Developmental Disability Meets Criminal Justice
An Interview with Jim Elliott, MSW, Manager, Community Placement Program and Public Policy Compliance, San Andreas Regional Center
We have increasingly been hearing frightening stories about individuals with autism or other developmental disabilities getting caught in the criminal justice system after episodes of disruptive or difficult behaviors. To better understand what happens when our children or grown children are accused of a crime, we spoke recently with Jim Elliott, MSW, Manager, Community Placement Program and Public Policy Compliance, San Andreas Regional Center (SARC).
The criminal justice systemʼs interaction with the intellectually and developmentally disabled (IDD) community in California is currently in a state of evolution. Californiaʼs regional centers, facilitated by the Association of Regional Center Agencies, are in the midst of developing a statewide approach to develop and maintain meaningful and useful collaborations with the courts and law enforcement across the state.
We would like to emphasize that Jim is not an attorney, and that this interview is for informational purposes only, and in no way replaces contacting an attorney for advice and counsel if you or a loved one are facing a crisis or criminal charges. Also, Jimʼs observations are his own, and not necessarily representative of the regional center system or San Andreas Regional Center as a whole.
Thanks for speaking with us, Jim. In your experience when do SARC clients get in trouble with law enforcement?
Members of the IDD community get in trouble the same places everyone else does: Anywhere. In the fourteen years Iʼve been working with this community, Iʼve worked with kids arrested for non-compliance in school; adults charged with serious felonies such as drug and firearm possession, sexual assault, and premeditated murder; and everything in between. The crimes in question have occurred at school, in the home, and out in the community, with family, with friends, and with strangers.
Sometimes the alleged crime occurs because the individual is taken advantage of, such as when they are told by a friend or relative to carry a backpack that ends up having a pound of marijuana and a loaded handgun. They might be mutual crimes, such as a fight, or crimes that arise because someone has difficulty with boundaries. Crimes might be based upon misunderstandings regarding the nature of a personʼs behaviors, or their understanding of proper conduct, sometimes through criminal intent or simply not caring about how your actions affect another person.
In short, an individual with IDD can face criminal charges for just about any of the reasons anyone in the community does.
Are the police well trained to understand developmental disabilities?
This depends on the department and, often, upon the individual officers involved. Here in Santa Clara County, for example, weʼve been welcomed into the police academy to actually train prospective officers on how to recognize when someone may have an intellectual or developmental disability, such as autism, and how to respond. In my experience, the manner in which police officers are taught to respond to a situation, which frequently involves taking control through tone and demanding rapid compliance, is completely inappropriate for how people with IDD process and respond to their environment. Itʼs a very difficult thing to ask police officers to have the ability to switch between response methodologies based on a few moments of information. Most people canʼt do it, let alone people whose jobs involve moving from one high-stress situation to another that can, sometimes, involve violence.
Initial crisis response can really depend upon the officer involved. If a family is worried about how the police may respond to their child or adult child, itʼs worth their time to contact the non-emergency number for their department and have a discussion with the patrol supervisors in the areas their loved one frequents. The individuals that Iʼve seen who are typically most successful in avoiding escalation are those the police become familiar with.
The other big area of concern, though the one probably least likely per capita to occur, is if someone with IDD is questioned by the police regarding their participation in a crime. A lot of people with IDD donʼt like to admit that they have certain needs, and many have also become very accustomed to deferring to and complying with authority figures. Theyʼre attuned to giving these figures answers that will make them happy, even if those answers are not true. A lot of the deception and interrogation techniques that police are trained to use and can be quite appropriate in the right situation also run a serious risk of creating “false positives” from individuals with IDD.
How often do DA’s get involved? Can you give me some examples of where DAs have prosecuted DD juveniles or adults?
If law-enforcement involvement leads to criminal charges, then the District Attorneyʼs Office is going to be involved. They have the discretion to bring charges based off an arrest or not, and regarding whether or not those charges will be misdemeanors or felonies or both. IDD juveniles and adults are most certainly charged with crimes, some of them very serious, as I mentioned before. I would say I personally have most frequently seen things like theft, vandalism, and riding the light rail without a ticket, but Iʼd also say a plurality have faced serious felonies like rape and even murder. Just as with the police, prosecutors bring their own perspectives, their own experiences, and their own judgment to a case.
