People with intellectual and developmental disabilities (I/DD) often face unique and serious disadvantages when involved with the juvenile or criminal justice systems. For example, the causes of behavior that may attract police attention, and the responses needed to best resolve a situation, may be quite different when a person has autism spectrum disorder, Down syndrome, a dual diagnosis, or fetal alcohol syndrome, rather than a mental illness without I/DD or no disability at all. In courts, prisons, detention centers, or community encounters with justice officials, individuals with I/DD may face challenges in explaining what happened or in answering questions; in understanding and following instructions or rules; or in tolerating high levels of stress brought on by noise, touch, lights or crowding. Behaviors born out of distress, fear or lack of understanding can be misinterpreted as an intent to harm others or as defiance in face of authority. When justice professionals have the training and experience to take into account how a person with I/DD may perceive and respond to the world, they can take steps that promote more effective, safe, and successful encounters between the system and people with I/DD. We hope this issue of Impact will assist justice system professionals – as well as disability service providers, advocates, policymakers, people with disabilities, and their families – to take those steps in the shared interest of equal access to justice for all.
Impact • Volume 30, Number 1 • Spring 2017
Managing Editor: Vicki Gaylord
Leigh Ann Davis, Director, Criminal Justice Initiatives, The Arc
Holly Riddle, Policy Advisor, Division of Mental Health, Developmental Disabilities and Substance Abuse Services; North Carolina Department of Health and Human Services
David R. Johnson, Director, Institute on Community Integration (ICI), University of Minnesota
Jean Echternacht, Research Associate, ICI, University of Minnesota
Graphic Designer: Sarah Hollerich
Web Developers: Shawn Lawler, Jonathon Walz
Impact is published by the Institute on Community Integration (UCEDD), and the Research and Training Center on Community Living and Employment (RTC), College of Education and Human Development, University of Minnesota. It is supported, in part, by Grant #90DD0001 from the Administration on Intellectual and Developmental Disabilities, US Department of Health and Human Services (HHS), to the Institute; and Grant #90RT5019 from the National Institute on Disability, Independent Living, and Rehabilitation Research (NIDILRR), HHS, to the RTC.
The views expressed are those of the authors and do not necessarily reflect the views of the Institute, Center or University. The content does not necessarily represent the policy of the US Department of Health and Human Services, and endorsement by the Federal Government should not be assumed.
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Access to justice is a fundamental human and civil right, however, we know from both historical and more recent media accounts that people with intellectual or other developmental disabilities (I/DD) often experience considerable disadvantages when they become involved in the criminal justice system (CJS), whether as victims or as suspects/defendants. One incident, in particular, sparked nationwide outrage when a man with Down syndrome, Ethan Saylor, was killed by off-duty police officers who tried to forcibly remove him from a movie theater when he didn’t pay for a second showing of a movie. Despite pleas from Ethan’s direct support professional to wait for Ethan’s mother to arrive, officers put Ethan on the floor, held him down and handcuffed him, which led to his death due to asphyxiation. On January 12, 2013, Ethan died at the age of 26. Since his death, his mother, Patti Saylor, has been advocating for effective training of police in her own state of Maryland. Her efforts, along with those of other disability agencies, resulted in the creation of the Commission for Effective Community Inclusion of Individuals with Intellectual and Developmental Disabilities. The Commission is working to equip people with I/DD to become paid trainers for criminal justice professionals so that tragedies like Ethan’s can be prevented in the future.
The Pathways to Justice® model provides a useful framework to identify stages in the criminal justice system where people with intellectual or other developmental disabilities face challenges and require accommodations.
Despite this and other similar tragedies, limited data exists on the number of individuals with I/DD who interface with the CJS. Often when disability is a focus of criminal justice research, I/DD is not specifically highlighted; rather data on people with I/DD is consolidated into broader disability categories. For example, a recent study reported that 2 in 10 adult prisoners (18+) and 3 in 10 adult jail inmates reported having a cognitive disability (Bronson, Maruschak, & Berzofsky, 2015). Cognitive disability was broadly defined as a physical, mental, or emotional problem that causes “serious difficulty concentrating, remembering, or making decisions”, and it was not specific to I/DD. Difficulty in separating out the numbers of individuals with I/DD from broader disability categories may make it more difficult to make the case that the over-representation of people with I/DD in the CJS is a legitimate and urgent concern demanding more focus, time, effort, and resources. However, we do know that significant numbers of individuals with I/DD encounter the criminal justice system. For example, a nationwide survey of heads of state departments of juvenile corrections and combined juvenile/adult systems found that among the youth being served under IDEA in juvenile corrections systems 9.7% had an intellectual disability (Quene, Rutherford, Leone, Osher, & Poirer, 2005). Also, it’s estimated that the number of incarcerated students requiring special education-related services is four times that of those needing such services in the general population (U.S. Departments of Education and Justice, 2014). We also know that rates of serious violent victimization – rape, sexual assault, robbery, or aggravated assault – in communities are more than three times higher for people with disabilities than those without (Harrell, 2015). Children with I/DD experience higher rates of all forms of abuse compared with their typically-developing peers (Martinello, 2014).
The CJS, while vast and complex, can be more easily understood when separated into stages. The Arc’s National Center on Criminal Justice and Disability® developed the Pathways to Justice model, based on The Sequential Intercept Model (Munetz & Griffin, 2006), to provide an I/DD-specific model of the five primary stages of the CJS that both victims and suspects/defendants experience (see Figure 1):
The model provides a useful framework to identify stages in the CJS where people with I/DD face challenges and require accommodations (see Figure 2), helping to pinpoint attitudinal and systemic barriers. These barriers may lead to miscommunication, misunderstanding, and distrust between CJS professionals and the disability community. Effective education of CJS professionals can increase the likelihood that citizens with I/DD experience appropriate and accessible policing, legal, victim services and other related supports and services.
|First Contact||Public safety and legal systems personnel have limited experience with and knowledge of people with disabilities. One study found that law enforcement officers accurately identified individuals with I/DD only 30% of the time, although many were confident in their ability to identify I/DD based on physical appearance alone (Douglas & Cuskelly, 2012).|
|Investigation||During investigation and first contact a disproportionate number of people with I/DD give false confessions and many do not understand their Miranda and other legal rights (Smith, Polloway, Patton, & Beyer, 2008).|
|Jail||When incarcerated, people with I/DD are extremely susceptible to victimization in jails and prisons, are punished for rule infractions they may not fully understand, and are removed from the general population and placed in solitary confinement for extended periods of time (Alexander, 2015).|
|Trial/Plea Agreement||Attorneys are only slightly better than officers at recognizing I/DD and often don’t realize how disability status could be an essential element to building a successful defense (Douglas & Cuskelly, 2012).|
|Transition||For people moving from prison/jail back into the community, re-entry programs often do not provide needed accommodations, or staff training, that can help ensure a successful transition by individuals with disabilities.|
In the recent past, criminal justice reform has enjoyed bipartisan support, resulting in the development of various reports such as, The President’s Task Force on 21st Century Policing. Even with strides being made toward reform measures, people with I/DD continue to be left out of the discussion in meaningful ways. Advocates must ensure that reforms are focused not only on people with psychiatric diagnoses, but also include the voices of, and issues specific to, people with I/DD by keeping three key goals in mind throughout all stages of the Pathways to Justice model:
Whether victims, suspects, defendants, or prisoners, individuals with I/DD face serious disadvantages in the CJS. While they may experience discrimination as crime victims (e.g., when testimony is assumed not credible), they can also experience discrimination as suspects (e.g., when their disability is not accommodated, resulting in unnecessary use of force). A more effective, uniform approach is needed to better identify the presence of I/DD and improve criminal justice professionals’ interactions with people with I/DD. Law enforcement officers, attorneys, victim advocates, self-advocates, disability advocates and family members all have a critical role to play to ensure that citizens with I/DD are fully represented in ongoing discussions about CJS reform.
First, I have to admit that when I was approached about writing this article, I was a bit overwhelmed. How does one describe in 1,200 words or less daily interaction with a young person with autism? How does one cop relate to another cop the complications inherent in many stressful situations involving a person with autism? And why would they listen to me? I’m certainly no expert on autism. While I’ve worked in law enforcement for over 20 years, the reality is I only worked the street in uniform for a little over two years, though those two years were packed with action. Most of my law enforcement career has been spent in investigations, dignitary protection, and firearms training, although I did have some eventful days in places like Baghdad, Kabul, and The West Bank. Even with those doubts, I pushed forward because it’s that important to me.
It’s important to me because I have a son, Joshua, who has autism. He wouldn’t harm anyone and has a wonderful, giving heart. But you would not always know that by meeting him. He has meltdowns. He gets over-stimulated. He’s edgy and hard to please. He breaks things. The thing is, it’s not his fault.
Josh is 17. As I write this, in the Texas criminal justice system he’s legally considered an adult. One of my biggest fears is that Josh will have a run-in with a law enforcement officer who does not know what he or she is dealing with. Josh could get hurt even though he really has no ability to hurt anyone else. The wrong place at the wrong time with the wrong cop could have devastating effects for both Josh and the officer.
