What Judges Need to Know When Sentencing Autistic Defendants
Whoever saves a life saves the whole world.
Many of my writings in this publication focus on the intersection of autism, developmental disabilities, and the criminal legal system. In this piece, I want to discuss a judge’s paramount role in facilitating a just and humane outcome for this population.
The ADA
By the time an autistic defendant faces the sentencing phase, they have been through the wringer. Some defendants have been kept in custody and arguably cannot meaningfully collaborate with their attorneys, even if they are technically ‘competent’ under the legal standard, which is a shallow bar to meet. There is a high probability that the rights that should be afforded to autistic individuals under the Americans with Disabilities Act (ADA) have not been upheld for any random autistic defendant in jail. Public defenders are usually told that it is not in their purview to help enforce these rights — that this obligation falls to a separate civil attorney. This is unrealistic. Suppose an individual cannot afford an attorney and relies on taxpayer dollars for a public defender. In that case, they must file a pro se lawsuit, which denies them professional representation, virtually guaranteeing them that they cannot receive protection from a federally mandated law meant to be self-executed by all governmental facilities. They also risk retaliation by filing suit against the very institution imprisoning them.
Bail
The repercussions of this are transparent concerning bail. The systemic barriers to enforcing ADA rights for autistic defendants in custody, such as the unrealistic expectation for them to advocate for themselves legally without appropriate support, highlight a critical gap in the legal protection and support for individuals with disabilities.
Granting bail to autistic individuals who are not a flight risk or have extensive criminal records addresses these concerns by allowing them the opportunity to prepare for their defense in a more suitable and supportive environment where they can better access the resources and accommodations they need. It mitigates the heightened risk of unfair treatment and injustice that autistic defendants face in custody, aligning with principles of fairness, accessibility, and the protection of rights for individuals with disabilities.
The presentence report
Then, of course, a judge receives a presentence investigation report from the probation department. In my experience, most reports are a mix of funky formulas with sentencing enhancements that would apply to most criminal defendants and an outline of the offense conduct based solely on the prosecutor’s version of events. The presentence investigation report (PSI or PSR) is usually the primary information the judge relies upon when sentencing a defendant. Though it includes factual information regarding the number of arrests one has, family history, drug use, etc., it is usually slanted toward the highest sentencing recommendation possible. Even a prosecutor will frequently ask for less time in prison than the presentence report requests.
Expert witnesses
Knowing that presentence reports are slanted to be written against a defendant and that probation officers writing the reports lack clinical experience regarding the autism spectrum, judges should give equal if not more weight to expert reports submitted by the defense attorneys. Psychological expert witnesses are guided by ethical standards by the American Psychological Association (APA), and though a given party for monetary compensation may hire them, they will not misstate facts or draw purposefully erroneous conclusions. These experts certainly know much more about how autism intersects with being caught in the web of the criminal justice system in any given case than a government bureaucrat in the probation department who has had no training about people on the autism spectrum. Ideally, the forensic expert picked would have significant training and expertise regarding the autism spectrum.
Judges should be wary of reports written by experts who have not actually met the autistic defendant — usually a prosecution witness. These are typically called “drive-by” reports that occur without an evaluation. They are, unfortunately, allowed because it may not always be “practical” for a particular expert to evaluate for logistical reasons. The APA provides a code of conduct for these kinds of scenarios. Since the Daubert Standard asks whether the testimony or expert report is based on sufficient facts and data, extensive documentation can be considered scientific — though this layperson author would beg to differ.
Judges should take these drive-by reports with a grain of salt. It is not uncommon for expert witnesses to spend fifteen to fifty or more hours with defendants in conversation and administering testing. Drive-by experts are just simply not in a position to write a fully knowledgeable report and should not be given any serious weight at sentencing.
Autism and the intersection with the criminal legal system
Judges should know that autistic individuals are seven times more likely to come into contact with police, and this becomes exponentially higher when black and brown autistic minorities are concerned. This fact is at odds with the fact that autistic individuals, while not monolithic, tend to thrive on structure and a given set of rules that make sense to them. The research bears this out. Studies have shown that autistics on community supervision have fewer revocations than their neurotypical counterparts (see page 15).
