Criminal proceedings discrimination: Prosecutors and Courts refusing to make disability accommodations, failing to understand a disability, or trying to criminalize their impairment are all examples of ableism in the CJS. For example, punishing or incarcerating behaviors that are manifestations of a developmental disability.
Individuals endure ableist oppression throughout the criminal process. The law only recognizes a narrow band of disabilities as legitimate and worthy of accommodations, even those can be deeply inadequate and often harmful, leaving many people with disabilities who are criminalized abandoned.
The vast majority of autistic people are law-abiding citizens who are more likely to be victims of crimes than commit crimes, but they are still seven times more likely to intersect with the criminal justice system than individuals without autism (Berryessa, 2014)
"If my autistic child is criminally charged, would I expect prosecutors and judges to consider autism during charging, plea negotiations, and sentencing? Is incarceration necessary if he/she is not dangerous to society?"
Autism spectrum disorder (ASD) is a neurodevelopmental disorder defined by persistent deficits in social communication and social interaction, accompanied by restricted, repetitive patterns of behavior, interests, or activities. Autism presents at birth. DSM-5
Although autism can be diagnosed as early as 15-18 months of age, the average age of diagnosis is about 4.5 years, and some people are not diagnosed until adulthood. In 2004, 1 in 150 people were diagnosed autistic. In 2020, 1 in 36 people were diagnosed as autistic.er to this item.
Dr. Hannah Belcher is a lecturer, researcher, speaker, and author. Here Hannah discusses masking in autistic people, based on research and her own
Research suggests that less than 10% of autistic individuals have been gifted with an exceptional skill.
1/3 of autistics attempt to go to college, of the 1/3 who attempt college, 20% graduate within 5 years. According to the Department of Labor, 2023, 85% of college graduates with autism were unemployed. 16% of autistic adults work full-time. 22% have any kind of Employment. (BBC)
In a study in Sweden from 1987 - 2009, scientists from the Karolinska Institute, concluded that the average life expectancy for autistic people is about 54 years. Furthermore, this population succumbed to health complications about 20 years earlier than their neurotypical peers.
In a study done by Toronto’s Redpath Centre, 9% of autistic people are married. This contrasts with the statistics of the general population where about 50 percent of adults are married.
Multiple Studies indicate 44% of autistic children have experienced being victimized. (Copenhaver & Tewksbury, 2019)
1 in 5 autistic people have alexithymia. People who have alexithymia may have trouble identifying, understanding, and describing emotions. 85% of autistic people with ASD lack the ability to convey their feelings into words, suggesting a lack of emotional awareness and an inability to express empathy. While it is true that autistic people often have a harder time reading social cues, this does not necessarily demonstrate lack of empathy. Every autistic person is unique. Some may struggle with empathy while others may feel completely consumed by other people’s feelings. This does not mean sadness for one's situation is not possible, rather difficulties in perspective, walking in another's shoes. (Samson, Hubber, & Gross, 2012).
Although we know autistic persons can be extremely law abiding due to their rigid rule-following nature (Stout, 2016), we are also aware that autistic people are vulnerable to becoming involved in the Criminal Justice System (Haskins & Silva, 2006) It is worth noting, transgressions and rules are not intuitive for those on the spectrum, they must be specifically taught. (Payne et al.'s 2019a)
Autistic individuals may communicate and behave differently, which others might perceive as socially inappropriate or offensive. This perceived offensive behavior results in autistic individuals entering local and federal courts in growing numbers. Those who do not need as many daily supports and are able to mask at times are often not recognized by either the police or the court as an autistic person because “they don’t look autistic.”
The vast majority of autistic people are law-abiding citizens who are more likely to be victims of crimes than commit crimes, but they are still seven times more likely to intersect with the criminal justice system than individuals without autism (Berryessa, 2014) In Law, something known as The Reasonable Person Standard is being applied to autistic persons discounting their developmental disability altogether.
Today, courts are dealing with instances of autism spectrum as it relates to criminal intent, but approaches vary, as there is no uniform or legislative pronouncement on how this neurotype relates to mens rea, nor is culpability considered by prosecutors in Federal Criminal Courts.
Yes. Studies suggest autistic persons are vulnerable to and victims of false confessions quite often. Having a need to please and a willingness to comply (Gudjonsson et al., 2002), high anxiety, and a fear of negative evaluation (North er al. 2008), Concrete Thinking (Debbaudt 2004), Pressure and deception are confusing for those on the spectrum. Mogavero (2016).
