NADD Bulletin Volume II Number 2 Article 1

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When People with Complex Disabilities Break the Law: Forensic Issues and Solutions

Marc Goldman, M.S.

Introduction

Society continues to struggle with determining appropriate treatment for individuals who have developmental delay and have been convicted, or accused, of a crime. We are committed to providing supports to people who have developmental disabilities. On the other hand, society is determined to punish citizens who break the law. People with developmental delay have inherent characteristics that exacerbate vulnerability in the criminal justice system. Professionals in the human service and criminal justice system frequently fail to recognize the vulnerabilities of the population and categorize all such individuals as dangerous criminals or harmless, innocent “children.”

Is the individual a criminal who happens to be developmentally disabled? Has the person with developmental delay had a run in with the law? Has the professional support system failed the individual who has engaged in criminal misbehavior? Has the individual received equal justice under the law?

With community safety as the priority, aggressive prevention, assessment and treatment of this small but significant population should occur throughout the continuum of care. Service providers at all levels should consider implementation of prevention programs. Consumer education will reduce the risk of restricted freedom, allow self-determination, as well as promote community safety.

Prevalence and Descriptive Information

State departments of correction provide most of the information concerning individuals with developmental delay who have criminally misbehaved. There is marked variability in prevalence rates. This can be attributed to a lack of standardized procedures for determining developmental delay.

States that estimate intellectual ability with the Wechsler Adult Intelligence Scale-Revised report approximately 2% of their inmate population are developmentally disabled. Noble and Conley (1992) concluded that this is a good estimate of the percentage of inmates in United States prisons who have mental retardation. With over one million individuals currently incarcerated, a conservative estimate of inmates with developmental delay would be 20,000 individuals. Many argue that prevalence is much greater than 2% and that people with developmental delay are over represented in the prison population. Keep in mind that this estimate does not include individuals who are on probation or parole, in local or county jails, or remanded to residential treatment facilities because they are suspected of, or have been found to have engaged in, criminal misbehavior.

Although it is probably safe to assume that many inmates who are developmentally delayed also have mental health needs, little information is available pertaining to inmates with developmental disabilities and psychiatric diagnoses. Prevalence rates of such individuals have been reported from 1.1% to 37.3% (Noble and Conley 1992).

Santamour and West (1982) reported that inmates who were developmentally delayed tended to be somewhat older than the general prison population and were overrepresented by minority groups.

The Vulnerabilities

Despite individual differences, some characteristics inherent in people of low intellect make them vulnerable in the criminal justice system. They are more likely to be apprehended than criminals of normal intelligence. With their first encounter with police they are likely to communicate and behave in ways that increase the chance of arrest and punishment regardless of guilt, innocence or mitigating circumstances (Perske 1991).

Many individuals with developmental delay have learned that it is best to conceal their disability in order to gain social acceptance. They have learned to live a life of denial. Although such behavior might be considered adaptive as it often works to one’s advantage in the community, it can result in serious consequences when generalized to the criminal justice system. The suspect may acknowledge an understanding of their Miranda Rights, when in truth they are not aware that they are entitled to legal representation.

Motivation to please others, especially authority figures, can result in an individual with developmental delay telling police what they think they want to hear, including a false confession.

The inmate who is developmentally disabled often has trouble following prison rules. In their confusion they get into trouble for rule violations and may be regarded by authorities as a “management problem.” They are easily “set up” and taunted by other inmates. The stressors they are exposed to while incarcerated can result in behavior that suggests psychosis. Parole boards are unlikely to grant parole to individuals who frequently break prison rules or display bizarre behavior.

Mental Health Law

Society maintains that a person cannot be tried in court if, because of a mental illness or developmental disability, he or she is unable to comprehend the charges or legal proceedings or assist their attorney in their defense. Any officer of the court can request that the court consider the defendant’s “competency” to be tried at any stage of legal proceedings. Note that competency for trial is not the same as determining if the individual is in need of a guardian.