I once had an assistant district attorney who refused to bring charges for possession of child pornography even though the person admitted he knew what it was and that it was wrong to access it; but the prosecutor decided she did not want to prosecute someone with autism. I once saw a prosecutor have a case thrown out of juvenile court because
the judge clearly did not approve of the policeʼs questioning of a teen with intellectual disability. More often than not, Iʼve seen prosecutors work honestly and diligently with the defense attorney and the court to come to a resolution that is in the interest of justice.
How does the court system deal with a defendant’s contentions he lacked mens rea [criminal intent] for the alleged crime due to cognitive limitations?
In my experience, this is the most difficult area for families to understand, especially if their loved one is still in school. In the special education system, students with Individual Education Plans have a due process mechanism where a serious incident – even a behavior that causes serious injury or destruction – should trigger what is called a “manifest determination,” an assessment as to whether or not the incident is the result of the individualʼs disability. A manifest determination can not only halt any punitive measures in their tracks, but ultimately even end up with more services and supports being put into place.
This does not exist in the criminal justice system.
Whether or not a person understood their actions is an issue for trial – what is still defined as “Not Guilty by Insanity” or NGI. The vast majority of due process occurs before this issue is ever discussed at the court. A defendant, one of the attorneys, or the judge can raise a question regarding an individualʼs competency to stand trial, which triggers the Penal Code section 1368 process. fn1 A person can be assessed either for mental illness or developmental disability, or both. fn2 Once the question is raised, all criminal proceedings regarding the charges themselves are stopped until the issue of competency is resolved.
The court will generally appoint a psychologist or psychiatrist from a pool of experts to assess the individual. If IDD is suspected, the court will instruct the regional center associated with that county to conduct a competency assessment to determine if the individual can understand the nature of their charges, the nature of the court and trial, and assist in their defense. If the person is not an active or former client with any regional center, the regional center will first conduct an eligibility assessment, which can take up to 120 days (at SARC we give such referrals priority). A clinical psychologist (who has met certain experience criteria) either employed by or on contract with the regional center will assess for competency, using a combination of standardized measures, observations, case history, and clinical judgment to determine if the person is competent or, if not, whether they can be restored to competency. The court, or either attorney, may agree or disagree with the regional centerʼs findings and order additional assessments.
If the individual is deemed competent, proceedings continue. If the individual is found not competent to stand trial, then competency restoration starts. If incompetency is due to mental illness, the person will receive court-ordered mental health treatment (such as a Reese order to force medication compliance). Incompetency due to IDD requires the regional center to provide competency restoration training, which can take the form of behavioral, psycho-educational, or other training by a regional center service provider. In either case, the court has three years to determine if the individual has been restored to competency. For felony charges, six months of restoration at minimum are supposed to occur in a locked facility; in reality, that will vary based upon the nature of the charges, the individual, the court, and the availability of placements.
Given how complex and stressful the above is for everyone, if the charges are misdemeanors, or if they can be pled down to misdemeanors, individuals who are not necessarily intent on proving innocence are often encouraged to take advantage of something called diversion. In diversion, the individual pleads guilty, but is sentenced to formal or informal probation, which can be supervised either by the probation department or the regional center, or both, and involves completing a treatment plan designed by the regional center which is then approved by probation and the court. Successful completion of the diversion plan results in the charges being removed from your record.
[1 Editorʼs footnote—California Penal Code Section 1367(a) provides:
A person cannot be tried or adjudged to punishment or have his or her probation, mandatory supervision, postrelease community supervision, or parole revoked while that person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.]
[2 Editorʼs footnote—California Penal Code Section 1368(a) provides:
If, during the pendency of an action and prior to judgment, or during revocation proceedings for a violation of probation, mandatory supervision, postrelease community supervision, or parole, a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. If the defendant is not represented by counsel, the court shall appoint counsel. At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time.]
But disabilities like autism are permanent conditions, particularly the forms of autism served by the regional centers, which are the more severe end of the spectrum, and there is no chance of “restoration.” Is the justice system blind to this? Is it just decades behind the curve?