Unfortunately, The United States Bureau of Prisons Is not required to screen for or track this data so we have no idea.
Prisons lack proper mental health care for autistic inmates. There is no training in place on autism for CJS professionals, nor are there service standards for autistic individuals for incarceration to support their community and reduce recidivism. Autistic people often experience heightened sensitivities, loud, crowded, and bright fluorescent lights, make a prison environment tortuous for many of those on the spectrum.
Because there is no screening or data collection of autistic inmates, there is limited and inconsistent data on the relationship between autism and recidivism rates. Some studies suggest that autistic individuals have a very low rate of recidivism, less than 1%, when the individual receives social education with a focus on the nature of their offense. If true, this would be the lowest recidivism rate for any incarcerated population.
Virginia Has Passed Legislation - SB133: Deferred disposition in criminal cases. Allows a court to defer and dismiss a criminal case where the defendant has been diagnosed with autism or an intellectual disability and the court finds by clear and convincing evidence that the criminal conduct was caused by or had a direct and substantial relationship to the person’s disorder or disability.
Diversion would include an individualized justice plan tailored to the individual's needs.
Autism spectrum prevalence is rising, and as this population enters adulthood, preliminary research has identified high rates of contact with the criminal justice system. Policy and programmatic reform are crucial given the reported negative and violent outcomes for autistic individuals when encountering the criminal legal system. Given the size and scope of the entire criminal legal system, identifying priorities and opportunities for change is critical, and must be rooted in evidence-based findings to maximize impact and scalability.
Currently, the Federal criminal legal system makes little or no attempt to understand this population or to recognize their unique needs, supports and challenges. Criminal prosecutions ignore criminal intent, unfairly holding autistics to the reasonable person standard, even when it is clear that their disability played a major role. Prosecution of these individuals often leads to disastrous consequences for children and their families without any benefit to the public, suffering unnecessary cruelty under an inequitable criminal justice system. This is an issue of human rights.
Diversionary programs are programs for first-time offenders and/or minor or nonviolent offenses that steer an individual away from the traditional criminal justice process to rehabilitative programs in the community. Eligibility for diversionary programs vary by jurisdiction. Diversionary programs are an alternative to the standard court process of a plea and sentence or a trial in the case of a non-guilty plea. For various crimes and offender characteristics, counseling or some type of therapeutic intervention may be the best choice for both the offender and the community. This approach is seen as both effective and less costly than the standard court process.
The goal of diversionary programs is to prevent an individual from becoming a repeat offender and becoming entangled in the justice system. This can be accomplished by helping them avoid incarceration and from developing a criminal record. Features of diversionary programs vary by jurisdiction. Under some diversionary programs, the defendant does not have to enter a guilty or no contest plea to receive diversion. Other diversionary programs require that the defendant formally admit guilt but suspend punishment until the defendant has had the opportunity to complete the assigned program. Often the plea is not formally entered into the court system so it can be erased upon successful completion of the program.
The purpose of this Act -
Autism Spectrum Disorder (“Autism”) is a disability recognized under the Americans with Disabilities Act. Autistic people are entitled to reasonable accommodations during and after the criminal process. The purpose of this chapter is to promote all of the following:
Human Rights for Developmentally Disabled in Action...
Developmental Disabilities – Felony Diversion Program (DD-FDP) Overview: Beginning November 2021, the Maricopa County Attorney’s Office (MCAO) will launch the Developmental Disabilities – Felony Diversion Program (DD-FDP). This is a program that provides a diversion alternative to those eligible post-file felony offenders with a qualifying diagnosis for a Developmental Disability (DD). Along with other prescribed eligibility criteria, offenders must have a minimal criminal history and are at low risk to reoffend. Diverting these offenders reduces their contact with the criminal justice system, increases connections to appropriate community-based systems of care, and holds the individual accountable for criminal conduct through their participation using evidenced-based, cognitive-behavioral techniques If applicable to their case, restitution must be paid in full to earn a successful completion; thus, providing timely financial restoration to the victim. Overall, the DD-FDP will address the behavioral health and criminogenic needs of the offender.
