For the last two decades, policing has become more effective, both better equipped and better organized to tackle crime. Despite this, the public’s assessment and confidence in law enforcement has remained flat. Indeed, among some sectors of the population, including the disability community, confidence appears to be declining because community members care as much about how police interact with them as they care about the outcomes of those interactions. Procedural justice is an avenue to address this concern.

Procedural justice refers to the idea of fairness in the processes that resolve disputes and allocates resources. It is a concept that, when embraced, promotes positive organizational change and bolsters better relationships between law enforcement and citizens. Procedural justice speaks to four principles. These are often referred to as the four pillars (see Figure 1):

1. Being fair in processes.
2. Being transparent in actions.
3. Providing opportunity for individuals to have a voice in the process.
4. Being impartial in decision making.

The research of Yale University professor Tom Tyler and other leaders in the field of law has demonstrated that perceptions of fairness are driven not only by outcomes, but also by the fairness and consistency of the processes used to reach those outcomes (Hollander-Blumoff & Tyler, 2008).

Procedural justice focuses on the way law enforcement – particularly front-line officers – and other legal authorities interact with the public. The characteristics of those interactions have a direct and fundamental impact on public opinion, often referred to as police “legitimacy.” Such interactions can either enhance or lower people’s opinions of law enforcement agencies and their personnel.

Procedural justice is not new to the disability field. Research articles have pointed out how it can be applied to mental health courts, as well as to people with mental illness. Recent studies have applied procedural justice theory to law enforcement’s interactions with people who have mental illness. For example, Dr. Amy Watson is conducting research to show how using the four pillars of procedural justice can improve police response to persons with mental illness (Watson & Angell, 2007; Kunard & Moe, 2015). Her research is showing encouraging findings: Using practices consistent with the pillars of procedural justice can have a direct bearing not only on the citizens, but on officers’ safety on the streets as well. Law enforcement officers who stay positive and alert, looking and listening for clues that indicate the presence of mental illness at the beginning of any interaction, are less likely to raise their voices, or engage in disrespectful communication that could quickly escalate into violence. Procedural justice does not support the belief that use of force is not necessary in some situations and does not de-emphasize officer safety; instead, it serves as a model that helps shift the mindset of officers into focusing on using de-escalation techniques once a disability is discovered. This will increase the safety of all.

What’s been missing from this conversation is how procedural justice is applied to people with intellectual disability (ID)¹. Intellectual disability is different from mental illness and requires a different approach from officers. ID is characterized by significant limitations in both intellectual functioning and in adaptive behavior, which covers many everyday social and practical skills. This disability originates before the age of 18. Studies show that somewhere between one percent and three percent of Americans have an intellectual disability. The most common diagnoses associated with intellectual disability include autism, Down syndrome, Fragile X syndrome, and Fetal Alcohol Spectrum Disorders (FASDs).

This population is particularly noteworthy because officers are typically not provided comprehensive training on ID, and yet, studies document that people with ID are more likely than those without disabilities to be involved in the criminal justice system – as both victims and suspects (Bronson, Maruschak, & Berzofsky, 2015). It’s critical for officers to be familiar with intellectual and other developmental disabilities (I/DD) because:

• People with I/DD often have invisible disabilities that go undetected by officers, which can lead to negative outcomes.
• People with I/DD and officers may struggle to communicate effectively with each other, and the person with I/DD may need accommodations to support communication.
• People with I/DD may show behavior that is unusual or threatening to an officer, even when there is no intent to harm or criminal activity taking place. Emotional reactions to law enforcement can be mistaken as deliberate disrespectful or threatening behavior.

(National Center on Criminal Justice and Disability, 2015)

To address these critical issues, police departments must implement proven training programs designed to de-escalate and minimize the need to deploy force. Training needs to emphasize that some individuals may not be able to understand or respond appropriately to a law enforcement officer’s commands or, out of fear, may try to run away. Applying procedural justice principles elevates the conversation and focuses not on whether an officer “could” use force, but analyzes whether an officer “should” use force and whether or not there was another alternative option available. A traditional police response over the years has been to resolve a situation quickly. Responding officers typically immediately take charge and deploy reasonable force to achieve the legally desired outcome. By contrast, procedural justice philosophy strongly encourages officers to “slow things down.” This provides an opportunity to build rapport with the individual, ask questions, and assess the entirety of the situation. More importantly, when time is on the side of responding officers, this allows for formulation of a plan for de-escalating the incident. This requires a change in the mindset and culture of traditional police response thinking.  While slowing down the situation is not always an available option for officers responding to a call, it should be their first tactical consideration. Procedural justice seeks to achieve fewer injuries to citizens and officers due to a satisfactory outcome, relying less on force and more on conversation.

Similar to the application of procedural justice to the population of people with mental illness, people with ID must also be included in this important discussion and in future research. By applying procedural justice strategies to law enforcement interaction with people with ID, everybody wins. People with ID and their family members need to believe that when they interact with law enforcement, they will be respected, treated fairly, not be discriminated against based on their disability, and will have a voice in the process. Building stronger lines of open communication between disability and policing agencies using the tenants of procedural justice will go a long way to defuse potentially volatile situations. Moreover, it will ensure that a traditionally underserved population receives the same access to policing services as those without disabilities.

I knew nothing about the usually invisible brain-based disability called fetal alcohol spectrum disorders (FASD) when I began my judicial career in Barrow*, Alaska, in December 1982. It took a week-long 1996 FASD conference in Barrow before I realized what a huge issue FASD is for the justice system and how fundamental fairness required me to accommodate this example of cognitive diversity. It is an issue of basic human rights, and responses to FASD can be a model for accommodations for other brain-based differences such as traumatic brain injury and autism spectrum disorder.

