Autism and the Criminal Legal System
Autistic people are seven times more likely to come into contact with police yet have robust standards of trying to do the right thing. What’s going on?
Trigger Warning: Please don’t read this article if you have had traumatic experiences either as a victim of crime, have had involvement in the criminal justice system, or know someone who has had involvement and you think this article may activate a trigger. Please take care of yourself. Read when ready, but not until.
Several years ago, the Dallas News proclaimed the United States Justice System has an “autism problem.” What does that mean?
Since you asked, I’ll tell you.
If you are on the autism spectrum, your odds of interacting with the police go up a gigantic seven times over your neurotypical or allistic counterparts. If you are a person of color and also on the spectrum, the odds increase even more than that. Autistic people are always more likely to be the victims of crime than the perpetrators. (This subject is beyond the scope of this article, but needless to say, it is an extremely important topic.) Yet autistic people still regularly encounter a justice system that barely understands them and sometimes doesn’t make much of an effort to learn.
To my autistic readers: If you, as an autistic person, ever encounter police and find that they are loudly barking orders at you one after another, the onus is on you to get over the sensory bombardments, figure out what they are saying, and quickly comply. If you don’t, mistakes will happen, the police might feel threatened, and sometimes they will do what they think needs to be done to go home to their families (this never ends well).
Suppose you find yourself in a police station being questioned. In that case, you’ll be in an extremely sensory hostile environment with police officers who will take advantage of your goodwill, honesty, and openness — even as you have the constitutional right to remain silent. Then, if you are a person of means who can hire an attorney to represent you, you’re incredibly fortunate — but even if that’s the case, there’s no guarantee they will thoroughly understand your neurotype, nor are there guarantees they will know how to implement the best practices of representing an autistic client.
And just as consequential, the prosecutor and judge may also have little idea how a misunderstanding or a mistake in social judgment associated with how one takes in information about the world could have led you to be seated before them. They may brush off autism as an excuse.
These are high-stakes situations that are literally life and death for autistic people throughout the most incarcerated country in the world. (We outdo Russia in this regard, which is not something to be proud of.)
If you think this is a clickbait article or I am throwing in too much hyperbole, let me tell you how I know all this.
For the past several years, I have been on the Board of Directors of Decriminalize Developmental Disabilities (D3) before it transitioned to partner with the Autism Society’s Criminal Justice Taskforce. D3 has had literally hundreds of parents, spouses, and autistic people themselves call them begging for help.
The scenario usually goes something like this: The autistic individual is being charged with a serious crime, the attorney is mounting a fairly lackluster defense and is making no attempt to understand their client’s autism, the person doesn’t have money to hire a new attorney and the clock is ticking. One would think that the protections of Title II of the Americans with Disabilities Act (ADA) would act as a buffer and offer a layer of accommodations necessary to survive this process, but this is rarely so. It is outrageous that a law can be on the books that mandates specific standards for governmental agencies to be followed but can be willfully ignored either because the mandate is unfunded or it lacks a reliable and consistent enforcement mechanism.
The ADA in Practice
So, what does this look like in practice? Here are some of the ways the ADA is not often enforced in a criminal context for an autistic person. This is not an exhaustive list:
- A judge may know that a defendant has autism, but they’ll typically go through a plea colloquy and make no accommodations to make sure the autistic defendant really and truly understands the rights they are giving up. As long as the autistic defendant says “yes” to every question the judge asks, they will be said to be knowingly, voluntarily, and ‘intelligently’ (legal jargon sucks) entering an irreversible plea. Suppose a judge asked you in rapid succession over 15 questions during your colloquy at your plea hearing, and your attorney hadn’t explained much of how the proceedings work to you before the hearing. If you weren’t an expert on constitutional law, and you had some auditory processing challenges and also found yourself in a novel setting with sensory bombardments, would you really be able to process all of the information on the spot and make informed decisions that have lifelong consequences? Many neurotypicals without these challenges struggle here, so imagine all the more challenging it is for autistic individuals.
2. If you are an autistic person and cannot afford bail, there is no universal screening tool used to identify autistic people in jail. And if you think jails and prisons uphold Title II of the ADA, even if they do identify you as being autistic, they don’t. As stated in an article from the Marshall Project from a few years ago…
The Americans with Disabilities Act — signed into law 30 years ago this summer — mandates that people with physical and developmental disorders receive equal access to programs and services provided by public institutions, including correctional facilities. But advocates for people with developmental disabilities have long argued that all too often, prisons do not fulfill that promise.
One reason may be that many states don’t adequately identify prisoners with developmental disorders. The Marshall Project sent questions to all 50 state corrections departments asking whether and how they screen prisoners for developmental or intellectual disabilities. Of the 38 agencies that responded, 25 reported using screening protocols that several mental health and legal experts said don’t meet professional standards. Five states said they don’t screen for developmental disabilities at all.
When developmentally disabled prisoners go unidentified, they are even less likely to receive services they are entitled to under federal law — such as help understanding prison rules or obtaining medications. That loss of assistance leaves them vulnerable to medical misdiagnosis, isolation in solitary confinement, denial of legal and educational opportunities, sexual abuse and bullying, prisoner advocates and relatives say.