Insanity laws are rooted in society’s long held belief that one cannot be held responsible for a crime if they were unable to understand the implications of their actions because of a mental illness or defect. In such cases the individual is found to be Not Guilty By Reason of Insanity or Not Criminally Responsible.

Whether found Incompetent or Not Guilty By Reason of Insanity, the court has several options including sending the person to a treatment facility for a specific period of time.

Treatment

Treatment services for this population are in short supply. Excellent programs do exist. However, the needs for treatment services far outweigh availability.

Secure mental hospitals, referred to as forensic hospitals, where individuals are treated for competency restoration or as Not Guilty By Reason of Insanity, are run by state departments of mental health and in a few states, departments of correction. The majority of patients in these settings are people with normal intelligence and mental illness. But a significant number of forensic patients who have developmental delay reside in these settings. Kerr and Roth (1987) found that 16.7% of individuals in state-operated forensic hospitals were developmentally disabled.

In most forensic treatment settings, the remandee who has developmental delay is vulnerable. The forensic hospital might provide excellent treatment for people of normal intelligence who have mental disorders but it is unlikely to have adequate resources to treat and habilitate the patient who has intellectual impairment.

Although most of these individuals will eventually be released into the community, few receive treatment intended to decrease the likelihood of reoffending. Despite increasing awareness of the need, few states have forensic treatment centers specifically designed to meet the needs of individuals with developmental delay.

It has been the author’s experience that community providers are reluctant to make services available to otherwise qualified individuals due to a criminal history, regardless of the type of crime or disposition of the case. Some who provide excellent individualized community supports and treatment seem to equate criminal history with Antisocial Personality Disorder and fail to see the individual as a human being with developmental needs.

Hingsburger, Griffiths, & Quinsey (1991) emphasized the importance of comprehensive evaluation. They suggested that sexual offenses committed by individuals who have developmental delay, regardless of level of intrusiveness, are not always the result of deviant arousal. They cautioned that the sexual misbehavior must be taken seriously but discouraged clinicians from making assumptions about the individual solely on the “look” of the offensive behavior. They defined “counterfeit deviance” as behaviors that appear deviant upon initial observation but can be attributed to factors other than deviant sexual arousal. The concept of counterfeit deviance can be expanded to include any type of criminal act in which a person who has developmental delay engages. As we attempt to understand criminal behavior, we should consider influencing variables beyond criminal intent. A comprehensive evaluation of the offender should consider medical, psychiatric, psychological, habilitative, social, and environmental factors that could have influenced or contributed to criminal behavior. This approach will result in the discovery of some counterfeit criminals.

Determining counterfeit criminal behavior will not lessen the pain and hardship of the victim and their family. Determining counterfeit criminal behavior should play a significant role in the disposition of a criminal case. Detecting counterfeit criminal behavior places increased responsibility on human service providers to implement treatment designed to reduce the likelihood of repeated offensive behavior.

Treatment of individuals with developmental delay who have mental health needs and have engaged in criminal misbehavior requires comprehensive assessment. Effort should be made to gather a factual social history, keeping in mind that speculations of others often turn into “facts” on paper. These “facts”, having little or no basis in reality, can result in misdiagnosis, undertreatment, or lack of treatment. Frequently professionals assume that anyone with a criminal history is antisocial. Effort should be made to establish that diagnostic criteria are met for Antisocial Personality Disorder rather than awarding the diagnosis to anyone arrested. Although a lengthy “sheet” of criminal activity or one heinous act will probably indicate that measures should be taken to protect the community, it does not necessarily equate to an inability to treat.