The thing is, I get it. When I was a young officer on the street, and before I had an inkling of what autism is really about, I might have approached a kid like Josh in a very different manner than I would now. And I would never fault an officer for protecting themselves and wanting to go home at the end of every shift in one piece. I actually train them to do that.
With Josh and my colleagues in law enforcement in mind, I helped create the video, Autism: Law Enforcement and First Responder Training. A partnership of the Autism Society of Central Texas, Red Media Group, parents, people with autism, and my company Chester Security Group produced the video, which is used to raise awareness among police officers, Emergency Medical Services (EMS) personnel, and firefighters about autism and its potential to increase stress in situations that are inherently volatile due to the nature of calls to first responders. To all first responders I’d like to say that no two people with autism are the same. Those of us in the autism community know that “If you’ve met one person with autism, you’ve met one person with autism.” Having said that, there are some common traits that it’s important for first responders to know about. We talk about those in the video and I want to touch on some of them here.
When I was a young officer on the street, and before I had an inkling of what autism is really about, I might have approached a kid like Josh in a very different manner than I would now.
A common reason for “meltdowns” among some people with autism is over-stimulation. As police officers, we see over-stimulation as a protective measure. We use lights and noise to disorient a subject to give us a tactical advantage. In an encounter with a police officer or other first responders, a person with autism may become immediately disoriented, confused, and potentially aggressive either to themselves or others. They may hit themselves. They may slam their head against a wall. They may not follow commands or directions. They may seem extremely frustrated. They may not make eye contact. They may not answer questions directly. They may not be able to identify themselves or provide their own address.
Some people who have autism live on what I think of as a constant battlefield. Having lived in three different war zones, that’s the only way I can describe my interpretation of what living with autism can be like for some. They can have a constant feeling that they are never safe, they are never free of worry, and they must constantly be on guard. For a few minutes imagine yourself feeling that way. No solace, no respite. Then remind yourself that for some people with autism that feeling is not just every other day, it’s not just every day, it’s not just every other hour. It’s every minute of every day.
It’s important to me that police officers and other first responders understand the differences between people like Josh and people like his brothers if they encounter them on-the-job.
Looking at encounters from the other perspective – that of first responders – it’s important that people with autism understand the perspective of police officers and other first responders. They are there to help. If you think about it, no one in his or her right mind would choose any of those paths if they did not have a sincere desire to help their fellow human beings and make a difference in someone’s life. Just one success is reward enough. I can tell you this from my own experience. Having said that, first responders are also ordinary people. They want to go home safely every day. They want to do the right thing while protecting themselves at the same time. Given the turbulent times in which we live, it should be no surprise that a police officer will approach anyone with caution, particularly if that person seems to be distraught and disoriented.
With the increasing number of children who are being diagnosed on the autism spectrum, it’s important for police officers and other first responders to be able to recognize people with autism and have the tools to bring on-the-job contacts with people who have autism to a close with positive results. Most of these kids are going to be adults soon, and there will be many generations to follow. If all first responders learn how to recognize autism, maybe we can avoid a lot of heartache down the road.
A part of me wishes I didn’t have the experience or see the need to write something like this. The reality is that Josh will not achieve the typical milestones my other two boys have achieved and are achieving, things like playing football, getting a driver’s license, graduating from high school, going to college, getting married, having kids. However, he’ll accomplish his own milestones. For instance, he can now have a full conversation and express his feelings better. While he still experiences meltdowns, they have decreased from hourly to 1-2 per week. And he is attending a new school, growing in confidence more every day. As his father who loves him unconditionally, I want him to have every opportunity to reach all his milestones. For that reason, it’s important to me that police officers and other first responders understand the differences between people like Josh and people like his brothers, and if they encounter them on the job, know how to respond in a way that leads to positive results for everyone.
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):
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:
(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.
1 Intellectual disability is characterized by significant limitations both in intellectual functioning (reasoning, learning, problem solving) and in adaptive behavior, which covers a range of everyday social and practical skills and originates before the age of 18. The term “developmental disabilities” is an umbrella term that includes intellectual disability but also includes other disabilities that can be cognitive or physical or both. Some developmental disabilities are largely physical issues, such as cerebral palsy or epilepsy. Some individuals may have a condition that includes a physical and intellectual disability, for example Down syndrome or fetal alcohol syndrome. For more in-depth information, see definitions from The American Association of Intellectual and Developmental Disabilities and The Arc.
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:
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:
Families and other caregivers can support people with FASD involved in the justice system in critical ways:
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 official name of Barrow was changed to the Inupiaq Eskimo word “Utqiagvik” on December 1, 2016 based on the community’s vote.
Sheletta Brundidge and her husband Shawn are the parents of four young children – Andrew (10), Brandon (4), Cameron (3), and Daniel (2). The three youngest have been diagnosed with autism. In this February 2017 interview she talks about the conversations and concerns in her family around encounters between the police and young people of color who have disabilities.
Sheletta, last summer your oldest son Andrew wrote a letter to Governor Dayton that got quite a bit of media attention. Andrew was concerned that if his brothers and sister who have autism were ever stopped by the police, they might not be able to understand or do what the police tell them, and might be shot. What are the concerns and conversations you and your husband have about your children encountering the police?
We are just terrified, absolutely terrified. It actually keeps us up at night because we’re raising young Black boys and there’s already a disconnect between police across the country and young African American men who are able bodied, in their right mind, and have no special needs. You add in some language barriers or some comprehension issues like our youngest children have, and you’re talking about something that worries us to no end. Right now they’re young enough that we can always keep an eye on them, but what happens when they’re older and, say, want to go to a store, and someone thinks they’re stealing because they have their hands in their pockets. And they’re not stealing, but they have their hands in their pockets, and security tells them, “Take your hands out of your pockets.” They don’t know how to follow complex commands. Things that may be simple for other children – like following the direction, “Put the napkin in the trash” – for these children you have to tell them, “Open the trash, put the napkin in the trash, and then close the trash.” So if a police officer walks up to them and tells them, “Clasp your hands behind your head, walk backward, and kneel on the ground,” they’re not going to be able to do that. And police don’t take the time to talk with young Black men. If you look at the police shootings across the country these Black men are dead in 90 seconds or less. Black men do not get the benefit of the doubt. A lot of times they’re presumed to be guilty, they’re presumed to be a threat, the moment police arrive. My children won’t have a chance to say, “Excuse me sir, I have autism and I don’t really know what you’re talking about.” And this is something that keeps us up at night.
You’ve had conversations with Andrew, who does not have an autism diagnosis, about how he should behave if he’s ever stopped by the police. What have you taught him?
Since Andrew has been 3 years old we have told him, “The police are not your friend. The police are here to do a job, and to protect you. If they ask you to do something, you get it done. You don’t ask any questions, and you don’t volunteer any information.” That’s just the way he’s always been raised. So he has an inherent respect for authority and law enforcement, but we’ve also instilled a spirit of fear as well. We need him to be afraid enough to know that these are not people that you play with. If you encounter a police officer, whether you did anything or not, if they say, “Get on the ground,” you get on the ground. If you didn’t do anything, and they say, “Hands in the air” then you put your hands in the air. You don’t say, “I didn’t do anything.” You don’t say, “I’m sorry, that wasn’t me.” You don’t defend yourself. Your parents are your advocates. That’s our job. So what you do is comply with their request, and if they want to speak with you, you say, “I’m sorry, I can’t speak with you. Would you please call my parents?”
Have you had that same conversation with your other three children?
No, because they can’t understand that yet. With Brandon, who’s 4, we’ve shown him pictures of police and he understands what a police officer is, but we have to help him understand that the way a police officer may deal with our neighbors, or with his friends, may not be the same way that the police may deal with him in a similar situation.
Daniel is a wanderer. He runs, and if you call his name he doesn’t respond. And you know, that’s cute when he’s 2, but what happens when he’s 12 and he runs in somebody’s house and they see this little Black boy running in their house and he’s waving his hands in the air and squealing.
I recall that there are some things that you’re telling your daughter, Cameron, as well, including do not throw litter on the ground because it may draw police attention. Am I remembering that right?
Yes. You don’t do anything to draw attention to yourself with regard to giving anybody a reason to call the police on you. You don’t yell and scream, you don’t put your hand in your pocket, you don’t litter. If you see litter around you pick it up and throw it away so nobody will think it is you doing the littering. Even with the limited capabilities they have they still know to be honest, they still know to be obedient to authority. You can still teach them that this is a police officer, if he asks you to do something, you just do what he asks you to do, and you be respectful. You say “Yes ma’am, no ma’am, yes sir, no sir.”
We are not part of “the resistance.” I’m trying to make sure that my children get to be the age where they can marry, and they can have children, and become grandparents. I don’t want them to die because they can’t understand, “Clasp your hands behind your head, walk backwards, get down on your knees.” Whatever command they give them. You know, I could outfit them with 25 shirts – winter, spring, summer and fall – that say “I have autism. Please don’t shoot,” and a lot of officers won’t understand what that means, and how the child is different. They won’t understand that if they ask my child a question they may not get an answer. They may view that as defiance, and then there goes my baby.
