When Autistic People get Arrested in the Justice System
People with autism are more likely to be victims. They are seven times more likely to intersect with the criminal justice system than individuals without Autism (Berryessa, 2014). https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4392381/
Autistic people that have behavioral problems can easily get arrested and find themselves incarcerated. It is not hard to imagine an autistic person being arrested for assault. My child has hit strangers with a closed fist to the face. We have been lucky in that the strangers have been very kind and understanding about the situation and have not pressed charges. It could still happen so it is scary. I do know of other young autistic people that have spent time in jail and /or state pen for sending threatening notes and have been arrested for armed robbery (Edgar's Story).
Things to understand about Adult Criminal Court(a little of it applies to Juvenile Court, but big differences):
Prosecutors must prove both a criminal act (actus reus) and a criminal intent (mens rea) to convict a defendant. The only exception relates to statutory offenses, where commission of the crime alone establishes culpability by legislation.
In itself, autism or any disability is not a defense in the law.
If your adult child is under guardianship or conservatorship, this is not a defense under the law. It may come into play in whether your adult child can wave their rights if they did that.
Competency can be used as a mitigating circumstance. Competency refers to the mental ability to understand problems and make decisions. It also refers to a criminal defendant's ability to stand trial.
https://en.wikipedia.org/wiki/Competence_(law) Evidence of intellectual disability/mental retardation factors in two limited phases of a criminal trial: during a preliminary competency hearing, and if the defendant is convicted, to mitigate the severity of the punishment. Court competency hearings determine whether an individual can comprehend the nature of the charges again him/her and assist in their own defense. Competency and insanity defense are two different determinations.
Mental illness can be used as an insanity defense but that means if the person is found guilty they may spend an indeterminate amount of time in a mental institution. Is autism a mental illness? There is no scientific basis on which to separate a psychiatric disorder from a neurological or developmental one, yet. DSM-5 makes no distinction between a psychiatric disorder from a neurological or developmental one. The problem is that the underlying scientific reasons for autism are not known. There are a number of states that have laws such as State Mental Illness Parity Laws that classify autism as a mental illness. Autistic individuals with high intelligence levels cannot invoke legal insanity as a defense in most states (King & Murphy, 2014) https://www.ncbi.nlm.nih.gov/pubmed/24577785
Autistic individuals that cannot tell the difference between “right” and “wrong” may qualify for the insanity defense (Woodbury-Smith & Dein, 2014) https://www.ncbi.nlm.nih.gov/pubmed/25155337
The insanity defense is the specific legal theory that the defendant didn't understand what he was doing at the time of the crime. Most intellectually disabled people are not found to be legally insane.
“Unlike psychopathy, however, ASD has nosological* status and… is associated with significant socio-emotional impairments that may, arguably, affect the ability to form intent” (Woodbury-Smith & Dein, 2014) https://link.springer.com/article/10.1007/s10803-014-2216-5
*Nosology- The branch of medicine that deals with the classification of diseases. A classification of diseases.
Because of mandatory sentencing laws, judges have become administrators and hold less power in decision making. In Juvenile Court, judges have a lot of discretion.
District attorneys have all the power in a court case. They are the people who determine if a person will be brought to trial and on what charges. This affects bail and sentencing. Even though you are innocent until proven guilty, a judge assumes that charges made by the District Attorney are true in determination of bail.
Only interrogations of a person who is in custody are subject to Miranda Rights. Interrogation is the keyword in the previous sentence. A person who is arrested and not under interrogation, does not have to have their Miranda rights given to them. Anything they say outside of interrogations can be used against them. A person who is not in custody is not protected by Miranda rights and anything they say can be used in a court case or later when they are arrested.
For someone to invoke their Miranda Rights an individual can indicate in any manner and at any time prior to or during questioning, that he or she wishes to remain silent. The interrogation must cease.
If the individual states that he or she wants an attorney, the interrogation must cease until an attorney is present. An individual must have an opportunity to confer with the attorney and be allowed to have that attorney present during any questioning. You have to ask for an attorney. Your attorney could be right outside the interrogation room and the police do not have to tell you.