That is the nature of the conflict in the field there: What is competency and is it inherently impossible to have it because developmental disabilities are lifelong and pervasive? That is where clinical judgement again plays a key role. What is the nature of the incompetency? If it is knowledge or behaviorally-based, then perhaps competency restoration training can make a difference; if the nature of incompetency involves, say, the executive functioning of the brain, then maybe no amount of restoration training would be adequate. But to be clear, the regional center has had many clients who were appropriately found competent to proceed to trial.
Judge Manley’s court often diverts the process away from incarceration to other alternatives, can you tell me more?
Santa Clara County has been really fortunate to have Judge Manley. Heʼs a pioneer in developing drug and mental health treatment courts. Over the past several years, weʼve been able to develop a really good working relationship with Judge Manleyʼs court, so much so that thereʼs actually a “SARC afternoon” on his calendar. Essentially, a person undergoing either diversion or competency restoration is sent to Judge Manley for supervision. His team there can help someone access community resources for substance abuse, mental health, homelessness, and other issues that the regional centers are not empowered or equipped to deal with. Judge Manley ensures that those different resources work in tandem, and adds the necessary dollop of official oversight and legal authority over the whole process. He is not shy about giving you a weekend in jail to reconsider your noncompliance. And when itʼs all over, heʼll come down and give you a hug. Judge Manley is awesome.
It is our hope that more counties will adopt Judge Manleyʼs model, and it is one of the interventions the regional centersʼ statewide forensic forum has been interested in trying to replicate.
What are the alternatives Judge Manley has used?
In my experience, Judge Manleyʼs court has been able to fill in gaps of service that regional centers donʼt provide. Heʼs also able to provide a dose of supervision that regional centers cannot by predicating release into the community upon participating in your treatment program. Judge Manleyʼs team primarily deals with substance abuse and mental health, so they are intimately connected with mental health and substance abuse treatment services, emergency housing, and so forth.
How does IQ play a role in California courts? Is there an IQ level where the courts presume cognitive incompetence? Or is IQ just one of several factors weighed? And what are the other measurements used? Vineland Adaptive? What is the maximum IQ to be included in the DDS system, particularly if you have autism?
In terms of the court, thereʼs no statute Iʼm aware of that specifically discusses IQ. Cognitive impairment can arise from a variety of issues, intellectual disability being just one. With the change to DSM-V, ID is diagnosed with less reliance upon standardized intelligence testing (e.g. the Weschler tests, etc.), but in general one would be looking for two standard deviations below the mean (the mean is 100, so a score of 70 is two standard deviations below) or lower for intellectual disability. Regional centers also look to adaptive measures such as the ABAS and the Vineland in determining both ID and overall substantial impairment with respect to eligibility. Remember, it is very possible to have an eligible diagnosis but to not demonstrate substantial impairment in three or more areas of daily living, and it is also very possible to be substantially impaired and yet not have a diagnosis, precisely because cognitive impairment can come from many different sources or the interaction of multiple diagnoses (i.e. a learning disorder and a mental illness acting together).
There really arenʼt any set standards within psychology or the law for what constitutes “competency.” The psychologistʼs clinical judgment plays a big role. The overall clinical picture is really important. Iʼve had clients whose eligibility Iʼve doubted but whose incompetency I most certainly have not, and vice versa.
There is no “maximum IQ” to be found regional center eligible. We would look at the overall clinical picture. Iʼve ruled individuals with autism eligible who are clearly quite intelligent but their executive functioning was such that they were functioning as substantially impaired – this is a distinct minority, but it does happen. It is not just the presence of a diagnosis that creates eligibility; it is its iteration. The penal code does not defer to the presence of a substantially impairing developmental disability as an indication of incompetence, but rather as an indication to raise the question of competence.
What reforms do we need in both our civil and criminal justice systems to account for this rapidly growing population of strong young men with autism who lack cognitive capacity and judgment, and often exhibit disruptive behaviors?
In my experience, the different systems donʼtʼ work well together without a lot of hard work on all sides. We have different priorities, different responsibilities, and different funding mechanisms. Many law enforcement and criminal justice officials that Iʼve worked with have had a hard time grasping that regional centers are not state agencies and are not empowered under the law to compel someone to do anything, that compelling compliance is actually directly counter to the expressed spirit and purpose of the Lanterman Act. I think itʼs important to remember that, unlike the regional centers, the criminal justice system is oriented first to the community, not the individual; what is best for the individual with IDD may be completely incompatible with what the law requires or what the court deems best for the community.