Right now, what we’re teaching is a spirit of integrity. What we’re teaching is obedience to authority. And that will be the foundation for any decision they make. Ultimately, they need to be wise. No matter what capabilities or limits you have in your life, you can always have an ounce of wisdom. And if they have that foundation of wisdom and knowledge that we’re trying to give them, then our children can make the right choice, even with limited capability.
My job is to keep my kids alive. For instance, Andrew wanted to go up to the convenience store by himself the other day, which we don’t let him do. But I said, “Okay, tell you what. You know the rules; you know what to do. I’m going to be right outside the store watching you. You go in and buy your M&M’s.” So he was getting his stuff, and while standing in line, guess what he did? He put his hands in his pockets. And I let him know, “Hey, get your hands out of your pockets. You’re standing in line at the convenience store, so don’t do that.” And he already knew why: Because someone might think that he put something in his pocket to steal it. He said, “But I was just reaching for my money.” I said, “That’s not the point. What have we told you? I need you to remember these things, even if you didn’t do anything wrong.”
We just talked about the do’s and don’ts you’re teaching your children in relation to the police. What would be your do’s and don’ts for the police if they encounter your children?
Take more than 90 seconds to figure out what’s going on. Just look at them and imagine if they’re your son or daughter. Handle them like you would want somebody to handle your own kids. Listen, I’m not anti-law enforcement. I have police officers in my family. Some of my best friends are police officers and chiefs, and I love them. And my children love them. But I just need folks to take a moment. Don’t assume anything. Treat my children, and children who look like my children, the way you would want somebody to treat your own child. Just give them the benefit of the doubt. Just think that maybe they didn’t do it.
I read a parenting blog on which you shared affirmations that you say to your children. What are some of those affirmations?
A powerful young lady I went to college with, Priscilla Evans, has a ministry called Going Beyond, and does affirmations with her boys every morning, speaking and praying over them every day before the kids go to school. She has a blog with the affirmations on it, which is where I found the affirmations that I say to my kids every night when I put them to bed:
And even with limited vocabulary my children have memorized these affirmations and they say them. “I am a man of high character and integrity. I am a woman of high character and integrity.” And we hold them to that even as little children. When they’re doing something they’re not supposed to be doing we say, “Hey, every night you say, ‘I will be a blessing to my teachers and friends’ and we got a note from your teacher saying you’re talking too much in class. I need you to live up to the things that you’re saying about yourself. We need you to believe these things and do these things.”
They’re going to be grown adults longer than they’re going to be children, and we’re trying to pour all this wisdom into them before then so they can have it to live life on life’s terms, because you know – life ain’t fair. And I’m not crying about it. Life ain’t gonna be fair for my little Black boys and that’s just the way the world is. We’re not going to cry about it, we’re going to learn how to deal with it, and live with it, and still be successful, in spite of.
Is there anything else you want to add to our conversation?
A while ago a friend said that when my kids get a little older I should take them to the local police station and introduce them to the officers and let the officers know that these are our children, they have been diagnosed with autism, and if you encounter my children or see them when they’re out somewhere, don’t assume they’ve done something wrong. It might just be that they don’t understand. Just like the people they talk with may not understand them. Our little 2-year-old Daniel is coming along, he’s making great strides, but he’s still far behind his peers and he is a wanderer. And what he does is run, and if you call his name he doesn’t respond. And you know, that’s cute when he’s 2, but what happens when he’s 12 and he runs in somebody’s house and they see this little Black boy running in their house and he’s waving his hands in the air and squealing. He’s going to get shot. So like I said, that’s the kind of stuff that keeps us up at night, that’s the kind of stuff we worry about.
There is no rule book that tells you as a parent of special needs kids “here’s how you’re supposed to handle the police.” I think about Andrew – he was playing with his friends a couple weeks ago. The other kids were outside playing with pretend guns and they were like, “Andrew, can you come play with us?” and Andrew said, “Let me go ask my dad.” I was in the van taking the other three children to the store, and I had my window down so I heard what they were saying, and the other little kid said, “Okay, ask your dad and if you have a gun bring it.” You know, a pretend gun. And I thought of the young man who was playing with a BB gun in a park in Cleveland who got shot by police, again one of those 90 second deals where they took 90 seconds and shot him. And I burned rubber putting the car into reverse back into the driveway, and I got to my husband and I said, “He cannot go down there and play because those kids are playing with toy guns and he is a young Black boy and he cannot be seen outside with anything that looks like a gun. So he needs to go and tell these kids that he can’t play with them today and tell them why.” A lot of times his friends don’t encounter the same situations we encounter, so it’s really important that we share with them our struggle, and why our kids can’t do certain things. Otherwise they won’t know. They’ll just think, “Andrew’s mom is mean. She won’t let him come play with us.” So, Andrew went down there and said, “I want to come down here and play with you, but you’re playing with guns and I’m not allowed to play outside with toy guns because someone might think I have a real gun and call the police and then the police would come and I might get shot.” And the boys were very respectful, but they didn’t really get it because it’s not their reality. And if their parents want to explain it to them, that’s fine, or if their parents want me to explain it to them, that’s wonderful, too. But I needed Andrew to make his friends know this.
We don’t want any misunderstandings. We don’t want anything to look like something it’s not. When he’s older and I’m not around I hope that he’ll remember these things and make the right choices. I want to give them a good head start to know what to do and how to handle situations.
The Hamilton County Crisis Intervention Team (CIT) program is an innovative, proactive, law enforcement-based approach to addressing issues surrounding the interactions between law enforcement personnel and persons with mental illness and /or disabilities, including intellectual and developmental disabilities (I/DD). It is a partnership between law enforcement, the mental health community, numerous foundations and agencies who serve people with disabilities, disability advocates, and individuals with disabilities. It trains and equips officers to respond effectively to people with mental illness or disabilities who are in crisis, and provides an avenue for stabilization instead of incarceration. This is done at little risk to public safety, and it improves outcomes for people with mental illness or disabilities and for the law enforcement officers who interact with them.
The Memphis Police Department is known for setting a standard of excellence with respect to the treatment of individuals with mental illness. They established the first Crisis Intervention Team in 1988. The Hamilton County Crisis Intervention Team program was established in 2009 with direct assistance from the Memphis Police Department and the University of Memphis. CIT is designed to educate and prepare officers who may come into contact with people who are experiencing a crisis and have a mental illness, autism spectrum disorder or other I/DD, dementia, or traumatic brain injury. CIT officers are trained to de-escalate a crisis on the scene or to make the decision to transport to a hospital or other facility. The training stresses that anyone can experience crisis because of personal trauma, independent of mental illness and /or disabilities. “Crisis” is defined as an individual’s experience of a situation or event in which coping skills have been exhausted. The person may have suicidal thoughts/threats (i.e., feelings of hopelessness and helplessness); appear disoriented; seem angry, fearful, or depressed; experience hypersensitivity, anxiety, and confusion; have difficulty concentrating; and have poor problem-solving. There may be physical symptoms as well including increased heart rate, marked fatigue, shaking, dizziness, weakness, headaches, fainting, and/or sweating. Because of the 40-hour CIT training, the specialized group of CIT officers has the ability to empathize with and relate to what the person in crisis is experiencing. They have established working relationships with community agencies, and they are able to get people the help they need.
As a part of each agency’s annual training, CIT also provides awareness training across a wide spectrum of conditions that our officers are likely to encounter. For example, in 2015 Hamilton County focused training on dealing with those who are on the autism spectrum. In 2016, two hours of training centered on people with I/DD. This training was conducted for all law enforcement agencies within Hamilton County. Additionally, all Hamilton County Jail supervisors received three hours of mental health training, which included recognizing behaviors associated with autism and dementia. The annual training not only encompasses recognizing behaviors of people with mental illness and /or disabilities, including I/DD, associated with crisis but also notes typical behaviors that do not necessitate law enforcement involvement. Part of the training involves communication skills important for interacting with these populations, including people who do not use spoken words to communicate wants and needs.
In recent years, there have been far too many tragic incidents between law enforcement and individuals where speculation of mental illness or I/DD, such as autism, has been at the forefront of media attention. The CIT program prepares, educates, and trains officers to recognize signs and to be able to better respond to a situation involving someone who may have conditions that affect cognition, communication, behavior/emotion control, understanding consequences, or understanding socially-appropriate behavior. The CIT program provides information to assist officers in knowing what to do and which agencies to contact when services and supports are needed.
Advocates have long asserted that law enforcement personnel do not receive adequate training in dealing with vulnerable populations, resulting in ineffective encounters and sometimes fatal outcomes. The CIT program seeks to accomplish the goals of decreasing the incarceration of nonviolent individuals with a variety of conditions or disabilities; decreasing injuries to officers, individuals in crisis, and others on the scene; and decreasing the use of force and SWAT call-outs. In addition, there is focus on increasing the number of specialized CIT officers, increasing the number of transports to hospitals and other facilities when necessary, increasing the number of crises that are stabilized using the techniques and practices of CIT officers, and providing ongoing training for all CIT officers. The techniques CIT officers learn are proven to work and have saved lives.