The Multimodal Integrated Intervention Plan (Gardner and Sovner 1994) is the ideal approach for assessing and treating criminal misbehavior. Factors that contributed to the criminal misbehavior should be hypothesized and appropriate interventions designed. For instance, someone charged with burglary may lack vocational skills and would be willing to obtain money legally if given employment. Vocational skill training and supported employment could possibly prevent future criminal behavior and increased restriction of rights. A second individual, charged with the same crime, may be motivated to obtain extra funds to support a drug habit. In such a case, quality treatment for drug abuse would be an appropriate treatment intervention.

Prevention

The interplay of multiple factors has resulted in numerous opportunities, previously unavailable, to people who have developmental disabilities. As freedoms have been gained, support systems have been challenged to provide skills training to assist individuals to take full advantage of new opportunities. Our field now recognizes the importance of providing meaningful vocational training to assist the individual in taking advantage of employment opportunities that go beyond sorting colors. A growing number of us recognize the necessity of quality sex education programs, not only to assist the consumer in achieving sexual health, but to decrease the individual’s vulnerability of abuse, as well as decreasing the likelihood that they will victimize others. The time has come for us to recognize that specific programs should be implemented to reduce the risk of criminal misbehavior. Liberty and self-determination provide increased opportunities to break the law. As we demand that self-determination be ensured, we are obligated to teach the concept of community responsibility.

Some such curricula are currently available and do not require excessive resources. We need to add prevention training into current child and adult education programs. As with other education programs, these curricula will require research and refinement.

In addition, we should consider the behavior of individuals for whom we are providing services. Are they engaging in behaviors that could result in criminal prosecution? Do they misbehave in ways that place the community at risk? Are they acting in ways that potentially will result in restricted freedom and loss of the right to self-determination? If so, we are obligated to aggressively treat the behavior rather than simply contain or control it. Treatment of problematic behaviors is rarely the easy choice. Behavioral control, although frequently required to prevent harm to self and/or others, does nothing to increase freedom and self-determination.

Case Example

The following brief example is a fictional case and does not exclusively describe a specific consumer whom the author is familiar with. Despite informed consent of clients to discuss them in forums such as this, the author has determined that it is best to respect confidentiality.

Kent had been in county jails on two occasions on charges involving violent behavior. Although he had been cooperative with the community support program, they were reluctant to serve him due to his criminal record. They reported that he was a quiet, polite man who had few needs. He had abused alcohol and cocaine in the past and was encouraged to attend AA meetings. He was prescribed Haldol as it was the medication he was on when released from prison, three months prior to evaluation. Staff reported that Kent was actively seeking employment. However, they would not assist him in obtaining supported employment due to his history of violence. His DSM-IV diagnosis was:

Axis I Alcohol Abuse, Early Full Remission

Cocaine Abuse, Early Full Remission

Axis IIMild Mental Retardation

Antisocial Personality Disorder

Axis IIINo Diagnosis

No information was reported for Axis III or IV. Kent had not ingested alcohol or cocaine during his time in jail or since release. No information in his social history suggested that he had displayed a conduct disorder as a child or adolescent. This made the diagnosis of Antisocial Personality Disorder questionable.

Upon interview, Kent reported that he had difficulty making friends and was lonely. He was attending AA meetings and enjoyed being with the members; however, he did not understand “what they were talking about.” He did not believe he had a problem with drugs or alcohol. Rather he maintained that substances were good for him. He based this on the fact that, “The only time I feel good is when I’m doing crack or drinking.”

Kent willingly discussed his criminal behavior. On the first occasion he robbed someone at knifepoint in order to support his drug habit. The second offense was the result of a fistfight that occurred in a neighborhood tavern. Kent stated that he attacked a man who had made fun of him.

Clearly Kent had engaged in behaviors that cannot be tolerated in the community. However, it is unlikely that Kent will become a model citizen through his experiences in jail. Without assessment and treatment, he will likely continue to be arrested by authorities, avoided by human service providers and labeled as incorrigible.