Miranda Rights explained in further detail:
Supreme Court has ruled interrogators can lie and play dirty tricks during an interrogation (FRAZIER v. CUPP)
An interrogator’s objective is to get someone to admit to a certain set of facts and that the crime was committed for a certain purpose. In order to get a confession, interrogators will state facts pertaining to the case and get the individual to repeat those facts back into a confession. Interrogators can also make promises which are not true like: “If you confess, you can go home.”
It is better to negotiate and settle with the District Attorney before a court case. If you go to trial and lose, your adult child will be subject to mandatory sentences. You may be able to negotiate better terms before court. Jurors tend to look at conduct as intentional and done on purpose. They may have a hard time factoring in the mind of someone who is autistic or intellectually disabled.
Avoid settling for a strike offense in a three strike state.
Beware of probation.
With probation, a sentence will be imposed but not executed (Execution of Sentence Suspended: ESS). Violation of probation will result in the original sentence being imposed and the judge cannot modify the sentence. Parole violations are heard before a parole board. The parole violation is considered a new offense.
Before a parole board, the prosecution need not prove “beyond a reasonable doubt” that the claimed violations occurred for parole revocation.
Both the Berryessa, 2014 and Woodbury-Smith & Dein, 2014 studies cited above are overviews of autistic people in the judicial system.
Skip to: What to do if your child or someone you care about is arrested
Things to understand about Juvenile Court:The juvenile justice system maintains rehabilitation as its primary goal.
In 2013, 40 states (including the District of Columbia) consider individuals up to 17 as juvenile. In nine states, the age is 16. In New York and North Carolina, individuals are considered juveniles up to 15. New York made changes in 2017, diverting most defendants age 16 or 17 away from adult proceedings. In 2017 Vermont enacted a law that will eventually bump the criminal responsibility age up to 21. Since juvenile age considerations can change through legislation, you will need to verify what it is for your state and situation.
Most states do hold that children seven years and younger do not fully understand “right” and “wrong” and excuse them from responsibility for acts they commit. The court may hold their parents responsible and require compensation. The court may find parents unfit for the child and place the child with relatives or in foster care.
Most states consider a child 14 to 17 as capable of criminal intent and therefore their case can be adjudicated in juvenile court.
Between the age of 7 to 14, it is up to the judge to determine whether the child had criminal intent and how the case will be handled.
Police, prosecutors, juvenile court intake officials, and juvenile court judges all have broad discretion to take more informal steps in handling a juvenile case. Many young offenders never reach the point of a formal adjudicatory hearing.
Police have the option of issuing a warning, and then let the minor go- counseled and released, issue a warning and then release the minor to the custody of a parent or guardian, or refer the minor to juvenile court.
If a minor is referred to juvenile court, a juvenile court intake officer (often a probation officer) or a prosecutor can decide to dismiss the case (about 20% of cases get dismissed), handle the matter informally (about 25%), or file formal charges (called "petitioning the case"). Advocacy at this point can be very pivotal. Informal resolutions often require one or more: listen to a stern lecture, attend counseling, attend after-school classes, repay the victim for damages, pay a fine, perform community service work, or enter probation.
To start a formal juvenile adjudicatory hearing, a prosecutor or probation officer files a civil petition, charging the juvenile with violating a criminal statute and asking that the court determine that the juvenile is delinquent. The juvenile has a right to have an attorney at the adjudicatory hearing.
The judge will determine whether the minor should be detained or released for the time period before the initial hearing. In about 80% of cases, the judge allows a minor to remain at home while awaiting the hearing.
Judges in juvenile courts have a lot of power and a broad range of sentencing options, "disposition orders". In juvenile court, advocacy and supporting documents of autism and intellectual disabilities can make a real difference.
Three things can happen before a judge in juvenile court:
The minor can enter a plea agreement that they will comply with certain conditions like a curfew, attend counseling, attend after-school classes, repay the victim for damages, pay a fine, perform community service work, or enter probation.
The judge can divert a case with required completion to some type of rehabilitation program or counseling or community service or reparations. Failure to complete, a judge can reinstate formal charges.
An adjudicatory hearing is a “trial” in juvenile court. It is similar to a trial in that attorneys from both sides present evidence before a judge. There are no jury adjudicatory hearings. The judge decides whether a minor is delinquent or not. A delinquency ruling is called "sustaining the petition."