“It mirrors or echoes what goes on in society. People with disabilities are often hidden and not seen,” said Susan Politt, a supervising attorney at Disability Rights North Carolina, an advocacy agency. But behind bars, the situation can be even more dire. “They get out in worse condition than when they go in,” she said.
3. Many judges won’t allow evidence of autism to come in at trial, of course, with the full backing of prosecutors. To my knowledge, other than in Virginia, this issue is entirely up to a judge’s individual discretion. Imagine being an autistic defendant who looks down, stims, and sometimes laughs uncontrollably — wouldn’t this be relevant for a jury to know about so that they don’t unknowingly discriminate against the autistic defendant? Often, courts do not permit the jury to be made aware of the defendant’s diagnosis until the sentencing phase, when guilt has already been pronounced.
4. There is very little training for attorneys that requires them to understand and accommodate autistic individuals. If they have no training, how could they make the accommodations that the ADA requires? The fact is that autistic people regularly encounter the criminal legal system, so this needs to change (there’s debate in the criminal justice community whether training really works, with some saying it doesn’t. For now, I still advocate for it — especially for attorneys).
Where’s the Lifeboat?
At D3, there’s only so much we can do to help families after they hit the iceberg, and it often breaks my heart. We can steer autistic people and their families towards resources that help keep ADA enforcement mechanisms in check, such as the watchdog National Disability Rights Network. We can help them find defense lawyers we personally trust to handle criminal cases — assuming the individuals can afford these attorneys, and most of the time, they can’t. We can recommend expert witnesses who are the best in their field when it comes to understanding autism, but they, too, have a price that is out of reach for many. We can help try to facilitate better communication between the attorney and the autistic person and the family, but that only happens if the lawyer is motivated to do so. Sometimes, they’re not. We can help them build a media campaign to show that their autistic loved one did not have the same criminal intent as many other defendants would, but that can backfire when an aggressive prosecutor gets into a retaliatory mood. Roadblocks are everywhere.
Despite this, D3 has made serious inroads. As D3 tries to help autistics and their families through their individual crises, they have also worked on the legislative front, allowing for better ADA enforcement mechanisms, such as the earlier mentioned law in Virginia that allows for autism to be mentioned at trial. But it is hard work for these extremely dedicated people whom I admire so greatly. Lobbying is a full-time job; it rarely pays off, but when it does, it has the potential to be life-changing for large groups of people. Lobbying for laws that would apply to all 50 states and federally, which is D3’s goal, is a truly herculean task. Viewing it through this prism seems exhausting and stretching for an unattainable goal.
Yet, I remain optimistic when I have evidence to be. And I do have some proof. Within the last few months, a group of autistic individuals has formed dedicated to lobbying for laws to be adopted that are more humane and just for autistics. The Autism Society has formed a task force on which I sit — a considerable step forward, in my opinion. In select places, more diversion programs are being put into place with the needs of autistic people in mind. Whether the training works or not, police are just beginning to undergo more training regarding autism. Crisis intervention teams with trained social workers are increasingly being deployed to offset potentially exigent situations and, more effectively, de-escalate the episode, whereas before, only police were involved.
Incrementalism satisfies some people. Sometimes, it also pleases me.
But other times, it doesn’t.
Not when I hear a parent cry because diversion programs don’t exist in their jurisdiction or their children wouldn’t qualify for such a program anyway, and this means prison and a felony record for their child. Not when parents or spouses say their autistic sons and daughters, husbands and wives are being abused by inmates and guards alike with no repercussions, and there’s nothing they can do about it. Not when I give advice that I know can’t be followed, either because the person lacks the financial resources or the legal system is just too powerful. Not when I hear the same story repeatedly, and there’s still nothing I can adequately say to help them produce tangible results in their moment of need.
A New Beginning
But hope springs eternal. And I choose to be hopeful even against the odds.
Right now is the moment. It is a clarion call for urgent and meaningful reform. This stark and disheartening situation also presents us with a unique opportunity. An opportunity to stand up, advocate, and effect real change in a system that has long been rigid and unyielding. The injustices faced by autistic individuals are not insurmountable; they are a summons to action for all who believe in a just and equitable society.
Organizations like Decriminalize Developmental Disabilities (D3) and the Autism Society of America’s Criminal Justice Taskforce have laid the groundwork, showing us that change is possible despite overwhelming odds. Their tireless efforts serve as a beacon, guiding the way toward a more understanding and accommodating legal system. But they can’t do it alone. This task requires the collective effort of every concerned citizen, lawmaker, legal professional — and any autistic person who wants to make their voice heard!
There is a silver lining in this struggle. It lies in the growing awareness and the slowly turning tides of public opinion. Power lies in numbers. More people than ever before are becoming aware of the plight of autistic individuals in the legal system, and with this awareness comes the action potential. We are on the cusp of a pivotal moment in the fight for justice and equality. With continued advocacy, education, and reform, we can transform our legal system into one that recognizes and embraces neurodiversity. The journey is undoubtedly fraught with challenges, but it is a journey worth taking.
As Gandhi is reported to have said…
The true measure of any society can be found in how it treats its most vulnerable members.
Let’s all journey together toward becoming that society.
