Who should we incarcerate and why should we incarcerate them?
This question has dominated the corrections industry for decades. Americans are punitive by nature. However, we are also compassionate, and equality is built into our foundation. So, it’s not surprising that incarcerating certain groups of individuals has caused heated debate about whether our practices are just, effective and humane. Is it fair that people of color are disproportionately represented in U.S. jails and prisons? What should juvenile detention look like—and should we do everything we can to keep juvenile offenders out of correctional facilities? What about individuals with mental illness? Jail is hardly a place for them to get well.
These questions should and will continue to be debated. But there’s another group—one less vocal and more vulnerable—that has borne the brunt of inequality when it comes to incarceration: those with intellectual and developmental disabilities.
In a 1999 study for the California Policy Research Center, Professor Joan Petersilia concluded, “If a culture is measured by how it treats its weakest members, then the handling of people with cognitive disabilities in our criminal justice system reveals American justice at its basest.”(1) Those are strong words, so let’s delve a bit deeper into this subject.
Let’s start our conversation by defining “cognitive or intellectual disability.” According to WebMD, intellectual disability, once called mental retardation, is “characterized by below-average intelligence or mental ability and a lack of skills necessary for day-to-day living. … Intellectual disability is measured by an intelligence quotient (IQ) test. The average IQ is 100, with the majority of people scoring between 85 and 115. A person is considered intellectually disabled if he or she has an IQ of less than 70 to 75.”(2)
Overrepresentation of Cognitive Disabilities
According to a Bureau of Justice Statistics report, 30% of jail inmates reported having a cognitive disability—far higher than among the general public, where less than 5% of people self-report a cognitive disability.(3) This statistic was arrived at by asking inmates, “Because of a physical, mental, or emotional problem, do you have serious difficulty concentrating, remembering, or making decisions?” Obviously, there are limitations associated with this method; the report notes, “BJS’s prevalence estimates may be underestimates because some inmates may have been unable to participate in the NIS-3 due to serious cognitive limitations that precluded them from fully understanding the informed consent procedures or the survey questions.”
To understand how we wind up with overrepresentation of cognitively disabled people in the correctional environment, we must back up. The criminal justice system is like a funnel—individuals are arrested by law enforcement officers, then move through the court system before ending up in jail.
What leads to higher arrest rates for people with intellectual or developmental disabilities? Certainly, some cognitive disabilities could increase an individual’s propensity for crime—for example, a person with low IQ may not realize taking food from a store without paying is illegal, or that their unreturned expressions of affection border on harassment. However, the vast majority of those diagnosed with developmental disabilities never become criminals.
People with low IQ and other developmental disabilities can engender suspicion because they lack the necessary social cues that other adults understand, resulting in inappropriate responses.
Instead, one likely reason for higher arrest rates lies with law enforcement officers. Before you curse at your screen and stop reading, please understand I am retired now but was a patrol deputy, and more importantly I am the father to a special-needs child. My wife and I adopted our son and before being welcomed into our home, he spent the first 2.5 years of life in a crib. In reality, the crib was a cage. Being confined during those integral years created what some researchers call institutionalized autism. He struggles with social norms and at times reacts inappropriately in social situations. So, I recognize the difficulties of interacting with developmentally disabled people, both as a retired deputy sheriff and a father.
As a deputy sheriff I never witnessed intentional bias. But the arrest process starts with us, and several factors can lead to higher rates of arrest for people with cognitive disabilities, including:
- People with low IQ and other developmental disabilities can engender suspicion because they lack the necessary social cues that other adults understand, resulting in inappropriate responses—such as becoming overwhelmed by the police presence and running away or hiding.(4) When questioned by police or other authority figures, they often smile inappropriately, fail to remain still when ordered to do so, or act agitated and furtive when they should be calm and polite.(4)
- People with cognitive disabilities may say what they think the police want to hear, even to the point of confessing to crimes they didn’t commit.
- They may waive Miranda rights without realizing the repercussions of doing so, while saying they do understand.
As one police officer put it, “They are the last to leave the scene, the first to get arrested, and the first to confess.”(1)
After arrest, the problem worsens. All those precursors to arrest listed above continue to haunt special needs offenders in the court system. Cognitively disabled people may fail to understand the seriousness of their situation and often lack the resources to post bail. During court hearings, they struggle to comprehend abstract legal concepts and to assist in their own defense. They may alienate juries by smiling, sleeping or staring, giving a false impression of callousness or lack of remorse, resulting in higher rates of conviction than the nondisabled.(5)
The Clark and Atkins Rulings: Catalyst for Change
Focusing on the overrepresentation of people with cognitive disabilities in correctional facilities only paints half the picture. Since the 1990s, there have been positive developments in structural changes and policy development. Such changes stem in large part from two federal cases.
In Clark v. California (1997), the Court recognized special needs offenders are vulnerable to physical, sexual and verbal abuse, exploitation, theft and harassment, and that they require accommodations from the usual routines of incarcerated life if they are to be safe and able to participate meaningfully in facility activities. In 2001 the California Department of Corrections and Rehabilitation (CDCR) and the plaintiff agreed upon the Clark Remedial Plan (CRP)—the narrowest, least intrusive set of procedures that could effectively ensure adherence to federal law for the developmentally disabled. From that time, the CRP has served as the cornerstone of the CDCR’s efforts to comply with the settlement agreement reached by the parties.
The movement toward protecting special needs offenders gained further momentum in Atkins v. Virginia (2002), in which the Supreme Court ruled that the execution of any person with mental retardation violated the Eighth Amendment’s prohibition on cruel and unusual punishment.