The Hamilton County CIT curriculum is a 40-hour week of intense training that would not be possible without the strong support from all stakeholders. Instructors include subject matter experts from hospitals, treatment centers, and disability agencies. The training consists of classroom lectures; visits to various mental health facilities, habilitation centers, and group homes where individuals with mental illness or disabilities lead discussions; scenario-based de-escalation skills training; and training using role-play exercises. The training builds law enforcement awareness of mental health and disability resources and addresses attitudes and stigma in relation to people with I/DD or mental illness. The CIT training includes the following blocks of instruction:
The 40-hour training is submitted and approved by the Tennessee Peace Officer Standards and Training (POST) Commission. All training blocks are 1-2 hours, with the exception of the de-escalation scenario-based training, which is 3-4 hours. Facility site visits are an additional hour long. Currently, the training includes 1-2 hours on the topic of people with I/DD, along with a 1-hour site visit to a habilitation center that serves those with I/DD. During the visit, CIT students (out of uniform) have the opportunity to interact with individuals with I/DD and role play situations that law enforcement may encounter.
Over 340 officers have been trained since the program began in 2009. They represent 22 law enforcement agencies from eight counties in four states. We expect this number to grow as outreach efforts continue and more department heads recognize the value of providing these skills to those under their command.
Trainees complete course critiques during each training, and the following are a sampling of their comments:
The CIT program goes far beyond the initial training. CIT officers have specialized skills to increase the likelihood of positive outcomes with those they encounter in crisis, and these officers exemplify compassion and concern for the population they service. The CIT program has designed CIT pins that officers wear on their uniforms to identify themselves as part of the team of specially trained officers. Individuals with disabilities and mental health needs, and others from areas where CIT exists, will look for and recognize this CIT pin and will know that the officer wearing it is CIT trained. CIT officers wear their pins with pride. The Sheriff’s Office also provides a front license plate of the same design to be displayed on the patrol vehicles of their CIT officers.
All agencies are encouraged to document their CIT incidents. A standardized CIT form is used only by CIT officers for reporting on CIT-related calls. All CIT reports are reviewed monthly by program coordinators and the CIT Manager. The statistics are helpful in managing the CIT program and planning for future needs and training, as well as evaluating its effectiveness.
Jail diversion is one objective of CIT; however, there are some cases where officers are required by statute or departmental policy to make arrests. These would include cases where violent felonies were committed, cases of domestic abuse, and cases of impaired driving. In most instances, officers have the flexibility to use their discretion to decide the best course of action based on the totality of the circumstances. For example, in 2015 there were 275 CIT reports submitted, and only three resulted in the person with I/DD or mental illness being arrested on criminal charges. There were 224 people transported for mental health evaluations and 35 individuals stabilized by CIT officers with no further action taken. Other dispositions included 10 current jail inmates placed on suicide precautions or referred to outpatient care. Three calls were unsubstantiated.
Injuries to CIT officers and individuals with disabilities or mental illness are tracked through CIT officer reporting. No officer injuries were reported during CIT calls in 2015. In fact, there have been no officer injuries since the inception of the program. Seven people with disabilities or mental illness were injured prior to police arriving. Two sustained injuries while police were on scene. The most common types of injuries were ingestion of dangerous substances and self-inflicted lacerations.
The Hamilton County Sheriff’s Office has developed policies and procedures to support CIT officers and to assure that CIT officers are dispatched, when available, to mental health calls as well as those which may involve individuals who have autism spectrum disorder, Down syndrome, other I/DD, or Alzheimer’s. It also enables CIT-trained officers to take the lead when intervening in such crises. Several agencies have established and adjusted their policies in response to referrals from CIT-trained law enforcement officers. Consequently, the CIT program is making a difference in the lives of those we serve.
Several mass casualty tragedies across the country have brought the subject of crisis de-escalation back into the minds of the public. Family members are more frequently calling for help for their loved ones. The CIT program has brought together a powerful partnership between law enforcement and the community that works diligently to help individuals and families obtain the help they need and deserve. The mindset of incarcerating individuals because of uncertainty about how to handle them has diminished. People with mental illness or disabilities are no longer afraid to call the police. They are now calling for CIT officers by name when they are experiencing a crisis and need help.
The CIT project may have never gotten off the ground had it not been for funding from an Edward Byrne Justice Assistance Grant. This grant expired on December 31, 2013, and the CIT program is now being funded by Hamilton County government. For any agency that wishes to develop their own CIT program, it is critical to have buy-in from the chief administrator of the agency (such as police chief, sheriff), establish strong relationships with community partnerships, identify key personnel to initially train as trainers, and secure funding for the program through federal/state grants and municipal budgets. Relationships are the sustaining factor for any program, and it’s the partnership between law enforcement and community agencies that is the crux of any CIT program.
Detective Jamie Fields is a law enforcement officer with the Hamilton County Sheriff’s Office (HCSO) in Chattanooga, Tennessee. He began his career in 1998 and was in the first HCSO Crisis Intervention Team (CIT) class held in September 2009. Detective Fields has a 16-year-old son, Tucker, who has developmental disabilities, and his experience as a parent of a child with disabilities was part of the reason he was drawn to this training. As a result of the CIT training, his approach to police calls involving people with disabilities who are in crisis has changed, and he’s become a resource for other officers. Below, he reflects on the meaning and importance of the training for him and the community.
Until I volunteered for CIT training, I had never received instruction on any topics related to mental illness and/or intellectual and developmental disabilities in law enforcement. My heart was already there for this population from dealing with my son and being a School Resource Officer. Tucker was diagnosed with a rare congenital birth disorder, has epilepsy, a visual impairment and no peripheral vision, scoliosis, global psychomotor delay, and does not use words to communicate. With Tucker being nonverbal, we learned early on that behavior was a form of communication for him. Individuals such as Tucker are not acting out of malice, and there is no intent to hurt anyone. Someone that doesn’t know Tucker may misinterpret his behavior. The training taught me skills to better de-escalate those with developmental or intellectual disabilities who are in crisis, and keep them and myself safe.
When I returned to patrol after the CIT training, I immediately learned just how many police calls were CIT-related that I never even knew about. I realized that law enforcement was trained to hurry up and fix a call and then move on to the next one. We weren’t taking our time. I quickly learned that we didn’t have the training and the skills we needed to deal with these calls. Law enforcement had the compassion, just not the tools and resources. CIT gave me that. As a result of the CIT training, I began to take time to talk to these individuals and get to know them enough to positively resolve calls. Non-CIT officers began to request my support when they encountered someone in crisis. They cared enough about these people to ask for support to de-escalate their behavior and to get them help.
I also now take the time to talk with parents of people with disabilities. I ask what the person’s triggers are, how they communicate wants and needs, and what works to de-escalate. I want them to know that I, as a police officer, can recognize and know how to deal with the behavior. I want to give them hope and comfort that their loved one will be handled with care, concern, dignity, and respect. You have to be patient and understanding. I see myself as an advocate for these individuals so that others can better understand their unique needs and interact with them in a more compassionate way. I treat them with the same empathy that I would want for Tucker.
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.
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.
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.
It’s important to know who to call when an individual with intellectual or developmental disabilities is experiencing a mental health or behavioral crisis. The police may or may not be the best people to call. You often have more options. What “crisis” is, how to respond, and who to call should be clearly listed in a person-centered plan for a person with a crisis history. Most crises can be avoided with a good prevention and intervention plan developed in conjunction with the individual and his or her important supporters. A frequent need to involve first responders or community crisis teams can be an indication that planning and support are not currently sufficient and need to be revisited.
The sample chart below can be customized for individuals and included in their person-centered plans as a quick reference guide outlining who to contact in what crisis situations. It can also be a valuable reference for those supporting individuals who do not have a crisis history in the event one occurs.
On any given day, law enforcement officers across the country are called to engage with people experiencing a wide array of crises. Since there has been a historic lack of investment from the human services sector in community-based crisis services, police officers are often responding to calls involving people who are experiencing some sort of crisis and who have mental health needs and/or an intellectual or developmental disability. While many of these incidences can be resolved quickly and easily, too often these interactions are laced with tension, misunderstandings, and have even led to tragic fatalities.
In response to this problem, there has been a growing and concerted effort by disability advocates to ensure that law enforcement agencies are provided with the resources and tools, usually in the form of classroom trainings, to be able to non-violently de-escalate tense situations involving individuals with disabilities. This is a praiseworthy first step to bridging the gap between police officers and the disability community; however, there are still concerns that such trainings fall short, leaving both parties vulnerable and increasing the risk of a routine police call going horribly wrong. Given the current state of affairs, self-advocates are left wondering what more can be done to improve police-community relations, particularly in regard to the treatment of people with disabilities who are experiencing a crisis.
This is a question that the Committee of Advocacy and Leadership (COAL), a disability self-advocacy group based out of the nonprofit organization Opportunity Partners in Minnetonka, Minnesota, has also been discussing, and a few self-advocates have taken it upon themselves to build on this work. The group believes that communities need to dig even deeper into the problem in order to create real systemic changes and to develop the partnerships necessary to heal the divide. In the spring of 2016, COAL sent two self-advocates to the Minnesota Olmstead Academy, an intensive educational institute that is designed to help self-advocates develop and implement community inclusion projects. Daniel Guerin, the staff member who supported the academy attendees from Opportunity Partners, volunteered to continue supporting the advocates in brainstorming and setting into motion a new relationship-building initiative named Coffee with Cops. The underlying philosophy of this grassroots project hinges on the notion that unless a person without disabilities has direct experience interacting with a person who has a disability, they are unlikely to be able to fully comprehend and apply the principles of any disability training program, regardless of how thorough or well instructed. By connecting individual self-advocates with individual law enforcement officers, both parties are better able to understand the often unique perspectives that they both bring to the table.