Fetal alcohol spectrum disorders are a group of conditions in individuals whose mothers drank alcohol during pregnancy; the effects can include physical, learning, and behavioral problems (CDC, 2017). Most affected persons appear to act and talk at age level, when their understanding level may be half their age. The National Council of Juvenile and Family Court Judges (2015) has officially recognized an ethical duty for judges to recognize and accommodate such conditions, and gave cogent reasons for the need to do so:

Judges have an ethical obligation to protect the legal rights of all those appearing before the court. An integral part of their judicial decision-making process is to ensure that all parties receive the legal and constitutional rights to which they are entitled. When individuals with FASD become involved with the court, there is a real possibility that they will be unfairly disadvantaged due to their difficulty in fully appreciating their legal rights and options. The judicial process assumes that individuals are capable of making choices, understanding the consequences of their actions, and learning from past experiences. These assumptions fail in light of what is known about the functional disabilities associated with FASD. Individuals with FASD have cognitive and behavioral deficits, such as difficulty with activities that require attention, concentration, and mental control that undermine their ability to understand and participate in court proceedings. They often have short- and long-term memory gaps or inconsistent memory, leading them to be wrongly perceived as having selective memories. In their desire to please others, individuals with FASD might answer questions according to what they think the questioner wants to hear rather than with facts (National Council of Juvenile and Family Court Judges, 2015, pp 39-40).

I realized what a huge issue FASD is for the justice system and how fundamental fairness required me to accommodate this example of cognitive diversity.

These issues are deepened by the inherent pressures in the justice system of over-work and lack of time. A report from a September, 2008 FASD and the justice system conference in Whitehorse, Yukon Territory, Canada articulated that:

Justice professionals, whether they are police, defense counsel, Crown [prosecutors], judges, victim services workers, or corrections officers only spend limited time with a client. The short period of time spent with each client often results in the professional not knowing much about the client, including if they have a disability. It often takes much more time than professionals have to clearly communicate with the individuals with FASD to ensure they fully understand what is being said to them. Also, some behavioral characteristics are seen by justice professionals as behavior that suggests disobedience, noncompliance, or aggressiveness. If justice professionals are not aware how FASD may impact an individual, they may not want to get to know their client or work with them any more than the basic minimum to “get by” (Fraser 2008, n.p.).

But “getting by” is just not adequate. Here are accommodations to FASD I tried in my court for criminal and juvenile justice cases to support people with FASD:

• Slow down the hearing, taking extra breaks as needed.
• Take time to explain a defendant’s rights clearly during the court hearing, without assuming the person already understands.
• Explain briefly at the beginning of the hearing what is going to happen, and, at the end of the hearing, what will happen next.
• When possible, supplement spoken and written information with visual aids such as diagrams of the possible sentence during an arraignment.
• Revise commonly used forms, such as a bail order or probation conditions, so that they have larger type, plain English, and positive wording (“Stay sober” instead of “Do not consume, ingest or possess alcoholic beverages.”), with short, bolded “headlines” for each condition (see Figure 1). Places to initial each condition help the defendant track each one.
• When sentencing a person who may have FASD, include a reference to FASD in the judgment: “This defendant may have fetal alcohol spectrum disorder (FASD). Use concrete language and frequent repetition to help ensure that the defendant understands.”
• Schedule follow-up hearings as necessary to build a relationship with the person involved with the case and to ensure compliance.

In addition, the judge can be an advocate on this issue, in order to improve the administration of justice (National Council of Juvenile and Family Court Judges, 2015). Some methods are:

• Bring up the subject during hearings, and in the community (Malbin, 2004). Without “diagnosing from the bench,” a judge can encourage a potentially affected person to find out more about FASD. Remember that the mother’s drinking may have occurred before she knew she was pregnant.
• Assist other advocates in efforts to bring about changes in the law that will respect cognitive diversity in the justice system.

Families and other caregivers can support people with FASD involved in the justice system in critical ways:

• Be an “external brain.” Help the person remember appointments and court hearings. Make sure the person arrives on time.
• Build a notebook of educational material about FASD. Regardless of the type of court case, it is likely that a caregiver will be the person to educate the judge, attorneys, and other professionals involved with the case about FASD. The 2015 technical assistance brief "Fetal Alcohol Spectrum Disorders: Implications for Juvenile and Family Court Judges" from the National Council of Juvenile and Family Court Judges is a fantastic resource and freely available online. It is very recent and the organization is very credible. Provide copies of the document to any professional involved with the case, as well as to the judge. Include any FASD diagnosis documentation as well.
• Advocate with legal and courtroom professionals so that they will take the time needed to effectively work with the person with FASD.
• If the person is involved in the juvenile justice or child welfare system, advocate for obtaining an FASD evaluation. Juvenile justice agencies may have funding unavailable to adults for such evaluations.
• The caregivers or family can obtain personal support in their journey with a person with FASD through local organizations or websites such as HaysKids, or Confessions of an Adoptive Parent. The website of the National Organization on Fetal Alcohol Syndrome has substantial FASD resources. The site David Boulding, Fetal Alcohol Consultant has useful information on relating to clients with FASD.

All of these suggestions are still a “work in progress.” May God’s grace be with you in implementing respect for cognitive diversity in our society and justice system.

The first line of intervention in a crisis involving an adult with intellectual or developmental disabilities (I/DD) is most frequently a direct support professional (DSP). Crisis situations can involve aggression, self-injury, bolting/elopement or serious property destruction. They can also involve sudden onset behavior that puts a person at risk of losing education or in-home services such as school, daycare or the ability to participate in community activities such as employment, use of public transportation, respite or community habilitation. The typical site for the DSP’s intervention is often a home, workplace, community setting (e.g., shopping, leisure, recreation) or a medical setting (e.g., a diagnostic, treatment or imaging office; clinic; hospital; or emergency department). The level and effectiveness of the DSP’s de-escalation intervention is based on several factors, including familiarity with the individual, training, the DSP’s perception of his or her role during a crisis, agency policy, and personal limits. Of these, the DSP’s familiarity with the individual is paramount. The ability to “read” an individual approaching a potential crisis can only be developed with that particular person over time, in a variety of settings, at various times of the day, and with the benefit of observing outcomes of both typical and atypical interventions.