It was hypothesized that several variables contributed to his criminal misbehavior. Based on assessment, several interventions were suggested. 1) The relationship between drugs and alcohol and Kent’s difficulties clearly supported a need for substance abuse treatment. Weekly attendance at AA meetings would not be sufficient. Kent would require an intervention that would assist him in understanding the relationship between his drug and alcohol abuse and incarceration. We might expect Kent to be resistant to understanding the relationship as he perceived alcohol use as his only means of well being. He would need to experience an improved quality of life as a result of abstinence (Annand and Ruff 1998). 2) His loneliness and need for alcohol or substances to “feel good” suggest the possibility that Kent was experiencing a mood disorder. It was recommended that objective measures of depression be collected to rule out such. The efficacy of the Haldol was questioned and it was suggested that a psychiatric consult review its use. 3) Kent’s social skill deficits may have contributed to his loneliness, possible depression, and substance abuse. This implied the need for a quality social skills education program that would enable Kent to develop a social support network. He would also require assistance in learning where to meet peers and assistance in securing transportation to do such. 4) Unemployment contributed to Kent’s continued isolation and low self-esteem, motivating him to abuse substances. Kent’s desire to obtain employment was encouraging. The agency was urged to pursue evaluation of his vocational skills and assist Kent in obtaining appropriate employment.

Based on the above hypotheses, the treatment team would have to determine how to implement numerous interventions, seek additional consultation when indicated (i.e. assistance with development of substance abuse interventions), determine when each intervention should begin, measure efficacy of each intervention, and review progress and modify treatment as indicated on a regular basis.

Summary

The intent of this article is not to excuse criminal behavior of people who have developmental delay. They should be held accountable for their actions as any citizen should. As citizens who have developmental delay, they are entitled to appropriate supports. Rather than assuming that the label “criminal offender” rules out the possibility of habilitation, service providers should carefully evaluate the individual and determine if the behavior is the result of needs that the treatment system has failed to recognize or adequately address.

When treating such individuals we should not:

Assume they are antisocial;

Assume it won’t happen again;

Assume the court will not consider mitigating circumstances;

Substitute confrontation and control for treatment.

When treating such individuals we should:

Obtain a reliable social history;

Rule out substance abuse as a factor contributing to criminal misbehavior;

Remember our responsibility for the safety of the individual and community;

Consider “counterfeit criminal behavior”;

Utilize the Multimodal Integrated Intervention Plan when assessing and treating criminal misbehavior.

References

Annand, G. N. & Ruff, G. (1998), “Overcoming barriers to effective treatment for persons with mental retardation and substance abuse problems”, The NADD Bulletin, Vol. 1, No. 2.

Gardner, W. I. & Sovner, R. (1994) Self–Injurious Behaviors Diagnosis And Treatment: A Multimodal Functional Approach. Pennsylvania: VIDA Publishing.

Hingsburger, D., Griffiths, D., & Quinsley, V. (1991), “Detecting counterfeit deviance: Differentiating sexual deviance from sexual inappropriateness.” The Habilitative Mental Healthcare Newsletter, 10, (9), 51-54.

Kerr, E., & Roth, J. (1987). “Survey Of Facilities And Programs For Mentally Disordered Offenders.” DHHI Pub. No. ADM 86-1493. Washington, D.C.: U.S. Government Printing Office.

Nobel, J.H., & Conley, R.W. (1992) “Toward An Epidemiology Of Relevant Attributes” in Conley, R.W., Luckasson, R., & Bouthilet, G.N. (Eds.) THE Criminal Justice System And Mental Retardation: Defendants And Victims. Baltimore: Paul H. Brookes.

Perske, R. (1991) Unequal Justice. Nashville: Abingdon Press.

Santamour, M., &West, B. (1982) “The mentally retarded offender: Presentation of the facts and a discussion of the issues” in Santamour, M., & Watson, P. (Eds.) The Retarded Offender. New York: Praeger Publishers.

For further information contact:

Marc Goldman
TheraEd
3326 Chapel Hill Blvd.
Building A, Suite 130
Durham, NC 27707