Individuals with Intellectual and Developmental Disabilities in the Criminal Justice System and Implications for Transition Planning

The focus of this manuscript is on the challenges faced by individuals with developmental and intellectual disabilities within the criminal justice system. Prevalence data are cited and these data are interpreted in light of possible rationales for the disproportionate number of individuals with disabilities present within the system. Then the specific challenges faced by individuals with disabilities are discussed within the context of three key elements of the criminal justice system: interrogation and arrest, prosecution, and sentencing and disposition. The paper concludes with a discussion of the implications of this information for life skills instruction and transition planning. Specific recommendations are provided in terms of curriculum and instruction as well as community advocacy. Transition planning is a central focus in the development of individualized educational programs as students enter the middle and high school years of school. As a part of that training, especially in cases of students with developmental and intellectual disabilities (D/ID), effective planning can help these students gain as much personal autonomy as possible and acquire critical self-determination skills. This process most commonly is accomplished by teaching skills such as how to maintain a home, manage finances, arrange leisure activities, be successful in the workplace, and make important life decisions. However one important area may be too often overlooked: teaching students basic information about potential interactions with the criminal justice system. By not addressing this key life domain, many students with disabilities will leave secondary education ill-prepared for the realities that may be associated with subsequent encounters with the criminal justice system. While this area may seem like an incidental component to life skills education, recent research establishes a strong case for such an emphasis. A number of reports have recognized the difficulties that persons with mental retardation experience within the criminal justice system. Most notably, Perske’s (e.g., 2000, 2005) work in this area has highlighted the problem and discussed the consequences. The most dramatic attention has been given to a focus on mental retardation as related to death penalty cases. Given the decision in Atkins v. Virginia by the Supreme Court in 2002, the field of mild mental retardation has experienced renewed attention to concerns about definition and identification (Greenspan, 2006; Polloway, 2006) and particularly about the way in which death penalty cases unfold for defendants with intellectual disabilities Correspondence concerning this article should be addressed to Edward A. Polloway, Office of Graduate Studies and Community Advancement, Lynchburg College, Lynchburg, VA 24501. Email: [email protected] Education and Training in Developmental Disabilities, 2008, 43(4), 421–430 © Division on Developmental Disabilities Criminal Justice / 421 (Patton & Keyes, 2006). While our purpose in this paper is not to suggest that more than a very few persons with intellectual disabilities will ever be charged with a capital crime, there clearly are issues that are highlighted in such cases that have importance for criminal justice processes in general. This paper discusses the potential realities of interactions with the criminal justice system by persons with D/ID. The paper will explore the particular pitfalls that may be easier snares for persons with D/ID than for others without a disability, with a focus on key aspects of the criminal justice system. Using these problem areas as a foundation, the paper then focuses on selected implications for transition planning, including curricular emphases that result in the empowerment of the individual student as well as the possible roles that professional educators can play in ensuring that persons with disabilities experience justice within the criminal justice system, including collaboration with community partners. Criminal Involvement and Persons with Developmental and Intellectual Disabilities To understand the rates of crime for, and criminal justice system involvement by, persons with D/ID, Hasssan and Gordon (2003) pointed out that definitions rooted in public policy determine who is identified and not identified as having a disability, which thus impacts rate of identification. While prevalence rates vary depending on the particular research study, the consistent finding is that there is a significant over-representation of persons with developmental disabilities in the criminal justice system worldwide (Hasssan & Gordon, 2003). While approximately 2% of the population of the United States may be identified as having a developmental or intellectual disability, common estimates are that between 4-5% and 10% of the prison and jail populations in this country (and internationally) have been identified as having such a disability (Bowker, 1994; Davis, 2006; Petersilia, 2000a, 2000b), dependent on definitions used. As Davis (p.14) concluded: “this does not mean people with disabilities are more likely to commit crimes, but they are more likely to get caught if they become involved in a criminal act (they may or may not realize the act they are involved in is actually a criminal offense)”. A comparable trend is also found within juvenile correctional facilities. Overall, of those incarcerated in the juvenile system, approximately 3.4% of the population has been identified as having mental retardation as a primary diagnosis (Rutherford, Bullis, Anderson, & Griller-Clark, 2002). It is important to note that IDEA is still relevant in terms of access to special education for these individuals. To complicate an interpretation of criminal justice system prevalence data, there are a number of social and intraindividual factors that make a risk of involvement in the criminal justice system higher for persons with D/ID. First, there is an over-representation of mild retardation in low-income minority groups, which collectively experience higher rates of police involvement and police presence in their neighborhoods than do those with fewer economic disadvantages. Approximately 34% of persons with developmental disabilities live in homes with incomes under $15,000 (almost triple that of persons without disabilities) (Petersilia, 2000b); although these data are not recent, a reasonable adjustment in income level would still underscore their viability for the current time. A related issue is the social status of such individuals. As Petersilia (2000) points out, individuals with D/ID may be easy targets because, while they may not be ‘criminal’, they are persons who tend to skirt along the edge of society simply because they may not fully understand societal rules and laws. They can become easy targets to be included in a group offense for which the person who has the disability subsequently may become the one who is blamed for the crime. A key concern is the interaction between certain common characteristics of persons with D/ID and the vulnerabilities that they may have within the criminal justice system. Table 1, adapted from Patton and Keyes (2006), provides an overview of key intraindividual characteristics. Major areas of concern are then further discussed below. Perske (2000, 2005, 2006a has focused on the fact that numerous individuals with mental retardation have been documented to have confessed to serious crimes that they did not commit. Perske (2006) provided data on 41 422 / Education and Training in Developmental Disabilities-December 2008 persons with intellectual disabilities who have been legally exonerated in cases to which they had previously confessed guilt. Data on those accused of less serious crimes were not presented but the generalization to the latter appears to be a reasonable one to make. Through the work of Greenspan (2006a, Greenspan & Switzky, 2003, 2006), increased attention has been given to the issue of social vulnerability in general and gullibility in particular. Greenspan posits that gullibility is a core characteristic in individuals with mild retardation and that these individuals are thus vulnerable to social manipulation, particularly within the criminal justice system. Further, this problem is exacerbated because contemTABLE 1 Potential Problematic Characteristics in Criminal Justice System Characteristic Description Example Gullibility Phenomenon of being duped or lied to and often involving some degree of victimization Taken advantage of Talked into doing things for which one does not understand consequences Acquiescence Tendency to give in when under pressure Talked into confessing to crime that