As part of Autism Society San Francisco Bay Area's quest to better educate our community about important civil rights issues affecting families, we are publishing a series of interview with experts in the area where autism meets the criminal and civil laws. Our first interview, with Jim Elliott, is here.
We are please to publish our second interview, with Laurie Sperry of the Autism Forensics Project.
We are please to publish our second interview, with Laurie Sperry of the Autism Forensics Project.
Laurie Sperry, PhD, BCBA-D is a member of the Autism Forensics Project (AFP), a Yale- and Rush-based team of specialists, which offers assessment and consultation on legal cases involving people with autism spectrum disorders (ASDs) and other developmental disorders. She has a degree in forensic psychology/criminology and specializes in ASDs and is a clinical assistant faculty at the Law and Psychiatry Division, Yale School of Medicine.
About the Autism Forensics Project
The AFP uses a multidisciplinary approach that incorporates psychiatry, psychology, behavior analysis, and criminology. AFP engages in the following:
Autism Forensics Project Links
Interview by Jill Escher and Stephen Prutsman, members of the Autism Society San Francisco Bay Area Civil Right Committee
Thanks so much for joining us, Dr. Sperry. Could you tell us how the Autism Forensics Project came to be?
The three of us came together through one of the IMFAR (International Meeting for Autism Research) conferences about five years ago. I applied to do a special interest group on criminality and ASD. Dr. Westphal attended and he was very interested because he had been doing work in the field as a forensic psychiatrist. Over the years, we started collaborating, taking on cases, writing, and really trying to help educate the judicial system around this issue. We’ve been fortunate that Yale has been wonderfully supportive around the intersection of autism and the law in terms of providing us support and a platform to do our research.
We held our group at IMFAR for three years. Each year, we had a larger and larger audience attend and it became abundantly clear to us that this is really a global issue. As a result of this group, we’ve written articles with other researchers. For example, I just finished a chapter with Mark Stokes from Deakin University in Australia on the issue of stalking. So, it all started with IMFAR in the sense that it brought us together and now we are a pretty robust and connected group.
Can you share more about the work you do internationally?
Related to forensics, our group has quite a strong alliance with the National Autistic Society in the U.K. They actually have a conference every year called the International Conference on the Care and Treatment for Offenders with Disabilities. The next one is in Scotland and they’ve asked us to speak. Our group is going out again to the World Congress on Autism sponsored by the National Autistic Society in the UK. I’ve found them to be incredibly innovative. They actually have a staff member who is a dedicated employee working within the prison system to ensure the humane treatment of people with ASD. She does things like a street triage program, when people with autism are arrested. They do so much. They’re innovative in terms of diversion, and alternative settings, and alternative sentencing. The endpoint of their judicial system is focused on treatment and rehabilitation where often the endpoint of ours is punishment.
Ours is not a system that understands or has even a basic appreciation for the difficulties and the complexities of something like autism.
A prison setting is not effective for people with ASD. I’m stating the obvious, but for lots of reasons it’s not.
Yes, it should be obvious but can you discuss those reasons?
First, it seems inhumane. Consider the sensory issues a person on the spectrum may experience. The crowded conditions, harsh overhead lighting, noise, and smells have the potential to overwhelm the person with ASD. Furthermore, there’s a change in routines which could be very difficult to manage. Additionally, there are the social nuances of prison life. One of the ways to survive in prison is to form alliances. A person with ASD would likely have difficulty forming protective friendships or understanding the power structure of the inmate population.
I had a client in prison who was horribly sunburnt on his face because there was one shaded area in the prison yard but he didn’t have any social standing with the other inmates who had claimed that spot. He would stand out in the blazing sun during his time outside and the other inmates wouldn’t allow him to stand or sit in the shade.
When does the AFP get called? Who calls you? When do you get involved?
Oftentimes, we get called by defense attorneys, including public defenders, who have clients on the spectrum. For example, we have worked with a defense attorney named Mark Mahoney who has written pretty extensively on people with ASD and the legal issue of accessing images of child exploitation. His paper can be found at http://www.harringtonmahoney.com/content/Publications/Aspergers%20Syndrome%20and%20the%20Criminal%20Law%20v26.pdf
So called “sex crimes” like that seem to be an ongoing issue with some men with autism who don’t understand appropriate behaviors. What are some of the other scenarios you encounter. You also mentioned stalking, for example.