Daniel supported the initiative by reaching out to several Opportunity Partners’ residences and to individuals with varying types of disability. He then worked to connect them with officers who worked in the local communities in which the participants lived. In the early stages of the project, Daniel experienced quite a bit of difficulty in getting connected to officers who might be interested in supporting the initiative. Even if a department had some sort of community liaison, there was no guarantee that they would have any experience working with disability service providers or self-advocacy groups. However, over time, employees of Opportunity Partners tapped their professional and personal networks to identify officers who would visit with the self-advocates. The team organized and facilitated monthly coffee meet-ups, arranging transportation, lightly facilitating conversations, and covering expenses with project funds offered by the Olmstead Academy. During these meetings, the police officers and people with disabilities were able to ask questions of each other, share tips, and create a space of vulnerability in hope that over time they can learn about each other and break down any barriers or misconceptions that exist.
One of the first meetings in the Coffee with Cops series was a one-to-one conversation between a self-advocate named Krystyna and Minnetonka Police Patrol Sergeant Steve Kniss. Through introductions, Krystyna learned that Officer Kniss has been a police officer for 23 years. Not only that, but he has a son around her age who has Down syndrome, so he is particularly attuned to those who may need higher levels of support. The two spent time becoming acquainted, with Officer Kniss asking some thoughtful questions about her life, her experiences, and how she feels about law enforcement.
Krystyna had a few questions of her own for him and began by asking simply if he likes his job. He responded, “There are times when it is hard and times when it is super rewarding. Rewarding on many different levels.” When asked if he had any safety advice for folks who may be hesitant to call the police, he answered, “Always remember that police are here to help, not harm, you. If a crisis situation occurs, you can find someone and ask for help. If you are in a public place you can stop in and ask for help. You can always call 911 and we’ll come and help.”
Once they were better acquainted the conversation took a turn to more serious questions, mainly, in his opinion, how well equipped are law enforcement agencies to support people with disabilities? “It is front and center now. Police departments all over the nation are getting training. Here in Minnesota, it is mandated training…. Most officers, and supervisory and administrative staff, realize that we need to make adjustments, and that there are things we need to take into consideration… The more training to understand those situations the better off we are going to be. The more we know, the better off we are.”
The Coffee With Cops initiative is still in the early stages as an experimental community-building initiative. The COAL group hopes that over time these relationships will have greater impact as community members share their knowledge and experience with their peers. At the core of the work that COAL does is the belief that there is power in storytelling, and whether it is with a lawmaker or police officer, education should always be presented alongside opportunities to build relationships with the people affected by the issues.
I am really excited to see the Coffee with Cops project come to fruition. As a person who has worked with people with disabilities and/or mental health issues for years, I know that there are a lot of challenges, misconceptions, and stereotypes that the community faces. It breaks my heart to know that sometimes that stigma resides within many otherwise good, kind-hearted people, including officers. It has been really rewarding to be able to facilitate conversations and create a space where both parties can feel comfortable revealing their vulnerabilities. I think that’s the key to creating real change: building relationships between people of different backgrounds.
Getting the program off the ground has been quite difficult. Many law enforcement agencies seem bureaucratic and it can be difficult to reach the right person to even get permission for an officer’s time. However, obtaining that “buy-in” is of critical importance to the program’s success. Ideally, we desire officers and agencies who want to commit time to build a relationship with the people with whom we pair them. We want it to go beyond just a drive-through disability training. We are in it to change hearts and inspire larger cultural changes within our communities.
I do not envy police officers’ jobs. They are often the ones who have to support a wide range of people during their most vulnerable moments. But in some ways I can relate to that. I feel that the skills and knowledge that direct support professionals employ every day can be of benefit to law enforcement officials. Developing patience, not assuming someone’s level of ability, and committing to de-escalation rather than a power struggle is critical to avoiding a crisis situation. Only by sharing our stories and experiences with each other candidly can we develop a world in which we can truly support each other.
Holiday seasons bring familiar sights across the country as people pack their bags, and make their way to see loved ones both near and far. While traveling is often stressful for most, the experience can become downright scary when something goes awry, particularly for a person with intellectual and developmental disabilities like David.
It was 2015 and a trip that David had made independently dozens of times before over the years. He, his family and support team, and residential staff from Opportunity Partners all knew the plan for him getting to Greater Minnesota. David would be driven to the bus station and dropped off at the front door, he would walk through the terminal with his bags, and get on the bus, like any other trip. Little did he know that the increase in holiday travelers meant additional buses were present in the station that morning and the bus he was accustomed to taking was actually parked a few spots ahead of the one he was climbing aboard. David’s ticket was not checked as he boarded the bus. He never arrived at his destination.
The next 72 hours were a whirlwind for Opportunity Partners’ Program Manager Alicia Talley. She spent a majority of her holiday weekend making phone call after phone call, taking on the role of investigator as she waited impatiently for a police officer to take on the case.
David had accidentally boarded a bus to Wisconsin instead of central Minnesota and upon arrival sat at the station alone. Although he carried a cell phone and money, he sat and waited. He neglected to take his medication, his briefs went unchanged, and he was afraid that he was going to be in trouble. Finally, two days after David’s arrival, a station worker realized that he had been sitting for quite some time without eating or departing. Someone reached out to him to ask if he needed help, his ticket was checked, and he was sent on a bus back to Minneapolis.
David’s situation was scary for all the people involved. Those who work in the disability service field know that supporting people with disabilities means taking reasonable risks so that the person they are supporting can experience the greatest possible independence and inclusion in their community. After this incident, David and his team had to take a moment to reflect on what had happened and what could be done in the future to prevent it from happening again.
David’s experience was shared with the Opportunity Partners’ Committee of Advocacy and Leadership (COAL), a group of some 30 self-advocates. They began developing ideas on how to support other people with disabilities in building the skills they needed in crisis situations. The Coffee with Cops project, in part, stemmed from David’s story in an effort to help people with disabilities feel comfortable reaching out to law enforcement for help when needed.
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.
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:
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).
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:
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.
The Arc of the Capital Area in Austin, Texas, began offering prevention and intervention services to at-risk adolescents with intellectual and developmental disabilities (I/DD) about 10 years ago. Through ongoing county funding, we have continued to provide services for at-risk youth. We target a specific cohort: adolescents with I/DD, aged 11-17, who are enrolled in special education and whose disciplinary issues threaten to steer them into the school-to-prison pipeline. The resulting program, Juvenile Justice Services (JJS), has a mission of keeping these students in school, preparing them to graduate, and preventing their involvement in criminal behaviors by providing comprehensive, compassionate support to the students and their families.
Over the past few years several studies have shown that students with I/DD are at higher risk of criminal justice involvement. One-third (33.4%) of incarcerated juveniles have been identified as having a disability that qualifies them for special education, compared to roughly 10% of the general education population (Segal, 2011). However, JJS remains the only program that addresses the unique needs of at-risk youth with I/DD in our region. To the best of our knowledge, it is one of only a few such programs in the United States.
Life for teenagers anywhere is inherently turbulent, constantly rife with personal and societal shifts. It’s even more challenging for young people with I/DD. Many I/DD conditions make it difficult to understand and respond appropriately to social cues, manage reactions to stress, and make connections between behaviors and consequences. The students with whom we work tell us that they do not feel heard or understood. In our experience, their instincts are generally accurate. Many schools remain under-resourced and overburdened, and have not developed ways to deal with students whose needs aren’t easily defined. Many of the teens we work with do not present as someone with any sort of disability. They’re simply seen as “bad kids,” subject to one-size-fits-none discipline that is meant primarily to curb disruptions as they happen, not address their deeper causes. The students’ issues come to light as they begin to fail academically, often combined with disruptive or antisocial behavior. There are almost always external problems that heighten their reactions: language barriers, family difficulties, food and shelter insecurity.
JJS referrals usually come from the student’s school, the Juvenile Probation Department or from parents. Contact from the school or a parent is usually triggered by ongoing behavioral disruptions that the school has threatened to refer to the justice system. If we are first contacted by the probation department, the student already has pending charges. These cases can be as simple as a student becoming upset from being teased and running off of school property, or as complex as being a party to and a victim of gang violence. While we have good relationships with individual schools, counselors, probation officers, and judges, intake protocol has been somewhat piecemeal. We are developing a direct parent outreach program to increase awareness of our services so that that we can reach more students in the prevention phase, long before they are in danger of criminal proceedings.
Once a student meets our intake criteria, they are assigned to a case manager. About 40% of our referrals are bilingual (Spanish-English), and our case managers are required to be bilingual as well. The case manager visits the student and family in home and school settings to develop a comprehensive situational assessment. We have found that one of the most crucial outcomes of an assessment is the discovery of the abilities and strengths of the students and families. These will be leveraged to develop sustainable tools upon which they can ultimately rely for self-advocacy.
