A Letter to Prosecutors
What you should know about the autistic defendants you prosecute
Dear Prosecutors Everywhere,
Writing to you as an ordinary citizen with you being a minister of justice, I cannot imagine the solemn and sacred responsibilities each of you is tasked with in helping to keep our communities safe.
They say…’ with great power comes great responsibility.’ No profession is this more applicable than yours. They also say no person in America has more actual power than a prosecutor. Your immense power comes from the social contract that we are all bound by, where there is a collective agreement among citizens in a free society that people cannot just do as they please when it infringes upon the rights of others. But as a minister of justice, it is incumbent upon you to decide when to seek traditional justice and when to seek a different kind of justice. Your decisions will never please everyone. If you thought they would, you never would have become a prosecutor. But because justice is blind, you must pursue it no matter the cost.
In the spirit of following your conscience in your ministerial role as a prosecutor, I’d like to offer you a perspective you may not have considered until now. I don’t blame you for this. No one provided you with a class in developmental disabilities in law school, and I would be surprised if your continuing legal education required courses specifically on this subject (though you may have had units on mental health issues).
Autism and Criminal Law
Doubtlessly, you know what autism is. But I want to go into the weeds just a bit.
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. Unlike depression, which may have a genetic etiology but may not manifest until young adulthood, autistic people have been autistic all of their lives. You cannot separate a person’s autism from their essential self. Just as you cannot say someone is “a person with gayness,” it is hard to make the same statement about an autistic person as well. This is why many autistic people prefer “identity first” language to “person first” language. “I am an autistic person,”…not…”I am a person with autism.”
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 people often feel as if they are living on the wrong planet or as if they are an anthropologist on Mars. Autistic researcher Damion Milton believes that neurotypicals have the same lack of empathy towards autistic individuals that autistics supposedly lack towards their allistic cousins, known as the double empathy problem.
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.
Think of a person asked to carry a package across town by people who befriended someone desperately seeking friends only to be the one who is charged with a crime. Think of a person who thinks they are talking to an adult online, is then lied to, and the autistic person takes it a step too far because they don’t understand they are harming that person. Think of that autistic man who happens to be interested in UFOs and oversteps his bounds within the confines of his home to find proof of their existence and, while doing so, commits one of the most severe crimes on the books.
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 is not to 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 Cold, Hard Truth About Jail and Prison
Autistic people do not do well in prison. If you must pursue a course of action that results in an autistic individual being sent to prison, you should know what will happen to them.
First, many of the people who are sentenced have a disability already. According to the Bureau of Justice Statistics, nearly 4 in 10 state prisoners have a disability — with 3 in 10 having one in federal prison. (We need to do better.) According to a conversation I had with a former warden at a federal prison, autistic prisoners usually end up with “unaffiliated” status. In essence, this means they will lack group status on the inside. They will be preyed upon without protections to help guard them against nefarious actors. The greater the security level of the facility they are being sent to, the more at risk they will be. Urinals, showers, cells, dinner halls, and workspaces are all shared. Without moments of privacy or respite and no opportunities to learn social skills in a setting tailored to their needs, this will inevitably lead to regression and disintegration. Losing the ability to mask in stressful environments will result in behaviors that can lead the autistic prisoner into trouble. The occasional inappropriate “stare” at another prisoner can have physically severe repercussions for the autistic prisoner. No one will be holding the hand of the autistic person to prevent them from being the “little policeman” they were on the playground in school or the adult workplace —and this type of person is better known as a ‘snitch’ in prison. Everyone knows what happens to snitches. Other prisoners, sensing weakness, will take advantage of autistic inmates whose “masking” abilities are severely blunted in prison. This does not even account for prisoners with intellectual disabilities, who will be at an even greater risk.
The sensory sensitivities autistic people have will be enough to regress their sense of self completely. They may meltdown, shut down, burn out (as they can burn out on the outside of a jail or prison), and start not being able to comply with guard commands — either because they are paralyzed with fear or they don’t understand what’s being asked of them. Next stop: Solitary confinement or a restraint chair. Torture. They may also get tickets and write-ups due to these episodes, which could prevent early release through no fault of their own.
As with those who have mental health issues, autistic people may not get the medications they need due to staff shortages or administrative policies. The physical comorbidities associated with autism are no less than stunning and include vitamin deficiencies, sleep disorders, neuropathies, autoimmune disorders, mitochondrial diseases, epilepsy, irritable bowel syndrome, brain-gut issues, diabetes, and heart disease, among others. Not even the best prison medical center could effectively treat these conditions.
One of your jobs as a prosecutor is to provide deterrence so others don’t commit the same crime. You can still do that without subjecting an autistic person to a setting they are not biologically or neurologically equipped to handle. No one would put a poodle in with a pack of wolves and expect it to survive.
Incarceration will be fraught with risk for the person and anyone in contact with him or her. Their direct manner, offbeat behaviors, and characteristics may be read by other inmates as an invitation to exploit and control. Corrections professionals may see a rude, incorrigible person.