First, I would just like make this clear—people with ASD are much more likely to be the victim of a crime than the perpetrator. And I feel a really strong responsibility to get that word out because when people with autism come in contact with the criminal justice system, it’s much more likely as the victim of a crime. I feel like we need to make sure that we’re making that clear because there are certainly enough challenges in the lives of people with ASD without vilifying them, and assuming that they’re guilty until proven innocent.
Absolutely!
That said, stalking is one scenario that I’ve encountered. Accessing images of child exploitation, both the possession and distribution, is another. Sometimes arson, and sometimes acts of violence. And sometimes there’s sexual contact with a minor.
But there’s the issue of mental state for something to be a crime, it’s not enough that it’s the “bad act,” right? A crime is a legal conclusion.
Right. That’s the “actus reus.” You also need “mens rea,” or the necessary mental state, for it to be a crime. As a general rule, criminal liability does not attach to a person who acted with the absence of mental fault. You might look up Kristiansson and Sörman in 2008, who have written about how the legal system has considered mens rea despite the ability of the person with ASD to comprehend the law, plan the crime, and carry it through. (Paper can be found here.)
The actus reus is the physical element of the crime. Is the crime accompanied by some level of mens rea if they didn’t have the intention of taking part in the behavior that was harmful or wrong? Take stalking for instance. When you think about the actus reus or the act of stalking, the act of stalking is continual harassment for no other purpose than to cause distress or fear in the victim. From a legal perspective stalking is seen from the perspective of the victim, but it can be caused by the difficulty with perspective taking by the person with ASD. The person who is the object of their desire may become like a circumscribed interest to them. Or because of their social difficulties, they may have a paucity of romantic or intimate partner language.
I have interviewed people in prison and asked them what makes someone your girlfriend or boyfriend. Sometimes these are people with advanced degrees. And they’ll say, “Well, you just know.” “Well, how do you know?” “‘Cause you just know.” And pressed further, they might say, “Well, they were nice to me.”
Oh wow.
Then there’s the rebuff, which they may not interpret as a rebuff. So then, they often rebound and try harder. The stalking becomes kind of a restrictive, or repetitive behavior that allows some of that continual efforts at contact that goes on to reach the level of criminality. Do I think there was the intent to harm, harass, or cause fear in the victim? Absolutely not. And yet does the behavior reach the level of criminality? Yes. So that’s a concrete example of where mens rea and legal definition of it doesn’t always match up for the person with ASD.
In these cases there should be a third road where we provide appropriate protection for the public, but without punishing the perpetrator for poor mental functioning. The criminal justice system is so black or white and this is an area of gray.
Peter Gerhardt, said it very eloquently, that often appropriate education doesn’t occur until after the person has engaged in the behavior and became involved in the criminal justice system. I’m reminded of sexuality curricula where the person with ASD has the same curriculum as their general education peers, or not even included in sexuality education at all.
I came across this study (Konstantareas & Lunsky, 1997) that people with ASD have the same level of knowledge as their peers when it came to body part identification and menstruation, but what they didn’t understand is the social piece about how to get access to those body parts. So, we teach them about body parts when what they could benefit from is social/intimate partner skills education. When I’ve done interviews in correctional facilities, they know about the body parts. But it’s the social piece that got them where they are. How do I have a relationship? What makes a consensual relationship? Who can I have a consensual relationship with?
Those sorts of nebulous things that other people kind of learn through the process of social osmosis, or looking at what’s going on in their environment, has to be explicitly taught to the person with ASD. And I don’t think people with ASD are routinely being taught about romantic/intimate partner issues.
I assume that most of the cases that you see involve people with what’s called higher functioning forms of autism, people who have considerable language skills and whose IQs are north of 70 or so.
I have worked with people with more significant support needs, where they tend to get into difficulty by engaging in an act of violence because they were trying to gain access to a circumscribed interest, or where they experienced sensory overload. And maybe were fleeing or they were trying to get something without a clear sense of what the consequences of those actions were.
Police often don’t get the appropriate level of training that they would need to be responding to an individual who is not going to respond like a person without autism. I remember a police officer once talking to me about this idea of rapid response decision making. When first responders are called in a situation and they have to immediately size up the situation within nanoseconds— is everyone safe, is the person safe, am I safe? And they give instructions—drop the weapon, even if it’s not a weapon, and the person with autism may turn around, or run the other way, or run at them or become more aggressive. And again, the officers are trying to make the best decision they can in a very short amount of time, but that’s when I feel like people with significant support needs are extremely vulnerable.