Clark and Atkins primarily affect inmates in prisons, rather than jails. However, their influence is felt more broadly. California Penal Code now stipulates:
CRP sets up guidelines for the CDCR but the guidelines would well serve all correctional facilities, including:
Early Removal from the Sex Offender Registry
Disability: Registrants with a qualifying physical or intellectual disability may petition for termination at any time. § 16-22-113(2.5).
Eligibility for Removal From Sex Offender Registry:
Disability: the court may consider any relevant information presented by the petitioner or district attorney. § 16-22-113(2.5)(f).
Standards of Consideration:
Disability: the court must find that "the petitioner suffers from a severe physical or intellectual disability to the extent that the petitioner is permanently incapacitated, does not present an unreasonable risk to public safety, and is not likely to commit a subsequent offense of or involving unlawful sexual behavior." § 16-22-113(2.5)
Law Comparison: https://ccresourcecenter.org/state-restoration-profiles/50-state-comparison-relief-from-sex-offender-registration-obligations/
Law Reference:
The Developmentally Disabled Offenders Program (DDOP) in New Jersey created by the Arc Foundation is one example of offender bifurcation. The program, directed by an attorney with a background in criminal law, acts as a liaison between the criminal justice and human services systems.(8) Using a personalized justice plan (PJP), DDOP offers the court alternatives to incarceration by identifying community support and programs to treat and sanction disabled offenders.
Extraordinary mitigation—or, more precisely, dispositional deviation for extraordinary mitigation—under G.S. 15A-1340.13(g) is a way for the court to impose a probationary sentence for a defendant whose offense class and prior record level ordinarily require an active sentence. The provision was included in Structured Sentencing as a counterbalance to the habitual felon law, although the latter is used much more frequently. Still, the law is a useful sentencing tool in certain cases, and certainly worth knowing about.
Extraordinary mitigation turns an “A” cell on the sentencing grid into an “I/A” cell, allowing the court to suspend an otherwise unsuspendable sentence. Extraordinary mitigation does not authorize the court to alter the term of imprisonment ordinarily required by the grid. It merely allows the judge to suspend that term of imprisonment and place the defendant on probation. State v. Messer, 142 N.C. App. 515 (2001).
Findings. To use extraordinary mitigation, the court must, under G.S. 15A-1340.13(g), find in writing that:
Those findings, which rest in the discretion of the trial judge, may be recorded on form AOC-CR-606.
To be considered extraordinary, a mitigating factor must be significantly greater than an ordinary mitigating factor. The judge must look to the quality of the particular factor, not the overall quantity of proffered mitigators, when evaluating extraordinary mitigation. The sheer number of ordinary mitigating factors cannot, standing alone, support a finding of extraordinary mitigation. State v. Melvin, 188 N.C. App. 827 (2008) (“[Q]uality of factors, not quantity, is the prime consideration for the trial court.”).
The trial judge is not necessarily precluded from making a finding of extraordinary mitigation based on facts that would support a statutory mitigation factor, but there must be additional facts present, over and above those required to support an ordinary mitigator. Id.; State v. Riley, 202 N.C. App. 299 (2010). For example, in State v. Williams, __ N.C. App. __, 741 S.E.2d 486 (2013), the trial judge erred by finding as an extraordinary factor that the defendant’s “level of mental functioning was insufficient to constitute a defense but significantly reduced his culpability.” The court of appeals held that factor to be inappropriate because it was “almost a verbatim recitation” of the normal statutory mitigating factor regarding the defendant’s mental condition. Additionally, the court’s finding that the victim consented to the crime (performing fellatio on the defendant) was also improper as an extraordinary factor in light of the victim’s age. The victim was 14, meaning her voluntary participation could not have supported even an ordinary mitigating factor, as that statutory factor applies only if the victim is at least 16. Williams, 741 S.E.2d at 493. If it could not be an ordinary factor, then it clearly could not be an extraordinary one.
Eligibility. Some offenses are not eligible for extraordinary mitigation. Under G.S. 15A-1340.13(h), the judge may not find extraordinary mitigation for:
Because extraordinary mitigation may not be used for Class A or Class B1 offenses or for offenders with 5 or more prior record points, the law may come into play in only six cells on the sentencing grid: Prior Record Level I and most of Prior Record Level II for Class B2, C, and D. Grid cells below those already allow a probationary sentence, and so the defendant would not be helped by a finding of extraordinary mitigation in any event.