Training for DSPs

While the majority of service providers offer formal training, and even certification, in crisis prevention, too often the content is limited to methods to protect the individual and the DSP from an altercation. This narrow approach to crisis intervention may increase the chance that law enforcement becomes involved. Successful de-escalation of crises involving people with I/DD requires specific training of both DSPs and law enforcement officials. That training must go beyond direct support staff training in “safe management” of crisis situations in which behavior is occurring that poses a risk to the individual, staff or others present. And it must go beyond compliance with regulations, laws, and standards. It must address the preventive strategies that support DSPs, their supervisors, and their managers in avoiding a decision that results in the involvement of law enforcement.

While the majority of service providers offer formal training, and even certification, in crisis prevention, too often the content is limited to methods to protect the individual and the DSP from an altercation. This narrow approach to crisis intervention may increase the chance that law enforcement becomes involved.

Prior to a full-blown crisis, community providers and the DSPs they employ too often miss opportunities for redirecting and realigning the focus, energies, and intentions of the individual. The rationale for not offering a more robust de-escalation training often includes time, resources, risk, liability, and the absence of a crisis component in the individualized support plan for every person who is “at risk.” Given the shortage of highly specialized, formal training in de-escalation delivered to DSPs, it is fortunate that person-centered interventions – those requiring DSPs to really know a person – are widely available and can provide a framework for de-escalation.

New environments, interactions, and expectations, along with multi-sensory inputs and the need for new tolerances, can and often do test staff who may have had limited experience with an individual in diverse, fully integrated, community settings. Even the best behavioral support plan cannot anticipate every environment in which a challenging situation can occur. The community is not a controlled, monitored, and regulated environment and it can provide a lot of unpredictability. Supporting people in their community context requires a different way of thinking about how to maximize the benefits and balance the risks associated with living in the community. This means that service providers must make additional investments of time, training, and other resources for the DSPs charged with making life in the community – and the de-escalation of its inevitable stressors and crises – a reality.

Working With and Training Law Enforcement

An emphasis on training that flows from person-centeredness is essential, but will not always be adequate. In settings that are part of everyday community life, the role of the DSP as a de-escalating agent may sometimes be short circuited by circumstances beyond their control, some triggered by third parties’ misperceptions. For example, neighbors who hear a commotion down the block, or well-meaning citizens who misinterpret an awkward scenario at a shopping mall or restaurant may – despite the best efforts of a DSP – call the police and describe what appears to them to be an altercation or threatening person. Thus, the next opportunity for de-escalating a crisis falls to law enforcement officials, where the need for training in working with people with I/DD is just as critical as it is for DSPs.

Fletcher (1990) describes how some police officers may see the people they encounter on a daily basis in the communities they serve. She quotes a Chicago police officer who said, “One of the first things that’s imbued upon you when you come on the job is never think this guy is gonna come peaceful. Always assume he’s gonna fight…” The frequency with which police officers encounter violence supports the need to train them about how to interact, communicate, and relate with individuals who have I/DD. Programs that conduct such training have matured over the last several years. The Memphis Model is one such program (Dupont, Cochran, & Pillsbury, 2007). The model got its start in 1987 as a result of the preventable death of a citizen with a mental illness after a misguided police encounter. Following this tragic event, the community of Memphis came together to create a change in the police response to individuals experiencing a mental health crisis. The 40-hour training covers recognizing mental health issues and learning crisis intervention and de-escalation techniques. Its goal is improving officer and community safety – including the safety of the individual in crisis. Importantly, the model redirects individuals with mental health and other disabilities away from the criminal justice system to the health and human service systems. This program serves as a standard bearer for enlightened law enforcement. Currently, there are over 2,500 communities in over 40 states that offer some form or version of law enforcement training aligned with the Memphis Model.

Regrettably, however, not every training program includes training about people with I/DD. That inclusion occurs only when there is a local champion that not only insists on I/DD being included, but that can provide a professional to teach that model. In my experience as one such professional, providing police officers the opportunity to explain how their training and encounters with people with I/DD led to successful outcomes is one way to promote and sustain the inclusion of intellectual and developmental disabilities in training for law enforcement officials. As an incidental benefit, we are learning that police who have gone through de-escalation training specific to people with I/DD, such as that offered in the best of the Memphis Model programs, are employing those techniques in other scenarios, most notably in domestic violence cases.

Along with training for DSPs, programs like the Memphis Model, with an added I/DD component, form the cornerstone of safe, healthy communities for everyone.

In the months before his 30th birthday Darryl* adamantly and repeatedly told his staff that on his 30th birthday he “is going to have sex." He previously never expressed any interest in having a sexual relationship, so why now? As a teenager, when he expressed any interest in a romantic relationship or sex, his parents told him that he had to wait until he was 30. This arbitrary age was set by his parents to delay talking with him about sexuality and "protect" him from being accused of "doing something wrong." They hoped by then he would forget or lose interest in sex. He waited, but did not forget. A well-meaning piece of information meant to protect him led to an expectation and (mis)understanding on his part. This could have devastating effects, even resulting in involvement with the criminal justice system – depending on how he chose to act on his expectation when the day arrived. And whether that misunderstanding was addressed by his parents or staff in the meantime.