What in your experience has been the reaction of the prosecutors? I could understand the first responders having that difficulty sizing up a situation. But what if something’s referred to the DA?
In my experience, it’s almost a paradox in the sense that prosecutors tend to recognize that there is something different going on with the person with more significant support needs. there tends to be more consideration taken around how the autism weighs into the criminal act. There is less consideration given to the person with less obvious support needs and a diagnosis may be met with a level of suspicion and incredulity.
Recently there was a case involving a multiple perpetrator sexual assault. A 19 year-old man with significant developmental disabilities was taken to a party by his brother and then goaded or encouraged to participate in this crime by a group of boys. The judge considered the man’s low IQ and developmental disabilities as mitigating circumstances during the sentencing phase. That doesn’t always occur.
Right. It was a more obvious disability than somebody, as you said, than somebody who has a measurably more normal IQ. The basic issue, it seems, is degree of control over one’s actions.
Well, if the person with ASD can’t control their actions, then they might be seen as more likely to break the law committing the same act over and over. Then a prosecutor or society at large could make the argument “well then, they shouldn’t be free to roam amongst us.” We should be mindful and be judicious about that exculpatory value of the ASD diagnosis.
I’m curious, do you ever see claims against parents or caregivers for negligence? Our charges might not be liable because of profound cognitive impairments, but what about the people who are supposed to be watching them?
I personally have not come across that.
Well, that’s good because we autism families often experience uncontrollable and dangerous behaviors. It’s like a meteor falling from the sky. It’s like an act of God. It’s not something anybody has any control over and it would take institutionalizing our children to globally prevent these incidences.
Yes, those are acts that are more impulsive, or reactive, There are some untenable sensory or level of physiological arousal, where like you said it’s like something coming down from the sky.
In your experience when a person with autism is determined to present a danger to others, but can’t be sent to jail for obvious reasons, what are the alternatives to prosecution or to sentencing to confinement?
Mark Mahoney has written a fair amount around the issue of diversion and I probably wouldn’t do justice to his work, but you can Google some of the things that he’s written around diversion. When we’ve done work in the U.K., they have secure forensic settings where there’s a plan put in place. There are skills that are meant to be addressed. There are goals that are meant to be achieved and metrics for success established and there are trained providers who work with the person with the goal of education and rehabilitation.
You know, I don’t see that here in the United States. In the UK they support this idea of secure forensic settings with the idea of rehabilitation and treatment, not punishment. It’s a completely different paradigm.
Now, rehabilitation I find troubling as applied to people with autism because— and I realize each autism case is different—one thing that makes them autistic is a mental impairment tantamount to a severe learning disorder. And how do you “restore” someone who neurobiologically has such an incredibly difficult time learning sometimes even the simplest concepts? And also, generally speaking in the US, adult funding is in tatters for forensically oriented day programs or crisis residential centers. I mean, these things are going away like the dodo.
When I’ve seen diversion used it usually considers where the person is in terms of what their skills and abilities are and what is the risk assessment for recidivism. So, that goes into play. We need to consider what settings are available, what’s our expected outcome? I have seen some success using either a risk-need-responsivity plan or the Good Lives Model, which is one that I really prefer. Although it wasn’t necessarily developed for people with autism, I think it can be adapted for people with autism.
What is the Good Lives Model?
It’s based on this idea that all of us, it’s not just people who have committed crimes, but all of us want a good life. And so, what is your plan for a good life? Your plan might look different from my plan. with a person with ASD, what are the skills necessary for them to achieve their version of a good life? it really focuses on teaching them the skills they need to live the life that they want. On the other hand, the risk-need-responsivity model is more of an avoidant model, asking what are those triggers and how do we avoid them.
I think that there’s some promise in the Good Lives model because it’s based on something we’ve been doing in the autism field for a long time, which is person-centered planning. I think it holds more promise than just incarcerating people. I really worry that when we put people with ASD in prison, and I’ve seen this in my own experience, they become what I call the “cause and effect toy” for bored prisoners. I have worked with people who can’t stand certain sounds or who can’t stand vulgarity. And so, the other prisoners would make the particular sound to get the person’s attention and then they scream out the F-word. And before you know it, we have someone slapping their ear or pounding their ear against the wall of their cell because they’ve become the cause and effect and other prisoners sometimes like to see that reaction.
Throwing somebody with autism in prison is just horrific in the the first place.