Autism, jails and prisons
The one thing that no one can dispute is the catastrophic effects that jails and prisons have on autistic individuals, and the literature is replete in illustrating why this is so. To quote at length from the above-linked article in Spectrum News:
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.
As a result, they are apt to get into fights or become the target of bullies who see them as reactive or gullible. “People with autism don’t get unwritten rules,” says Glynis Murphy, a clinical psychologist at the University of Kent in Canterbury, England. “They don’t get them when they’re out in the community, and they don’t get them when they’re in prison.”
Compounding the problems autistic people face behind bars is the fact that prisons tend to be ill-equipped to accommodate inmates on the spectrum. Most facilities are chronically short of mental health professionals, who tend to prioritize schizophrenia and other conditions that present a greater security risk than autism does. And corrections staff are rarely trained to recognize and appropriately interact with autistic people. Prison officials sometimes see them as troublemakers and mistakenly blame them for altercations, Murphy says.
Significantly, for those who are parole-eligible, being autistic can negatively impact one’s chances of being released early. To quote again from Peter Hess’s Spectrum article:
A lack of knowledge about autism can also shape the outcome of parole board hearings. An autistic person who presents with a flat demeanor or does not make eye contact may signal a lack of remorse to parole board members, Allely says. And as a result, autistic people may be denied parole and serve much longer terms than their typical peers do.
Judges should seriously consider non-custodial sentences for autistic individuals for the ASD person’s own safety and assuming they are not an immediate threat to the community and no mandatory minimums are handcuffing them. If the judges look around and see what other judges have done, they will notice that others on the bench have made courageous decisions when provided with the necessary information. I say “courageous” because giving probation or a diversionary sentence may not be seen as “tough enough on crime” by their county-wide constituency and may not help a judge’s reelection efforts or being appointed for a higher court in the federal judiciary. Yet anecdotally speaking, I have heard case after case where judges who have family members on the autism spectrum sentence autistic defendants much more compassionately than judges with no known ties to autism. Hopefully, defense attorneys can help sufficiently educate judges through their chosen expert witnesses. In cases where the prosecution insists on a plea bargain with a mandatory minimum, when appropriate, a judge should ask the parties if they would consider further negotiations to arrive at a revised agreement that does not require jail or prison.
Judges’ attitudes towards autistic individuals
Judges have implicit biases toward individuals on the autism spectrum. Some of it is positive, and some — not so much. According to some of the research from Colleen M. Berryessa, this is what certain judges have to say…
One judge brought up the Sheldon Cooper stereotype while commenting he felt this character made Asperger’s individuals ‘more lovable’:
I think he’s classic Asperger’s, but he makes them more lovable.
Another judge conflates “illnesses” with autism.
“I think it’s [the Sandy Hook incident] put fear in a lot of people, you know, and that I don’t think that society is able to distinguish between the different illnesses and conditions that affect the mind, and I think that it’s created a general fear of anyone that we may think doesn’t…is not able to think rationally and so…but I think incidents where, you know, there’s been an association with some type of mental health condition has increased the fear, the distrust.”
We should want experts to explain to judges that autism is not an illness, that it is not usually associated with violence, and that there is no rational reason why there should be an increase in fear and distrust in autistic individuals.
Other studies by Berryessa have been equally illuminating. One judge, without any evidence, said:
I think it would be a detriment to [offenders] in future cases. Judges are going to be concerned because they’re more likely to re-offend.
It is simply not true that “they” (autistic people) are more likely to re-offend.
Other judges appear more enlightened:
My goal as a judge is to try to ensure that I put as many variables in place that will assist [an offender with HFA] in not becoming another statistic in the criminal justice system and actually make probation something that will provide that individual with the benefit and that might include…a therapy modality…
Continuing legal education
If these snippets demonstrate anything, it is that continuing legal education for judges needs to include a significant amount of modules and time on the autism spectrum. Judges and prosecutors have God-like power over those who appear in courtrooms across America. With great power comes an even greater responsibility to become educated about autistic individuals whose fates rest in their hands. Since 1 in 36 individuals is on the autism spectrum and is seven times more likely to appear in court, this is a societal issue that cuts across party lines and affects everyone. Our hard-earned tax dollars should go toward ensuring our judiciary functions with all the behavioral science knowledge of autism that needs to be at their disposal. Currently, this is not happening.