The aim of this article is to illustrate the importance of our role as parents, educators or disability service professionals in acknowledging and understanding sexual nuance, and its potential connection with behaviors that can involve people who have intellectual and developmental disabilities (I/DD) with the criminal justice system. Sexual expression is a natural and central aspect of being human. It is tied to the extent to which human rights are respected, protected, and fulfilled. Over the past 40 years, changes in disability philosophy and ideology have emphasized person-centeredness, inclusivity, and the rights and responsibilities of people with I/DD. While this new paradigm acknowledges and affirms the rights of people with I/DD to express and experience solo and consensual partnered sexual behavior, it has simultaneously created considerable challenges at the individual, family, and provider agency levels in how we communicate about sexuality. How do we know how people with disabilities internalize the sexual messages they receive from us, or through watching television and movies, listening to music, and viewing social media? Trying to navigate the line between protecting sexual freedom and protecting an individual with I/DD from harm from a legal perspective adds to the challenge, especially when trying to understand the unexpected consequences of our “good intentions.”

As one father said, ”It’s a man rule; you just know it.” For individuals with disabilities, “you just know it” may not apply.

Inclusion and self-determination, two of the philosophical cornerstones of the disability movement, are the bridges that connect persons with disabilities to the world around them. How these philosophical constructs are operationalized on a day-to-day basis can be tricky and create unintentional gaps that may put an individual at risk. This is not to suggest that every effort should not be made to develop and build on these philosophical concepts. Rather, it is to recognize the importance of sexual nuances.

What are sexual nuances? Sexual nuances are subtle distinctions that often go unnoticed by family members, educators, and professionals, especially when developing an Individual Education Plan (IEP), Individual Service Plan (ISP), or Individual Health Plan (IHP). Sexual nuances are frequently overlooked because they are not part of a curriculum or discussed with family or friends. For example, James*, a male high school student with Down syndrome, made the football team. He and his family were excited for the opportunities that playing on a sport team provides – the comradery of being part of a team, experiencing and learning how to manage the highs and lows of winning and losing, building friendships, and being "one of the guys." It all seemed so straight forward and positive – a notable example of self-determination and inclusion. But it is common for adolescent and adult athletes to engage in certain behaviors, such as to chest bump another player, snap a rolled towel against someone's backside, or slap another player's naked butt. These actions are often considered part of team culture and accepted as locker room behavior. Students without disabilities usually understand the boundaries and consequences these behaviors pose if performed in a different environment and with non-team members. However, for James, no one had checked that he understood that the acceptable team behavior in the locker room after practice or a game may not be appropriate in other settings, such as at a YMCA, athletic club, and public or private swimming pool. Engaging in these behaviors in other settings could be viewed quite differently by the recipient of the behavior and even considered a criminal act. Conversations concerning sexual nuances, such as locker room team behavior, need to be a regular part of the team's orientation for all players, not just athletes with disabilities. These conversations should be clear and concrete, avoiding generalizations and using non-judgmental words and body language. Similar conversations should also be held by James’ parents or guardian.

Another example of the importance of sexual nuance, and consequences of missing it, can be found in an incident involving Dylan*, a boy with autism who attended a public elementary school in a self-contained classroom, that is, a classroom with a bathroom located within it. When the students in the classroom went to lunch, attended an all-school program in the auditorium or went outside to watch an activity, they were instructed by the teacher to "stay in line" and "fill-in" the seats, typical instructions for any elementary school teacher to give students. When Dylan was ready to transition to middle school, his parents and transition team worked with him to create a seamless transition plan. He toured his new school – his classrooms, the auditorium, gym, school bus pick-up and drop-off area, sports fields – met his new teachers, walked the halls, and located his locker. His team worked with him on his social skills and role played how to make new friends by suggesting that complimenting another student is a good way of starting a conversation. Sexual nuances were not part of the transition preparation.

During the first week of school, Dylan asked to be excused from class to go to the bathroom. He entered the bathroom and saw another student standing at a urinal. He went to the urinal closest to the other student. He looked at the other student, and said, "Wow, nice penis." He did what he was taught. He filled-in the seats (urinals), started a conversation, and complimented the other student based on conversations he overheard from other male students. He followed the transition guidelines, but was not successful. In fact, he was accused of sexually harassing the other student.

The other student was not traumatized by the physical closeness or the comment. He was not upset. He simply went back to class. At the end of the school day, a teacher over-heard him telling his friends about the "strange" guy in the bathroom. The teacher asked the student for more details of the incident. The student indicated that there was no problem, but the teacher insisted on knowing what happened. Once the student recounted the incident, the teacher reported it to the school resource officer and principal. The result of the meeting was that for the rest of the school year a male custodian would accompany Dylan to the bathroom, stand outside the bathroom door, and then accompany him back to class. With the exception of humiliating him and reinforcing disability stereotypes, what purpose is there to have a custodian accompany the student to the bathroom, stand outside the bathroom, and then accompany the student back to his class? Dylan correctly followed all the guidelines he was taught: "fill-in the rows,” take the initiative and start a conversation, and give a compliment.

Bathroom etiquette is synonymous with sexual nuances. Bathroom etiquette rules for males include don't look anywhere except at the wall directly in front of the urinal you are using, don't talk to anyone, never comment on another man's genitals, and always leave at least one urinal between you and another person. Bathroom etiquette is not included in health curricula, nor is it generally discussed. As one father said, “It's a man rule; you just know it.” For individuals with disabilities, "you just know it," may not apply.

Another example of sexual nuance is how the word “friend” can be used to blur the lines between friendship, dating, predatory grooming behavior (making an emotional or “friendship” connection with a person as a set-up to abusing them), and manipulation. Twenty-year-old Yvette* worked evenings at a local mall. She has I/DD, and had successfully taken public transportation for several years. There were usually very few people on the bus when she got on at the end of her work shift. One night the bus driver offered to drop her off at a bus stop closer to her home if she waited until everyone else got off the bus. This stop was not on his official route. He told her that since her route was the last one of his day he would be happy to swing by the stop closer to her home on the way back to the bus terminal. She agreed. He made the same offer on the next few nights saying, “This is what friends do” and “Such a pretty girl should be careful walking home at night.” Each night he complimented her, telling her how pretty she was, how special she was, how lucky he was to be her friend. Having gained her trust, one night when she was getting off the bus he asked her for a goodnight kiss. He said it was okay because, “That’s what friends do.” She liked the attention, she liked the kiss, she liked getting off at a bus stop closer to her home, and she liked the thought of having a boyfriend. The kiss evolved into fondling and eventually oral sex on the bus. One night she said no, she didn’t want to have sex on the bus any more. He told her, “It’s our special place, our secret.” When she continued to resist he told her he’d no longer be her friend.