It seems to approach a violation of the Eighth Amendment against cruel and unusual punishment. There are some people who have reported that they do like routine and the ritual of prison. But in my experience when I go in to see people in prison who have autism, it’s not a good outcome. if we’re saying we want rehabilitation by holding you somewhere, what’s really happening is skill atrophy. There should be a goal besides just incarceration and keeping them off the streets for a certain period of time to go pay their debt to society.
It seems cruel for many reasons, not the least of which I would think is vulnerability to sexual assault and other assaults and being picked on and tormented kind of as you were alluding to.
And also the vulnerability to suggestion. And being duped and all kinds of things. But I do think that when judges and parole and probation officers are presented with viable alternatives like supervision and halfway houses they may see incarceration is not the only way.
Yes, it’s the question of viable alternatives and it’s just that nobody wants to fund the viable alternative. So, we end up halfway joking that incarceration is the new form of institutionalization.
Actually, sadly it seems that prison has become the de facto entry into the mental health system.
When we incarcerate people, we haven’t really considered the cost of incarceration versus, we’re paying money for skills atrophy instead of developing a plan for them, teaching them the skills they need to be a contributing taxpaying member of society. I mean, one is a holding pattern that’s likely inhumane and the other is a more financially viable alternative. So, when people start talking about the cost of these different programs, what’s the alternative?
If a genie came out of the bottle and said there are three reforms we can do now to make the criminal landscape more just for people with autism, what would you ask for?
First, I would ask for a voluntary registry. It does exist in some states. I would ask parents to engage in a voluntary registry with first responders. That way, if you called in to the dispatcher and you said I need you to come to 9 Oak Street, and you had already registered your son, that would inform the response of the search team. But you had registered your son so it would inform the response. For example, responders might focus on water sources because there’s research that shows that kids with autism often drown. Or the responders know they are dealing with a young person who may not be able to access his language, he may not respond the way we would think. And so, what we’ve found in places where this registry is in place is that the officers can go back to their training on encountering a person with ASD because they have a better sense of what to expect when they arrive.
Secondly, if someone does come in contact with the criminal justice system through an arrest, I would like to see some sort of checklist where an advocate is brought in immediately for a screening assessment. We have the M-CHAT for young children. We need a justice screening system. I have found that people with autism are sometimes violating their Miranda rights, for example, and self-incriminating.
Thirdly, I’d like to see more training for prosecutors, and judges, and parole and probation officers, because here’s the thing that kills me. You know, I’ve worked with people with ASD who will say in their treatment with parole or probationary officers that their treatment doesn’t make sense to them, it’s a big group it was not developed for people on the spectrum. Their candor actually does them a great disservice
Those will be the three things I’d like to see. Voluntary registry, some checklist so that there is an advocate immediately brought in, and then just more training and more alternative in sentencing for parole, probation judges and prosecutors.
What specific pieces of advice we could post for these parents whose ASD children are under the threat of prosecution?
I would just make sure that whatever defense attorney you have has experience in working with people with ASD. Also Autism Speaks has done a nice job of educating the public about autism forensics by listing people in different states who can assist.
Advocacy groups like ours are not infrequently called by families both in civil situations and criminal situations seeking our support. Do you think there is a role for advocacy groups to play when these cases come up?
You could write an amicus brief and I think that that would help if you were able to assist the courts in understanding how the characteristics of autism were implicated in the commission of this behavior. And in my experience, some judges are not comfortable in some of these sentencing issues when they know that autism is involved. So, that if you can help connect those dots with the legal system, that’s helpful.
I would also add the National Center for Criminal Justice and Disability. If you’re connected with them at all, they have wonderful webinars My group participated in a webinar and we had families tell their stories and they were really difficult stories, but I know that a lot of families that I work with took so much comfort from that because they do feel so alone, and there’s often shame associated with some of it, a stigma. And when you can hear these other families tell their stories and they know that they’re not alone and somebody else gets it that your son or daughter is not this horrible individual, I think that that’s really comforting and supporting to families. So, to the extent that you can make that resource available for families and they can look at webinars, especially ones where families tell their stories, it's incredible.
Some people seem to see individuals with ASD as having psychopathology, that's the part that seems to be stigmatizing.
There’s an interesting article by Rogers, et al. (2006) entitled Autism Spectrum Disorder and Psychopathy: Shared Cognitive Underpinnings or Double Hit? These researchers measured psychopathic traits in boys with ASD who displayed specific challenging and aggressive behaviors. They concluded that callous, unemotional traits were found in a small number of their participants which may reflect a “double hit” of deficits in empathic responses to the distress signals of others. However, it’s not endemic to the diagnosis of ASD.
