One Conversation You Must Have With Your Autistic Child
Beyond silence and scripts: Navigating justice for autistic individuals in the criminal legal system
Many days, I hear gut-wrenchingly tragic stories of parents whose autistic children are engulfed in the criminal legal system. Most first-time autistic accused offenders have lived utterly squeaky-clean lives before their arrest.
But I want to tell you a couple of secrets in case your autistic child ever finds themselves at odds with the criminal legal system.
The first secret is not so much a gatekept secret, but most people, allistic or autistic, don’t adhere to it even though they should. When you are told you have the “right to remain silent,” you really do have that right, and people who talk anyway, despite knowing this, do not understand how the system works.
If someone is being interrogated, the investigators already believe that person is guilty. It does not matter if you won the national speech and debate tournament or placed near the top in a high school forensics competition; it doesn’t matter if you think you could match Roy Cohn’s ghost barb for barb; you can say nothing in English or any other language that will get them to change their minds. Even if you are innocent, you cannot talk yourself out of it. People sometimes over-confess or even falsely confess, believing that this is what the investigators want to hear, which, quite paradoxically, they think will help them in the long run when the reality could not be more opposite of their expectations. Hence, false confessions happen, and that is why the rate of false confessions can be so high for developmentally disabled folks.
The investigators will play various games with you to get you to talk. They say they want to hear “your side of the story” and will try to establish rapport with you to make you believe the investigators are actually on your side and there to help you. These people are not like Elliot Stabler, who will physically beat you to a pulp in the interrogation room — that’s not how it works at all in real life. They are much nicer than that.
This follows the maxim…”Talk nice, think mean.”
They can make false promises and even lie to you about evidentiary matters using existing Supreme Court precedent, though some states are trying to make deceptive interrogation illegal. For example, you could be told…“We know you did such and such,” when there is no evidence to support this claim. Or: “So and so told us,” even if they did not. Or: ” We have cell phone records that show you were at this location,” even if they do not have said records.
Brendan Dassey and Nicholas Godejohn are both poster children for why autistic people should always ask for an attorney instead of speaking with the investigator. Brendan is arguably an innocent man who told the authorities what they wanted to hear, and because of it, he will never step foot outside the prison walls.
Considering that most, if not all, interrogators use the Reid Interrogation Technique, there are built-in major communication hurdles that naturally put autistic people in a one-down position before they even open their mouths. The investigators are laser-focused on the nonverbal behavior and verbal utterances of the person in question. How many of us genuinely have confidence that most detectives received enough training in autism not to conflate “autistic behaviors” with “deception” concerning nonverbal or verbal behaviors?
Is there an autistic person in the world who, if they had to take the mask off because of dysregulation or stress in an interrogation setting, would not display different nonverbal and verbal behaviors that might arouse suspicion? What could possibly go wrong here? Everything.
This is what the Reid Training Programs encourage investigators to watch for:
BEHAVIOR SYMPTOM ANALYSIS
Evaluating Attitudes
Evaluating Nonverbal Behavior
Evaluating Verbal Behavior
Evaluating Paralinguistic Behavior
According to a 2023 Time article that speaks to the problematic aspects of the Reid Interrogation technique being used against autistic people, an autistic man named Michael Ledford was a massive victim of it.
At 23, Ledford had just lost his one-year-old son and his (then) wife was in critical condition. But the police interrogated him for hours without a lawyer, using a brutal technique that left him powerless. This common interrogation method, known as the Reid Technique and what we casually call “the third degree,” allows police great leeway for intimidation and deception because it was originally intended to be used against hardened criminals. But according to Innocence Project lawyers, it’s often used to extract confessions from the most vulnerable — the young, the unrepresented, and those with spectrum disorders. According to the Innocence Project, of DNA exonerations since 1989, 29% included false confessions. Half of those were under 21 years old; 9% had mental health issues known at trial.
You may think your child is so law-abiding that having this talk with them is unnecessary. And they may be extremely law-abiding. But keep in mind that autistic folks are seven times more likely to have contact with law enforcement, even though we tend to be more compliant. So you do need to talk with the autistic person in your life. At the heart of that talk, they must know how to assert their need for a lawyer and not begin an interrogation in the first place. Not a “lawyer dog,” but a lawyer. (Hit the link if you want to understand the reference.)
“I am finished talking now. I need a lawyer immediately.” That’s the script. We need to teach autistic people that saying those words is not being rude or noncompliant but that it is an absolute necessity.
The more unknown secret
But the real secret I want to tell you is this: Investigators often use workarounds to avoid reading people their Miranda rights. There are a few exceptions where law enforcement does not need to read Miranda rights to someone to have what they say used against them in court. Generally, Miranda does not need to be read if the subject is not “in custody” at the time. But what does this mean?
Courts try to define “in custody” in various ways. Where did the interrogation occur, at a police station or the person’s home? How many interrogators were present? Was the person told they were under arrest? Were they in a familiar setting? Was the person told they could leave at any time? How long was the interview? Were there various physical restraints used against the person? Who initiated the interrogation?
