Dangerous Flaws in the Criminal Justice System for Individuals with Intellectual/Developmental Disabilities
by Kendell Coker, JD, PhD
The criminal justice system consists of law enforcement, attorneys, judges, laypersons who serve as jurors, and when needed, expert witnesses. Each has a unique role to play. I think most people would agree that as a collective, they are tasked with seeking justice for victims. But the justice system does not always lead to a just outcome. In its ideal sense, the chain of events is the following: the "correct" offender is identified and apprehended, treated respectfully by the police, provided effective legal representation, given a jury of his peers, afforded a fair trial, found guilty, and delivered a sentence that is proportional to the crime that was committed. This all sounds quite simple. However, if we use the chain analogy, would you trust your personal security and life to a chain that has loose or broken links? The obvious answer is no. In the context of the criminal justice system, the links are compromised at every stage due to the many forms of implicit and explicit biases in our society. People with intellectual and developmental disabilities (I/DDs) are at high risk of falling victim to the criminal justice chain with dire consequences.
Wait! You Have the Wrong Person
In a report by Dr. Joan Petersilia (2000), she quoted a police officer who said “[people with I/DDs] are the last to leave the scene, the first to get arrested, and the first to confess.” Many people believe that they would never falsely confess. But that assumption, itself, is false. As of June 2017, as many as 245 individuals were exonerated in cases involving false confessions. Of these, at least 25% of them had some indications of an I/DD (Schatz, 2018). The interrogation process is accusatorial, intense, and filled with questions centered around narratives that put the suspect at the scene of the crime. People with I/DDs may demonstrate "suspicious" behaviors (e.g., evasive eye contact), confusion in telling their story, and struggle to express themselves under questioning (e.g., stuttering). Sarrett and Ucar (2021) astutely referred to this as the “criminalization of non-normative behavior.” A suspect can inadvertently waive their Miranda rights by uttering a few one-word responses. The trial, if there is one at all due to unfair plea deals, is long, tiresome, and complicated. The court proceedings are swift, which can be confusing and scary, especially for someone with I/DD who needs extra time to understand the information when their life and liberty is at stake. Unfortunately, the introduction of a confession is often fatal to the defendant’s case.
A Wrong You Cannot Make Right
Some people may believe that being convicted of a minor offense such as a misdemeanor is harmless. But why would we want to believe that any error that goes on a criminal record is harmless? We would not be satisfied with the slightest error on our credit report. Yet, we know that many people with I/DDs are erroneously convicted of felonies and incarcerated. The consequences of a felony can create barriers to employment, housing, and education. These consequences can feel insurmountable to anyone with certain felony convictions. Let’s take a minute to layer this on top of discrimination and mistreatment based on a disability. This inexcusable error is even more pronounced in capital cases in which the person can be executed. In 2002, the U.S. Supreme Court ruled in a case called Atkins v. Virginia that it was unconstitutional to execute someone with an intellectual disability. The Court said people with I/DDs "may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes." This means they cannot be executed. End of story, right? The answer is not that simple. We still must rely on all actors in the criminal justice system to do their part, including the mental health professionals who diagnose I/DDs and perform the risk assessments.
The Solution is Owning the Problem
In order to bring truth to justice, we must acknowledge all the flaws in a system that we never fixed. Even many television series crime dramas often portray a “just” criminal justice/legal system that, in reality, is much more aspirational in principle than it is in practice. The question I am often asked is what we should do about this problem. My answer is two-fold. First, you must acknowledge that the problem exists. Then you must commit yourself to doing something about it. Nothing changes if we all think it is someone else’s problem to fix.
Petersilia, J. (2000). Doing justice? Criminal offenders with developmental disabilities. CPRC Brief, 12(4), California Policy Research Center, University of California.
Sarrett, J. C., & Ucar, A. (2021). Beliefs about and perspectives of the criminal justice system of people with intellectual and developmental disabilities: A qualitative study. Social Sciences & Humanities Open, 3(1).
Schatz, S. J. (2018). Interrogated with intellectual disabilities: The risks of false confession. Stanford Law Review, 70(2), 643–690.