1. Disabled People and the Justice System: Another Institution Disability and Society Spring 2007

2. 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?

3. 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?

4. 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.

5. 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 8 th Amendment –US Supremes ruled that execution of people with MR is not considered “cruel and unusual punishment” under the 8 th Amendment (Penry v. Lynaugh, 1989). –However, many states abolished the death penalty completely or specifically for those convicted with MR.

6. And the rest of the world?  International Law generally condemns or prohibits death penalty –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.

7. 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 (8 th 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.”

8. 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?

9. 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.

10. 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?

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.