If the judge rules sustaining the petition, a probation officer will evaluate the juvenile and make a recommendation(s) to the judge at a disposition hearing (like a sentencing hearing in adult court). The evaluation can include ordering psychological examination or diagnostic tests. A probation officer will take into account advocacy and supports in place for the minor like release to a group home.
A judge should decide in the best interest of the juvenile and can order counseling, confinement in a juvenile detention facility, reimbursement of the victim, or probation.
A judge can order post-disposition hearings to see the juvenile in court and see how the juvenile is progressing.
Juvenile cases depending on age can be transferred to an adult court in a procedure called a "waiver” if the crime involves serious offenses, like rape or murder, or youth who have been in trouble before.
What to do if your child or someone you care about is arrested:Advocate Immediately
Find out what the charges are and what they mean.
Talk to the police department detective assigned to the case. Provide the detective or police officers that are interrogating your child with documentation that your child has autism, any intellectual disabilities, and the extent of those disabilities. This will not stop any interrogation but will serve to note that they knew of the person’s disabilities and can be used as part of the defense on competency and wavier of rights. (See card below, for not allowing wavier of rights.) You can establish a disability of autism and intellectual disabilities. You can use school records, IEP, social worker records, and doctors’ reports. Make sure the district attorney also gets these documents.
If your adult child is charged with a felony, talk to an attorney immediately.
During arraignment and court proceedings have as many people as possible attend. The presence of support for your adult child in the court room does make a difference. Most of the time there is no one supporting the defendant. If after a procedure for a defendant a large number of people leave, judges and prosecutors notice this.
Have people write letters on behalf of the defendant. All written communications must be sent to all parties. The judge, the prosecutor, and the defendant’s attorney should receive the same copy of any communications. Ex parte communications (to just one party) are prohibited. Keep writing.
Before the judge sets bail, they need to get the same documentation as the police about your child’s disabilities and the extent of those disabilities. Any documentation from a social service agency for a plan to limit flight risk, harm and damage can factor in a reduction of bail. Bail is set at arraignment from a schedule depending on charges. A judge can make changes to the bail only if he knows of unusual circumstances before bail is set other than that they must follow the bail schedule. Once bail is set at arraignment, it stays set and cannot be changed at a later date with the exceptions of new facts or charges being dropped.
There are states that have moved away from money bail and are relying on risk assessments to determine if a person will return for their court date. In some states this is in an experimental stage, so see if you can be part of that experiment. The same type of documentation for setting the amount of bail is helpful for risk assessments. Any documentation from a social service agency for a plan to limit flight risk, harm and damage can factor in. “What are the supports in place?” documentation can go a long way to helping determine if an autistic child will spend time in jail or go home.
Many state social service agencies, like regional centers in CA, have forensic specialists. This is a recent growing trend. These forensic specialists help clients and families if a client of the state social service agency is arrested or otherwise caught in the judicial system. Contact your social worker/social service agency or state social service department to see if they have a forensic specialist or someone who deals with court cases of clients.
Have your attorney get a psychiatric and neurological report before the trial. This is paid for by the court, if you bring up competency. Beware the reports can be skewed negatively to your case. You may have to pay for additional reports yourself to counter any negative bias by the court reports.
As an advocate for your adult child, you are going to have to stay on top of making sure your attorney follows through with getting documentation to the judge about the extent of your child’s disabilities before bail, plans to reduce flight risk, harm and damage and requesting court psychological and neurological assessments. Defense attorneys work many cases at the same time and have various abilities. Make sure things get done in a timely manner.
Advocate for a low impact statement for someone who is disabled especially if you can get it from any of the victims. This can reduce the sentence.
If an adult with disabilities is found guilty and incarcerated, prisons and jails must protect people that are susceptible to violence from other inmates. This may mean that your adult child is in solitary confinement for some time.
Get copies of all the case files and keep forever. This will help with appeals or if your child is arrested again in the future.
Example of information card to have your child with disabilities carry:My Name is_________________________
I wish to remain silent and do not wave my Miranda Rights.