The student, family, and case manager then develop individualized goals. Many students are not familiar with a goal-setting process, so the case manager provides step-by-step guidance. We are careful to leave the choice of the goals themselves up to the individuals and families, who are required to be active participants in the program. This builds a sense of ownership, acknowledgement, and motivation. The case manager will also refer the family to basic needs assistance or other programs at The Arc, as well as additional community programs that can aid in stabilizing the home environment so the student can learn.
Students and families are also encouraged to learn about the student’s diagnosis, while being reminded that this diagnosis is only one facet of who the student is as an individual. We have seen better accountability and reinforcement when students and families can differentiate between behaviors that are a manifestation of their disability and those that are chosen but lead to negative consequences. Person-centered planning techniques helps students develop appropriate ways to express their concerns or needs.
Many of the teens we work with do not present as someone with any sort of disability. They’re simply seen as “bad kids,” subject to one-size-fits-none discipline.
Meaningful support requires a team effort. In tandem with goal setting, the case manager teaches students, through hands-on modeling and coaching, how to work with the special education and juvenile justice systems. The case manager attends school meetings, criminal court hearings, and any other meeting that the student or parent requests. Attendance at school meetings allows the case manager to understand the student’s educational plan, and assess parental understanding of their child’s plan and the special education system in general. Visits with probation officers and attendance at court hearings allow the case manager to ensure that the student and family understand the probation terms and court mandates. In each of these settings, the case manager advocates for an understanding of how a diagnosis is manifested in an individual student. This opens an ongoing discussion about effective plan changes that can meet both the needs of the student and the system.
Team collaboration does not stop there. Most students receive services through several service providers. It is important that students and families understand the roles of these different service providers. Within the JJS program, we must also recognize when something is out of our scope of work and connect families with appropriate resources. Coordination with other social service agencies provides additional support to the students and their families.
Within external systems, student grades and school attendance are closely monitored through school progress reports, typically issued every three weeks. If the student is not meeting education standards, the family and case manager have the next three weeks to communicate with teachers before grades are finalized for each six-week reporting period. Monitoring grades and attendance provides insight into emerging trends and specific academic or behavioral areas that require attention. It also promotes proactive parent, student, and teacher communication.
At The Arc, case managers track the number of phone calls, home and school visits, and school and court meetings they have with each family each month. They also track student school and work attendance and note if the student has committed any offenses. Youth and families are continually assessed by the case manager for their engagement and progress on individual goals. This data, combined with annual satisfaction survey data, is used to evaluate the JJS program. In the last full program year, the program conducted 208 home visits and attended 191 school meetings. JJS served 34 youth, of which 85% remained in school and 91% did not reoffend over a one-year period.
The JJS program relies on a strong network to develop resilient students, and by extension, supportive families. We see remarkable growth when students have developed the tools to work through setbacks and advocate for themselves. While each individual family is different, our success is defined by a higher level of self-esteem, accomplishment, and independence for students, as well as stability for families.
Jacob is a bright 16-year-old high school junior in Austin, Texas. Jacob and his mom, Jill, contacted The Arc of the Capital Area’s Juvenile Justice Program last year. He has an autism diagnosis and was performing sensory-seeking behaviors that the school interpreted as defiance. He is physically imposing, and his school responded to his behaviors through physical restraint, including placing Jacob in an isolation room for three days. After repeated attempts to negotiate with the school, Jill called The Arc. Diana Torres was assigned to be Jacob’s case manager. Jacob, Jill, and Diana met at Jacob’s occupational therapy center, Communication Station, to tell me about their experience in the program.
Like many teenagers, Jacob peppers his expressions with hyperbole, but there is a phrase that seems simply heartfelt. At the end of his writings about his school experiences, Jacob says, “I bless The Arc with all my heart and with thanks that goes on for trillions and quadrillions of miles thru the universe so that all the life in space can find it.”
* Texas schools develop behavioral plans for special education students during Admission, Review and Dismissal (ARD) meetings.
In 2010, the U. S. Department of Education, Office of Special Education Programs, funded three model demonstration projects to focus on strategies to promote the successful re-entry of students with disabilities from juvenile justice facilities into education, employment, and community programs. The three projects awarded the four-year funding are:
Although each project is unique, their overall goal is to determine what supports benefit youth with disabilities, ages 14-18, and their families in the reintegration process from incarcerated settings back into their home, school, and community. Each model demonstration project includes the following elements:
Successful transition of incarcerated youth with disabilities back into their communities is measured, in part, using data on high school completion, postsecondary education, and employment.
The projects are currently in their final year and are conducting analysis of their data. This article profiles each project and shares some of their preliminary findings about the participating youth.
The University of Minnesota’s Institute on Community Integration in partnership with Ramsey County Corrections (St. Paul metropolitan area), Volunteers of America (AMICUS, Inc.), St. Paul Public Schools, postsecondary programs, Ramsey county community-based and faith-based organizations, and the Minnesota Department of Employment and Economic Development (DEED) created a comprehensive, evidence-based project to support juvenile offenders with disabilities. These young offenders are transitioning from juvenile justice to secondary education, postsecondary education, and employment in St. Paul and surrounding communities. The Making A Map: Finding My Way Back (MAP) project goals include:
The pilot project involves 63 youth with disabilities (primarily learning disabilities and emotional disturbances) in either Boys Totem Town or the Ramsey County Juvenile Detention Center. While the project is currently analyzing the data, Figure 1 shows the preliminary findings of outcomes for the participating youth as of July 2016.
Commenting on the impact the project has had on youth, one of the project’s advisory members observes, “The MAP project integrates best practices in their inspiring interactions with a group of vulnerable youth. The mentors I have met understand their mentees and their families and set realistic goals and expectations. They promote achievement and emotional growth.”
Project RISE (Re-entry Intervention & Support for Engagement) at Arizona State University (ASU) focuses on developing a model for effective re-entry of youth with disabilities from a long-term secure care facility back into schools, employment, and community programs. It includes intensive educational programming, integrated transition services, and individualized aftercare for youth with disabilities, primarily youth with learning disabilities and/or emotional disturbances.
The project strategies are based on the findings of an earlier federally-funded project – Arizona Detention Transition Project (ADTP). The results of that project suggested that youth with disabilities who received transition services in a short-term detention facility were more successful returning to school and less likely to be re-detained than those youth with disabilities who did not receive the services. Project RISE implements these re-entry practices for youth with disabilities in a long-term facility, the Arizona Department of Juvenile Corrections (ADJC). The transition practices used in the ADTP are implemented in ADJC and the community in an effort to determine whether implementation of Project RISE practices increase engagement and decrease recidivism for youth with disabilities released from a long-term facility.
Arizona State University coordinates development and implementation of the RISE model and its evaluation procedures with ADJC and local schools. Implementation includes:
ASU provides a project coordinator and a transition specialist, conducts training, designed data collection instruments, monitors on-site data collection, and conducts formative evaluation of engagement and recidivism data across all sites. Engagement is measured by reenrollment and attendance in school, employment, and/or positive community activities at 30, 60, 90, and 120 days post-release. Recidivism is measured by new charges, parole violations, and re-detainment at 30, 60, 90, and 120 days post-release. Each collaborating local school (e.g., Tolleson, Mission Academy) provides data on inputs and outputs of re-entry practices. The re-entry practices include:
The pilot project involves 36 youth and is currently analyzing data. Figure 1 shows preliminary findings of outcomes for the youth. Commenting on the project’s approach, an advisory council member observed, “Project RISE has helped us in finding the best way to support the individual needs of the unique kids at Adobe to help them prepare for society and jobs. The advisory council takes a look at what pitfalls youth fall into post release such as [lack of] transportation or being scared to show up in the community for a job, and figures out ways to address these barriers.”
The goal of Project STAY OUT (Strategies Teaching Adolescent Young Offenders with Disabilities to Use Transition Skills) is to help maintain school engagement and post-incarceration educational experiences of young offenders with disabilities and ultimately improve this hard-to-serve population’s transition to adulthood. It developed three model demonstration sites to support special educators in young offenders’ reintegration into education, employment, and community programs. Evidence-based strategies of Motivational Interviewing and Cognitive Behavioral Therapy are embedded into an existing young offender community reintegration training structure. Project staff work with existing districts’ Response-to-Intervention or other initiatives to complement STAY OUT services. Strong relationships are built with the local juvenile parole office and other community agencies such as vocational rehabilitation and behavioral health.
STAY OUT recruited any young offender with an active IEP (or history of special education services) who had been incarcerated in a long-term, close custody setting and was returning to the district and community. The project utilizes an iterative professional development and training process to improve the feasibility, usability, and potential impact of the intervention in its three model demonstration sites. Through the use of expert and stakeholder (practitioner) panels, the research team has developed and refined curriculum materials. Stakeholder groups include entry-level employers, post-secondary educators, special educators, in-facility educators, parole officers, parents, youth, and additional community-based practitioners (e.g., vocational rehabilitation, mental health). Measures of social validity, fidelity, and satisfaction are completed through survey, and individual data is collected on the impact of the program on teacher and student outcomes. Quantitative and qualitative evaluation procedures are used to measure the feasibility, usability, and potential impact of the intervention and how STAY OUT has been mutually adapted into three distinct communities: urban, rural, and suburban.
