Friday, November 14, 2003

People with Mental Retardation in the Criminal Justice System

How many people with mental retardation are in the criminal justice system?

Based on the 1990 census, an estimated 6.2 to 7.5 million people in the United States have mental retardation. Various studies have suggested between 2 percent to 10 percent of the prison population has mental retardation.

Denkowski & Denkowski (1985) found that about 2 percent of all inmates, [prisoners], in either state or federal prisons have mental retardation (about 14,000 people).

Another study conducted by the state of New York found similar results: between 1.8 percent and 2.2 percent of people with mental retardation were imprisoned (Sundram, 1990).

Residential programs that house offenders with mental retardation support another 12,500 people who have been convicted, or suspected of, committing a crime (Noble & Conley, 1992).

The total number of people with mental retardation in prisons and residential programs (26,500 to 32,500) underestimates the extent of the problem since the number of those who are on probation, in local jails or placed in programs for people with mental illness remains unknown.

While those in the criminal justice system constitute a small portion of all people with this disability, the number is significant enough to warrant the attention and concern of self-advocates, parents, criminal justice personnel and policy-makers.

Standardized procedures which gather data nationwide are necessary before a more accurate number of people with mental retardation involved in the criminal justice system can be determined (Noble & Conley, 1992).

Do people with mental retardation commit crimes more often than people without this disability?

Some people with mental retardation may commit crimes, not because they have below-average intelligence, but because of their unique personal experiences, environmental influences and individual differences. During the early 1900s, mental retardation professionals believed that individuals with mental retardation were predisposed to becoming a criminal due to their disability.

This "alarmist" view lost support during the 1930s as its leaders rescinded their original beliefs. By the 1950s, and since that time, any findings suggesting a significant linkbetween mental retardation and criminal behavior have been proven incorrect and, consequently, rejected (Ellis & Luckasson, 1985).

What crimes are people with mental retardation usually charged with committing?

The misconception that people with mental retardation usually commit serious crimes is unwarranted. Data taken from state and federal prisons reveal that people with mental retardation are more likely to commit serious felonies, but this information is misleading since prisons typically house inmates, [prisoners], who commit serious crimes (Brown & Courtless, 1971).

On the other hand, data gathered from a specialized community program for offenders with mental retardation found that most offenders were arrested for committing misdemeanors and other less serious felonies (White & Wood, 1986).

Similar research also finds that people with mental retardation commit less serious crimes, such as misdemeanors and public disturbances (Illinois Mentally Retarded and Mentally Ill Task Force, 1988).

What disadvantages do people with mental retardation face in the criminal justice system?

As more people with mental retardation move out of institutions and into the community, their susceptibility to becoming involved in the criminal justice system as a victim, witness or suspect of a crime may increase dramatically.

Individuals with this disability are frequently used by other criminals to assist in law-breaking activities without understanding their involvement in a crime or the consequences of their involvement. They may also have a deep need to be accepted and may agree to help with criminal activities in order to gain friendship.

Many individuals unintentionally give "misunderstood responses" to officers, which increases their vulnerability to arrest, incarceration and possibly execution, even if they committed no crime (Perske, 1991).

Some common responses from those with mental retardation that may effect their ability to protect their rights during police contact include the following. The person may:

* not want disability to be recognized (and try to cover it up)
* not understand rights (but pretend to understand)
* not understand commands
* be overwhelmed by police presence
* act upset at being detained and/or try to run away
* say what he or she thinks others want to hear
* have difficulty describing facts or details of offense
* be the first to leave the scene of the crime, and the first to get caught
* be confused about who is responsible for the crime and "confess" even though innocent

Upon arrest, individuals with mental retardation usually answer affirmatively when asked if they understand their rights, even when they do not understand, in order to gain approval or to hide their disability.

Law enforcement officers often receive little or no training in the area of mental retardation and have difficulty recognizing a person who has this disability. They may be mistaken as someone who is drunk, on drugs or who has mental illness.

Court officials face the same dilemma. Attorneys may represent people with mental retardation without realizing a disability exists and judges may impose sentences without taking mental retardation into account.

Considering such extreme disadvantages, it is not surprising that people with mental retardation are more likely to be arrested, convicted, sentenced to prison and victimized in prison (Santamour, 1986).