How can the local advocacy community engage the legal community in enacting those reforms?
From my point of view, it all comes down to resources and understanding. Meetings, like the one reps from Autism Society San Francisco Bay Area and I had with the Santa Clara County District Attorneyʼs Office, are great. Establishing those relationships both interpersonally and as a community group are really important. When itʼs not “that defendant with autism” but, “that guy whoʼs like the kid down my street,” that makes a real difference. Ultimately, though, treatment options are limited, and everyone involved from the regional centers to the prosecutors and public defenders to the courts have too many cases and not enough time to give them the thorough attention each individual deserves. So it often becomes a matter of trying to push the square peg into the round hole so it sticks just long enough.
What are the crisis care options for those with extreme behaviors here in the SARC catchment area? 5150 seems nonresponsive to the underlying pathology of autism. But what other routes do families in crisis have when they cannot control their children and feel threatened by violence?
A “5150” is a 72-hour “psychiatric hold” that confines someone to a locked behavioral health facility for assessment and de-escalation of an immediate crisis. Someone can refer themselves, or the police can transport the person. This generally occurs at a hospital. While I often feel that many mental health professionals are unwilling or unable to recognize that people with IDD can and should be treated for mental health problems, the specific nature of county emergency psychiatric services is to stop a crisis that is occurring. If the behavior stops being immediately dangerous, theyʼre not going to devote any more time to it.
Paradoxically, in my experience, crises are best dealt with proactively. At SARC, we contract with two crisis response providers – Crisis Support Services and Crisis Response Program – to help families and individuals learn how to recognize the signs and triggers for their individual, how to best respond or intervene, and can also be available by phone or in person to assist. This is also why SARC emphasizes parent training as the most crucial component of any behavioral health treatment intervention for anyone with IDD.
What is the role of the regional centers in advocating for clients who exhibit aggression or aberrant behaviors where behavioral supports are few and far between?
Individuals with autism can access behavioral health support through their local education agency, their health care provider or health insurance provider, and, if necessary, their regional center. Under state law, most health insurance plans must provide an individual with autism access to behavioral health treatment comparable to that offered for mental illness (there are some exceptions, such as self-funded plans or plans incorporated in other states). Individuals who are enrolled in the Home and Community-Based Services waiver program receive Medi-Cal as a primary or secondary insurance and, as of this year, Medi-Cal also covers treatment for autism. Other IDD individuals, who are not diagnosed with autism, can access behavioral health treatment through their regional center.
If necessary, your service coordinator can facilitate contact with other systems to ensure they provide the services and supports they are obligated to, and can broker services directly through our own network of providers. The regional centers provide interagency education regarding individuals with IDD, and can be available to attend meetings or court to help other systems understand the individual and their unique constellation of needs, services, and supports.
How can regional center clients advocate for obtaining adequate behavioral supports in an IPP?
Most importantly, talk to your service coordinator. Be honest about your loved oneʼs needs so the service coordinator can help you to identify the most appropriate services and supports and where your family can obtain them. Communication is important. Many regional centers, SARC included, donʼt have the resources or the cooperation yet of law enforcement, jails, or courts to actively identify if someone is a regional center client and to notify the regional center of potential charges.
Unfortunately, the developmental services system is in a resource crisis. Regional center operations budgets have not seen a formula increase since 1993 – thatʼs an over 60% operations budget cut by inflation, just through neglect. Service coordinators at SARC are averaging about 100 individuals per caseload and weʼve seen a nearly 50% turnover in the last few years. Weʼre by far not alone in this. Since the Great Recession, the regional center service budget has lost over a billion dollars, primarily through rate cuts and freezes. As a result, many behavioral treatment vendors have transitioned to taking only insurance-related work or accepting only a limited number of regional center-funded cases. Nearly one-third of all residential care providers in the state have closed. Per capita, California is one of the worst-funded states for developmental services. I could argue numbers and observations until Iʼm blue in the face; what will make a difference to the Legislature is hearing from parents and family about the struggles and costs they face due to the funding crisis.