The pilot project involves 61 youth and is currently analyzing its data. Figure 1 shows the preliminary findings of outcomes. Commenting on the program, one of its Transition Specialists who supports youth in their transition from adjudication to community observes, “Juvenile justice is like a three-legged stool and the three legs of the stool are…how are you doing in the community, how are you doing at home, and how are you doing at school?....If any of those legs doesn’t stand, the stool falls over and the kid typically struggles... So those are the big pieces that I always focus on.”
|Making a Map|
|Graduated high school||7|
|Dropped out of high school||9|
|Moved out of state||4|
|Attending traditional middle/high school||11|
|In residential juvenile facility||10|
|In MN Job Corps||1|
|Transferred to different school district||7|
|Is attending charter school||3|
|Was not served (no consent form)||4|
|Have exited Project RISE||25|
|Returned to secure care (recidivated)||5|
|Closed as "participated in transition services"||17|
|Declined further services from project||3|
|Employed (at least part-time) during participation in Project RISE||19|
|Enrolled in GED or diploma education (at least part-time) during participation in Project RISE||38|
|Enrolled in postsecondary education (at least part time) during participation on Project RISE||1|
|Earned GED or diploma||22|
|Still in juvenile facility||13|
|Stayed on with Young Adult Program (offered by Department of Child Safety)||4|
|Project STAY OUT|
|Have exited project||40|
|Among those who've exited:|
|Returned to corrections system||8|
|Closed as successful||13|
|Had no follow-through||6|
|Declined further services from project||1|
|Had probation files closed||2|
|Taking high school classes toward diploma completion||29|
|Working toward GED||2|
|Enrolled in postsecondary vocational classes||1|
The GTO Cadets training program is packed full of positive, first-responder interactions. Growth Through Opportunity (GTO), based in Roanoke, Virginia, partners individuals with intellectual and developmental disabilities with first responders to learn valuable life, social, and job skills. Our goal is to enhance confidence, employability, and quality of life for participants. From a law enforcement officer’s perspective, there’s no better way to learn than by first-hand experiences in a controlled environment. First responders and GTO Cadets grow immensely in their respective levels of understanding by being partnered together over a 16-week period. This drastically decreases negative encounters during future, real-life situations.
The highly successful GTO Cadets program began in 2014 at the Roanoke Police Department, but quickly expanded to include various police, sheriff, and fire departments across multiple cities and counties in Virginia. The program currently operates as a 501(c)(3) nonprofit organization and is a vendor with the Virginia Department of Aging and Rehabilitative Services (DARS), with plans to expand nationwide.
First and foremost, we promote a fully inclusive and accepting training environment. We designed uniforms specific to our GTO program, outfitting each cadet. This assists them in looking, feeling, and acting the part of a professional. We recognize that every individual has value. Each has a skill to offer this world. Needed most is a little patience, empathy, and an enhanced level of understanding to maximize an individual’s true potential. With the assistance of a first responder/job coach, our cadets are taught specific tasks such as filing and organizing documents, shredding papers, copying and folding safety brochures, providing department tours, acting as special bailiffs in the courtroom, washing police cruisers and fire trucks, and performing light custodial work alongside police officers and fire fighters. We operate Monday-Friday, 9 am–2 pm, and finish each day with mandatory physical exercise, improving overall fitness and confidence, and reducing employment fatigue. We do not train GTO Cadets to be first responders; however, we do teach them to succeed in life – no matter what.
We also provide GTO Cadets with a high level of exposure in the community. They assist our police department with crime prevention presentations, role playing at the police academy (which helps mold the minds of young recruits), and playing the role of the National Crime Prevention Council’s McGruff the Crime Dog®. The Cadets read at senior centers and elementary schools, change transmitter batteries in the Project Lifesaver devices used with individuals with cognitive impairments who wander, and ride in police vehicles in parades and other popular events. In addition, the City of Roanoke has two customized GTO police patrol vehicles, one sheriff’s office vehicle, and a fire department/EMS ambulance, all with the GTO logo highly visible. These activities break down barriers and misperceptions about individuals with disabilities, thus opening doors for volunteer opportunities and future employment.
GTO challenges other agencies across the nation to be pioneers and trend setters in the field. Be creative. Be innovative. Consider incorporating these fine individuals into your agency. “It is the best program ever implemented in the history of the Roanoke Police Department,” according to Retired Chief Chris Perkins. GTO is a life changer and a win-win for all involved.
When I met Travis Akins, he told me about the program he was starting called GTO or Growth Through Opportunity. He asked me if I would like to work for the police department and I said, “Sure.” While working there, I had the opportunity to work in the community with Roanoke City police officers providing safety education to citizens, reading to school children, going to social functions, learning office skills, and showing them all the things I could do because they gave me a chance.
I liked hanging out with all the officers and the Chief. I would bake cookies for them. I really liked riding in the parades on St. Patrick’s Day and Christmas. I got to wear a uniform just like all the other officers. When I was at State Special Olympic Games, I got to wear it and march in the torch lighting ceremonies with officers from other cities. People would recognize me when I was out as one of the GTO Cadets. That really made me happy. All my friends wanted to be in the program, too. Police officers are really nice people and are my friends.
After I graduated, I got a job at Kroger. People recognized me from the police department. Because everyone knew me, I won an award from the National Down Syndrome Society. The Dan Piper Award is given every year to someone in the country that is a self-advocate for people with Down syndrome. I also received the Jaycees’ Outstanding Young Virginian Award. I am happy for all the people that have believed in me so that I am the best person I can be.
My friends often hear me say that children with unique abilities, our son’s being Down syndrome, need to have an owner’s manual at age 18. As parents, we face different challenges. While others are preparing their child for college life, moving out on their own after getting a job, or even marriage, we are challenged with guardianship, waivers, trust funds and trying to find employment services.
When my son, Tyler, finished high school in 2012, he was lost. He was away from his friends, not in a daily routine, and not doing what he liked best: being helpful. We sought employment services though the Department of Aging and Rehabilitation Services (DARS) and were placed on the Medicaid Waiver list to receive funding for job coach services. Neither of these happened.
Tyler began attending a day support program for adults with disabilities, Katie’s Place, two days a week and this filled part of the void. He was asked to be the participant member of their Board of Directors and he quickly accepted. Then he received an opportunity to volunteer one day a week at the Roanoke County Parent Resource Center. Now, I’m thinking, “Great. We have three days covered in addition to his sports activities with Special Olympics and Challenger Baseball.” But it wasn’t great; he still wanted a paying job like everyone else.
Then we met Travis Akins, who told us about the program he was starting called GTO or Growth Through Opportunity. He asked Tyler if he would like to work for the police department and he said, “Sure.” Little did we know that our lives would forever be changed from the moment he said yes.
Tyler’s height immediately jumps from a mere five feet to six feet when he is wearing his uniform. There is such a sense of pride and happiness on his face. He began wearing his uniform and participating in state Special Olympic events alongside other law enforcement agencies throughout the state. The exposure and positive impact GTO has made on Tyler’s life cannot be praised enough. Within two months of graduating from the program, Tyler was employed by Kroger and remains there, earning that paycheck he so wanted. In the time he has been there, he has received two pins for his excellent customer service.
In June 2016, Tyler was nominated for the National Down Syndrome Society’s Dan Piper Award that is presented annually to an individual nationally with Down syndrome who is a self-advocate promoting awareness in their community. On September 17, 2016, 17 friends, including Travis Akins, sat in Times Square watching a picture of Tyler on the jumbotron running in the Special Olympic Torch Run alongside his fellow Roanoke Police Department officers, then went to Central Park where he was presented his award.
Tyler is probably one of the most recognized citizens of Roanoke, Virginia today. It all started with, “Aren’t you one of the police cadets?” Now it’s, “Aren’t you the young man that won that award and went to NYC?” Tyler’s life has no boundaries now. He’s happy and his life is full.
There have long been gaps in disability training for criminal justice professionals, especially with regard to intellectual and developmental disabilities (I/DD). The Arc’s National Center on Criminal Justice and Disability® (NCCJD), funded by the U.S. Department of Justice, Bureau of Justice Assistance, is creating training to address these gaps. As a national clearinghouse for the collection and dissemination of resources, NCCJD serves as a bridge between the criminal justice system and disability community. A central part of NCCJD’s mission, the Pathways to Justice® program, was created to train law enforcement, legal professionals, and victim service providers in communities nationwide about people with I/DD and the unique issues they face when interacting with the criminal justice system.