These seem like impartial questions, but they are pretty loaded. This is so because the courts use what is known as a “reasonable person standard,” where if it is interpreted by the neurotypical judiciary that the autistic person felt as if they could leave, they do not need to be read their Miranda rights and are, therefore, not in custody. We might as well call this a “reasonable neurotypical person standard,” right?
So, let us examine how this “reasonable person standard” might apply to autistics.
If many officers show up at a person’s home and begin questioning a person, this may give them the impression that they cannot leave because of the sheer volume of law enforcement presence. Or if officers show up at one’s job and ask to question the individual there, again, it is a “familiar” setting, but how free will they feel to leave when the interview lasts three or four hours? Or if an autistic person is asked to come down to the police station to answer a few questions, they may think they are doing the officers a favor by volunteering information. Again, because they are free to leave, their statements can be incriminating without any Miranda warnings being read.
Or what about a traffic stop?
According to the Chief of Police of the West Jordan police department in Utah:
The Miranda rule applies only when there is both custody and interrogation. If a suspect is not in “custody,” no Miranda rules ever apply. The Supreme Court has concluded that, while a person might not be free to leave, they may also not be in custody under Miranda, such as in a common traffic stop: “An individual is in custody for Miranda purposes when, under the totality of the circumstances, a suspect’s freedom of action is curtailed to a degree associated with formal arrest” (Berkemer v. McCarty, 468 U.S. 420 (1984)).
This is a very subjective and murky territory we are stepping into. If a subject is not free to leave a given situation, would this not give the impression to a “reasonable person” that they are in custody?
What about if one is in the hospital, you might ask, where someone clearly can’t leave?
But interrogating a suspect who is receiving emergency medical treatment poses a similar threat of abuse, coercion, and confusion, yet it often requires no Miranda warning.
The late University of Michigan law professor scholar Yale Kamisar, who was cited four times in the original Supreme Court Miranda decision, was dismayed by such interpretations. He wrote:
As I have already noted, at another point, Justice Alito told us that “[a] witness’ constitutional right to refuse to answer questions depends on his reason for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim.”98 But there are bound to be situations where (1) the suspect does not understand that he has a right not to be compelled to incriminate himself and/or (2) the suspect does not realize that he is in the process of being compelled to incriminate himself. In those cases, shouldn’t somebody tell the suspect something?
All of this is to drive home the fact that you need to have this talk with your autistic loved one. Aside from presenting identification and giving one’s name to the officer or detective, tell them to then ask for a lawyer assertively in these situations regardless of whether or not Miranda has been read, period. Whether you break the information down into bits to make it more digestible and not to cause them to be overwhelmed, leading to an emotional shutdown, or you kill two birds with one stone, that is your call. But your autistic loved one must know these things.
The take-home message for society at large
We must address the need for systemic reform and individual preparedness in autistic individuals’ interactions with the criminal legal system. The discourse thus far illuminates a stark reality: the conventional paradigms and methodologies of legal processes are ill-equipped to accommodate the unique experiential realities of those on the autism spectrum. This misalignment not only jeopardizes the integrity of legal outcomes but also raises profound concerns about the equitable administration of justice.
Firstly, the criticality of legal education and preparedness for autistic individuals cannot be overstated. Traditional legal advisories, such as the right to remain silent and the nuances of the Reid Technique, assume a level of interpretative and communicative parity that does not universally exist. For autistic individuals, these advisories must be reframed and imparted in a manner that resonates with their distinctive processing patterns. This involves a pedagogical shift from mere legal information dissemination to a more holistic, scenario-based preparatory approach. It is incumbent upon parents and advocates to engage in this educational endeavor, ensuring autistic individuals are mindful of their legal rights and adept at asserting them in potentially disorienting legal contexts.
Simultaneously, there is an urgent call for systemic recalibration. The legal system’s engagement with autistic individuals necessitates a departure from a one-size-fits-all approach to a more nuanced, informed, and empathetic methodology. Law enforcement training programs must incorporate modules tailored explicitly to understanding autism spectrum behaviors, aiming to dismantle the prevalent misconceptions that often lead to misinterpretations and, in extreme cases, wrongful convictions. This training should extend beyond mere awareness to include practical strategies for conducting interrogations and interactions that accommodate the unique needs of autistic individuals.
Furthermore, this discourse underscores a pivotal societal imperative: reexamining and restructuring our collective perception of autism. The societal lens through which autistic behaviors are viewed often skews towards misunderstanding and stigma, a perspective that inadvertently seeps into legal interpretations and judgments. Advocacy for a more informed, inclusive, and empathetic societal stance on autism is not merely a call for social justice; it is a fundamental prerequisite for ensuring that the legal system does not perpetuate inequities and injustices against this vulnerable population.
We need a dual-pronged approach: robust, scenario-focused legal education for autistic individuals and systemic and societal reforms. Such an approach does not merely seek to navigate the existing legal landscape; it endeavors to transform it into an equitable, just, and understanding environment for all, particularly those on the autism spectrum. This is not a mere academic discourse but an issue that demands attention, commitment, and immediate implementation across various societal and institutional spectra.