Yvette was an adult who worked part-time, lived independently, wanted to be like the other young women she knew from work who had boyfriends, and consented to the sexual acts when they started. She was afraid that if she told her parents about what was happening on the bus they would make her move back into their home. She was afraid that if she told her staff or co-workers, they would call the police. She decided to tell no one. Afraid of the bus driver, she quit her job, became reluctant to take other public transportation, stayed in her apartment, and blamed herself for what happened. This situation could have had a different outcome had Yvette been engaged in discussions with her parents – in adolescence and even as an adult – about the differences between and consequences of friendship, flirting, dating, grooming or abuse, and manipulation. But those conversations about sexual nuance didn’t take place.

We live in a society bombarded with sexualized images and messages and yet this society is reticent to talk about healthy sexuality. Sexuality is usually discussed from a fear perspective – the “don’t.” Most people learn about sexuality during puberty and adolescence. An individual’s middle school and high school years are likely to be the last time they receive formal comprehensive sexuality education. It’s a time when a student’s own values about themselves and others are developed and crystallized. This is a perfect time to introduce and integrate concepts and examples of sexual nuances into typical health curricula; social stories; and transition planning from elementary to middle school, from middle school to high school, and from high school to work. When we shift our thinking to include looking at how social norms and sexual nuances are taught and then experienced by individuals with I/DD, we reduce the risk of them becoming involved with the criminal justice system as victims, suspects, and defendants. By creating and sharing this knowledge, systems are changed, self-determination is promoted, and disability and sexuality are recognized as a natural part of the human experience.

Youth with disabilities are disproportionately represented and under-served within juvenile correctional facilities nationwide. There are nearly four times as many incarcerated youth requiring special education-related services as compared to the general population (U.S. Departments of Education and Justice, 2014). The Individuals with Disabilities Education Act (IDEA) sets forth the legal framework to ensure that youth with disabilities are identified and receive the special education and related services for which they are eligible while they are incarcerated. The availability of special education services provided in residential facilities in the justice system can be minimal and, at times, non-existent, even though educational practices and services are mandated by IDEA.

It is critical that state and local juvenile justice facilities play a more substantial role in addressing the educational, social, emotional, and behavioral needs of youth with disabilities while they remain in custody and when they re-enter the community following release. While there is limited research on the quality and effectiveness of custodial and re-entry models to improve the post-release outcomes of youth with disabilities from juvenile justice facilities, there are promising approaches that have been identified.

Improving Services to Youth in Custody

The U. S. Departments of Education and Justice (2014) issued, as part of a Correctional Education Guidance Package, a document describing five guiding principles to promote the provision of high-quality, free, and appropriate public education in juvenile justice secure care settings. The principles are as follows:

1. Positive Climate. A safe, healthy, facility-wide climate that promotes education; provides the conditions for learning; and encourages the necessary behavioral and social support services that address the individual needs of all youth, including those with disabilities and English learners (p. 8).
2. Adequate Resources and Comparable Opportunities. Necessary funding to support educational opportunities for all youth within long-term secure facilities, including those with disabilities and English learners, comparable to opportunities for peers who are not system-involved (p. 13).
3. Qualified Personnel. Recruitment, employment, and retention of qualified education staff with skills relevant in juvenile justice settings who can positively affect long-term youth outcomes through demonstrated abilities to create and sustain effective teaching and learning environments (p. 14).
4. Rigorous and Relevant Curricula. Rigorous and relevant curricula aligned with state academic, career, and technical education standards that use instructional methods, tools, materials, and practices that promote college- and career-readiness (p. 16).
5. Formal Transition Processes and Procedures. Processes and procedures – through statutes, memoranda of understanding, and practices – that ensure successful navigation across child-serving systems and smooth community re-entry (p. 20).

These reforms and recommendations represent an important call to action to improve services to youth with disabilities while in custody and upon release.

In 2016, the National Juvenile Justice Network (NJJN) called for additional facility reforms, including ensuring that correctional facilities take adequate measures to ensure youth with disabilities are identified and receive the appropriate educational services required under IDEA, as well as under section 504 of the Rehabilitation Act; safeguarding youth from excessive use of seclusion and restraint, which restricts their ability to access education; ensuring that youth with disabilities have access to a full continuum of educational opportunities to meet their individual goals, including pathways to achieve high-school diplomas, GED, college preparation, and career and technical training; and aligning correctional education programs with state and local graduation requirements. Requirements such as these, NJJN noted, improve educational quality and graduation rates of youth with disabilities (NJJN, 2016).

