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Serving Persons with MR/DD Who Are Involved with State Criminal Justice Systems
by Michael Cheek
While the vast majority of people with life-long cognitive disabilities are law-abiding and productive citizens, a small percentage find themselves involved in the criminal or juvenile justice systems. Some states have begun programs aimed at assisting these individuals. Generally such programs focus on transitioning persons with mental retardation or a related developmental disability (MR/DD) out of the justice system and into education and/or community support systems that respond to their needs and behaviors in ways and that reduce the likelihood of recidivism. These programs often operate side-by-side but separately from community crisis response programs. This article describes three such programs operating in three substantially different states.
The North Carolina Model
Recognizing that limited attention has been given to individuals with MR/DD within the justice system, the North Carolina Council on Developmental Disabilities (DD Council), the Division of Developmental Disabilities Services (DDS), and the North Carolina Center on Crime and Punishment have collaborated to assess the status of people with developmental disabilities in the criminal and juvenile justice systems. Based on the work of the Justice Task Force comprised of staff from MR/DD services, the DDS and justice professionals, a special report, entitled In Pursuit of Justice: A Report on the Justice System’s Response to People with Developmental Disabilities, was developed to serve as a guide for creating new supports and services for persons with MR/DD involved with the criminal justice system. The task force found that the majority of persons with developmental disabilities in correctional facilities also were diagnosed with mental retardation, and, in general, found that of the offenders with mental retardation studied:
- Each had a juvenile record;
- There was no mention in probation and parole reports that staff were aware of the offender’s disability (i.e., identification of the disability did not occur until the offender entered the Division of Prisons); and
- Most were viewed as “willful and non-compliant” because of a lack of understanding in the corrections system of their disability. Consequently, they often failed to meet the conditions of probation and parole.
The task force also found that there was no communication among human service agencies including mental health, developmental disabilities, and substance abuse, and the criminal justice system. Furthermore, it noted that most mental health, developmental disabilities, and substance abuse professionals were often uncomfortable with offenders possibly due to a lack of knowledge and training about the criminal justice system.
Based on each of the service deficits identified, corrective recommendations were developed by the task force. Currently, the state DD services agency and the state DD Council are working on three separate initiatives based on the report recommendations. First, the DD Council funded a “bench and bar” training to county and local judges, prosecutors, public defender offices, and law enforcement officials. Held in Fall 1999, the training was intended to sensitize judicial and law enforcement officials to the needs of persons with developmental disabilities and educate them about the state’s MR/DD service system. Secondly, the state DD services agency convened a statewide meeting composed of North Carolina Department of Corrections social workers, MR/DD case managers, DD agency staff, and Department of Prisons staff. Topics included: a) definitions of services for transition protocol in and out the prison system; b) an overview of the MR/DD system and corrections system – including recent changes in sentencing structure; c) a discussion of victims services; d) case staffing issues; and e) the development of a sex offenders task force (anecdotal estimates by North Carolina officials indicate that as many as 30% of incarcerated persons with MR/DD who were convicted of a felony committed a sexual offense). Thirdly, the Justice Task Force plans on beginning a pilot project on community services for offenders with MR/DD in the eastern part of the state, based on Pennsylvania’s Lancaster model.
The Oklahoma Plan
The State of Oklahoma has a statutory requirement that state courts refer offenders with MR/DD to the Oklahoma Department of Human Services. These laws are intended to divert people with cognitive disabilities, mental illness or substance abuse from the criminal justice system into treatment and/or support programs. The Developmental Disabilities Services Division (DDSD) has a cooperative agreement with the Department of Mental Health and Substance Abuse Services concerning the population diverted from the state court system. Under this agreement, offenders with cognitive disabilities, or a mental illness and substance abuse are referred to the Robert M. Greer Center, a state facility for persons with MR/DD and/or mental illness operated by DDSD. Since 1996 Oklahoma has also maintained a Habilitation Center in the Joseph Harp Correctional Facility. Begun with a funds from the Oklahoma Developmental Disabilities Council and now operated by the state Department of Corrections (DOC), the center was established to provide services to offenders with cognitive disabilities that will “help each participant to function at his optimal level in a law abiding manner.” Referrals are made from DOC or by court order and are then reviewed by an interdisciplinary team responsible for developing an Individual Habilitation Plan (IHP).
