Supporting Offenders with Developmental Disabilities at CCBDD – FACT SHEET

1. Supporting Offenders with Developmental Disabilities at CCBDD – FACT SHEET Overview of the Historical Issues A. Persons with dev. disabilities represent 4 to 10 percent of jail and prison population in the U.S. B. Disability frequently undetected C. Disability hinders the individual’s ability to effectively assist with his/her defense D. When granted probation or parole, least likely to complete probation/parole without violations or recidivating E. Most likely to have inadequate support system • In summary, Offenders with DD do more time, do harder time, get less out of their time, and are more likely to return to prison.

2. Resolution When DD offenders are charged with crimes that pose problems regarding specialized knowledge as to applicable law and resources, the Court systems should work together with social service agencies/providers to develop an integrated system of criminal case management that achieves the following: • Early identification of arrested individuals with DD. • Keep defendants out of jail except when it is necessary to protect the community. • Create non-jail housing opportunities. • Early linkage of DD offenders with treatment, social services & educational resources. • Specialized caseloads for supervision. • Recruitment of additional treatment, social services, educational resources and housing for the DD offender. • To educate the police, lawyers, judges and social service agencies on legal issues and treatment resources.

3. National DD Offender Statistics • Persons with intellectual disabilities comprise 2% to 3% of the general population (Petersilia, 2000). • Persons with developmental disabilities represent 4% to 10% of the prison population, with an even greater number of those in juvenile facilities and in jails (Petersilia, 2000). - In one study, fewer than 1% of inmates had physical disabilities while 4.2% had intellectual disabilities (Veneziano & Veneziano, 1996).

4. TYPICAL CONSUMER TODAY • Primarily male (86%) • Primarily African American (66.7%) • Typical age is 18 – 30 • Oldest Offender was 75 when found Eligible • Co-morbid Mental Health diagnosis • Estimated 7 out of 10 sex offenders are dually diagnosed

5. TYPICAL CONSUMER TODAY • Sex Offenses • Mental Illness common among those with sex offense charges • Assault /Robbery/burglary • Assault or other offenses of aggression often have history of ongoing behavioral issues within residential setting

6. TYPICAL CONSUMER TODAY • New type of Customer • Persons with TBI • Autism • Asperger’s Syndrome • New types of Charges • Internet Pornography • Stalking

7. Out of the Shadows: Supporting Offenders with Developmental Disabilities at CCBDD VI. Boundary Spanners/Challenges For Forensic Liaisons A. Essential to bring down walls and gaps between social services systems and the Criminal Justice System B. Facilitates cooperation and collaboration between DD system and various components of the Criminal Justice System C. Assists with the planning process to insure the court’s need to provide for community safety and security, while allowing best possible outcome for the individual

8. Out of the Shadows: Supporting Offenders with Developmental Disabilities at CCBDD D. “Friend of the Court” 1. Understands legal system, its players and it priorities 2. Insures that issues relevant to the individual’s disability are brought to the attention of the court and defense attorney 3. Awareness of and connection with community resources thus able to provide the court with sentencing alternatives

9. Risk/Vulnerability Factors – Exists in the Community and in Jail/Prison Our Clients have: • Difficulty processing information • Fear of retaliation by others • Unaware of how to protect themselves • Overly trusting and think others are their ‘friend’ • Eager to please and will do things to gain friendship • Caregiver/family member may be the one coercing them to commit crime • May not want their disability to be recognized and try to cover it up • Perceived as easy targets

10. Risk/Vulnerability Factors – Exists in the Community and in Jail/Prison Our Clients have: • May not fully understand consequences • Unaware of how serious or dangerous the situation is • May not recognize what they are doing is a crime • Easily influenced/manipulated • Communication limitations • Unaware of personal rights • Poor judgment/impulsive • Are afraid of the police and make incriminating statements • Don’t realize they can ask for an attorney

11. Supporting individuals involved with CJS Individuals with disabilities should learn about the possibility of meeting a police officer, how to protect their rights during encounters with police and how to speak up if they are being victimized. * Formal discussion at annual ISP * Teaching/reinforcing moments in day to day activities * When CJS involvement occurs – Forensic Unit and/or Behavioral Health Supports become involved