I want my attorney to be present before any interrogation.
Parent’s name and telephone number
Attorney’s name and telephone number
For a wallet ID .docx file with the above information that can be filled in click here: Wallet ID
Edgar at Juvenile HallOur phone rang at 10:00 P.M. on April 12th from the Oakland police informing us that they were arresting our 14-year-old son, Edgar, for an armed robbery at a store in our neighborhood. We said, “No, our son is in bed asleep.” Well, much to our surprise, he was not there, but his window was wide open. We then pleaded and pleaded and pleaded that the police NOT take him to jail, but instead to a mental health facility.
Edgar had a violent psychotic breakdown that began on the 1st of April 2011. Without going into the blow by blow of this episode, he was confused, angry, hearing intrusive voices, and very depressed. We later found that he had taken himself on and off his medication since that date, and by Friday the 8th of April he had not taken any at all. He became more and more aggressive. Finally, we reached out to his psychiatrist, therapists, and a Crisis Team from a mental facility. They were all as supportive as they could be. The Crisis team was at our house about six times during this period at all hours of day and night. They tried very hard to get Edgar under control. Twice we called the police because he was so far out of control.
Edgar got the idea that he needed punishment and called the police on himself about 3-4 times, sometimes begging them to take him to jail. The “beat” police in our neighborhood, (who by this time knew Edgar very well) tried very hard to explain to him that Juvenile Hall was not a place for him.
It seemed that Edgar had been bound and determined to do something drastic. Wearing house slippers, jeans and a t-shirt and a black hoodie covering his face in 47-degree weather, he walked to a store, put his hand in his pocket and told the cashier that he had a gun. The clerk gave him $60.00, and Edgar left the store. He was about a third of the way home when his conscience would not leave him alone, and he decided to return the money. He walked back to the store, saw several police cars, and without realizing all the commotion was for him, decided to wait until the police did whatever business they were there for and leave giving him a chance to hand back the money.
He wandered the store, killing time. When the clerk who had been held-up spotted Edgar, he said to his manager, “that’s the guy right there.” Edgar overheard him and was curious about what the “guy” who had brought out so much police presence - looked like, he started to follow the manager who was trying to get the police’s attention. At this point, the police were clearing out the store and from afar said to Edgar, “Put your weapon down and lay flat on your stomach, with your arms out. Now Edgar is thinking, “Uh oh. The “guy” is right behind me.” Finally, the police say, “You with the t-shirt and slippers.” Edgar then realizes the police are looking for him. And so the nightmare begins.
Edgar went into Juvenile Hall, despite all our pleadings begging the police to take him to a mental facility. Very shortly after arriving at Juvenile Hall, Edgar started hitting his head repeatedly on the concrete wall of the holding cell. He begged the booking police to let him kill himself, and did everything he could to get beat up. For the next couple of days, he called other inmates derogatory names, making inappropriate sexual comments to inmates and staff. His Public Defender, who was wonderful, said that if we did not find a way to get him out of there soon, he could and probably would be “shivved” (stabbed with a homemade knife) at any time.
He had only been there three days and already had many enemies, plus he had recently shaved his head clean. Not a good look when going to jail in Oakland. He was put on suicide watch and in isolation, meaning he was not allowed to be near or with other inmates and only released twice a day in a yard by himself. We were not sure what effect this was having on Edgar.
Many of the staff at Juvenile Hall, including social workers, had worked at the school that Edgar had attended until a few years earlier. They recognized him, counseled him and contacted us to let us know how he was doing. They advised us that he needed to get back on his meds as soon as possible and get him into an emergency group home. I called Edgar’s Regional Center case manager to find a home for him. A few days later, I got a call from her with good news. There would be a place for him at a group home on the following Monday.
We could not see nor speak to him until his 1st court date on Friday, April 15th. With his chin pinned to his chest, he would not look at us. His attorney, probably accustomed to young men/women screaming in court said to Edgar to be very, very polite to the judge. Edgar’s interpretation was to whisper his answers. When the Judge warned him never to go to that store again, Edgar whispered, “I can’t because they are closing that store.”