Although the Atkins ruling seems like the correct ruling in hindsight, at the time it was controversial. Justice Scalia, an American judicial conservative icon, argued exempting people with mental retardation from capital punishment would promote “sport litigation,” where defendants feigning mental retardation would, without penalty or risk, make spurious Atkins claims.(6) Scalia voiced this concern in the Atkins ruling: “One need only read the definitions of mental retardation … to realize that the symptoms of this condition can readily be feigned. And whereas the capital defendant who feigns insanity risks commitment to a mental institution until he can be cured (and then tried and executed), the capital defendant who feigns mental retardation risks nothing.”
In Clark v. California, the Court recognized special needs offenders are vulnerable to physical, sexual and verbal abuse, exploitation, theft and harassment.
At the time, I shared similar concerns. However, a study conducted by Blume, Johnson and Seeds in 2009 revealed the floodgates of Atkins litigation did not open on the courts, nor were an overwhelming number of frivolous claims presented.(6)
Clark and Atkins primarily affect inmates in prisons, rather than jails. However, their influence is felt more broadly. California Penal Code now stipulates:
- Defendants with a developmental cognitive disability charged with a misdemeanor, or a charge reduced to a misdemeanor, are divertible (Penal Code §1001.20(b)).
- If found eligible, the court refers the defendant to the appropriate regional center for an evaluation as to whether the accused qualifies for treatment and habilitation (Penal Code §1001.22).
- Upon consultation with the district attorney, public defender, probation department and regional center, the court will determine whether diversion is appropriate (Penal Code §1001.22).
CRP sets up guidelines for the CDCR but the guidelines would well serve all correctional facilities, including:
- Developmentally disabled inmates should be identified so the facility can provide reasonable ADA accommodations.
- Developmentally disabled inmates should be provided reading and writing assistance and assistance in disciplinary, administrative and classification proceedings. The goal should be that staff members’ communications with developmentally disabled inmates are as effective as their communications with non-disabled inmates.
- Grievance procedures should be readily available to all inmates, and staff should make appropriate provisions to communicate those procedures to the impaired and the handicapped.
- Facilities should provide developmentally disabled inmates with assistance with self-care and daily living activities such as bathing, changing clothes, keeping their living areas orderly and eating.
- Correctional facilities have a duty to protect all inmates, including the developmentally disabled, from violence at the hands of other inmates.
- Facilities should make reasonable accommodations to ensure developmentally disabled inmates understand what they must do to avoid being re-incarcerated.
Potential Future Reforms
Clark and Atkins laid a foundation for fair and humane treatment of cognitively disabled inmates. But the evolution of decency cannot stop there. One arguably positive policy solution is a shift to offender bifurcation.(7)
Let’s take California as an example. Currently, special need offenders convicted of misdemeanor crimes can be diverted from traditional incarceration under Penal Code §1001.20(b). Serious felony offenders receive relief under the CRP. That leaves less dangerous offenders convicted of nonviolent felonies sentenced to prison. Offender bifurcation would manage nonviolent felony offenders through actuarial methods outside of prison, simultaneously managing those it deems violent through incapacitation inside prison.(7)
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.
Throughout history, societal attitudes toward incarceration and its purpose have evolved dramatically. We now prioritize rehabilitation and reintroduction to society in all but the most extreme crimes. We also recognize correctional facilities are not conducive to rehabilitation for many individuals. Developmentally disabled individuals are one such group, and they represent a significant portion of our jail inmates. As we continue to grapple with the ethical and economic costs of incarcerating those with cognitive disabilities, the focus must be on how we can create a fairer system that provides appropriate treatment, protection from victimization and equal opportunity for rehabilitation.
- Petersilia J. (1997). Doing justice? Criminal offenders with developmental disabilities. California Policy Research Center. Retrieved 12/6/18 from https://files.eric.ed.gov/fulltext/ED465905.pdf
- Bhandari S. Intellectual Disability (Mental Retardation): Causes, Symptoms, and Treatments.” WebMD. Retrieved 1/17/18 from https://www.webmd.com/parenting/baby/intellectual-disability-mental-retardation.
- Bureau of Justice Statistics. (2015) Disabilities Among Prison and Jail Imates, 2011-12. Retrieved 12/6/18 from https://www.bjs.gov/content/pub/pdf/dpji1112.pdf.
- Davis, L. A. (2005). People with Intellectual Disabilities in the Criminal Justice System: Victims & Suspects [Question & Answer for The Arc]. Retrieved 12/6/18 from https://www.thearc.org/sslpage.aspx?pid=2458.
- Human Rights Watch (HRW). Beyond Reason: The Death Penalty and Offenders with Mental Retardation. (2001). Retrieved 1/17/19 from http://www.hrw.org/reports/2001/ustat/
- Blume JH, Johnson SL and Seeds C. (2009). An Empirical Look at Atkins v. Virginia and Its Application in Capital Cases. Cornell Law Faculty Publications. Retrieved 1/17/19 from https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?referer=https://search.yahoo.com/&httpsredir=1&article=1006&context=facpub.
- Seeds C. (2015). Bifurcation Nation: Strategy in Contemporary American Punishment. SSRN Electronic Journal. Retrieved 12/6/18 from http://dx.doi.org/10.2139/ssrn.2613083.
- The Arc of New Jersey. Criminal Justice Advocacy. Retrieved 12/6/18, from http://www.arcnj.org/programs/criminal_justice_advocacy.html.