Interview with Leigh Ann Davis, Director of Criminal Justice Initiatives at The Arc

The Arc’s Position Statement on Criminal Justice
People with intellectual and/or developmental disabilities1 (I/DD) have the right to justice and fair treatment in all areas of the criminal justice system, and must be afforded the supports and accommodations required to make justice and fair treatment a reality….

Can I interject a basic question—how do you define your I/DD client base? What is the population you are talking about? 

The people we serve include people who have either an intellectual or developmental disability. This encompasses a broad range of people, from those with an intellectual disability who have no specific diagnosis, to those who have a specific diagnosis tied to their disability (like autism, Down syndrome or Fetal Alcohol Spectrum Disorder). It’s also not uncommon for people involved in the criminal justice system to have a dual diagnosis (both an I/DD and a psychiatric disability). One of the primary challenges in serving people with I/DD in the criminal justice system is that their disability is often not recognizable, and many function within the higher end of the spectrum, so it can be easily missed or dismissed by criminal justice professionals and yet have devastating effects. On the other hand, when disability is identified, it may not be seen as a credible issue because the person may not appear to be “disabled enough” in order to need additional supports and services – and yet that is the furthest from the truth.

How do you define intellectual disability? 

The Arc uses the AAIDD (American Association on Intellectual and Developmental Disability) definition: Intellectual disability is a disability 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. The disability originates before the age of 18.

“Developmental Disabilities” is an umbrella term and includes intellectual disability, but also includes other disabilities that are apparent during childhood. Developmental disabilities are severe, chronic disabilities that can be cognitive or physical or both. The disabilities appear before the age of 22 and are likely to be lifelong. Some developmental disabilities are largely physical issues, such as cerebral palsy or epilepsy. Some people with a developmental disability have conditions that include both a physical and an intellectual disability, for example Down syndrome or Fetal Alcohol Spectrum Disorder (FASD). Intellectual disability includes the “cognitive” part of this definition, that is, a disability that is broadly related to thought processes.

Because intellectual and other developmental disabilities often co-occur, intellectual disability professionals typically work with people who have both types of disabilities. NCCJD provides information about these different definitions in our training, however, our focus for law enforcement is explaining the differences between I/DD and psychiatric disabilities (since they are often viewed as the same thing).

Could you draw some broad themes about when our population gets in trouble with the law, and what we can do about it? 

There are a number of reasons why people with I/DD can get entangled in the system, and it’s important to remember that they may enter it as either a victim or a suspect. But since you asked about suspects specifically, I’ll focus on that. People with I/DDs are over-represented in both the juvenile and adult corrections system, which is, in part, a result of the failure of the justice system to identify their disabilities, provide legally required accommodations, and provide appropriate sentencing and sentencing alternatives. People with I/DD can easily fall into the system because they have less ability to discern between safe and unsafe people or situations, or are desperate to be accepted/included by society and may fall into the wrong crowd when looking for a sense of community. They could also enter the system because of disability-related behaviors that have nothing to do with criminal intent (or wanting to commit any crime).

For example, one of our webinars highlighted the story of an individual with autism (Paul) who became upset while he was at his local library (he was with support staff) and ran out the door. As he was running out, he unintentionally ran into an elderly woman in the parking lot who was very frail and had Huntington’s disease. She ended up falling and having a concussion. Paul was charged with assault, but the defense attorney was able to get the charges reduced from a major felony misdemeanor that resulted in unrestricted probation. It could’ve turned out much worse, as we’ve seen in other cases.

That case was here in our area, in Monterey.

That’s right. We actually helped with that case quite a bit after the family contacted us through our information and referral service. And after working on this case, we were so inspired by their story that we invited both father (Steve Gordo) and son (Paul Gordo) on our webinar to talk about their experience and lessons learned. This case is a powerful example of how the legal system is not built to understand, or take into account, a person’s disability, and why it’s imperative to have strong advocacy in place for people with I/DD as soon as they enter the criminal justice system. For more information on their story, I encourage people to check out our webinar that features their story. It offers practical suggestions on how families can work effectively with their defense attorneys: http://www.thearc.org/NCCJD/training/webinars/archive#relationship

