse. The officer calls in a code for back-up to assist with an “EDP.” The officers training dictates that he subdue the EDP as quickly and “safely “ as possible with the least amount of physical force in order to prevent harm to the subject, the officer or others. The officer approaches John and asks him to calm down. John begins to yell profanities at the officer. The officer than asks John what drugs he has taken, this causes John to pace even faster and more erratically. The officer yells at John, telling him that he is under arrest and must stop moving and yelling or he will be forced to use physical force. John begins to run. The officer gives chase and tackles John which causes him to flail. By this time back-up has arrived and two other officers are assisting the arresting officer in subduing John. John continues to struggle, with great strength, although he now has difficulty breathing and his blood pressure is dangerously high due to the medications that he is taking. The arrest is made and John suffers from a massive heart attack. The alternative? The officer arrives on the scene and observes the above referenced scenario but notes that John’s pacing is limited in geographic scope, his self-abuse is superficial and verbal ramblings are of no consequence. The officer waits for back-up and upon their arrival approaches the house to see if anyone is home in order to establish whether or not this is the subject’s residence. The officer learns that the subject resides at this address with his parents and that he has an autism spectrum disorder. Within a five-minute inter-view, the officer learns from the parents that this subject is very sensitive to light, sudden movements and loud noises. Additionally, the officer learns that the subject takes an anti-psychotic medication and anti-seizure medication which causes the subject to suffer from many cardiac related side-effects. Furthermore, the officer is informed that the subject’s mother has an incredibly connected relationship with her son. He often listens to her directions and seeks her comfort in stressful times. The officer explains the fact that he must take her son into custody and requests her help to minimize the physical and emotional impact on her son. The mother agrees and approaches her son to request that he sit on the porch and talk with her. Within five additional minutes, the son is no longer yelling or pacing. Five minutes thereafter he is in custody and off to the police station. Most likely still emotionally hurt with possible physical impact but the potential for profound damage has been greatly reduced. The Police and Other First Responders Are Not the Only Guilty Parties Prosecutorial responses to the individual with an ASD can be as generic and problematic as the responses of law enforcement to this issue. Invariably, prosecutors (District Attorneys) throughout the United States will claim that the mission of their office is to achieve justice and protect the public safety. Yet, there are scant mechanisms in place to effectively deal with a defendant suffering from an ASD. Most likely the ASD defendant will be treated either as an individual with a major mental illness (formally diagnosed per the DSM-IV) or treated as a typical criminal defendant. Both approaches are rife with problems. Many individuals with ASD have high intellectual functioning yet completely lack the ability to emotionally and physically withstand the process of a criminal trial. Therefore, they are neither unfit for trial under traditional definitions of mental fitness nor are they able to effectively assist in their own defense.
The very concept of criminal culpability presents a very troubling dilemma. Most crimes are defined as having two parts, the mental state (intent – generally) and the act itself. It is entirely unclear if many individuals with an ASD can truly formulate the intent to commit many crimes. Occasionally, an individual with an ASD may physically lash out as a means of achieving a goal that cannot be obtained due to any number of emotional or expressive barriers. For example, if an individual with an ASD hits a healthcare aide in the arm at her clinic because her therapist was replaced and she cannot vent this frustration properly, did she truly intend to commit assault? This young lady is not mentally ill and is quite intelligent, therefore she will not meet criteria for lacking the ability to stand trial or criminal responsibility due to mental illness, commonly referred to as the insanity defense. What is left is to stand trial or make a plea bargain. She cannot work effectively with her attorney because even the thought of discussing this event causes her to become silent. Making matters worse, prosecutors are not trained to understand ASD and will typically view the ASD defendant as far more dangerous or troubled than she is in reality. The result? Quite possibly a period of incarceration or alternate monetary punishment, (along with a criminal record), that bears no relationship to most traditional theories of justice or punishment. Higher Education and the Work Place: Imperfect Progress
Educators and employers should be given praise for their advances in establishing educational and employment opportunities to individuals on the Autism spectrum. However, generally, much more work needs to be done. When it comes to the issue of disciplinary action and responding to situations where individuals with ASD are involved, the collective response is quite draconian. Often, academics and/or employers will offer academic admission and employment opportunities to an individual with ASD without these academic or workplace administrators having had proper education and training regarding the disorders or their impact on people. As a result, responses to a situation when an individual with an ASD acts inappropriately are usually swift and severe. Fear of the disorder and the unknown typically leads these entities to act to protect the institution without regard to the challenged individual. This attitude usually leads to unjust probations, suspensions, or terminations.
What is the Solution?
“It isn’t that they can’t see the solution. It’s that they can’t see the problem” (G.K. Chesterton). The solution to most systemic problems begins with education and changing people’s attitudes. The kind of change needed to address these issues involves not only educating people about Autism spectrum disorders but changing attitudes in relation to theories of justice, responsibility and punishment and removing the stigma attached to living with a disorder on the Autism spectrum. People, government and private institutions all need to work collectively to achieve a level of fundamental fairness that will afford an individual with an ASD a set of rights that most of us usually take for granted. I would like to continue the dialogue on this issue and would appreciate hearing from you. If you have a comment on this topic or any other topic dealing with Autism and the law please feel free to e-mail me at dstern@abramslaw.com or call (516) 592-5857.
Footnotes
- New York City Assembly – Committee on Public Safety – Briefing Paper and Report of the Governmental Affairs and Human Services Divisions – Robert Newman, Legislative Director – “Examining the Roles of the NYPD and the Department of Health and Mental Hygiene in Responding to Calls to the Police Involving Emotionally Disturbed People.”
- The Surgeon General estimated that 2.6 percent of the U.S. population has a severe and persistent mental illness. [U.S. Department of Health and Human Services. Mental health: A report of the Surgeon General (1999).] Therefore, there were 7 million people with severe and persistent mental illnesses in the United States in 1998. [Bureau of Justice Statistics (2001). U.S. Census Bureau. Monthly estimates of the United States population. Available at http://www.census.gov/population/ estimates/nation/intfile1-1.txt. (Visited May 4, 2001).] People with mental illnesses committed at least eight of the 61 police homicides that occurred in 1998 (13 percent) at a rate of 11 per 10 million. [Treatment Advocacy Center. Preventable tragedies database. Available at /ep.asp. (Visited June 26, 2003).] Fifty-three police homicides were committed by the rest of the population of 263 million, at a rate of two per 10 million. [Brown, Jodi M., and Patrick A. Langan. Policing and homicide, 1976-98: Justifiable homicide by police, police officers murdered by felons.] Thus, people with mental illnesses committed police homicides at a rate 5.5 times greater than the general population.
- Brown, Jodi M., and Patrick A. Langan. Policing and homicide, 1976-98: Justifiable homicide by police, police officers murdered by felons. Bureau of Justice Statistics (2001).