The Pathways to Justice® program begins with creating Disability Response Teams (DRTs) that NCCJD supports The Arc chapters, or other host sites, to establish. A DRT is a multi-disciplinary team of people with disabilities, disability advocates, law enforcement, victim service professionals and legal professionals (such as attorneys and judges) that is created before training is provided (see Figure 1). NCCJD works with DRTs to provide a day-long training for three primary target audiences: law enforcement, victim service providers, and legal professionals. Using an evidence-based, multi-disciplinary team model, DRTs bring together professionals from both disability and criminal justice professions to share expertise and provide training to these three target audiences, with the goal of becoming the go-to resource on criminal justice and I/DD issues in their communities. On training day, DRT members provide their own insights, expertise, and perspectives throughout the training. The primary purpose of the DRT is to sustain training efforts, but it is also useful in other ways. For example, after going through the Pathways to Justice® training and creating an action plan, the DRT may decide the next step is to focus on reducing the number of 911 calls to local group homes, or on providing targeted training to local School Resource Officers – it all depends on the unique needs of the community. NCCJD is working with The Arc’s network of almost 650 chapters nationwide, at state and local levels, to create DRTs and bring Pathways to Justice® to their communities. The chapters and their DRTs work to train criminal justice professionals, focusing on each stage of the criminal justice system – from initial contact with police through release back into the community – for both victims and suspects/defendants. At each phase, Pathways to Justice® is helping communities identify specific concerns and gaps in services in their own community-based service systems to ensure individuals with I/DD are provided much needed accommodations and supports.
From 2014 to 2015, NCCJD piloted Pathways to Justice® with approximately 300 criminal justice professionals working with five chapters: The Arc of New Jersey, The Arc of Spokane (Washington), The Arc of the Midlands (South Carolina), The Arc of Pikes Peak Region (Colorado), and The Arc of Maryland. Planning is now underway to train an additional 300-plus criminal justice professionals in 2017 with The Arc of New Mexico, The Arc of Texas, Berkshire County Arc (Massachusetts), The Arc of Ventura County (California), The Arc of Loudoun County (Virginia), and The Arc of Winnebago, Boone, and Ogle Counties (Illinois). (To learn more about chapter programs see the profiles of 14 participating chapters at The Arc's Criminal Justice Programs.
At the close of each training, with an action plan in hand, the DRTs are empowered to identify both individual and systemic actions to address the issue comprehensively. Measuring the impact of the Pathways to Justice® training, while expanding it to more communities nationwide, is the primary goal of NCCJD as the Center continues to grow and evolve. NCCJD and Pathways to Justice® are addressing a long neglected population of people in the criminal justice system. NCCJD is committed to filling the gaping hole many victims and defendants with I/DD fall into where no services or supports are currently available, and where there is literally nowhere else for individuals to obtain support.
The Arc Pikes Peak Region has provided advocacy in Colorado Springs and its catchment area for over 60 years. During that time The Arc developed a criminal justice advocacy program that works with people who have intellectual or developmental disabilities (I/DD) involved in the criminal justice system, both as victims and as individuals accused of committing crimes. In Colorado Springs, and throughout the country, The Arc works with all players involved in the developmental disability system, including regional and state developmental disabilities systems; residential and vocational providers; state departments of social services, Social Security, and vocational rehabilitation; school systems; parents and guardians of people with I/DD; and people with I/DD. When someone with I/DD gets involved in the criminal justice system, The Arc has the capacity to work with nearly anybody who touches the life of the person. This is critical when attempting to provide first-rate, effective advocacy to suspects, defendants, victims, and witnesses.
In 2015, The Arc of Pikes Peak was selected as one of five chapters nationwide to pilot Pathways to Justice®, a one-day training on I/DD for criminal justice professionals offered through The Arc’s National Center on Criminal Justice and Disability®. Participating in the training required the creation of a Disability Response Team (or DRT), which included representatives from the disability, law enforcement, legal, and victim advocacy communities. The training provided a meeting ground and compelling reason for the community to come together to focus on people with I/DD in the criminal justice system.
Not long after going through the training, the DRT had the opportunity to put what they learned into practice by working together to divert a suspect with I/DD from the criminal justice system. Pikes Peak BOCES (Board of Cooperative Educational Services) called The Arc of Pikes Peak with a crisis situation. BOCES staff stated that one of their clients – a 19-year-old with autism in transition services – met a girl who said she was of age but was actually only 13 years old. Allegedly, they “‘hooked up’” but did not have sex. However, the girl’s friends told their parents, who subsequently reported what had happened to authorities. The young man was in trouble and BOCES staff hoped The Arc could help.
Due to the Pathways to Justice® training, the chapter was able to quickly reach out to Officer Sean Collins, one of their DRT members, to find out if the Sex Crimes Unit had interviewed the young man yet. Officer Collins called the Sex Crimes Unit and informed them that the young man had a disability and learned that they hadn’t interviewed the suspect yet, but would in the near future. The chapter staff asked Officer Collins to notify them when the young man was brought in for questioning, because it was critical that the suspect not be alone without representation or an advocate. Officer Collins agreed to this request and helped make arrangements. The quick coordination among just a few DRT members responding to a crisis situation enabled The Arc to be involved early on in the process. This small act of early intervention was critical, and helped to ensure that the suspect obtained due process and was provided the assistance needed every step of the way in the criminal justice system.
Pathways to Justice® also helped the chapter expand training to new audiences. The program allowed all of those involved in the criminal justice system, from police officers to probation officers, to show more empathy towards and understanding of those with disabilities. The DRT also succeeded in creating stronger ties and more meaningful collaboration between law enforcement and the I/DD community. With ongoing support and technical assistance from the National Center on Criminal Justice and Disability®, The Arc of Pikes Peak’s goal is to continue building upon current success to provide life-changing advocacy to people with I/DD in the criminal justice system.
In Colorado Springs, a large number of our calls for police service come from – or are concerns about – citizens with mental illnesses or intellectual/developmental disabilities (I/DD). In response, we’ve created a Community Response Team (CRT) to assist citizens in crisis. I am a CRT officer. My response to calls for service concerning people with mental illness or I/DD allow me to help the person in crisis and, if possible, prevent legal charges. We provide the correct resource at the right time, helping to eliminate the crisis.
Almost a year ago I attended a Disability Response Team training session provided by The Arc of Pikes Peak Region and that training helps me to this day working with people with I/DD. The training covered the federal requirements and laws concerning people with disabilities, but even more importantly for me it covered how to recognize people with disabilities and how to positively interact with them. Understanding how someone who has I/DD might be thinking or how they might react can play a huge role in how I interact with them. As a police officer, knowing how to interact with a population to create positive results can only lead to success for the citizen, my community, and my department.
One crucial portion of the training provided the local resources available to first responders and the families of people who have I/DD. When first responders show up on scene it is sometimes easy to focus on the imminent threat, but we forget how our and others’ actions affect the family. Many times people with I/DD are cared for by close family members. Family members often feel overwhelmed and stressed. When there is an incident in which the person and the family feels they need immediate help, how police, fire, and EMS react can make positive or negative impacts on the person and their family for the rest of their lives. By providing the right response, and sharing some of the community resources available to the person and family, it shows how much we are willing to help them.
Officers and other first responders have many “tools” in their toolkits to help on service calls. The tools provided by The Arc are some of the best that have been provided to me and my department. Recognition, intervention techniques, and community resources provided by The Arc’s training impact not only me and my department, but most importantly the citizens with I/DD and their families. This model can lighten the load on calls for service and divert unnecessary court processes. The training The Arc provides is a tool every officer should have in their toolkit.
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):
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.
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:
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.”
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.
Prisoners with I/DD are often denied accommodations to access programs and services. For example:
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:
Implementation of the following recommendations could dramatically improve outcomes for prisoners with I/DD:
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.
1 42 U.S.C. § 12101 et seq.
2 The regulations that interpret Title II include some specific requirements for prisons as well. See 28 C.F.R. § 35.152
3 20 U.S.C. § 794 et seq.
4 20 U.S.C. § 1400 et seq.
5 42 U.S.C. § 15601 et seq.
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).
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.
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.
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):
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).
We continue to have a consensus regarding the diagnostic criteria for intellectual disability between the two national treatises (i.e., AAIDD and DSM-5). Both define intellectual disability as a developmental condition that is characterized by significant deficits in both intellectual functioning and adaptive behavior, as expressed in conceptual, social, and practical skills. The AAIDD and DSM-5 manuals are periodically revised to account for evolving science and understanding of the condition and to provide the most robust and clinically valid diagnostic criteria of intellectual disability so that clinicians can, with the utmost sensitivity and specificity, make a determination of intellectual disability. The current AAIDD and DSM-5 definition and diagnostic criteria of intellectual disability, however, have not substantially changed from the definition and diagnostic criteria set forth by AAIDD more than five decades ago (Tassé et al., 2012; Tassé et al., 2016).
The Supreme Court of the United States in Atkins v. Virginia (2002) exempted people with intellectual disability from capital punishment under the 8th Amendment to the U.S. Constitution (i.e., protection from cruel and unusual punishment). How triers of fact make the determination of intellectual disability remains a state’s responsibility. However, although the Court has left to the states the responsibility to define who has an intellectual disability, the Court has made clear (see Atkins v. Virginia, 2002; Hall v. Florida, 2014; Moore v. Texas, 2017) that the state’s definition and process for making a determination of intellectual disability should be in alignment with the accepted clinical/medical community’s diagnostic framework of intellectual disability (i.e., AAIDD and DSM). In its most recent decision, the Court unanimously rejected the state of Texas’ use of the Briseño factors because it was predicated on misconceptions, erroneous stereotypes and was not in alignment with accepted practice as established by the national clinical/medical treatises defining intellectual disability.