Once in the criminal justice system, these individuals are less likely to receive probation or parole and tend to serve longer sentences due to an inability to understand or adapt to prison rules.

Should the death penalty be allowed for people with mental retardation?

Most people agree that capital punishment of people with mental retardation should be prohibited. Some states have already passed laws which abolish the death penalty for people with this disability.

The Arc adopted an official position statement in 1992 titled Access to Justice and Fair Treatment Under the Criminal Law for People with Mental Retardation which advocates for the prohibition of the death penalty for people with mental retardation.

The Arc, along with AAMR, the American Psychological Association and eight other organizations, supported and signed the amicus curiae brief in Penry v. Lynaugh which supports the abolition of the death penalty for people with mental retardation.

These organizations and experts on mental retardation agree that regardless of how mild the degree of mental retardation, the death penalty can never be a justifiable method of punishment for individuals with this disability.

However, the U.S. Supreme Court maintains that the execution of people with this disability is not considered "cruel and unusual punishment" according to the Eighth Amendment of the U.S. Constitution. [?]

Therefore, the U.S. Congress and states can choose to impose the death penalty (Penry v. Lynaugh, 1989).

Do people with mental retardation become victims of crime more often than those without a disability?

Some researchers have found that people with disabilities are about twice as likely as others to be victimized (Sobsey & Doe, 1991).

Crimes committed against people with mental retardation are often labeled as abuse and neglect which understates the criminal victimization problem.

Factors such as impaired cognitive abilities and judgment, physical disabilities, insufficient adaptive behaviors, constant interactions with "protectors" who exploit them, lack of knowledge on how to protect themselves and living and working in high-risk environments increase the vulnerability of people with mental retardation to victimization (Luckasson, 1992).

Many victims with mental retardation may not report crimes because of their dependency on the abuser for basic survival needs. When victims do report crimes, police and court officials may not take the person's allegations seriously or be reluctant to get involved. Additionally, people with mental retardation often lack the resources necessary to prosecute (Sobsey, 1994).

What is The Arc doing to promote equal access to justice for people with mental retardation?

In 1994, The Arc began a project, funded by the U.S. Department of Justice, to create informational brochures on this topic. The Arc developed the first known national resource list of its kind, Access To Justice National Resource List, which includes model programs, training curricula , books, videos and other relevant information.

The Arc has promoted legislation to reform laws which discriminate against people with mental retardation and has been successful in prohibiting the capital punishment of people with mental retardation in those federal laws where the death penalty can be invoked.

Families, service providers, law enforcement and court officials frequently call their state or local chapter of The Arc for assistance when faced with a situation involving a defendant or victim with mental retardation.

Some chapters of The Arc also have specialized programs that provide a wide range of services including direct advocacy, creating individualized justice plans (community alternatives to incarceration), training for those involved in the criminal justice system (police officers, lawyers, judges), as well as training for people with mental retardation.

What can I do to help protect my own rights or the rights of someone with mental retardation?

Education and training is paramount if individuals with mental retardation are going to receive equal justice. Children and adolescents with mental retardation must learn about the possibility of meeting a police officer and how to protect their rights during encounters with police. Contact your school's special education department and local chapter of The Arc to promote the use of such training if it is currently unavailable.

Police officers should be familiar with and understand this disability. Contact your local police department and ask for the training officer or police chief. Determine if mental retardation is included in their training. If not, advocate for the teaching of mental retardation as a separate module (apart from mental illness) so officers will not confuse the two disabilities (Norley, 1976).

Encourage your local chapter of The Arc to provide training on mental retardation for police officers. Educating court officials can begin by contacting the court liaison and requesting a meeting with the judge. Ask the judge what training on mental retardation is available to court personnel in your county and, if there is none, request the use of such training.

Building alliances among chapters of The Arc, the police departments and the courts prepares the community for situations involving people with mental retardation who come in contact with the criminal justice system.

Such preparation enables the criminal justice system in your community to ensure that the rights of people with mental retardation are protected.

Contact The Arc for more information on this topic and to obtain a list of The Arc's publications relating to criminal justice issues.

