Overview of the Historical Issues
A. Persons with dev. disabilities represent 4 to 10
percent of jail and prison population in the U.S.
B. Disability frequently undetected
C. Disability hinders the individual’s ability to
effectively assist with his/her defense
D. When granted probation or parole, least likely to
complete probation/parole without violations or
E. Most likely to have inadequate support system
In summary, Offenders with DD do more time, do
harder time, get less out of their time, and are more
likely to return to prison.
When DD offenders are charged with crimes that pose problems
regarding specialized knowledge as to applicable law and
resources, the Court systems should work together with social
service agencies/providers to develop an integrated system of
criminal case management that achieves the following:
Early identification of arrested individuals with DD.
Keep defendants out of jail except when it is necessary to
protect the community.
Create non-jail housing opportunities.
Early linkage of DD offenders with treatment, social services &
educational resources.
Specialized caseloads for supervision.
Recruitment of additional treatment, social services, educational
resources and housing for the DD offender.
To educate the police, lawyers, judges and social service
agencies on legal issues and treatment resources.
Persons with intellectual disabilities comprise 2% to 3% of
the general population (Petersilia, 2000).
Persons with developmental disabilities represent 4% to
10% of the prison population, with an even greater
number of those in juvenile facilities and in jails (Petersilia,
In one study, fewer than 1% of inmates had physical
disabilities while 4.2% had intellectual disabilities
(Veneziano & Veneziano, 1996).
Primarily male (86%)
Primarily African American (66.7%)
Typical age is 18 – 30
Oldest Offender was 75 when found Eligible
Co-morbid Mental Health diagnosis
Estimated 7 out of 10 sex offenders are dually
Sex Offenses
Mental Illness common among those with sex
offense charges
Assault /Robbery/burglary
Assault or other offenses of aggression often have
history of ongoing behavioral issues within
residential setting
New type of Customer
 Persons with TBI
 Autism
 Asperger’s Syndrome
New types of Charges
 Internet Pornography
 Stalking
VI. Boundary Spanners/Challenges For Forensic Liaisons
A. Essential to bring down walls and gaps between
social services systems and the Criminal
Justice System
B. Facilitates cooperation and collaboration
between DD system and various
components of the Criminal Justice System
C. Assists with the planning process to insure the
court’s need to provide for community safety
and security, while allowing best possible
outcome for the individual
D. “Friend of the Court”
1. Understands legal system, its players and it
2. Insures that issues relevant to the individual’s
disability are brought to the attention of the
court and defense attorney
3. Awareness of and connection with community
resources thus able to provide the court with
sentencing alternatives
Our Clients have:
 Difficulty processing information
 Fear of retaliation by others
 Unaware of how to protect themselves
 Overly trusting and think others are their ‘friend’
 Eager to please and will do things to gain friendship
 Caregiver/family member may be the one coercing them to
commit crime
 May not want their disability to be recognized and try to
cover it up
 Perceived as easy targets
Our Clients have:
May not fully understand consequences
Unaware of how serious or dangerous the situation is
May not recognize what they are doing is a crime
Easily influenced/manipulated
Communication limitations
Unaware of personal rights
Poor judgment/impulsive
Are afraid of the police and make incriminating
Don’t realize they can ask for an attorney
Individuals with disabilities should learn about the
possibility of meeting a police officer, how to protect their
rights during encounters with police and how to speak up if
they are being victimized.
* Formal discussion at annual ISP
* Teaching/reinforcing moments in day to day activities
* When CJS involvement occurs – Forensic Unit and/or
Behavioral Health Supports become involved
Easily manipulated by more capable
accomplices (e.g., “left holding the bag”)
Cannot provide an adequate account of
offense, thus appearing non-responsive or
Suggestible in interrogation, cross-examination
Cannot understand, much less apply rights
Cannot discuss facts in a relevant context or
chronological order
May agree for appearance sake
Difficulty functioning in an adversarial
Need for frequent explanation/re-explanation
Cannot comprehend or follow testimony
Impaired memory, attention/concentration
Will not challenge or question false testimony
Responds/acts without considering
DD defendants less able to mount effective
DD defendants less likely to receive probation
sentences (need for MRO program)
DD defendants may serve longer prison
sentences than other offenders because of
difficulties with adjustment and functioning
while incarcerated
Presence of a Developmental Disability
automatically equates with being incompetent to
stand trial and/or insane at the time of the
Developmental Disabilities = Mental Illness
20 – 35% of non-institutionalized persons with DD also
have diagnosed mental illnesses
 Among convicted offenders, 30 – 47% have been found to
have a dual diagnosis
 The presence of both disorders creates the risk of
examiners erroneously attributing all pathology to a
single condition.
DD Defendants cannot be culpable for their actions
Ohio Statute (two arm test)
“A defendant is presumed competent to stand trial
unless it is proved by a preponderance of the
evidence that because of his present mental
condition he is incapable of (1) understanding the
nature and objective of the legal proceedings against
him or (2)of presently assisting in his defense.”
