A Letter to Defense Attorneys
What you need to know to represent your autistic client
Dear Criminal Defense Attorneys,
If you are a public defender, thank you for your service. Many of you take a lot of undeserved heat from various parties. It is not often talked about that, at times, you can have as many as two hundred or more felony cases on your caseload simultaneously. This is naturally unsustainable, but you step up to the plate anyway because people depend on you to safeguard their lives. You are the unsung heroes of our society who help everyday citizens keep the rights of the Constitution within reach.
In the realm of criminal defense, attorneys are often called upon to represent clients with a diverse range of backgrounds and needs. Among these, autistic individuals present unique challenges and opportunities within the legal system.
I do not doubt that all experienced criminal defense attorneys reading this article/letter have represented a neurodiverse individual at some point in time, i.e., someone on the autism spectrum. Nevertheless, I want to do my best to impress upon you some ideas paramount to representing an autistic individual to the best of your ability.
A brief descriptor
As I said in my letter to prosecutors:
Autism is a developmental disability acquired at birth that manifests behaviorally between 18 and 24 months of age and sometimes as early as 12 months. It colors every aspect, timbre, shade, and hue of how one processes information about the world and how one relates to it…As autism affects every aspect of development from the cradle to the grave, it is primarily a social disability. Though no two autistic people are the same, everyone on the spectrum struggles socially. We don’t struggle socially because of a character defect, and it’s not that we lack empathy; it’s that social codes that haven’t been explicitly explained to us may not become automatically internalized, resulting in a lack of understanding. Autistic individuals often perceive and interact with the world differently than neurotypical individuals. This divergence can manifest in varied communication styles, sensory sensitivities, and unique behavioral patterns. For a defense attorney, understanding and adapting to these differences is a matter of legal proficiency and ethical representation….Typically, the autistic defendants who come on your radar screens will be first-time offenders. Many will be there for serious crimes, but a large percentage of those people won’t understand why they are being charged in the first place, and some may only have a limited understanding due to their social disability. But this lack of understanding is not a sign of sociopathic tendencies suggesting entitlement or a callous disregard for the law. On the contrary, it’s a person who did not have the awareness needed to act by the correct social mores at that particular moment in time due to their disability.
Establishing Rapport
When you first meet your autistic client, they will likely be in a daze. They literally will not know what hit them. You only get one opportunity to establish rapport with your autistic clients (think of the primacy and recency effect). If you do not begin to establish trust on the first go-round, it will become exponentially more complicated and demanding with each subsequent try.
The vast majority of autistic people have experienced episodes of trauma throughout their lives, this being one more traumatic event added to their list. Many of us are used to being in positions of subordination to others and have learned to mask and fawn as a trauma response. If you come into the relationship with this basic understanding, you will see how important it is that your client feels they can be themselves around you. This unmasking not only becomes invaluable in having your client communicate to you so you can adequately gather information regarding the facts of the case but also because your client may act as if they trust you when they are actually fawning. If this is the case, they may tell you what they think you want to hear, not what you need to hear.
Let me give you an example:
Some autistic people hide their autism to survive in the neurotypical world. They feel they have to in order to maintain their jobs, make friends, etc. This may be okay around other people, but you do not want a masked client. You want a client you can establish rapport with to represent them in the best possible way. This will involve breaking down defenses to get them to open up to you. It will not happen upon the very first meeting with them. But you must start things off on the good foot if it ever is to happen.
Building a case
Your client may be autistic even if they are undiagnosed. Be mindful of the fact that autism passes through all racial and class barriers. Suppose you are placed in a situation where you suspect a diagnosis from an undiagnosed individual. In that case, you MUST investigate this possibility further to assist them as counsel properly. If your client permits you (and, of course, they must), I suggest rounding up everyone in their lives to provide you with more information about your client. Parents, siblings, spouses, and even old teachers. Gather all the files you can from IEPs, school records, behavioral reports, therapy, foster care, and previous diagnoses that can be comorbid with autism. As it is possible that your client may not have an autism diagnosis yet as an adult, courts may be skeptical about taking it seriously, perhaps seeing it through the lens of convenience. Having all this documentation on hand will assist the expert in your client’s case in coming to a formal autism diagnosis.
I have met some defense attorneys who are reluctant to bring up the fact that their client is autistic to the court. They feel that by doing so, they are introducing something that the judge could misinterpret. Indeed, some judges have talked to researchers and admitted that an autism diagnosis is confusing to them, and they are bewildered as to whether or not it is an aggravating or a mitigating factor. According to a study conducted by Colleen M. Berryessa:
Three judges described HFA as a potential aggravating factor, as an individual’s inability to control his behavior may be an inherent danger and threat to himself, others, and public safety.
