As the autism population has grown, so have the autism community’s scuffles with the law. Young men with autism get in skirmishes with police for innocently meant yet inappropriate sexual behavior. Impulsive adults on the spectrum throw tantrums and then get thrown in jail. A perseveration can be read as stalking or harassment, even if no harm is intended. What is an autism family to do to protect themselves from criminal involvement? Based on interviews with experts and advice from disability rights organizations, here are some things to consider. For more detailed information, please consult SFASA's Autism Civil Rights Project page here.
Sometimes people with ASD are taken advantage of by others looking to break the law. They may be asked to carry out criminal or dangerous activities, and lack the social sophistication to understand the nature of their actions, explained Jim Elliott MSW, Manager, Community Placement Program and Public Policy Compliance, San Andreas Regional Center. Extra precautions should be undertaken to prevent exploitation of vulnerable individuals.
People with ASD are much more likely to be the victim of a crime than being a perpetrator. According to Dr. Laurie Sperry of the Autism Forensics Project, people with ASD can be victimized more easily than others. Criminal acts by people with ASD, when they occur, are rarely because of the ASD but rather due to a comorbid mental condition that sometimes may occur.
People with intellectual and developmental disabilities are overrepresented in the criminal system. Experts say that with few community options for addressing dangerous or disruptive acts by individuals with ASD or I/DD, jails and prisons are often the default response, however unjust that may be. Recourse to the criminal system rather than diversion to an appropriate placement or treatment facility also can result from law enforcement’s and prosecutors’ lack of awareness and training around this issue and inability to accommodate through appropriate sentencing and sentencing alternatives. Some court systems, such as the Mental Health Court in Santa Clara County, will consider diversion instead of incarceration of standard measures.
How the police treat individuals with ASD depends on many variables. There is considerable variability in terms of how much police are trained to recognize and interact with people with autism or intellectual and developmental disability. Sometimes, someone with ASD or I/DD is mistaken as being under the influence of drugs or alcohol. Police familiarity with particular individuals with I/DD can successfully promote preparedness and prevent escalation. Families should consider visiting the local police station to register background information about your disabled loved one. Also attend safety fairs and get to know local beat officers.
People with disabilities are equally subject to the criminal process. As Tom and Emily Iland explain in their March 30 webinar, there’s no autism exception in the criminal justice system. There’s one law, and it applies to all of us. Once the police get involved, they will not release your loved ones merely because of a diagnosis of autism or any other disability, though the issue of competency and intent may influence their decisions to arrest and detain. These issues will also play into subsequent prosecutorial discretion and also potential alternatives to sentencing.
Make sure your attorneys have experience with clients with ASD. Defense attorneys must be able to point out their client’s intellectual and developmental disabilities, and their specific deficits in comprehension and behavioral control, to successfully defend them. If you are working with a public defender, make sure he or she are aware of the extent of your loved one’s disability and obtains thorough expert evaluations.
If appropriate, train your loved one about how to interact with law enforcement. For those with ASD who can comprehend these types of lessons, walk them through the process of dealing with the police. In their webinar, Emily and Tom Iland highlighted some ideas for training your loved ones about how to interact with law enforcement. Tell them not to resist or fight with the police. Instruct them to disclose their disability and to answer “no” when the police ask if they understand their rights. Come up with a way to produce a form of ID safely so the police don’t think the individual is reaching for a weapon. Shoe tags, jewelry, or other forms of tracking devices may work. Fill Out a SNIP (Special Needs Information Page) form and keep it in your glove box and fridge. First responders are trained to look at the fridge when first entering a home. In certain situations, this may help the police in how to interact with your loved one. SNIP is available on www.besafethemovie.com/resources
Have a plan. About half of people with autism exhibit challenging behaviors. Make sure all people who work with your child knows what to do in instances of aggression, property destruction, or disruptive behaviors. This may include emergency contacts vendorized through regional centers, other professionals, or even a contact within police or mental health services. You can see Marianne Sullivan explain her emergency response plan for her autistic son here (brief video from SFASA's 2016 conference). If police become involved you may invoke rights under the Americans with Disabilities Act to ensure reasonable accommodations for your loved one.
Have your child’s IPP with the regional center include crisis response. If you live in California, many regional centers have a forensic specialist or have access to one. The forensic specialist or other case worker can help clients involved in the criminal justice system, but also can help create preventive measures embedded in the IPP.
Have a community conversation about this subject. Leigh Ann Davis of the Arc’s Criminal Justice Initiatives suggests bringing community leaders together to have a conversation about autism and I/DD and criminal justice. Most mental health courts focus on psychiatric disability, she explains. Now we need to take it a step farther and train our law enforcement and court community about ASD and I/DD. This conversation must also be about victims with ASD and I/DD, who are often disregarded but all too often victims of crime. We need to “shift our thinking to seeing this a crisis prevention issue,” she says.
Da Hae Kim is a student at the University of California Berkeley School of Law.