Another way NCCJD works to help people with I/DD who get involved in the system is by developing Personalized Justice Plans (or PJPs), which provide alternatives to sentencing for defendants, so that both people with disabilities and society remain safe. We work with attorneys, families and other professionals in the community to identify specific interventions/community options that provide alternatives to incarceration through the development of this plan.  NCCJD works with the families in order to give the court and attorneys in the legal system the information they need to obtain the best outcome possible. There are way too many people in our overcrowded criminal justice system and we can’t afford to continue housing people in our prisons and jails, especially those who pose no threat of danger. PJPs offer a safe alternative and allow people with I/DD to remain in their communities with the amount of support and/or supervision needed. NCCJD offered a webinar on this topic, found here: http://www.thearc.org/NCCJD/training/webinars/archive#alternatives-to-incarceration

It’s also important to not forget about the people with I/DD who are already in the system. For example, what kind of accommodations are inmates with I/DD provided? What about people on probation and parole – what kind of support are they getting in order to successfully fulfill requirements (which can be especially challenging for people with who struggle with day-to-day functioning). Are they provided accommodations specific to their disability, and are they provided information in a way to help them change behavior if that is a requirement of their probation of parole? It can be a vicious cycle that sends people with I/DD right back into an already overburdened system.

This seems to strike at the core of the issue. I don’t think anybody denies we want to help keep the public safe from dangerous behaviors. But where we can’t agree is that incarceration or criminal punishment is just or effective in the case of people with autism or I/DD. So, the issue then becomes exactly what you brought up, which is what are the alternatives to sentencing? What is fair to both the public and to the accused? What are examples you’ve seen in different states?

What works for one person with a certain type of disability may not work as well for someone else. So, alternatives to sentencing do need to be flexible and individualized. But before we can even have that discussion, we need to have systems in place that can provide viable alternatives. I mentioned one avenue earlier: using Mental Health Courts to help divert people with I/DD away from the criminal justice system and back into the community. I was talking with one of our chapters about this earlier today.

They are working on bringing community leaders together to have a conversation about this. They already have a plan in mind for how to create a new mental health court, but they’re not able to address I/DD or serve this population. It can be difficult enough to set up a mental health court, but even more challenging to include I/DD since most mental health courts focus on psychiatric disability. So they’re going to start having that conversation now.

But the fact is there’s not enough support for people with psychiatric disabilities either, and it’s important to keep in mind that many people have a dual diagnosis and both disabilities needs to be addressed. So, what’s our next step? NCCJD’s Pathways to Justice program explains how to create a Personalized Justice Plan for people with I/DD who are facing some type of criminal charge. As I just explained, it’s kind of like writing an IEP in the education system, but the PJP focuses on the support needs of people in the criminal justice system. We’ve seen that too often people with I/DD have no voice in the criminal justice system, their voices – desires – concerns become virtually invisible. They need to have the same access to the system as people without disabilities. Their family members need to be able to advocate effectively, so that the criminal justice system is responsive and makes changes as needed. This includes victims with I/DD too – the system must be equally responsive to them.

We’ve got to make sure there’s a community approach, a circle of support around people with I/DD so that when they become involved in the system, there are people in the community who know them and who can speak up for them, and we’ve got to do better at equipping people with disabilities to be able to speak on this issues. A critical piece to this is building relationships between people with disabilities and criminal justice professionals and have those in place  before a crisis situation happens. As I talked about earlier, we can’t just look at this as a  crisis intervention issue, but shift our thinking to seeing this a crisis prevention issue (emphasis on the prevention, and not the crisis).

Crisis prevention, absolutely. Leigh Ann, could you explain what is meant by competency and how that affects people with I/DD within the context of the criminal justice system? 

I’m glad you asked, as this can be a very difficult topic for families, advocates and even legal professionals to understand if they are not familiar with competency issues as they relate to people with I/DD specifically. That’s the reason NCCJD decided to write a white paper and host a webinar on it.

People with disabilities are particularly vulnerable in the criminal justice system with regard to issues of competency. Rules and laws that may work for the majority of the population fail people with I/DD. Criminal justice professionals must work to ensure that the capacity of individuals with I/DD throughout the process is determined in fair and effective competency hearings. Additionally, there needs to be a basic level of understanding of I/DD within the court system to ensure adequate consideration of the unique concerns I/DD presents.

Topics addressed in our webinar included the competency to stand trial process, the differences between competency and the insanity defense, importing death penalty standards for individuals with I/DD into competency determinations, competency evaluation wait times, and the impact that guardianship and supported decision making have on competency in criminal cases. The webinar provides Individuals familiar with I/DD the chance to get an introduction to competency issues that people with I/DD may face while legal professionals can gain insight into the specific implications of I/DD within the conceptual framework of competency. The webinar is archived and available free here. The white paper will be released in Jan 2017.