And as Peter Hess reports…
Violence is hardly rare in prison: About one in five men in the U.S. prison population is assaulted by another inmate or by prison staff every six months, according to a 2009 study. But prison holds particular dangers for people with autism, who are prone to anxiety, inflexible thinking and sudden outbursts — traits likely to provoke the ire of others. For those with sensory sensitivities, the crowded, noisy spaces and bright lights of prison can exacerbate their anxiety and other traits. And many autistic inmates are oblivious to social cues that are critical to peacefully navigating the prison environment.
And as the Marshall Project says…
Autistic people and people with intellectual disability often have difficulty understanding prison rules and norms, making them especially vulnerable to exploitation in prison, says Jamelia Morgan, an associate professor at the University of Connecticut School of Law. “There’s disproportionate exposure to violence, sexual or otherwise,” she added.
Some parents of incarcerated people with developmental disorders say they feel powerless to help their children cope behind bars.
Gary Glissman of Nebraska said that when his adult son, Michael, spent three months in an Omaha jail for theft, he submitted medical documentation to health officials demonstrating that Michael had a clinical need for testosterone replacement therapy and psychological counseling.
Michael suffers from depression and anxiety related to Klinefelter Syndrome, a genetic developmental disability that can lead to abnormally low levels of testosterone and difficulty controlling emotions in moments of stress.
Glissman says he wasn’t surprised that officials weren’t responsive. “It’s very basic in the prison system,” he said. “Either it’s broken or bleeding, or too bad.”
And this from the Dallas Morning News…
The U.S. justice system is sadly outdated in its handling of autism and cognitive disabilities, in general. Without the proper training, handling people with these disabilities can be extremely taxing on the police, justice and prison systems. And the impact on some of our most vulnerable citizens is chilling.
And this from The Conversation…
Prisons are noisy environments with banging doors, and other inmates talking and shouting. The enclosed nature and prisons’ structural design means these sounds reverberate and are amplified. Many with autism experience sensory hypersensitivity: rain on the window may sound like gun fire, and fingers on the scalp when washing hair may feel like razor blades. For them, the every day noise of a prison can be deafening.
Social communication difficulties can also be an issue, such as understanding the non-literal language of other inmates. For instance, an inmate saying to another that he was “going to rip his head off!” would cause an individual with autism to be surprised that this action had not actually been carried out.
I hope you are seeing some themes and connecting threads emerge.
Please don’t send an autistic person to jail or prison unless it is indispensable for public safety.
Diversion
Thankfully, diversion offers accountability to those who need an alternative form of justice. And what a good thing it is that more courts have provided diversion programs to the developmentally disabled lately. But prosecutors are usually the gatekeepers of whether a diversion program is a negotiable possibility. I urge you to use this tool in your toolbox. As former District Attorney Michael D. Parker said in 2008…(see pages 8 and 9 of the linked document)
Prosecutors should encourage therapeutic intervention…and seriously consider probationary periods and deferred prosecutions to monitor compliance before actual prosecutions in such cases.
According to the sources you read and trust, about 80–85% of us are underemployed and unemployed. If you think it’s a challenge to find a job as an autistic person in general, imagine the hurdles facing them with a record. It’s the one-in-a-thousand individual on the spectrum who can get a job with a felony record. It also becomes more challenging to get needed government benefits like Section 8 housing as people with criminal convictions are not a protected class. It can also result in the cutoff of SSDI if the person is in jail or prison beyond a certain length of time. Even in old age, nursing homes can deny housing to autistic individuals after their parents and siblings pass away.
Diversion provides for accountability. However long the delayed sentence would be, it would be entirely between your office, the judge, and the defendant. Whether the defendant had an 18-month diversion plan or a 5-year diversion sentence, if the autistic person could avoid incarceration and a criminal record, it gives them— who might have lacked criminal intent (or had diminished capacity) another chance. They still would be tied to the conditions of their release for the duration of their time on diversion and, therefore, would be monitored carefully. Autistic individuals, though again not a monolithic group, tend to be rule-followers once the rules of the road are made implicitly clear.
As Uta Frith et al. says…
It is not surprising that individuals with ASD are sensitive to normative rules, given that the only way they have to cope for their lack of social intuitions.
In other words, by and large, when autistic individuals know the rules, they have a “marine-like” mentality. They follow those rules!
In the vast and intricate tapestry of the criminal justice system, your role as a prosecutor stands out with a unique blend of power and responsibility. It’s a role that demands a keen understanding of the law and an empathetic grasp of the human condition. When an autistic individual’s life intersects with this system, it becomes a poignant reminder of the complexities and nuances that define our pursuit of justice.
This intersection is not merely a procedural encounter; it’s a profoundly human story unfolding within the austere walls of a courtroom. Autism, as we’ve seen, is a lifelong narrative that colors every aspect of an individual’s experience. It’s a different lens through which the world is perceived and engaged. When these individuals step into your arena, they bring a backdrop of challenges and misunderstandings, a history where their actions are not always in sync with societal expectations.
Diversion programs and alternative approaches to justice are not just compassionate choices; they are practical, effective strategies that recognize the complexity of human behavior and the diversity of needs. These alternatives offer a path to accountability that aligns with the realities of those who might not fully grasp the unspoken rules of our social world.
With respect, your decisions hold immense power to alter trajectories and redefine futures. In this complex dance of justice, may your steps be guided by both the firm hand of the law and the gentle heart of humanity.
Yours Truly,
Nick