Thank you so much for your time, Dr. Sperry, and what your group does to promote justice.
We’re all really committed to the cause, thank you for speaking with me.
About the Autism Forensics Project
The AFP uses a multidisciplinary approach that incorporates psychiatry, psychology, behavior analysis, and criminology. AFP engages in the following:
- Consultation to legal teams on ASD/DD.
- Assessment and consultation for individuals with ASD/DD for the purpose of reducing problematic behaviors.
- Trainings for criminal justice professionals and members of the legal system to increase awareness of ASD/DD.
- Trainings for people with ASD/DD and their families to reduce the types of behaviors that can lead to criminal charges.
Autism Forensics Project Links
- Email autismforensics@gmail.com
- Website http://www.autismforensics.com
- Facebook facebook.com/autismforensics
- Twitter @autismforenics
Interview by Jill Escher and Stephen Prutsman, members of the Autism Society San Francisco Bay Area Civil Right Committee
Thanks so much for joining us, Dr. Sperry. Could you tell us how the Autism Forensics Project came to be?
The three of us came together through one of the IMFAR (International Meeting for Autism Research) conferences about five years ago. I applied to do a special interest group on criminality and ASD. Dr. Westphal attended and he was very interested because he had been doing work in the field as a forensic psychiatrist. Over the years, we started collaborating, taking on cases, writing, and really trying to help educate the judicial system around this issue. We’ve been fortunate that Yale has been wonderfully supportive around the intersection of autism and the law in terms of providing us support and a platform to do our research.
We held our group at IMFAR for three years. Each year, we had a larger and larger audience attend and it became abundantly clear to us that this is really a global issue. As a result of this group, we’ve written articles with other researchers. For example, I just finished a chapter with Mark Stokes from Deakin University in Australia on the issue of stalking. So, it all started with IMFAR in the sense that it brought us together and now we are a pretty robust and connected group.
Can you share more about the work you do internationally?
Related to forensics, our group has quite a strong alliance with the National Autistic Society in the U.K. They actually have a conference every year called the International Conference on the Care and Treatment for Offenders with Disabilities. The next one is in Scotland and they’ve asked us to speak. Our group is going out again to the World Congress on Autism sponsored by the National Autistic Society in the UK. I’ve found them to be incredibly innovative. They actually have a staff member who is a dedicated employee working within the prison system to ensure the humane treatment of people with ASD. She does things like a street triage program, when people with autism are arrested. They do so much. They’re innovative in terms of diversion, and alternative settings, and alternative sentencing. The endpoint of their judicial system is focused on treatment and rehabilitation where often the endpoint of ours is punishment.
Ours is not a system that understands or has even a basic appreciation for the difficulties and the complexities of something like autism.
A prison setting is not effective for people with ASD. I’m stating the obvious, but for lots of reasons it’s not.
Yes, it should be obvious but can you discuss those reasons?
First, it seems inhumane. Consider the sensory issues a person on the spectrum may experience. The crowded conditions, harsh overhead lighting, noise, and smells have the potential to overwhelm the person with ASD. Furthermore, there’s a change in routines which could be very difficult to manage. Additionally, there are the social nuances of prison life. One of the ways to survive in prison is to form alliances. A person with ASD would likely have difficulty forming protective friendships or understanding the power structure of the inmate population.
I had a client in prison who was horribly sunburnt on his face because there was one shaded area in the prison yard but he didn’t have any social standing with the other inmates who had claimed that spot. He would stand out in the blazing sun during his time outside and the other inmates wouldn’t allow him to stand or sit in the shade.
When does the AFP get called? Who calls you? When do you get involved?
Oftentimes, we get called by defense attorneys, including public defenders, who have clients on the spectrum. For example, we have worked with a defense attorney named Mark Mahoney who has written pretty extensively on people with ASD and the legal issue of accessing images of child exploitation. His paper can be found at http://www.harringtonmahoney.com/content/Publications/Aspergers%20Syndrome%20and%20the%20Criminal%20Law%20v26.pdf
So called “sex crimes” like that seem to be an ongoing issue with some men with autism who don’t understand appropriate behaviors. What are some of the other scenarios you encounter. You also mentioned stalking, for example.
First, I would just like make this clear—people with ASD are much more likely to be the victim of a crime than the perpetrator. And I feel a really strong responsibility to get that word out because when people with autism come in contact with the criminal justice system, it’s much more likely as the victim of a crime. I feel like we need to make sure that we’re making that clear because there are certainly enough challenges in the lives of people with ASD without vilifying them, and assuming that they’re guilty until proven innocent.