Advocates may not realize how critical competency is in nearly every stage of a criminal case, from the investigation to initial charges, through adjudication and sentencing, through incarceration and reentry, and in some instances where the sentence is death, at execution. At each of these stages, the system is not designed to address competency of individuals with I/DD, as you can see by the lack of I/DD- specific evaluations, restoration programs, resources, and expertise.

As we already talked about, people with I/DD interact with the criminal justice system at a higher rate compared to those without I/DD. In some cases, the criminal court is required to make determinations as to a person’s ability to make legal decisions based physical and mental capacity. These determinations are called competency determinations and they attempt to measure a person’s ability to make knowing, informed decisions at a variety of points in the legal process.

NCCJD’s white paper provides insight from legal advocates, practitioners, experts and family members, and tries to demystify the questions surrounding competency issues in the criminal justice system with respect to individuals with I/DD. It works to reconcile the ideal response of the criminal justice system when interacting with someone with I/DD with the reality of adjudicating criminal cases day-to-day. There are two different views coexisting within ideas of competency.

First, there is the ideal – that individuals with I/DD will be fully accommodated in the criminal justice system to ensure their competence at each stage of the case, allowing them to fully realize and exercise their rights within the criminal justice system.

Second, there is the reality that sometimes, even when all players act with the best of intentions, individuals with I/DD may be found incompetent by judges who lack critical information and resources, and a system that is not equipped to serve this population.

However, there are some circumstances where a finding of incompetency can help the defendant. For example, a finding of incompetency can lead to the suppression of false confession that wrongfully incriminates the defendant. These complexities need to be further explored and discussed by both criminal justice and disability professionals looking to learn more about competency to better serve justice-involved individuals with I/DD.

NCCJD believes that, with changes to current procedures, the system can be optimized to meet the specific needs of individuals with I/DD, and ensure that these needs are addressed by the criminal justice system whenever competency is in question. Specific policy recommendations are provided in the white paper.

Let’s talk about victimization. We are concerned about the high rates of victimization to people with autism and I/DD. I’m wondering if you can talk about trends that you see nationally. 

This is an issue I’ve been concerned with for many years. I grew up in a home where I was sexually abused on a regular basis by a family member, and once I realized how much higher the rate of sexual (and other types of) abuse is for people with I/DD, I was horrified. I remember thinking, how do people with I/DD get help? Do they even know that what they are experiencing IS a crime or abusive? What do they do with the after-effects of trauma? How many are feeling completely isolated and alone, and living in silence?

As far as the research goes, the most recent data from the Bureau of Justice Statistics found that the rate of violent victimization against people with disabilities was 2.5 times higher than the rate for people without disabilities. Serious violent crime (rape or sexual assault) accounted for a greater percentage of violence against people with disabilities. Something of concern too, is that 1 in 5 violent crime victims with disabilities believed they were targeted because of their disability. The study also gathers numbers on rate of victimization based on disability type. When looking all disability types, people with cognitive disabilities (which can include both people with I/DD and people with psychiatric disabilities) had the highest rates of total violent crime, serious violent crime and simple assault.

In another survey of over 1,500 individuals with autism, 35% of people with autism reported they had been the victim of a crime. And 38% reported experiencing physical abuse or assault. 32% had reported emotional abuse and 13% had reported sexual abuse.  This is line with previous data that points to high rates of violence and abuse among people with I/DD. This topic was highlighted in our webinar titled: Violence in the Lives of People with Disabilities: Emerging Issues and Solutions for 2015 and Beyond found here and in our companion white paper available free on-line.

People with disabilities face very specific challenges, often contributing to victimization, including:

• Increased risk, or perception of increased vulnerability
• Lack of resources or support systems
• Absolute dependence on an abusive partner or caregiver
• Lack of independence in finances, housing, or transportation
• Physical or social isolation.

Violence, abuse, and bullying are frequent realities for people with intellectual and/or developmental disabilities (I/DD). Criminal justice professionals, self-advocates (people with disabilities), family members, and disability professionals must collaborate and learn from one another to safeguard the lives of people with disabilities as they live independently in their communities. Once victimized, barriers to the justice continue with:

• Lower rates of police follow-up, prosecution, and conviction of perpetrators
• Physical and cognitive barriers to the judicial system, including difficulties accessing courtrooms or other facilities if the crime is prosecuted
• Mistaken belief that people with disabilities are untrustworthy or not credible as witnesses
• Speech and/or cognition difficulties

When these factors are combined, they can easily lead to repeated victimization. Often, the disability itself may interfere with the ability of a crime victim to resist the perpetrator, or interfere with their ability to interact with law enforcement—the person may not even recognize that a crime has been committed and fail to report. Considering these factors, the data likely drastically under-reports the true incidence of crime against people with disabilities.