And disabilities can be used against individuals when it comes to civilly committing them at the end of a criminal sentence. So, I do understand the position these lawyers take.
But, on the other hand:
Overall, nine judges talked about HFA as a potential mitigating factor in sentencing; the large majority of judges that believed HFA would be a potential mitigating factor questioned if an offender’s actions would be completely willful or if his criminal intent would be potentially influenced by the symptoms of the condition (see Berryessa 2014b). One judge, regarding HFA, stated, “I think it mitigates sentencing and I think it helps put it in perspective to all of the parties in terms of how we can best help this individual” (Interview 7).
Judges are human. Many have not had implicit bias training, let alone pedagogical training on the subject of neurodiversity and autism. But as someone who has spoken to countless families who have gone through this process, by far, the vast majority of them end up getting a relatively better result when the client’s autism has been disclosed (I say ‘relatively’ because no result is ever that ‘good’ once you are in the criminal legal system).
What if the client does not have the money for an examination to get a diagnosis? Good question because this comes up a lot.
Some jurisdictions may set aside money for court-appointed experts, but be careful that the expert is not selected for a purpose different than what you seek. Do not have a competency exam performed if you are mainly interested in mitigating circumstances. If a funded exam is not feasible in your jurisdiction, and it often isn’t, contact your client’s local Protection and Advocacy (P&A) agency or a National Disability Rights chapter in your area to see if they are in touch with expert witnesses nearby who may be willing to work for a reduced fee. The Autism Society’s Justice Center, along with Decriminalize Developmental Disabilities, might be able to point you in the right direction toward finding an expert. While it may not be easy to accomplish this, your client deserves zealous representation, putting the commission of the instant offense into context regarding their disability, which can sometimes only be done through an expert’s report.
Finding an expert with credentials in evaluating people on the autism spectrum is ideal.
Dispelling a myth
To quote again from my letter to prosecutors, as I often explain to people:
Autistic people are not a monolith. Some autistic people may be capable of doing bad things. But, by and large, most autistic people do not set out to commit crimes with a complete understanding of the implications of what they are doing. This does not suggest that autistic people cannot be self-determined, autonomous members of society. It is meant to state that there are specific moments in time when autistic people can inadvertently fall into traps — traps that, unfortunately, do cause others to be victims and pitfalls that make them into a victim themselves.
The common denominator between lawyers who do not want to mention autism on behalf of their clients and other people who may be leery of doing it is that they think it gives the idea to society that autistic individuals cannot control themselves, a total and complete myth if there ever was one. And if they can’t control themselves, this reinforces the idea that they should be prosecuted. Furthermore, the implications become even more expansive than the criminal legal system because then the fear is that autistic people will have the rights taken away that they have worked to attain for over the past fifty years if they cannot control themselves.
Let me be clear: When your client committed the crime, it was a slender moment that applied just to that specific speck of time in their lives, and your client’s autism may have had a role in the commission of the instant offense. But this does not mean that the same set of ingrediants needed to create that perfect storm would otherwise be present 99.9% of the time. As the defense attorney, it is your job to reassure the Court and the prosecutor why your client is not likely to re-offend and why autism is a mitigating factor in their case, not an aggravating one. You do this by demonstrating that, overall, autistic people (though not a monolith) are very rule-oriented human beings who thrive when rules are set in stone in a way they understand. According to King and Murphy (2014)
Given the liking of people with ASD for rules, one interesting finding from a well-controlled study (study 10) was that people with ASD were less likely to commit probation violations than those without ASD.
Translate the research to your client’s individual characteristics.
As the defense lawyer, you translate how all of this information applies to your specific client. If they have never been in trouble with the law, their rule-bound nature has likely prevented it up to this point, which bodes extremely well for their prognosis post-adjudication. You back this up with as much data from the expert witness report supporting this conclusion, as well as the life history of your client.
A differentiation
Though mental health conditions can often be seen in the same individuals who are autistic, a developmental disability is, in fact, different from a mental illness. Developmentally disabled individuals are born this way, and it is a part of their being. Though mental illness can have genetic etiology, some conditions may not manifest until their twenties or even thirties. In other words, your client’s developmental disability has shaded and colored every single day of your client’s life from early childhood onward.
Innocence
Of course, there may be instances where your autistic client is factually innocent. A set of kingpins asked your client to deliver a package across town, purposefully setting him up to take the fall without your client having the requisite criminal intent. A false accusation, or whatever the reason. Autistic clients can be innocent. Very carefully explain what taking a plea would look like versus going to trial if your client is found guilty. Plea bargaining can result in false convictions, but there are always risks going to trial. Plea bargaining is designed to wear someone down when they have no other options.
But I am preaching to the choir here; you all know that.