Supporting the maxim that ‘if you’ve met one autistic person, you’ve met one autistic person,’ the best practical education judges could receive would be for them to meet a cross-section of autistic people if they have not already done so. Let autistic people participate in these presentations and, in some cases, lead them. Legal education with a multidisciplinary team could help supplement the curriculum with research.
Why this matters
The notion of justice, especially for autistic defendants, requires a paradigm shift among our judges towards more holistic and individualized sentencing practices. This entails a critical examination of non-custodial sentences, which, as discussed, can serve as a more humane and effective alternative for autistic individuals who pose no immediate threat to the community. Implementing such practices necessitates a departure from one-size-fits-all sentencing policies, embracing instead a more nuanced approach that considers the individual’s specific circumstances and needs.
Judges must be made aware of the detrimental impact of incarceration and the exploration of alternative paths to detention that have not been previously discussed. The traditional recourse to incarceration not only fails to address the root causes of criminal behavior among autistic individuals but also significantly exacerbates their vulnerabilities, leading to outcomes that are antithetical to the principles of rehabilitation and justice.
The carceral environment, inherently structured around punitive isolation and regimentation, is particularly damaging to autistic individuals, who may experience heightened sensory sensitivities and social-communication challenges. I encourage all judges to spend a day or more in jail or prison with any autistic person in the United States. There would be no better educational opportunity for a judge than this experiential exercise to see what autistic people go through.
Judges should know that the prison environment, with its cacophony of sounds, harsh lighting, and forced social interactions, can precipitate severe psychological distress in autistic inmates, manifesting in increased anxiety, depression, and even self-harm behaviors. Being bullied, extorted, sexually assaulted, being placed in solitary confinement, and even dying by suicide are common issues that autistic people face in custody (refer to links about prison and jail earlier in the article for information on issues autistic people face when incarcerated). Such an environment is not only incapable of providing the necessary support and accommodations for autistic individuals but actively contributes to a deterioration of their mental health and well-being.
Moreover, judges should know that the lack of specialized training among prison staff in recognizing and adequately responding to the needs of autistic inmates often leads to misinterpretations of behavior, resulting in disciplinary actions that further entrench the cycle of harm. Autistic individuals may find it challenging to navigate the unwritten social codes of prison life, increasing their vulnerability to exploitation and victimization. The social isolation experienced by many autistic inmates can be profoundly damaging, exacerbating feelings of loneliness, alienation, and PTSD.
Against this backdrop, the imperative for alternative paths to detention becomes clear for judges to implement. Community-based interventions, which prioritize the individual’s rehabilitation within the context of their social environment, emerge as a humane and effective alternative. Such interventions could include specialized therapeutic programs, which address the underlying behavioral and mental health issues contributing to criminal behavior, and supported employment and education programs, facilitating the individual’s productive reintegration into society.
Furthermore, the expansion of diversion programs, which redirect individuals away from the traditional criminal justice process into specialized services and support systems, holds promise. Such programs, by focusing on the unique needs and challenges faced by autistic individuals, can prevent the cycle of incarceration and provide a pathway toward recovery and integration.
Judges should start engaging in a multidisciplinary dialogue that includes legal professionals, mental health experts, autism specialists, and community organizations. This collaborative approach can facilitate the development of policies and practices that are not only responsive to the needs of autistic individuals but also contribute to the overall efficacy and humanity of the criminal justice system.
The adoption of alternative paths to detention for autistic individuals by judges is not merely an option but a moral and legal imperative. By shifting the focus from punitive isolation to rehabilitative integration, the criminal justice system can better uphold its foundational principles of justice, equity, and human dignity. This approach not only benefits autistic individuals but also enhances the social fabric by fostering environments where all members, regardless of neurodiversity, can contribute to and thrive within the community.