Despite clear statistical data that women with I/DD are significantly affected by sexual violence, prevention is lacking. Although people with disabilities are more likely to be re-victimized by the same person, it is estimated that more than 50% of victims never seek assistance from legal personnel or treatment service providers, leading to recurring victimization.

That’s why NCCJD’s Pathways to Justice training includes a module for victim service providers that provides insight into the high rate of victimization, the unique challenges victims with I/DD face and tips to provide effective support. It’s so important that we make sure the victim advocacy field understands the urgency of this issue and begins to actively reach out to this population of victims. In looking for allies in the world of justice for people with disabilities, victim advocates are often the first to join us and really want to get involved. They’ve been a great partner! As we model in our Pathways to Justice training, I always suggest to disability agencies and advocates to partner with local victim advocacy agencies or advocates so they can work together to make sure people with disabilities are provided the same access to crime victim services as those without disabilities receive, and that includes access to quality counseling.

What are the statistics regarding individuals with autism and I/DD in the prison system?

Knowing the actual number of people with autism or I/DD in U.S. prisons and jails is difficult to say the least. The Bureau of Justice and Statistics Dec 2015 report provides data on the number of people in prisons and jails who report having a disability, but it does not break this information down by diagnosis. What the survey found is that about 3 in 10 state and federal prisoners and 4 in 10 local jail inmates reported having at least one disability. Among prison and jail inmates, females were more likely to report a disability than males. About 40% of females and 31% of males in prison and 49% of females and 39% of males in jail reported a disability. For the purposes of this report, disability types included hearing, vision, cognitive, ambulatory, self-care, and independent living (which refers to the ability to navigate daily life schedules, activities, and events without assistance).

In an effort to obtain better data, NCCJD is reviewing and providing input on one of BJS’s jail surveys in order to include more questions related to I/DDs, including autism. Currently, the survey only has one question that refers to someone with an I/DD. The survey question is something to the effect of “Have you ever attended special education classes?” While a good start, there are certainly a number of other questions we need to be asking to get a better picture of who is in the system.

If we don’t advocate for more questions related to I/DDs in this and other surveys like it, the issue will continue to lack the attention it needs. We need research to back up what we believe to be serious injustices and over-representation of people with I/DD in our jails and prisons, and that continues to be one of our biggest challenges in this field; there are still so many unknowns and lack of evidence-based solutions.

The system seems extremely broken when it comes to people with autism and I/DD—how they’re arrested, how they’re dealt with in the jails, how they’re dealt with by prosecutors, how we deal with sentencing or diversion, how we protect them from crime. There are global deficiencies. What are three things that you would do to reform the system and create the justice we need for this population? 

This is a perfect question, given that I just spoke about the lack of research in the field. One of the first things we need is better data that can provide a strong foundation of knowledge for advocates to point to in order to justify the need for changes throughout the system. We need clear data and information about our many people with different types of I/DDs are being arrested, are in our prison and jails, are serving probation/parole, and we also need better data about crime victims. Without that, we can’t know exactly what we’re dealing with, and it makes it very difficult to measure progress at the national level. We need to create effective systems for identifying people with have I/DD in all stages of the criminal justice system.

Another way we can reform the system is by providing effective, evidence-based education and training, and providing it on a consistent basis, to criminal justice professionals and people with I/DD. NCCJD supports policies that require training for law enforcement, prosecutors and public defenders so that people with I/DD are supported throughout all stages of the criminal justice system, from point of entry to re-entry into the community. NCCJD is especially interested in and focused on providing effective training on I/DD issues to law enforcement. While some police have access to and participate in “Crisis intervention Team” or “CIT” training, the training focuses more on psychiatric disabilities and crisis intervention.

NCCJD is hoping to provide more training on I/DD-specific issues, and in a way that focuses on crisis prevention over crisis intervention. We highlight that officers will encounter both victims and suspects with I/DD, and need to be prepared to assist in both situations – and provide ADA accommodations. Of course, training alone will not change minds and attitudes, so we are looking at innovative strategies that will build in the opportunity for officers and people with disabilities to build on-going relationships together – so that learning how to communicate and interact with someone with a disability will be experientially learned, and not something learned only in the academy or in a classroom.

