A persistent and much-debated question for criminal justice professionals has been the treatment of individuals with developmental disabilities as criminal defendants, as victims of crime, and as witnesses of crime. Issues arise from the moment of contact with a first responder. Since the mid-90’s, the U.S. Department of Justice has provided billions of dollars to state and local police agencies to increase training aimed at working with minorities, persons with mental illness, and persons from different cultural backgrounds – in other words, people who may present as very different from the law enforcement officers patrolling the streets. The results of this training, which vary in quality and quantity, are mixed but research does demonstrate that when ongoing relationships of trust can be built in a community, anxiety levels are reduced. When anxiety levels on the part of first responders can be reduced, they are better able to establish control without escalating into a situation where suspects or officers are injured. Across the country, implementation of community policing ideals has increased first responder training. In response to publicized occurrences, most of the attention and training is focused on people with mental illness, rather than on people with developmental disabilities who present a different set of concerns and needs.
Jurisdictions have created materials for first responders, aimed at helping them address people with developmental disabilities in crisis settings. See for example: “Florida Department of Law Enforcement Training Curriculum: Persons with Retardation in the Criminal Justice System,’ 1997; “On The Scene and Informed: First Response and Autism,” NYS OPWDD; “First Responder’s Guide to Assisting People with Disabilities: A Reference for Law Enforcement, Monmouth County Prosecutor’s Office,” NJ; “Justice for All: Investigating Crimes Against People with Disabilities,” NJ Division of Criminal Justice, Department of Law and Public Safety). These are just a few examples of the materials created throughout the years and throughout the country to train and assist law enforcement, other first responders, courts, prosecutors, and defense attorneys to increase understanding of the needs of this population. Nonetheless, instances of police use of force on individuals with developmental disabilities and other cognitive limitations continue to occur. Obstacles may include: investigative techniques of interrogation which do not take into account a limited cognitive ability; the ability of an individual to understand and knowingly waive constitutionally afforded rights; the ability of the individual to formulate the needed criminal intent for prosecution; the need for the system to adequately address problems of substance abuse and concomitant mental illness; the lack of appropriate alternatives to incarceration and generally, a whole host of legal, moral and ethical issues which impede the criminal justice system.
A more team-oriented system to address these issues has come about through Crisis Intervention Team Training (CIT), a 40-hour training program being implemented throughout the country aimed at improving relationships between mental health systems professionals and law enforcement. Mental Health First Aid classes are also available, which can be geared towards law enforcement officers and offer a short, basic overview of the needs and concerns of people with mental illness. Gaps remain, however, for people with developmental disabilities. First, these programs are concerned with addressing mental illness, a different cognitive issue. Second and equally important, most programs of this type address crisis settings, providing immediate, concrete information for de-escalating potentially dangerous situations. Unquestionably, these are serious concerns for law enforcement, but the need to build trusting relationships within the community must be addressed. Training and education beyond crisis intervention needed to be developed.
In an effort to address this need, The Arc of the US created the National Center on Criminal Justice and Disability, which you can learn more about by visiting www.thearc.org/NCCJD. Five pilot training sites have been chosen to implement a training program called “Pathways to Justice,” and they include: The Arc of Maryland, The Arc of the Midlands, The Arc of New Jersey, The Arc of Pikes Peak and The Arc of Spokane. This comprehensive training program, now in the process of being rolled out, seeks to enlighten professionals and community members about what “hidden disabilities” are, something often not readily identified and, once identified, difficult to interpret and address. The overall goal of the training is to create site-specific, holistic solutions to develop ongoing relationships within each community and to work to “institutionalize” training so that as new law enforcement officers and professionals come into the work force, important lessons can be passed down. The one-day training, which will be provided by the State’s Pathways to Justice or Disability Response Team, will bring together members of all the relevant professions to review and address one case study. Creation of a comprehensive team is crucial to long term success and must include individuals with developmental disabilities, representing themselves and their own concerns.