Absolutely!
That said, stalking is one scenario that I’ve encountered. Accessing images of child exploitation, both the possession and distribution, is another. Sometimes arson, and sometimes acts of violence. And sometimes there’s sexual contact with a minor.
But there’s the issue of mental state for something to be a crime, it’s not enough that it’s the “bad act,” right? A crime is a legal conclusion.
Right. That’s the “actus reus.” You also need “mens rea,” or the necessary mental state, for it to be a crime. As a general rule, criminal liability does not attach to a person who acted with the absence of mental fault. You might look up Kristiansson and Sörman in 2008, who have written about how the legal system has considered mens rea despite the ability of the person with ASD to comprehend the law, plan the crime, and carry it through. (Paper can be found here.)
The actus reus is the physical element of the crime. Is the crime accompanied by some level of mens rea if they didn’t have the intention of taking part in the behavior that was harmful or wrong? Take stalking for instance. When you think about the actus reus or the act of stalking, the act of stalking is continual harassment for no other purpose than to cause distress or fear in the victim. From a legal perspective stalking is seen from the perspective of the victim, but it can be caused by the difficulty with perspective taking by the person with ASD. The person who is the object of their desire may become like a circumscribed interest to them. Or because of their social difficulties, they may have a paucity of romantic or intimate partner language.
I have interviewed people in prison and asked them what makes someone your girlfriend or boyfriend. Sometimes these are people with advanced degrees. And they’ll say, “Well, you just know.” “Well, how do you know?” “‘Cause you just know.” And pressed further, they might say, “Well, they were nice to me.”
Oh wow.
Then there’s the rebuff, which they may not interpret as a rebuff. So then, they often rebound and try harder. The stalking becomes kind of a restrictive, or repetitive behavior that allows some of that continual efforts at contact that goes on to reach the level of criminality. Do I think there was the intent to harm, harass, or cause fear in the victim? Absolutely not. And yet does the behavior reach the level of criminality? Yes. So that’s a concrete example of where mens rea and legal definition of it doesn’t always match up for the person with ASD.
In these cases there should be a third road where we provide appropriate protection for the public, but without punishing the perpetrator for poor mental functioning. The criminal justice system is so black or white and this is an area of gray.
Peter Gerhardt, said it very eloquently, that often appropriate education doesn’t occur until after the person has engaged in the behavior and became involved in the criminal justice system. I’m reminded of sexuality curricula where the person with ASD has the same curriculum as their general education peers, or not even included in sexuality education at all.
I came across this study (Konstantareas & Lunsky, 1997) that people with ASD have the same level of knowledge as their peers when it came to body part identification and menstruation, but what they didn’t understand is the social piece about how to get access to those body parts. So, we teach them about body parts when what they could benefit from is social/intimate partner skills education. When I’ve done interviews in correctional facilities, they know about the body parts. But it’s the social piece that got them where they are. How do I have a relationship? What makes a consensual relationship? Who can I have a consensual relationship with?
Those sorts of nebulous things that other people kind of learn through the process of social osmosis, or looking at what’s going on in their environment, has to be explicitly taught to the person with ASD. And I don’t think people with ASD are routinely being taught about romantic/intimate partner issues.
I assume that most of the cases that you see involve people with what’s called higher functioning forms of autism, people who have considerable language skills and whose IQs are north of 70 or so.
I have worked with people with more significant support needs, where they tend to get into difficulty by engaging in an act of violence because they were trying to gain access to a circumscribed interest, or where they experienced sensory overload. And maybe were fleeing or they were trying to get something without a clear sense of what the consequences of those actions were.
Police often don’t get the appropriate level of training that they would need to be responding to an individual who is not going to respond like a person without autism. I remember a police officer once talking to me about this idea of rapid response decision making. When first responders are called in a situation and they have to immediately size up the situation within nanoseconds— is everyone safe, is the person safe, am I safe? And they give instructions—drop the weapon, even if it’s not a weapon, and the person with autism may turn around, or run the other way, or run at them or become more aggressive. And again, the officers are trying to make the best decision they can in a very short amount of time, but that’s when I feel like people with significant support needs are extremely vulnerable.
What in your experience has been the reaction of the prosecutors? I could understand the first responders having that difficulty sizing up a situation. But what if something’s referred to the DA?