Supporting Youth Re-Entry to School and Community

One of the goals of juvenile justice programming is to prevent recidivism and to allow the young people with disabilities to successfully rejoin their communities upon release. This includes re-engaging with school, family and friends, and other aspects of community life. Studies unfortunately report that the transition from the residential facility to community is far from smooth. Nationally, as many as two-thirds of youth eventually drop out of school after being involved in the juvenile justice system (NCCJD, 2015). Further, recidivism remains high among juveniles once they are released. It is estimated that approximately 55% of young people released from juvenile justice facilities are re-arrested (Office of Juvenile Justice and Delinquency Prevention, 2016). The re-adjustment to community is challenging for both youth with and without disabilities. There are steps that can be taken, however, to ensure that youth with disabilities successfully make the transition. Below are several recommended strategies and reforms to improve school and community re-entry:

• Interagency and Community Cooperation. There is a need to clearly identify the roles and responsibilities of agencies and personnel involved in the re-entry process. Collaboration and cooperation across agencies is necessary to ensure that information regarding youth, including school records, is readily transferred in a timely manner. Youth often have difficulty returning to school because of missing school records and lengthy delays in record transfer due to perceived or actual confidentiality barriers (NJJN, 2016). Interagency collaboration is also critical in ensuring that release plans contain pertinent information on other community services and supports youth need – mental health care, drug and alcohol treatment, and safe and secure living arrangements – and are systematically followed through on by community service agencies.
• Youth and Family Involvement. Youth with disabilities and their families need to have a voice in the development of release plans and other plans established with schools to support successful re-entry. Whether it is the young person’s natural parents, extended family, foster family or other parties responsible at the time of re-entry, a formal connection is essential.
• Speedy Placement. The National Juvenile Justice Network (2016) calls for ensuring that young people become enrolled in school the same day they are released or very soon after. This often involves improving record transfer and school re-enrollment practices.
• Improved School Re-Enrollment Practices. The Federal Interagency Reentry Council (2017) has identified additional barriers to re-enrollment that justice-involved youth face. They include lengthy and complicated processes to re-enroll in school, and laws in some states that create obstacles for youth attempting to re-enroll. Based on the Council’s review, reforms that states have enacted to facilitate re-entry include establishing re-integration teams; developing re-integration plans at a minimum 45 days before youth are released; employing transition coordinators to work across juvenile justice and education systems; and use of mentors to serve as advocates who help youth navigate back to school, re-connect with families, find employment opportunities, and engage in positive community social and recreational activities.
• Dropout Re-Engagement Programs. The National League of Cities (2013) has established a dropout re-engagement network involving approximately 20 cities across the country that operate re-engagement centers and programs. These centers re-engage youth back into school and community activities that get them on a positive path to completing their secondary education, setting career and life goals, making referrals to appropriate community service programs, and supporting youth in attaining postsecondary education and employment.

Conclusion

The reforms and recommendations suggested here represent an important call to action to improve services to youth with disabilities while in custody and, upon release, during the transition back to school and community. The current system that serves youth with disabilities is, at best, fragmented and inconsistent in its delivery, with significant gaps in services. This call to action stems from active discussions and recommendations from national associations, federal and state agencies, and advocacy organizations throughout the U.S. Through these collective efforts, positive changes in state and local policies and practices are more possible today than ever before. The goal is to ensure that youth with disabilities in the juvenile corrections system have a second chance to be successful and move forward with their lives.

Individuals with disabilities are dramatically over-represented in prisons and jails in the United States. Data on prison and jail populations shows the following (summarized in Figure 1):

• 32% of prisoners and 40% of jail inmates have at least one disability, in contrast to 11% of the general population (Bronson, Maruschak, & Berzofsky, 2015).
• 4%-10% of the prisoner population (here referring to all incarcerated individuals) has intellectual and developmental disabilities (I/DD), in contrast to 1.5% in the general population (Scheyett, Vaughn, Taylor & Parish, 2009).
• 13% of prisoners and 16% of jail inmates report having multiple disabilities (Bronson et al., 2015).

Prisoners with I/DD face significant difficulties, such as a limited understanding of legal processes, difficulty processing information, and heightened suggestibility, and are more vulnerable to victimization (e.g., theft, sexual assault, or being used for illegal acts). While incarcerated, individuals with I/DD rarely receive specialized services (Scheyett, et al., 2009). This article seeks to provide a brief overview of specific barriers faced by prisoners with I/DD, legal tools available to protect their rights, and policy recommendations moving forward.

Barriers for Prisoners with I/DD

Screening

Research conducted in jails in North Carolina and Washington state shows that, with proper training, prison and jail employees should screen individuals for I/DD upon incarceration using standardized and scientifically-validated assessment tools. Scheyett et al. (2009) concluded that, “Early identification [of I/DD] is essential in…ensuring…safety when incarcerated, and maximizing the opportunities to receive services while incarcerated and postrelease” (p. 14). Individuals should be screened in private, as they may otherwise be reluctant to self-identify or to answer honestly out of fear of stigmatization or exploitation (Scheyett, et al., 2009). However, screening rarely happens and, when it does, is “severely lacking” (Disability Rights Washington, 2016, p.5) due to poor training, failure to utilize valid assessment tools, and failure to screen privately (Scheyett et al., 2009). Some corrections professionals report that they can “just tell” if a prisoner has a disability (Disability Rights Washington, 2016, p.13). However, without proper training and use of scientifically-validated assessment tools, it is impossible to accurately and reliably identify whether an individual has I/DD (Scheyett et al., 2009). Absent proper screening, prisoners with I/DD are at risk of:

• Failing to receive supports to understand relevant legal processes/rights and prison rules.
• Experiencing victimization at higher rates.
• Failing to receive adequate supports upon release, increasing the risk of institutionalization.

As Disability Rights Washington (2016) concludes, “Simply put, jails cannot provide legally-required services and reasonable accommodations if they do not know which inmates are entitled to them. When jails fail to effectively screen for disabilities, they violate the rights of people with disabilities.”

Discipline

Prisoners with I/DD are at increased risk of discipline for failing to comply with procedures and rules and are disproportionately impacted by certain punishments. Solitary confinement, for example, has an especially detrimental impact on individuals with I/DD who may be placed in solitary as a form of protective custody, rather than being provided with the accommodations needed to keep them safe. They may also be placed in solitary more often or for longer periods of time due to disability-related behaviors.

Program Access

Prisoners with I/DD are often denied accommodations to access programs and services. For example:

• Denial of medical treatment due to inability to fill out forms.
• Loss of parole opportunities because re-entry programs are inaccessible.
• Inappropriate discipline due to rules violations or as a result of staff’s failure to understand their disability.
• Difficulty filing complaints or grievances about physical/sexual abuse and lack of assistance with necessary follow-up.

