Download People with Disabilities and the Justice System

Disabled People and the Justice System:
Another Institution
Disability and Society
Spring 2007
Please consider this…
 Historically, common for disabled people to be
isolated/segregated from mainstream society.
 Institutionalization as a “solution” for the problem
of disability—how to deal with difference and
state sense of duty to care for those who couldn’t
care for themselves.
 Large institutions for disabled people do not exist
any longer in this country.
 However, are the increasing numbers of
incarcerated individuals simply another
institutional solution for disabled people?
Topics for Today
 People with Mental Retardation and Capital
Punishment—i.e., evolving consensus
regarding death as a punishment for people
with intellectual disabilities.
 Disabled Children and Juvenile Justice—
i.e., why are there so many disabled
children in juvenile facilities and adult
prisons?
People with Intellectual Disabilities
and Capital Punishment
 Background
– In the criminal justice system, 2-10% of prison population
– Increasingly becoming victims, witnesses or suspects because
moving out of institutional settings to the community.
– Vulnerable to abuse from others—including police.
– Often say that they understand their rights—even when they
don’t—for approval.
– Law enforcement receives little training so often misunderstand
behavior.
– More likely than others to be arrested, convicted, sentenced to
prison and victimized in prison.
– Once in the system, less likely to receive probation or parole and
tend to serve longer sentences.
History of Capital Punishment for
Persons with Intellectual Disabilities
 USA Justice System – Historically
– Constitutionally, the death penalty has volatile legal history.
– US Supreme Court ruled in 1972 that death penalty was arbitrarily
and capriciously applied under existing law because of unlimited
discretion given sentencing authorities.
– US Supremes ruled in 1976 that death penalty did not per se
violate 8th Amendment
– US Supremes ruled that execution of people with MR is not
considered “cruel and unusual punishment” under the 8th
Amendment (Penry v. Lynaugh, 1989).
– However, many states abolished the death penalty completely or
specifically for those convicted with MR.
And the rest of the world?
 International Law generally condemns or prohibits
death penalty
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Universal Declaration of Human Rights
Various UN Resolutions and recommendations
Convention on Civil and Political Rights, articles 6,7
Convention on the Rights of the Child
Special Rapporteur Reports
Prohibition against death penalty is the emerging
norm—i.e., customary law.
Current US Law
 US Supremes ruled in Atkins v. Virginia
(June 2002) that executing murderers with
MR violates the constitutional ban on cruel
and unusual punishment (8th Amendment).
– 6-3 decision reflects changing societal
standards (2 states barred in 1989, now 18 bar)
– “Their deficiencies do not warrant an
exemption from criminal sanctions, but they do
diminish their personal culpability.”
Please consider these….
 If we are legally barred from choosing
capital punishment for criminals with
mental retardation, what about those with
– Mental illness who refuse medication that
would “supposedly” allow them to be
competent?
– What about those individuals who are
“borderline”?
 Is this “favored treatment” that creates
unfairness in our system?
Disabled Children and Juvenile Justice
 It is estimated that between 45-75% of the youth in the
juvenile justice system have one or more disabilities.
 The most common diagnoses include Attention Deficit
Hyperactive Disorder, (ADHD), Learning Disabilities
(LD), Depression, Developmental Disabilities (DD),
Conduct Disorder, Anxiety Disorders and Post Traumatic
Stress Disorder (PTSD).
 In many cases, the youth are dual-diagnosed.
 More than half also have a diagnosis of chemical
dependence.
Disabled Children and the
Adult Justice System
 Approximately 200,000 juveniles are
charged as adults each year.
– DOJ says approximately 12% under 16 years
– 23 states set no minimum age
– 27 set minimum for some crimes at 15 or
younger
 So how many of those are juveniles with
disabilities? Extrapolation…100,000?
Why so many disabled children in justice system?
 Complex problem that hasn’t been well studied yet.
 A number of characteristics are considered to be common.
– School failure
– Limited access to mental health services and
appropriate school supports
– Inadequate social skills
– Impulsivity
 How many sentenced to death between 1976-2004?
– 196 juvenile death sentences have been imposed; 72
offenders remain under the sentence; 22 executed.
– Approximately 3% of yearly death sentences were for
crimes committed by juveniles.
Roper v. Simmons, 2005 W.L. 464890
 In 5-4 decision announced March 1, 2005
Supreme Court forbids execution for crimes
committed by juveniles.
 Kennedy majority opinion stated that 3 general
differences between juveniles and adults (lack of
maturity and sense of responsibility; more
vulnerable or susceptible to negative influences;
character not as well formed.)
 Scalia dissent rejected the majority reliance on
international norms and flaunting of states power
to determine culpability and appropriate
punishment.
Defining Competency
 Legal system requires defendants to be competent
before they can be tried for crime.
 Competency = ability to understand the charges
against oneself, participate in one’s defense and
make basic decisions at trial and about whether to
accept plea agreements.
 US Supreme Court has ruled that people with
mental retardation and mental illness must be
“competent” before tried.
Research Network on Adolescent
Development and Juvenile Justice Study
 Looked at competency of 1,400 youth ages
11-24, half of whom were incarcerated
(2003).
 Found that 1/3 of children ages 11-13 and
1/5 of those aged 14 and 15 understood at
similar level to those with mental illness
and found incompetent.
Examples of How Children Understand
their Legal Rights
 Defense Counsel: Has to tell the judge everything that
child says.
 Miranda Warning: When told “You do not have to make a
statement and have the right to remain silent." Children
until about age 16 hear…
– "You can be silent unless you are told to talk," or "You have to be
quiet unless you are spoken to.“
 Rights are not entitlements…they are conditional.