While exact numbers of criminal defendants who have an intellectual or developmental disability (I/DD) is not known, it is generally agreed that persons with I/DD represent a disproportionate number of offenders in both the juvenile and adult systems. While approximately 2 to 3% of the general population can be identified as living with a developmental disability, at least 9% of the offender population has been identified as having a developmental disability (Smith, T., Polloway, E.A., Patton, J.R., Beyer, J.F., 2008). A more recent study from Canada places those numbers as high as 40% of the offender population as being identifiable as a person with a developmental disability. (Jones, J., (2007). In the juvenile justice system, though the number of school age children currently being identified as a person with a I/DD is around 9%, nonetheless, close to 32% of all juveniles in the juvenile justice system can be seen as having an I/DD. We know unequivocally that, regardless of which number best represents the percentage, individuals with developmental disabilities are grossly overrepresented in the criminal justice system, yet lack of identification and availability of services seriously increases dangerousness and hampers the ability of professionals to address this problem.
In addition to increased involvement in the criminal justice system as defendants, the rate of violent victimization for people with all disabilities is more than twice the rate than for people without disabilities. In this group, people with cognitive disabilities have the highest rate of violent victimization and the majority of their perpetrators are known to them, as caregivers, family and friends. Crimes Against Persons with Disabilities, Summary, May 2015, Bureau of Justice Statistics, U.S. Department of Justice. See also Abuse of People with Disabilities: Victims and Their Families Speak Out, 2012 National Survey on Abuse of People with Disabilities, N. Baladerian, Ph.D., Disability and Abuse Project, www.disabilityandabuse.org.
It is against this backdrop that individuals who live in the community may encounter law enforcement on the streets, may have police officers called into their home in response to a 911 call, be approached in a public place by police officers or ultimately find themselves involved as a suspect or victim in possible criminal activities. As people with I/DD move into the community and take their place as contributing members of society, unencumbered by supervision and guardianship, the possibility of interaction with law enforcement increases. Also, the risk of involvement with criminally-minded individuals increases.
In considering common characteristics shared by persons with a wide array of developmental or intellectual impairment, the result is often that people with I/DD are particularly vulnerable when attempting to navigate a system as complex as the criminal justice system. Persons with I/DD are more likely to give a statement against their interest, more likely to take responsibility for a criminal offense, more likely to provide a confession even when they are not the guilty party. If charged with a criminal offense, they are less able to effectively assist their attorney in their defense and less able to articulate remorse or demonstrate that they can change their behavior or respond affirmatively to treatment. They are more likely than their non-disabled counterparts to plead guilty and to plead guilty to the original more serious charges, resulting in longer periods of incarceration being imposed. Once sentenced, they are less able to comply with conditions imposed for a probation sentence and thus violate those conditions, resulting in further criminal prosecution. If incarcerated, they are less likely to understand prison disciplinary systems and thus have a higher incidence of disciplinary violation within the prison, resulting in longer sentences. They are, in addition, often victimized by other inmates. They are less able to take advantage of education and vocational opportunities in prison and so spend longer terms incarcerated rather than being granted parole, as parole requires that the individual have a plan in place for successful re-entry into the community.
There is no question that the Courts and law enforcement professionals are open to training to assist in the understanding of persons with developmental disabilities. While no definitive research can tell us what constitutes the perfect approach, experiences of professionals and community members informs us that change is needed. Law enforcement, people with disabilities and community professionals need to move beyond crisis response and instead create and sustain ongoing relationships. In that way, trust and respect develop. Interpersonal communication is the key to that development. By implementing and supporting a Pathways to Justice Team, the goal is to create a sustained system that allows all community members to feel safe and allows all professionals to do their job effectively.
For more information about The Arc of New Jersey, please visit www.arcnj.org.
Jones, J., (2007). Persons with Intellectual Disabilities in the Criminal Justice System, Journal of Offender Therapy and Comparative Criminology, Vol. 51, No. 6, 723 – 733
Smith, T., Polloway, E.A., Patton, J.R., Beyer, J.F., 2008 Individuals with Intellectual and Developmental Disabilities in the Criminal Justice System and Implications for Transition Planning, Education and Training in Developmental Disabilities, 43(4), 421 – 430