In my experience, it’s almost a paradox in the sense that prosecutors tend to recognize that there is something different going on with the person with more significant support needs. there tends to be more consideration taken around how the autism weighs into the criminal act. There is less consideration given to the person with less obvious support needs and a diagnosis may be met with a level of suspicion and incredulity.
Recently there was a case involving a multiple perpetrator sexual assault. A 19 year-old man with significant developmental disabilities was taken to a party by his brother and then goaded or encouraged to participate in this crime by a group of boys. The judge considered the man’s low IQ and developmental disabilities as mitigating circumstances during the sentencing phase. That doesn’t always occur.
Right. It was a more obvious disability than somebody, as you said, than somebody who has a measurably more normal IQ. The basic issue, it seems, is degree of control over one’s actions.
Well, if the person with ASD can’t control their actions, then they might be seen as more likely to break the law committing the same act over and over. Then a prosecutor or society at large could make the argument “well then, they shouldn’t be free to roam amongst us.” We should be mindful and be judicious about that exculpatory value of the ASD diagnosis.
I’m curious, do you ever see claims against parents or caregivers for negligence? Our charges might not be liable because of profound cognitive impairments, but what about the people who are supposed to be watching them?
I personally have not come across that.
Well, that’s good because we autism families often experience uncontrollable and dangerous behaviors. It’s like a meteor falling from the sky. It’s like an act of God. It’s not something anybody has any control over and it would take institutionalizing our children to globally prevent these incidences.
Yes, those are acts that are more impulsive, or reactive, There are some untenable sensory or level of physiological arousal, where like you said it’s like something coming down from the sky.
In your experience when a person with autism is determined to present a danger to others, but can’t be sent to jail for obvious reasons, what are the alternatives to prosecution or to sentencing to confinement?
Mark Mahoney has written a fair amount around the issue of diversion and I probably wouldn’t do justice to his work, but you can Google some of the things that he’s written around diversion. When we’ve done work in the U.K., they have secure forensic settings where there’s a plan put in place. There are skills that are meant to be addressed. There are goals that are meant to be achieved and metrics for success established and there are trained providers who work with the person with the goal of education and rehabilitation.
You know, I don’t see that here in the United States. In the UK they support this idea of secure forensic settings with the idea of rehabilitation and treatment, not punishment. It’s a completely different paradigm.
Now, rehabilitation I find troubling as applied to people with autism because— and I realize each autism case is different—one thing that makes them autistic is a mental impairment tantamount to a severe learning disorder. And how do you “restore” someone who neurobiologically has such an incredibly difficult time learning sometimes even the simplest concepts? And also, generally speaking in the US, adult funding is in tatters for forensically oriented day programs or crisis residential centers. I mean, these things are going away like the dodo.
When I’ve seen diversion used it usually considers where the person is in terms of what their skills and abilities are and what is the risk assessment for recidivism. So, that goes into play. We need to consider what settings are available, what’s our expected outcome? I have seen some success using either a risk-need-responsivity plan or the Good Lives Model, which is one that I really prefer. Although it wasn’t necessarily developed for people with autism, I think it can be adapted for people with autism.
What is the Good Lives Model?
It’s based on this idea that all of us, it’s not just people who have committed crimes, but all of us want a good life. And so, what is your plan for a good life? Your plan might look different from my plan. with a person with ASD, what are the skills necessary for them to achieve their version of a good life? it really focuses on teaching them the skills they need to live the life that they want. On the other hand, the risk-need-responsivity model is more of an avoidant model, asking what are those triggers and how do we avoid them.
I think that there’s some promise in the Good Lives model because it’s based on something we’ve been doing in the autism field for a long time, which is person-centered planning. I think it holds more promise than just incarcerating people. I really worry that when we put people with ASD in prison, and I’ve seen this in my own experience, they become what I call the “cause and effect toy” for bored prisoners. I have worked with people who can’t stand certain sounds or who can’t stand vulgarity. And so, the other prisoners would make the particular sound to get the person’s attention and then they scream out the F-word. And before you know it, we have someone slapping their ear or pounding their ear against the wall of their cell because they’ve become the cause and effect and other prisoners sometimes like to see that reaction.
Throwing somebody with autism in prison is just horrific in the the first place.
It seems to approach a violation of the Eighth Amendment against cruel and unusual punishment. There are some people who have reported that they do like routine and the ritual of prison. But in my experience when I go in to see people in prison who have autism, it’s not a good outcome. if we’re saying we want rehabilitation by holding you somewhere, what’s really happening is skill atrophy. There should be a goal besides just incarceration and keeping them off the streets for a certain period of time to go pay their debt to society.