Finally, we have to find a way to help people immediately, those who are in the system today, languishing with no hope. We can reform the system by creating circles of support for people with I/DD, and programs that provide opportunities for alternatives to sentencing and pre-trial diversion for suspects/offenders. People with I/DD need well-informed disability advocates in the system to help them successfully navigate a confusing system and process, whether the person is a victim or suspect/offender. This type of support should be built into our current disability and criminal justice service structures so that people with I/DD have quick and reliable access to advocacy.

One example of how NCCJD and some of our chapters of The Arc are doing this is by creating Personalized Justice Plans. Every person in the system should be provided a PJP in order to ensure equal access to justice in the system. In short, no one with I/DD should be without an advocate in their corner when they end up in the criminal justice system – the stakes are simply too high.

Since you do at least some direct advocacy, how do people contact you? Many criminal defense attorneys are wonderful, talented, dedicated people, but they do not know very much about the area of developmental disability. 

I’m glad you asked! Those needing help can visit our request assistance page on our web site here. Whether someone is requesting training or information and referral, they can use this form to let us know what is needed. Speaking of criminal defense attorneys, we have been working with the National Association of Criminal Defense Lawyers (NACDL) who helped us develop a fact sheet for families and also provided input on our attorney module for the Pathways to Justice training (see fact sheet here). NCCJD attended one of their recent national conferences in Austin, Texas and made sure they knew to use us a resource in the future.

Our goal is to break out of the disability circles alone and become well known with criminal justice circles, including the fields of policing, law and victim’s rights. By building strong relationships with criminal justice professionals and agencies at the national level, we hope that will plant the seed for state and local relationships to take root as well. I strongly believe that the most energy, the most leverage, and the most power we have within this movement overall is going to come from people with I/DD and their family members.

We need to empower people with disabilities and their families, the people who are in the trenches every day facing gut-wrenching struggles. Over that past two a half years directing NCCJD, I’ve seen how important it is that families are provided a platform to connect to each other, especially since they have a strong motivation to change the system. If we can harness that energy, passion and expertise – we can make a real and lasting impact.

Do you have other messages for our families here in the Bay Area? 

Yes, I would encourage disability advocates and family members, attorneys, law enforcement and victim advocates to become a part of the larger community that’s fighting for justice for people with I/DD. If there isn’t already a multi-disciplinary team in place to address these issue, you can consider creating a Disability Response Team (DRT) and requesting Pathways to Justice training as a good starting point. Helping people with I/DD in the criminal justice system doesn’t have to be all-consuming or overwhelming, sometimes a few small changes can make considerable differences.

As an individual advocate, or a DRT, you can find a way to get involved and do something small that can grow it to something much bigger down the road. What’s important is to not be afraid of the issue, and not let fear of the unknown keep you from doing something about it. We all have something to offer, the important this is to not try and go it alone. Leverage all the resources you can, you might be surprised at who and what you find that can make a key difference in creating change.

One more question. Many people have recommended what’s called voluntary registration with local police, which is basically bringing your kid with autism and I/DD to the police department saying “Hey, I have this kid with autism. We live at 123 Main Street. These are his issues. If you get a call, you should know about this, his background.” Do you have any feelings about voluntary registration as a tool families can use to help protect their children? 

Obviously, the more information police officers can have when arriving on scene, the better, but I’ve seen instances where even when disability information is provided they don’t necessarily know what to do with that. So, we have to take that next step in asking if we set up voluntary registration, is there training to ensure that once a disability is identified, an officer knows what to do differently in those situations? There are a number of databases of special needs populations in existence and many were originally developed to help protect senior citizens with dementia/memory loss.

Voluntary special needs registries have been created in different communities to provide dispatchers with advance warning of any special needs or disabilities to ensure appropriate response during an emergency.  This data is automatically entered in systems in communities that typically use computer-aided dispatch (CAD) software. While this is a tool that could help both the officer and person with a disability, it’s very important that, first, adding a name is completely voluntary and, second, effective and on-going training is provided for both dispatchers and police officers – because identifying disability is only the first step in ensuring the life and rights of people with I/DD are protected.

Thank you so much, Leigh Ann. And for all you and your team do for the NCCJD.

Thank you for allowing me this opportunity.