A defendant can be found incompetent based on
deficits related to one or both arms of the test
1)Appreciation of charges
Literal knowledge of charges and their seriousness
2)Appreciation of range and nature of penalties
- Understanding of possible sentences if convicted
3)Appreciation of adversarial nature of legal process
- Understanding that the defense attorney is assisting
them, the prosecutor is attempting to convict them,
and the judge/jury are impartial
4)Capacity to disclose pertinent facts to
Ability to provide attorney with a consistent,
rational and relevant account of their mental state
and what occurred during the alleged offenses
5)Ability to relate to attorney
- Ability to trust and capacity to communicate
relevantly with their attorney
6)Ability to assist attorney in planning defense
Capacity to comprehend, participate and cooperate
with counsel in planning a defense consistent with
the reality of their circumstances
7)Capacity to realistically challenge prosecution
- Capacity to recognize distortions in prosecution
testimony and aid their attorney in confronting
8)Ability to manifest appropriate behavior
Assessment of current behavior and probable
behavior when placed under the stress of courtroom
9)Capacity to testify relevantly
- Ability to testify with coherence, relevance, and
independence of judgment
Competence Assessment for Standing Trial for
Defendants with Mental Retardation
(Everington & Luckasson, 1992)
An orally administered multiple-choice format
tool comprised of three sections:
Basic Legal Concepts
Skills to Assist Defense
Understanding Case Events
Basic Legal Concepts
Assesses the defendant’s knowledge of the criminal
justice process, including the meaning of a trial or
hearing, the roles of various court personnel, and the
functions of a jury and defense attorney
 i.e., What is a crime?
a) When you go to jail
b) When you hate someone
c) When you break the law
Skills to Assist Defense
Assesses the defendant’s understanding of the
client-attorney relationship
i.e., Let’s pretend you are in court and the prosecutor
tells a lie about you and it makes you really mad!
What would you do?
a) Tell the prosecutor off
b) Tell your lawyer
c) Refuse to answer more questions
Understanding Case Events
Assesses the defendant’s ability to discuss the facts
concerning the incident in a coherent manner and to
understand the relationship between the alleged
facts in the case and the subsequent arrest and
 i.e., What were you doing that caused you to be
arrested? (Based on thoroughness, can be scored 0, .5,
or 1 point)
Mean scores generated for each of the three
sections, and total score, for:
non-mentally retarded defendants found competent
to stand trial
mentally retarded defendants found competent to
stand trial
mentally retarded defendants found incompetent to
stand trial
Test found to be reliable and valid
In Ohio, if a defendant is found incompetent to
stand trial, the examiner has to determine if
they can be restored to competence within the
time period permitted by statute:
Felonies of the first and second degree: 1 year
Felonies of the third, fourth, and fifth degree: 6
Misdemeanors of the first and second degree: 60
All other misdemeanors: 30 days
In Ohio, if a defendant is found incompetent to
stand trial, but has a substantial probability of
being restored within the time period
permitted by statute, the examiner must next
determine the least restrictive setting where
this should occur
i.e., Psychiatric hospital, DD facility, outpatient
basis, with or without psychotropic medication, etc.
In Ohio, if a defendant is found incompetent to
stand trial, and it is the examiner’s opinion that
they are a developmentally disabled person
subject to institutionalization (i.e., has an IQ
score within at least the moderate range of
mental retardation and adaptive skills deficits),
the Court must order a separate DD evaluation
to be conducted by a MRDD psychologist (Dr.
The purpose of commitment of any
incompetent defendant is restoration of
However, the issue of the defendant with DD is
not “restoration” of competency (which implies
that something was lost) as much as it is the
“attainment” of competency
“Restoring” competency (mentally ill) vs.
“training” competency (Developmentally
80-90% of defendants with mental illness will
be restored to competence usually within a
period of less than six months (i.e.,
psychotropic medication)
Most defendants with DD are determined by
the Court to be competent to stand trial (legal
presumption of competence)
Research has indicated that defendants with
DD who are initially found not competent to
proceed, are not likely to be restored to
Only 18% of DD defendants were restored to
competence in the Anderson & Hewitt study of
DD defendants with less severe cognitive
deficits have a better chance of being restored
(mild vs. moderate DD)
Abilities such as abstract reasoning and
decision-rendering are not only difficult to
teach but are extremely difficult to learn
Competence training with DD defendants may
lead only to a superficial achievement rather
than the defendant’s acquisition of the complex
skills needed to assist in their own defense (i.e.,
“parroting” responses)
For defendants found Incompetent to Stand
Trial, who could not be restored within the
time period permitted by statute (IST-U), the
following can occur:
The judge can dismiss the charges;
Order an affidavit to be filed in Probate Court if the
person is mentally ill and subject to hospitalization
or mentally retarded and subject to
Retain jurisdiction in criminal court, if defendant is
charged with a violent felony of the first or second
degree, and is subject to
Defendants found Incompetent to Stand TrialUnrestorable-Criminal Jurisdiction (IST-U-CJ),
can remain hospitalized/institutionalized for
as long as they would have served in prison,
had they been convicted of the charge(s)
Offenders are not all the same
Supports should be provided in a fluid manner so that
individuals learn needed skills to be as independent as possible
The CJS offers the consequences that any other person with
offending behaviors would experience – involvement may
actually be helpful
Michael Kontura
Forensic Liaison
Cuyahoga County. Bd. Of DD
1275 Lakeside Ave. East
Cleveland, Ohio 44114
Work#: 216-736-4533
Fax#: 216-736-3398
[email protected]