Brown, B.S., & Courtless, T. (1971). The mentally retarded offender. (DHEW
Pub. No. (HSM) 72-90-39). Washington, DC: U.S. Government Printing Office.
Denkowski, G.C., & Denkowski, K.M. (1985). The mentally retarded offender in
the state prison system: Identification, prevalence, adjustment, and rehabilitation.
Criminal Justice and Behavior, 12 (1), 53-70.
Ellis, J., & Luckasson, R. (1985). Mentally retarded criminal defendants. George
Washington Law Review, 53 (3-4), 414-493.
Illinois Mentally Retarded and Mentally Ill Offender Task Force. (1988, July).
Mentally retarded and mentally ill offender task force report. Springfield: Author.
Luckasson, R. (1992). People with mental retardation as victims of crime. In R.W.
Conley, R. Luckasson, & G.N. Bouthilet (Eds.), The criminal justice system and
mental retardation (209-220). Baltimore: Paul H. Brookes Publishing Co.
Noble, J., & Conley, R. (1992). Toward an epidemiology of relevant attributes. In
R. W. Conley, R. Luckasson, & G.N. Bouthilet (Eds.), The criminal justice system
and mental retardation (17-53). Baltimore: Paul H. Brookes Publishing Co.
Norley, D. (1976). Police training in the recognition and handling of retarded
citizens: Guidelines and materials for local and state Arc units. Arlington, TX: The
Arc National Headquarters.
Penry v. Lynaugh, 492 U.S. 302 (1989)
Perske, R. (1991). Unequal justice? What can happen when persons with
retardation or other developmental disabilities encounter the criminal justice
system. Nashville: Abingdon Press.
Santamour, M. (1986, Spring-Summer). The offender with mental retardation.
The Prison Journal, 66 (7), 3-18.
Sobsey, D. (1994). Violence and abuse in the lives of people with disabilities.
Baltimore: Paul H. Brookes Publishing Co.
Sobsey, D., & Doe, T. (1991). Patterns of sexual abuse and assault. Journal of
Sexuality and Disability, 9 (3), 243-259.
Sundram, C. (1990, November). Inmates with developmental disabilities in New
York correctional facilities. Albany: New York State Commission of Quality Care
for the Mentally Disabled.
The Arc (1995). Access To Justice National Resource List. Arlington, TX: Author
The Arc (1992). Position Statements of The Arc. Arlington, TX: Author
White, D. & Wood, H. (1986). The Lancaster County, Pennsylvania, Mentally
Retarded Offenders Program. Prison Journal, 65 (1), 77-84.

Rev. 2000
The Arc
National Headquarters
1010 Wayne Ave. Suite 650
Silver Spring, MD 20910
301/565-5342 (fax) (e-mail)

by Leigh Ann Davis posted November 14 2003


USA: With Cash Tight, States Reassess Long Jail Terms
OLYMPIA, Wash., Nov. 6 - After two decades of passing ever tougher sentencing laws and prompting a prison building boom, state legislatures facing budget crises are beginning to rethink their costly approaches to crime.

After a war waged by the U.S. military against Vietnam which took the lives of more than 3 million Vietnamese people and more than 58,000 GIs, the U.S. finally withdrew in 1975. It had suffered its first official major military defeat by a united people struggle led by the Vietnamese, along with a mass U.S. anti-war movement.

Report on State Prisons Cites Mental Illness
NEW YORK: Nearly one of every four New York State prisoners who are kept in punitive segregation [solitary confinement], confined to a small cell at least 23 hours a day are mentally ill, according to a new report by a nonprofit group that has been critical of state prison policies.

High court keeps alive case of prisoners held in solitary
NEW ORLEANS: The nation's highest court refused Monday to kill a lawsuit brought by two prisoners and an ex-prisoner at the Louisiana State Penitentiary who spent decades in solitary confinement.

US: Mentally Ill Mistreated in Prison More Mentally Ill in Prison Than in Hospitals (New York, October 22, 2003) Mentally ill offenders face mistreatment and neglect in many U.S. prisons, Human Rights Watch. "Prisons have become the nation's primary mental health facilities. But for those with serious illnesses, prison can be the worst place to be."

Shut down the Security Torture Units
San Francisco: October 18 In solidarity with other prison activist organizations, MIM, RAIL, the Barrio Defense Committee (BDC) and the Prison Reform Unity Project held a four hour rally in San Francisco demanding the Security Housing Units (SHUs) in California prisons be shut down.