We were able to convince the judge that Edgar was mentally unstable and needed to go to a mental facility. The judge released him to have him sent to the mental facility and then to us after treatment after attaching a GPS to his ankle. He was transported to the mental health triage facility that evening. However, after the psychiatrist examined him, she determined Edgar was not a danger to himself or others with his hands handcuffed behind his back, and he had shackles around his ankles. When I looked him in the eye, he looked confused. How could they say he was not a danger to himself or others after being charged with armed robbery? He was sent back to Juvenile Hall to have an ankle bracelet attached and then released to us.
Knowing that Edgar had not been taking any of his medication for at least a week, we did not think we could keep Edgar – or the rest of the family - safe. I told the person that was doing his paperwork that I didn’t think we could handle him but he would be in a group home on Monday. She was someone that knew Edgar and kept him at Juvenile Hall, safe in isolation, for the weekend. On Monday, I drove Edgar to a group home for mentally unstable/emotionally disturbed boys.
On May 16th, Edgar went before the judge for sentencing. Unlike most of the offenders wearing baggie pants that showed their underwear, Edgar wore his grandfather’s suit and tie. He went into court knowing that he might be back in custody for as long as three years and that his future would depend on his appearance, behavior since being released from Juvenile Hall, the recommendations of his Attorney, the Probation Officer, the District Attorney and more importantly the Judge. Without a doubt, the day was nerve-racking for all of us. We barely got any sleep the night before.
The week before the hearing, we met with Edgar’s Parole Officer. We told her about Edgar's history. She made us stop at about age five as she pulled back the tears and told us "this is exactly why I did not become a Social Worker." We told her that Edgar was now in therapy at the group home and we were all in Family Therapy there as well. We handed the Parole Officer copies of the apology letters that Edgar wrote to the Store Clerk, the Store Manager, and the arresting police officer. We also gave her reports from the director of his regular school, the director of his religious school, the therapist from the Group Home and the dozens of letters of love and support from our family, friends and other professionals in Edgar's life. We also sent the same information to his Attorney. All the letters were attached to the reports that his Parole Officer and Attorney were going to submit to the Judge. We also asked to have the GPS removed from Edgar's ankle.
It could not have gone any better. The Judge seemed impressed with the reports and documentation that were submitted. He asked Edgar many questions. Edgar answered as truthfully and straightforward as possible for him to do, even if he did not know the answer. Edgar's Case Manager from the Regional Center was at the hearing and helped explain some of Edgar's issues and that he was eligible to remain at the Group Home for up to 6 months. The Judge decided that Edgar did not need to be placed back in custody and placed on probation for 1year. We were delighted. Then he read a list of requirements for probation that flew over our heads. He sternly warned Edgar that if he ever saw him in his courtroom again, if he broke his probation conditions – including taking his medication, did not attend school, problems at the Group Home, breaking curfew - he would be serving his time in custody. Thankfully, he also told Edgar that based on his network of support, the love, and care surrounding him, and his home environment, he did not exemplify someone who should be in Juvenile court, the back of a police car, nor incarceration.
Of course, the District Attorney had other ideas, but the Judge ignored her. Edgar’s Attorney was very impressed with him. He said that Edgar had done better in the last month than any of his clients had done on three years of probation. Edgar had to repay the county over $2,000 for Attorney fees, his stay in Juvenile Hall, his GPS, investigation fees, supervision fees and drug testing. We made it VERY clear to Edgar that this was his debt to pay, not ours.
Edgar stayed at the Group Home for another few weeks where he continued to be supervised by a “house staff team” 24/7. His teacher reported to them about his school day, he was on lockdown, his medication administered and adjustments made by his Psychiatrist. He saw his therapist twice a week. He was never allowed out alone, came home for day visits and eventually weekend visits only if the “house team” felt that he had behaved well.
Being away from home for such a long period had been hard on Edgar, as well as the rest of the family. However, we believed it was enormously important that he feels the weight of what he had done, the seriousness of his inexcusable actions, and the financial burden he had incurred. We believed that Edgar had the potential to change based on his remorse and his continued sadness and emotional pain he demonstrated every time we saw or talked to him. After court, he said that he tried to learn to pray, not only for himself but also for certain kids he met in jail and everyone who helped him move through this situation.