Offenders who exhibit behavior dangerous to themselves or others, who have received maximum security status, or who are diagnosed with acute mental illness requiring inpatient treatment are excluded from eligibility. The program is intended to aid participants in improving adaptive skills in major life areas as identified in assessments. Offenders take part in community living skills, vocational and academic training, and work towards goals and objectives set out in an IHP that documents progress towards eventual graduation from the program. Upon completion of the program, the offender may receive services in another unit or another facility with regular contacts by center staff; find placement in a non-correctional program; or continue enrollment in the Harp Center. Annually, data is gathered to evaluate effectiveness based on achievement of goals and objectives by participant offenders, work performance of graduates (i.e., pay, performance evaluations, tenure) and return to a correctional facility.
The New York System
The State of New York has structured its correctional programs with the intent that persons with mental disabilities charged with crimes or convicted of crimes not be treated in the same manner as persons without disabilities based on the following findings: a) persons with MR/DD may not understand their rights; b) they have tendency to respond to questions in the manner they believe is expected of them; c) individuals with MR/DD may have difficulty communicating with their legal counsel; d) they are frequently abused by fellow inmates; and e) there is a lack of appropriate diversion or alternative treatment programs for persons with MR/DD who are incarcerated. New York penal law and criminal procedure law codifies sanctions for those judged not responsible for their actions by reason of mental disability. Aimed at identifying individuals with mental illness and cognitive disabilities, these provisions are intended to divert them from further criminal processes, and ultimately provide care outside correctional settings for those who are not found criminally responsible for their actions.
In New York, following a clinical evaluation, if the court determines that the defendant is “incapacitated (one who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense),” he or she is committed “to the custody of the commissioner [of mental retardation and developmental disabilities or mental health] for care and treatment in an appropriate institution….” In the case of a misdemeanor and a finding of mental disability, criminal action is ceased with follow-along as appropriate. If the charge is a felony, however, the law requires greater consideration by the courts. The state code stipulates that the appropriate commissioner must “…designate an appropriate institution, operated by the department of mental hygiene in which the defendant is to be placed.”
New York has offenders with MR/DD in three corrections programs. The programs offer vocational, educational, and recreational training. Six months following release, offenders with MR/DD may participate in a community linkage program or receive community support services through the New York Office of Mental Retardation and Developmental Disabilities.
Nationwide Progress
These and other states continue to strive for better methods of: a) training and preparing justice, law enforcement, and health and human services personnel to assist persons with MR/DD involved with the justice system; b) identifying offenders with MR/DD; and c) targeting points of diversion for offenders with MR/DD from the standard adjudication track once in the court system. Meanwhile, Congress has passed the America’s Law Enforcement and Mental Health Project Act (S.1865). It amends the Omnibus Crime Control and Safe Streets Act of 1968, authorizing the attorney general to make grants to states, state and local courts, or units of local government for programs that involve: a) continuing judicial supervision, including periodic review, over offenders with mental illness, mental retardation, or co-occurring disorders who are charged with non-violent offenses; and b) the coordinated delivery of services, including specialized training of law enforcement and judicial personnel to identify and address the unique needs of offenders with mental illness or mental retardation. The programs include voluntary outpatient or inpatient mental health treatment that carries with it the possibility of dismissal of charges or reduced sentencing upon successful completion of treatment, centralized case management involving the consolidation of all cases of defendants with MR/DD or mental illness, and the coordination of all mental health treatment plans and social services, including life skills training. These funds will be blended with current state efforts to improve identification of and services for persons with MR/DD who become entangled in the justice system.
Michael Cheek is Director of National Policy with the National Association of State Directors of Developmental Disabilities Services, 113 Oronoco Street, Alexandria, Virginia 22314. He may be reached by e-mail at mcheek@nasddds.org.
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