Legal Framework

There are a number of legal tools available to enforce the rights of prisoners with I/DD who are experiencing the challenges described above, among others. The U.S. Constitution, federal statutes, and state constitutions/statutes protect basic needs, such as food, shelter, healthcare and education, as well as basic civil rights and liberties, and freedom from abuse. Some applicable federal laws that prisoners may invoke to protect their rights include:

• Americans with Disabilities Act (ADA)¹: Title II of the ADA² applies to state and local government entities and protects against discrimination based on disability, requiring prisons/jails to provide reasonable accommodations and modifications so as to ensure equal access to programs and services. Title II also requires public entities – including prisons and jails – to administer programs and services in the most integrated setting appropriate.
• Section 504 of the Rehabilitation (Section 504)³: Section 504 provides similar protections as the ADA to institutions that receive federal funding. Together, the ADA and Section 504 provide comprehensive coverage of eligible prisoners in most correctional facilities.
• Individuals with Disabilities Education Act (IDEA)⁴: Those who are eligible for special education services under the IDEA are entitled to educational services while incarcerated. The IDEA limits some types of services for prisoners convicted as adults in certain circumstances (see 34 C.F.R. §300.324).
• Prison Rape Elimination Act (PREA)⁵: This statute “establishes standards to prevent, detect, respond to, and monitor sexual abuse in confinement settings...” (Harrell, Hastings & diZerega, 2015, p. 6) and is an important tool for those with I/DD given their higher rates of victimization.

Policy Recommendations

Implementation of the following recommendations could dramatically improve outcomes for prisoners with I/DD:

• States and the U.S. Department of Justice should vigorously enforce all statutes and regulations that address the rights of prisoners with disabilities.
• ADA coordinators (prison employees charged with ADA compliance) and other corrections professionals should be better trained on the requirements of the ADA and other relevant laws, proper screening techniques, and the specific needs of prisoners with I/DD. Without such training, it will be impossible to ensure that programs and services provide equal and meaningful access to those with I/DD.
• Solitary confinement reform is needed for all prisoners, and especially for prisoners with I/DD. It should not be used for prisoners with I/DD in the first place, and should certainly never be used to punish them for behavior related to their disabilities, or to protect them from abuse.
• Prisons should ensure that all administrative services, sentence reduction programs, and re-entry programs are accessible to prisoners with I/DD, including sick call requests, PREA complaints, and grievance procedures.
• Congress should appropriate new and dedicated funds to support the work of the Protection and Advocacy (P&A) agencies – non-profit organizations with special authorities via their federal enabling legislation – on behalf of prisoners with disabilities.
• States should develop statewide standards for screening for I/DD (and other disabilities) upon incarceration to ensure quality and consistency throughout a state’s jails and prisons.

Conclusion

Individuals with I/DD are dramatically overrepresented in prisons and jails and face unique barriers. Powerful laws exist to protect them, but prisoners need accessible resources to assist them in advocating for their rights. The policy recommendations above seek to ensure equity for prisoners with I/DD.

The death penalty was introduced to America in the 17th century by its earliest colonial governments. There are currently 31 states and the federal government that have the death penalty. The United States is the only Western country that continues to use the death penalty and is fifth world-wide in the use of the death penalty behind China, Iran, Saudi Arabia, and Iraq (Fitzgerald, 2016). The principal arguments for the establishment and continued use of the death penalty in the American criminal justice system are essentially twofold: (1) deterrence (i.e., someone will refrain from committing a capital offense because they do not want to face the death penalty), and (2) retribution (i.e., the proportionate penalty for murder is death of the murderer). In addition, a majority would argue that the death penalty should also be reserved for criminals who are the “worst of the worst” (Roper v. Simmons, 2005).

Atkins v. Virginia

In 2002, the U.S. Supreme court ruled in Atkins v. Virginia that it was cruel and unusual punishment to execute a person with an intellectual disability, violating the 8th Amendment of the U.S. Constitution.

In 2002, the Supreme Court of the United States ruled in Atkins v. Virginia that it was cruel and unusual punishment to execute a person with an intellectual disability, violating the 8th Amendment of the U.S. Constitution. The Court did not bar the execution of people with intellectual disability because they lack the understanding of right and wrong. In fact, most people with intellectual disability do comprehend right from wrong, fully understand that hurting people is wrong, and the majority of people with intellectual disability are found competent to stand trial (Atkins v. Virginia, 2002). The Court acknowledged that because of their disability and impaired ability to engage in logical reasoning, deficits in understanding and processing of information, diminished ability in learning from their mistakes and experiences, and other related limitations, people with intellectual disability are less morally culpable than the average criminal (Blume, Johnson, Marcus, & Paavola, 2014). The Court was also convinced that people with intellectual disability are, by the very nature of their disability, at greater risk of wrongful conviction and execution (Blume et al., 2014). These wrongful convictions are more likely for a number of reasons, including their increased likelihood of making false confessions; impaired cognitive and language skills that make it more difficult for them to effectively communicate with their attorney and provide facts and details related to the crime that might be instrumental in their defense; limitations in their ability to provide adequate testimony in their own defense; and courtroom behavior and demeanor that jurors often interpret as a reflection of a person’s lack of empathy and remorse.

In his dissenting opinion in Atkins v. Virginia, Justice Antonin Scalia opined that every criminal on death row would feign having intellectual disability – a life-long condition of subaverage intelligence and significant deficits in adaptive behavior – to avoid the death penalty. This proved to be hyperbole. In their review of all Atkins claims in the decade following the Supreme Court decision, only 7-8% of all inmates had made a claim for protection under Atkins v. Virginia (Blume, Johnson, & Seeds, 2009; Blume et al., 2014). Of the individuals who sought relief under Atkins v. Virginia, approximately 55% successfully proved they had an intellectual disability and were exempted from the death penalty (Blume et al., 2014).