It seems cruel for many reasons, not the least of which I would think is vulnerability to sexual assault and other assaults and being picked on and tormented kind of as you were alluding to.
And also the vulnerability to suggestion. And being duped and all kinds of things. But I do think that when judges and parole and probation officers are presented with viable alternatives like supervision and halfway houses they may see incarceration is not the only way.
Yes, it’s the question of viable alternatives and it’s just that nobody wants to fund the viable alternative. So, we end up halfway joking that incarceration is the new form of institutionalization.
Actually, sadly it seems that prison has become the de facto entry into the mental health system.
When we incarcerate people, we haven’t really considered the cost of incarceration versus, we’re paying money for skills atrophy instead of developing a plan for them, teaching them the skills they need to be a contributing taxpaying member of society. I mean, one is a holding pattern that’s likely inhumane and the other is a more financially viable alternative. So, when people start talking about the cost of these different programs, what’s the alternative?
If a genie came out of the bottle and said there are three reforms we can do now to make the criminal landscape more just for people with autism, what would you ask for?
First, I would ask for a voluntary registry. It does exist in some states. I would ask parents to engage in a voluntary registry with first responders. That way, if you called in to the dispatcher and you said I need you to come to 9 Oak Street, and you had already registered your son, that would inform the response of the search team. But you had registered your son so it would inform the response. For example, responders might focus on water sources because there’s research that shows that kids with autism often drown. Or the responders know they are dealing with a young person who may not be able to access his language, he may not respond the way we would think. And so, what we’ve found in places where this registry is in place is that the officers can go back to their training on encountering a person with ASD because they have a better sense of what to expect when they arrive.
Secondly, if someone does come in contact with the criminal justice system through an arrest, I would like to see some sort of checklist where an advocate is brought in immediately for a screening assessment. We have the M-CHAT for young children. We need a justice screening system. I have found that people with autism are sometimes violating their Miranda rights, for example, and self-incriminating.
Thirdly, I’d like to see more training for prosecutors, and judges, and parole and probation officers, because here’s the thing that kills me. You know, I’ve worked with people with ASD who will say in their treatment with parole or probationary officers that their treatment doesn’t make sense to them, it’s a big group it was not developed for people on the spectrum. Their candor actually does them a great disservice
Those will be the three things I’d like to see. Voluntary registry, some checklist so that there is an advocate immediately brought in, and then just more training and more alternative in sentencing for parole, probation judges and prosecutors.
What specific pieces of advice we could post for these parents whose ASD children are under the threat of prosecution?
I would just make sure that whatever defense attorney you have has experience in working with people with ASD. Also Autism Speaks has done a nice job of educating the public about autism forensics by listing people in different states who can assist.
Advocacy groups like ours are not infrequently called by families both in civil situations and criminal situations seeking our support. Do you think there is a role for advocacy groups to play when these cases come up?
You could write an amicus brief and I think that that would help if you were able to assist the courts in understanding how the characteristics of autism were implicated in the commission of this behavior. And in my experience, some judges are not comfortable in some of these sentencing issues when they know that autism is involved. So, that if you can help connect those dots with the legal system, that’s helpful.
I would also add the National Center for Criminal Justice and Disability. If you’re connected with them at all, they have wonderful webinars My group participated in a webinar and we had families tell their stories and they were really difficult stories, but I know that a lot of families that I work with took so much comfort from that because they do feel so alone, and there’s often shame associated with some of it, a stigma. And when you can hear these other families tell their stories and they know that they’re not alone and somebody else gets it that your son or daughter is not this horrible individual, I think that that’s really comforting and supporting to families. So, to the extent that you can make that resource available for families and they can look at webinars, especially ones where families tell their stories, it's incredible.
Some people seem to see individuals with ASD as having psychopathology, that's the part that seems to be stigmatizing.
There’s an interesting article by Rogers, et al. (2006) entitled Autism Spectrum Disorder and Psychopathy: Shared Cognitive Underpinnings or Double Hit? These researchers measured psychopathic traits in boys with ASD who displayed specific challenging and aggressive behaviors. They concluded that callous, unemotional traits were found in a small number of their participants which may reflect a “double hit” of deficits in empathic responses to the distress signals of others. However, it’s not endemic to the diagnosis of ASD.
Thank you so much for your time, Dr. Sperry, and what your group does to promote justice.
We’re all really committed to the cause, thank you for speaking with me.
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