Extraordinary mitigation is not used frequently enough to discern any real patterns in how it gets used. One not-so-recent change in the law might make extraordinary mitigation a better option in certain circumstances. Until 2003, a split sentence could not exceed one-fourth the defendant’s maximum sentence or 6 months, whichever was less. For offenses committed on or after December 1, 2003, the split sentence may be up to one-fourth of the maximum (the 6-month rule was repealed). For a first-time offender convicted of a Class C felony and sentenced to, say, 58–82 months, a judge who suspended the sentence through extraordinary mitigation would have up to 20 months of split time to work with. That’s a measure of flexibility that might come in handy in the right kind of case.
Prison Staff, Law Enforcement, Prosecutors, and Judges Training-
In 2006, following the death of someone with autism during a law enforcement response to crisis, the state of North Carolina began requiring 25 hours of training about autism developmental disabilities, as well as mental illness and substance use disorders, to be included in its required Basic Law Enforcement Training (BLET) for new officers. At the same time, the state began funding programs like those at ASNC to offer training to current law enforcement and other first responders who may not have been reached with BLET. ASNC trains anywhere from 150 to 900 law enforcement and other first responders a year with live in-person or web-based training. In addition, ASNC has partnered with self-advocates, law enforcement, and community foundations to produce a 15-minute video to provide brief information on autism and help foster better interactions with law enforcement.
In 2006, following the death of someone with autism during a law enforcement response to crisis, the state of North Carolina began requiring 25 hours of training about autism developmental disabilities, as well as mental illness and substance use disorders, to be included in its required Basic Law Enforcement Training (BLET) for new officers. At the same time, the state began funding programs like those at ASNC to offer training to current law enforcement and other first responders who may not have been reached with BLET. ASNC trains anywhere from 150 to 900 law enforcement and other first responders a year with live in-person or web-based training. In addition, ASNC has partnered with self-advocates, law enforcement, and community foundations to produce a 15-minute video to provide brief informatd
Policy Statement Denouncing Michael Easley, Jr. - US Attorney for the Eastern District of NC
The Autism Innocence Project, an organization dedicated to advocating for the rights and well-being of individuals with disabilities, vehemently denounces Michael Easley, Jr., the US Attorney for the Eastern District of North Carolina, for his refusal to acknowledge disability as a crucial mitigating factor in legal proceedings. This stance directly contradicts the established policy of the United States Department of Justice and raises serious concerns about the state of fairness and justice in our legal system.
April 11, 2023 - Pennsylvania Supreme Court Highlights Autism Acceptance Month
Feb. 1, 2022 - Pennsylvania Supreme Court Creates Autism in the Courts Taskforce
https://www.pacourts.us/Storage/media/pdfs/20220201/164135-autismtaskforce.pdf
June 17, 2021 - Pennsylvania Supreme Court, Department of Human Services Address Criminal Justice Reform for Pennsylvanians with Autism (Western PA)
April 27, 2021 - Pennsylvania Supreme Court, Department of Human Services Address Criminal Justice Reform for Pennsylvanians with Autism (Northeast PA)
https://www.pacourts.us/Storage/media/pdfs/20210517/182404-file-11473.pdf
March 23, 2021 - Pennsylvania Supreme Court, Department of Human Services Address Criminal Justice Reform for Pennsylvanians with Autism (Central PA and Susquehanna Valley)
https://www.pacourts.us/Storage/media/pdfs/20210517/182309-file-11337.pdf
Feb. 23, 2021 - Pennsylvania Supreme Court, Department of Human Services Discuss Criminal Justice Reform for Pennsylvanians with Autism (Lehigh Valley)
https://www.pacourts.us/Storage/media/pdfs/20210517/182219-file-11213.pdf
Jan. 19, 2021 - Pennsylvania Supreme Court, Department of Human Services Address Access to Justice for Pennsylvanians with Autism (Philadelphia)
https://www.pacourts.us/Storage/media/pdfs/20210517/182122-file-11058.pdf
Oct. 27, 2020 - Pennsylvania Supreme Court, Department of Human Services to Hold Statewide Discussions about Autism in the courts
April 21, 2020 - New Statewide Partnership Focuses on Autism Awareness and Education in the Courts
https://www.pacourts.us/Storage/media/pdfs/20210510/223904-file-9060.pdf
943.0439 Interviews of victims, suspects, or defendants with autism or an autism spectrum disorder.-
(1) A law enforcement officer, a correctional officer, or another public safety official shall, upon the request of an individual diagnosed with autism or an autism spectrum disorder or his or her parent or guardian, make a good faith effort to ensure that a psychiatrist, psychologist, mental health counselor, special education instructor, clinical social worker, or related professional is present at all interviews of the individual. The professional must have experience treating, teaching, or assisting patients or clients who have been diagnosed with autism or an autism spectrum disorder or related developmental disability or must be certified in special education with a concentration focused on persons with autism or an autism spectrum disorder. All expenses related to the attendance of the professional at interviews shall be borne by the requesting parent, guardian, or individual. If the individual is a victim, the defendant shall reimburse the victim for all expenses related to the attendance of the professional at the interview, in addition to other restitution or penalties provided by law, upon conviction of the offense of which the individual is a victim. Failure to have a professional as defined by this subsection present at the time of the interview is not a basis for suppression of the statement or the contents of the interview or for a cause of action against the law enforcement officer or agency. This subsection applies to such an individual who is the victim, a suspect, or a defendant formally accused of a crime.