Solitary Confinement: Mental illness in prisons
As noted earlier, inmates [prisoners] with mental illness are over represented in our toughest prison settings. Symptoms of mental illness (i.e., delays in response time, paranoia, difficulty interpreting the actions of others, command hallucinations, and so on) can make complying with prison rules difficult.

Post-Incarceration Sentences
Pat: "The 1990s brought a new front in the war on drugs, featuring a new layer of the Prison Industrial Complex, which has the effect of ensuring that people coming in contact with the criminal punishment system remain within the grasp of the Prison Industrial Complex even beyond prison walls."

Inside Prison, Outside the Law
Every year, tens of thousands of prisoners in state and federal custody are attacked. The exact number who die is difficult to determine: According to the nonprofit Criminal Justice Institute, in 2000, the most recent year for which figures have been compiled, 55 prisoners were murdered, 39 died "accidentally," and 118 died for unknown reasons.

Day Seven of the Fast for Freedom in Mental Health:
PASADENA, CALIF: On the seventh day of a hunger strike by six psychiatric survivors to oppose human rights violations in the mental health system, the American Psychiatric Association faces a direct and unprecedented challenge from a Scientific Panel of 14 academics and clinicians.

Supreme Court Justice Criticises Sentencing Guidelines
San Francisco, August 9, 2003, Supreme Court Justice Anthony M. Kennedy said today that prison terms are too long and that he favours scrapping the practice of setting mandatory minimum sentences for some federal crimes.

US prison population 2.1 million
The US prison population grew more than twice as fast last year as in 2001, bringing the total number of people held behind bars in the United States to more than 2.1 million, a record, according to a government report.

McKean Federal Prison: An Alleged Model
McKean, a federal correctional institution [? prison], does everything that "make 'em bust rocks" politicians decry--imagine, educating inmates [prisoners]! And it works. [Allegedly works.]

Prisoners Justice Day Press Release (Montreal)
On August 10th, 1974, Eddie Nalon bled to death in a solitary confinement unit at Millhaven Maximum Security Prison near Kingston,Ontario when the emergency call button in his cell failed to work. An inquest later found that the call buttons in that unit had been deactivated by the guards.

Notebook of a Prison Abolitionist
In his autobiography, Frederick Douglass recalls how as a slave he would occasionally hear of the "abolitionists." He did not know the full meaning of the word at first, but he heard it used in ways that he found appealing.

Study Warns of Rising Tide of Released Prisoners
Washington: More than 625,000 former prisoners will be coming back into U.S. society this year, part of a record flow of prisoners who will face crushing obstacles in finding work and housing and repairing long-fractured family ties, according to a newly released study.

Incite Statement Gender Violence and the Prison Industrial Complex
We call social justice movements to develop strategies and analysis that address both state AND interpersonal violence, particularly violence against women.

Second International Conference on Human Rights & Prison Reform
**This second gathering will be much smaller and more in depth in participation. A report on the human rights violation of discrimination in regard to prisoners will be produced. This report will be given to the Subcommission on the Promotion and Protection of Human Rights which will be having its annual meeting near our conference and is the"think tank" for the human rights agenda of the United Nations.

Judged Forever- The Orange County Register
US: California's largest job-placement program for parolees will be shut down May 31 after an Orange County Register investigation found that ex-convicts were sent to questionable jobs [?] and that the state was charged for placements that did not occur. [? According to the ruling-class]

California Family Visiting Case
US: CALIFORNIA: Today (5/03/08) in Superior Court around twenty friends and family members of inmates from CSP Solano showed up to show their support in the Gordon vs. CA Department of Corrections (Case #322862) which deals with the subject of bringing back Family Visits to all inmates.

Prison Rates Among Blacks Reach a Peak, Report Finds
An estimated 12 percent of African-American men ages 20 to 34 are in jail or prison, according to a report released yesterday by the Justice Department.

Justices question prison visitation policies
WASHINGTON: In a case that could affect the visitation rights of millions of prisoners, Supreme Court justices on Wednesday struggled with the question of whether inmates have a constitutional right to visits with friends and family.