Communication strategies
Effective communication with autistic clients requires more than just simplifying legal jargon. Instead, effective communication demands an empathetic approach that respects their unique way of processing information. Indirect communication methods are always going to be ineffective. Instead, employ direct, clear, and consistent verbal communication, possibly augmented with visual aids like the Picture Exchange Communication System (PECS) if needed. These strategies can aid in ensuring that your client comprehends the legal proceedings and their rights. You may need to get creative regarding how you communicate with your client. It is worth the effort and also part of their rights under the Americans with Disabilities Act.
Moreover, the frequency and setting of attorney-client interactions are crucial. Regular, predictable meetings in a sensory-friendly environment can help build trust and understanding with your client. Let them know when you will return to visit them and keep your word, even with your busy schedules. This consistency not only aids in communication but also lessens the anxiety that legal proceedings often provoke in autistic individuals.
Sometimes, court dates get canceled, or unexpected things happen. Hearings can be put off for months on end, etc. Be sensitive to your autistic clients when they get upset by this. Show empathy, let them know you understand, but explain that this is the nature of the system.
Do not ever give them a false expectation.
Bail, jail, and prison
Bail practices and pretrial detention pose significant risks for autistic individuals. The traditional bail system, with its inherent stresses and unpredictability, can exacerbate the challenges faced by autistic defendants. These environments can lead to a deterioration in their mental state, potentially affecting their competency to stand trial. Defense attorneys should argue for bail practices that take into account the unique needs of autistic clients, emphasizing their client’s unlikelihood to flee the jurisdiction and their lack of danger to others and advocating for alternatives to detention that provide a stable and supportive environment while awaiting trial.
The negotiation for lesser charges and pretrial diversion is another crucial area where attorneys can significantly impact the well-being of their autistic clients. Most autistic people cannot survive the carceral setting.
Pretrial diversion programs, where available, offer a more rehabilitative approach, focusing on support and treatment rather than punishment. Considering that 85% of autistic people are unemployed or underemployed, a diminished criminal record with a misdemeanor or lack of one gives these people a second chance. These programs can be more suitable for autistic individuals, addressing the root causes of their legal issues in a more constructive manner. Negotiating for lesser included offenses may be crucial if diversion is not an option. Lesser charges often come with reduced sentences and a lower risk of incarceration, which can be particularly traumatic for autistic individuals.
The risks associated with incarceration for autistic individuals cannot be overstated. The prison environment, with its sensory overload and potential for bullying and exploitation, can be incredibly harmful. As defense attorneys, you should prioritize arguments against incarceration, advocating for probation, or other alternatives. Probation is not perfect or ideal by any means for an autistic person. Still, it offers a more controlled environment where the individual’s needs can be considered more than if they were serving time somewhere.
Americans with Disabilities Act
Ultimately, many people believe that due process for one’s disability is an issue that comes under the purview of the ADA. As defense attorney Mark Mahoney explains:
Disability laws apply to those enforcing the criminal law. (Dinnerstein and Wakschlag, 2019).
Concerning prison for an autistic person, Interrogating Justice says:
The Americans With Disabilities Act should extend to incarcerated individuals with developmental disorders. However, people with disabilities remain overrepresented in the criminal justice. Those inside correctional facilities rarely receive the care they need. This is especially true for people on the autism spectrum, as they already face challenges in social settings and with authority figures. Advocates for the rights of autistic people document vital issues that people on the spectrum face during incarceration. Still, justice reform does little to improve conditions.
You do not want your client to stare down the barrel of the proverbial gun here. This is a rather needless thing to say, but you cannot be too careful when someone’s life is on the line.
Mitigation
If your client has the means to make a mitigation sentencing video, the evidentiary rules of your jurisdiction allow for it, and it will not involve any witness cross-examination for those who do not want to testify at sentencing; consider this an option.
Explain to your client fully what a plea colloquy entails and the rights they will give up. Do some role-playing to allow for familiarity and adjustment to the occasion's demands if your client wants to do so. Find out if you will be establishing the factual basis for the plea or whether the judge will. The client may be more comfortable answering the questions if they come from you than the Court.
Do attend your client’s presentence investigation interview. Make sure the lines of communication are flowing in both directions. Help your client fill in the gaps if the interview takes several hours and your client becomes dysregulated. If an elongated interview disrupts them from answering the questions, the probation officer should know the real reason why. Let the officer conducting the interview know that this behavior is a manifestation of your client’s disability and not any willful obstinance or lack of remorse.
The bottom line is: Do your absolute best to arrive at a resolution that involves the least amount of collateral damage possible for your disabled client, who has other enormous challenges besides this new one.
And if you want someone willing to train you or your department, you know where to find me.
Yours Truly,
Nick