12. Effects of DD Consumer in the Legal Arena • Easily manipulated by more capable accomplices (e.g., “left holding the bag”) • Cannot provide an adequate account of offense, thus appearing non-responsive or evasive • Suggestible in interrogation, cross-examination • Cannot understand, much less apply rights • Cannot discuss facts in a relevant context or chronological order

13. Effects of DD Consumer in the Legal Arena (continued) • May agree for appearance sake • Difficulty functioning in an adversarial situation • Need for frequent explanation/re-explanation • Cannot comprehend or follow testimony • Impaired memory, attention/concentration • Will not challenge or question false testimony • Responds/acts without considering consequences

14. Effects of DD Consumer in the Legal Arena (continued) • DD defendants less able to mount effective defenses • DD defendants less likely to receive probation sentences (need for MRO program) • DD defendants may serve longer prison sentences than other offenders because of difficulties with adjustment and functioning while incarcerated

15. Faulty Legal Assumptions within the CJS • Presence of a Developmental Disability automatically equates with being incompetent to stand trial and/or insane at the time of the offense(s) • Developmental Disabilities = Mental Illness • 20 – 35% of non-institutionalized persons with DD also have diagnosed mental illnesses • Among convicted offenders, 30 – 47% have been found to have a dual diagnosis • The presence of both disorders creates the risk of examiners erroneously attributing all pathology to a single condition. • DD Defendants cannot be culpable for their actions

16. Competence to Stand Trial (CST) • Ohio Statute (two arm test) • “A defendant is presumed competent to stand trial unless it is proved by a preponderance of the evidence that because of his present mental condition he is incapable of (1) understanding the nature and objective of the legal proceedings against him or (2)of presently assisting in his defense.” • A defendant can be found incompetent based on deficits related to one or both arms of the test

17. 9-Elements of CST (McGarry) • 1)Appreciation of charges • Literal knowledge of charges and their seriousness 2)Appreciation of range and nature of penalties • Understanding of possible sentences if convicted 3)Appreciation of adversarial nature of legal process - Understanding that the defense attorney is assisting them, the prosecutor is attempting to convict them, and the judge/jury are impartial

18. 9-Elements of CST (continued) • 4)Capacity to disclose pertinent facts to attorney • Ability to provide attorney with a consistent, rational and relevant account of their mental state and what occurred during the alleged offenses 5)Ability to relate to attorney - Ability to trust and capacity to communicate relevantly with their attorney

19. 9-Elements of CST (continued) • 6)Ability to assist attorney in planning defense • Capacity to comprehend, participate and cooperate with counsel in planning a defense consistent with the reality of their circumstances 7)Capacity to realistically challenge prosecution - Capacity to recognize distortions in prosecution testimony and aid their attorney in confronting witnesses

20. 9-Elements of CST (continued) • 8)Ability to manifest appropriate behavior • Assessment of current behavior and probable behavior when placed under the stress of courtroom proceedings 9)Capacity to testify relevantly - Ability to testify with coherence, relevance, and independence of judgment

21. CAST-MR Assessment • Competence Assessment for Standing Trial for Defendants with Mental Retardation (Everington & Luckasson, 1992) • An orally administered multiple-choice format tool comprised of three sections: • Basic Legal Concepts • Skills to Assist Defense • Understanding Case Events

22. CAST-MR (continued) • Basic Legal Concepts • Assesses the defendant’s knowledge of the criminal justice process, including the meaning of a trial or hearing, the roles of various court personnel, and the functions of a jury and defense attorney • i.e., What is a crime? a) When you go to jail b) When you hate someone c) When you break the law

23. CAST-MR (continued) • Skills to Assist Defense • Assesses the defendant’s understanding of the client-attorney relationship • i.e., Let’s pretend you are in court and the prosecutor tells a lie about you and it makes you really mad! What would you do? • Tell the prosecutor off • Tell your lawyer • Refuse to answer more questions