The Court in Atkins v. Virginia ruled that “intellectual disability” is a clinical condition and hence, its determination should be based on generally accepted principles of the clinical definition of intellectual disability. As such, intellectual disability is not a defined legal term or condition in the same sense as “criminal insanity” and the courts must rely on the accepted clinical standards in defining and diagnosing intellectual disability.

Hall v. Florida

The U.S. Supreme Court in Atkins v. Virginia left the responsibility of defining intellectual disability and its determination up to the individual states; however, the Court pointed to the two national publications available at the time: American Association on Intellectual and Developmental Disabilities’ (AAIDD) intellectual disability terminology and classification manual (current edition Schalock et al., 2010) and the APA Diagnostic and Statistical Manual for Mental Disorders (current edition APA,2013) as leaders in establishing the clinical consensus for the diagnosis of intellectual disability. Hence, states should not impose criteria that would limit the identification or protection of individuals with intellectual disability, but should rather establish criteria based on defined and accepted clinical definitions and procedures. This challenge was recently addressed by the Court in its decision in Hall v. Florida (2014). In Hall v. Florida, the Court ruled that states could not use a “bright line” cut-off in establishing the criterion for significant subaverage intellectual functioning because this runs counter to established clinical practice. In fact, the court ruled that states must consider all prongs of the diagnostic criteria of intellectual disability, including subaverage intellectual functioning, deficits in adaptive behavior, and age of onset before making a determination of intellectual disability. Additionally, the states must take into consideration the measurement error when interpreting standardized test results in making its determination.

In Texas, the material from the fictional work Of Mice and Men was used to illustrate who, among individuals with intellectual disability, were sufficiently impaired and hence warranted protection under Atkins v. Virginia.

Moore v. Texas

The Supreme Court of the United States’ third foray into the death penalty and the protection of people with intellectual disability was its most recent decision in Moore v. Texas (2017). Similarly, to Hall v. Florida, the Texas case involved the state’s definition and criteria used in the determination of intellectual disability. The Moore v. Texas case argued before the Court centered on two important issues: (1) the state’s imposition of a supplemental diagnostic criterion called the Briseño factors and (2) the state’s interpretation of the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) criteria requiring that adaptive behavior deficits be shown to be “related to” the deficits in intellectual functioning. In essence, the Court was asked to rule on the state’s latitude in establishing its criteria for making an intellectual disability determination. The two aforementioned criteria used in Texas were imposed on top of the accepted state definition requiring the presence of significant deficits in adaptive behavior and intellectual functioning that originated during the developmental period.

It should be noted that the Briseño factors stemmed from a decision from the Texas Court of Criminal Appeals (CCA; Ex parte Briseño, 2004). In this case, the CCA put forth supplemental factors that were derived, in part, from a character (i.e., Lennie Small) in the John Steinbeck novella Of Mice and Men. The material from the fictional work was used to illustrate who, among individuals with intellectual disability, were sufficiently impaired in the eyes of Texans and hence, warranted protection under Atkins v. Virginia. Texas used these factors for the determination of intellectual disability, but only for cases involving the death penalty. The Texas Briseño factors stipulated that in addition to the presence of significant limitations in intellectual functioning and adaptive behavior before the age of 18 years, the following seven factors should also be considered by the trier of fact (Ex parte Briseño, 2004):

• Did those who knew the person best during the developmental stage – his family, friends, teachers, employers, authorities – think he [had intellectual disability] at that time, and, if so, act in accordance with that determination?
• Has the person formulated plans and carried them through or is his conduct impulsive?
• Does his conduct show leadership or does it show that he is led around by others?
• Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?
• Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject?
• Can the person hide facts or lie effectively in his own or others’ interests?
• Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?

In a 5-3 decision handed down in March 2017, the Supreme Court of the United States ruled in favor of Bobby James Moore and vacated the Texas ruling denying Moore’s claim of intellectual disability and remanded the case. In an amazing turn of events, Justice Roberts and the two other dissenting Justices sided with the majority in rejecting the use of the Briseño factors. The Court unanimously rejected the use of the Briseño factors on the grounds that they were largely inspired from stereotypes, misconceptions, and misinformed beliefs of what people with intellectual disability can and cannot do, and are not part of any established clinical/medical definition of intellectual disability. The Court stated in its ruling that, although states retain the right to establish the criteria defining who has an intellectual disability, how they define intellectual disability should conform with established clinical/medical consensus.

The second aspect of this case that was considered by the Court in Moore v. Texas was the matter of a phrase that is now in the DSM-5 and states, “To meet diagnostic criteria for intellectual disability, the deficits in adaptive functioning must be directly related [emphasis mine] to the intellectual impairments…” (American Psychiatric Association, 2013, p. 38). This phrase is not found under the heading “Diagnostic Criteria,” instead, it is embedded in the middle of a paragraph under the header “Diagnostic Features.” Tassé, Luckasson, and Schalock (2016) argued that this DSM-5 statement should be removed because the notion that a clinician would need to establish a causal link between deficits in adaptive behavior and deficits in intellectual functioning is not essential to making a diagnosis, and more importantly, such a link would be clinically impossible to establish.

The Court’s majority decision rejected the state’s position that Moore had to demonstrate that his adaptive behavior deficits were directly related to his deficits in intellectual functioning. The Court correctly pointed out that the other possible causes of his adaptive behavior deficits enumerated by the state, (e.g., history of childhood abuse, undiagnosed learning disability, history of school failures and absenteeism, drug abuse, etc.) were considered by established clinical/medical practice as risk factors for intellectual disability. These traumatic life events and experiences, when present, should be used to explain the possible etiological factors of the intellectual disability and not used to discount it (Moore v. Texas, 2017).