(2) Each law enforcement agency must ensure that appropriate policies are developed which implement this section and that training is provided to its law enforcement and correctional officers based on those policies.
HB134: Requires the Department of Education to establish guidelines for individualized education program (IEP) teams to utilize when developing IEPs for children with disabilities to ensure that IEP teams consider the need for age-appropriate and developmentally appropriate instruction related to sexual health, self-restraint, self-protection, respect for personal privacy, and personal boundaries of others. The bill requires each local school board, in developing IEPs for children with disabilities, in addition to any other requirements established by the Board of Education, to ensure that IEP teams consider such guidelines.
https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB134&201+sum+HB134
HB659: Department of Corrections; workgroup; recommendations to assist people with developmental disabilities. Directs the Department of Corrections to create a workgroup to review current guidelines and develop recommendations that recognize and make accommodations for people with developmental disabilities.
https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB659&201+sum+HB659
SB133: Deferred disposition in criminal cases. Allows a court to defer and dismiss a criminal case where the defendant has been diagnosed with autism or an intellectual disability and the court finds by clear and convincing evidence that the criminal conduct was caused by or had a direct and substantial relationship to the person’s disorder or disability.
https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+SB133&201+sum+SB133
HB5043 Marcus alert system: LRIDD strongly advocated for this bill and successfully encouraged the bill to include developmental disabilities in addition to a mental health crisis. The bill provides that, by December 1, 2021, DBHDS shall establish five Marcus alert programs and community care or mobile crisis teams, one located in each of the five DBHDS regions.
https://lis.virginia.gov/cgi-bin/legp604.exe?202+sum+HB5043
SB1315: Criminal proceedings; consideration of mental condition and intellectual and developmental disabilities. Permits the admission of evidence offered by the defendant concerning a defendant’s mental condition at the time of an alleged offense, including expert testimony, is relevant, is not evidence concerning an ultimate issue of fact, if such evidence (i) tends to show the defendant did or did not have the specific mental state required for the offense charged and (ii) is otherwise admissible pursuant to the general rules of evidence. If a defendant intends to introduce such evidence, the bill requires him or his counsel to give notice in writing to the attorney for the Commonwealth. The bill also clarifies that a diagnosis of an intellectual or developmental disability shall be considered by a judicial officer for the purpose of rebuttal of a presumption against bail and that a court may order that a sentencing report prepared by a probation officer contain any diagnoses of an intellectual or developmental disability. Lastly, the bill adds to the requirements to be met for qualification as a court-appointed attorney two hours of continuing legal education, which shall cover the representation of individuals with behavioral or mental health disorders and individuals with intellectual or developmental disabilities.
https://lis.virginia.gov/cgi-bin/legp604.exe?211+sum+SB1315S
https://lis.virginia.gov/cgi-bin/legp604.exe?211+sum+HB2047S
My Name is_________________________
I am_______________________________
I wish to remain silent and do not wave my Miranda Rights.
I want my attorney to be present before any interrogation.
Please contact:
Parent’s name and telephone number
Attorney’s name and telephone number
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End the Criminalization of Autism