24. CAST-MR (continued) • Understanding Case Events • Assesses the defendant’s ability to discuss the facts concerning the incident in a coherent manner and to understand the relationship between the alleged facts in the case and the subsequent arrest and charges • i.e., What were you doing that caused you to be arrested? (Based on thoroughness, can be scored 0, .5, or 1 point)

25. CAST-MR (continued) • Mean scores generated for each of the three sections, and total score, for: • non-mentally retarded defendants found competent to stand trial • mentally retarded defendants found competent to stand trial • mentally retarded defendants found incompetent to stand trial • Test found to be reliable and valid

26. Defendants Found Incompetent to Stand Trial (IST) • In Ohio, if a defendant is found incompetent to stand trial, the examiner has to determine if they can be restored to competence within the time period permitted by statute: • Felonies of the first and second degree: 1 year • Felonies of the third, fourth, and fifth degree: 6 months • Misdemeanors of the first and second degree: 60 days • All other misdemeanors: 30 days

27. Defendants Found IST (continued) • In Ohio, if a defendant is found incompetent to stand trial, but has a substantial probability of being restored within the time period permitted by statute, the examiner must next determine the least restrictive setting where this should occur • i.e., Psychiatric hospital, DD facility, outpatient basis, with or without psychotropic medication, etc.

28. MR Defendants Found IST • In Ohio, if a defendant is found incompetent to stand trial, and it is the examiner’s opinion that they are a developmentally disabled person subject to institutionalization (i.e., has an IQ score within at least the moderate range of mental retardation and adaptive skills deficits), the Court must order a separate DD evaluation to be conducted by a MRDD psychologist (Dr. Cowan)

29. Purpose of Competency Restoration • The purpose of commitment of any incompetent defendant is restoration of competency • However, the issue of the defendant with DD is not “restoration” of competency (which implies that something was lost) as much as it is the “attainment” of competency • “Restoring” competency (mentally ill) vs. “training” competency (Developmentally Disabled)

30. Competency Restoration-Statistics • 80-90% of defendants with mental illness will be restored to competence usually within a period of less than six months (i.e., psychotropic medication) • Most defendants with DD are determined by the Court to be competent to stand trial (legal presumption of competence)

31. Competency Restoration-Statistics (continued) • Research has indicated that defendants with DD who are initially found not competent to proceed, are not likely to be restored to competence • Only 18% of DD defendants were restored to competence in the Anderson & Hewitt study of 2002 • DD defendants with less severe cognitive deficits have a better chance of being restored (mild vs. moderate DD)

32. Concerns Re: Competency Restoration of DD Defendants • Abilities such as abstract reasoning and decision-rendering are not only difficult to teach but are extremely difficult to learn • Competence training with DD defendants may lead only to a superficial achievement rather than the defendant’s acquisition of the complex skills needed to assist in their own defense (i.e., “parroting” responses)

33. Defendants Found IST-U • For defendants found Incompetent to Stand Trial, who could not be restored within the time period permitted by statute (IST-U), the following can occur: • The judge can dismiss the charges; • Order an affidavit to be filed in Probate Court if the person is mentally ill and subject to hospitalization or mentally retarded and subject to institutionalization; • Retain jurisdiction in criminal court, if defendant is charged with a violent felony of the first or second degree, and is subject to hospitalization/institutionalization

34. Defendants Found IST-U-CJ • Defendants found Incompetent to Stand Trial-Unrestorable-Criminal Jurisdiction (IST-U-CJ), can remain hospitalized/institutionalized for as long as they would have served in prison, had they been convicted of the charge(s)

35. Final Thoughts…… • Offenders are not all the same • Supports should be provided in a fluid manner so that individuals learn needed skills to be as independent as possible • The CJS offers the consequences that any other person with offending behaviors would experience – involvement may actually be helpful

36. Forensic Unit • Michael Kontura Forensic Liaison Cuyahoga County. Bd. Of DD 1275 Lakeside Ave. East Cleveland, Ohio 44114 Work#: 216-736-4533 Fax#: 216-736-3398 Email: kontura.michael@cuyahogabdd.org