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Widening the Reach, Advocacy for All

Proposal to the New Jersey State Advisory Committee to the U.S. Commission on Civil Rights Submitted by Jane Dunhamn, Committee member, 18 June 2010

Position: In the criminal justice system, the lack of services to people with non-apparent disabilities is discriminatory

The Problem at Street Level, from the Perspective of Providers

A physician from a New Jersey prison recently phoned a disability agency for advocacy assistance. A 24 year old inmate had been sentenced to 3 years in prison for possession of a firearm. Shortly after his initial incarceration in the general population, following an "incident," he was put on suicide watch and transferred to a psychiatric facility. He served the remainder of his sentence in that facility. He had been returned to prison at this time for re-entry processing.

The physician reported the inmate has significant intellectual disabilities. The physician had not been able to elicit a history from him and judged him to be unable to live independently, lacking the cognitive skills to plan and shop for groceries, prepare food, etc. In the physician's judgment, the inmate should be released to a group home environment. His records indicated he was already registered with the Division of Developmental Disabilities (DDD), however, he was not receiving services. Before the advocate could connect the physician with someone from DDD, within a single afternoon, the prisoner was returned to the psychiatric facility.

The DDD administrator who followed up on the case was unable to gain satisfactory explanatory or outcome information from the Department of Corrections (DOC). DDD has not instituted a legal approach to this prisoner's rights, perhaps in part because of questions as to whether this is a systemic problem or an individual problem. The physician indicated that this case is not unique to prison practice.

Apparent and Non-Apparent Disabilities

Disability is a multi-faceted, multi-labeled construct, traditionally discussed in terms of age of onset, severity, and type: physical, sensory, cognitive, and/or emotional. Examples include the term "developmental disability," which is used to describe impairments that manifest before age 18 and that typically require life-long supports. The terminology used by the developmental disability community for overall cognitive impairment is "intellectual disability." "Learning disability" is the term used to describe impairment in specific skills such as listening, reasoning, reading, writing, and/or math.

Across disabilities, "apparent" is the term used to describe disabilities that are easy to discern; "non-apparent" is used to describe disabilities that are difficult to detect. This distinction can be made clear by considering an individual wearing a visible hearing aid and/or using sign language. The individual has an apparent impairment in understanding spoken language. In contrast, a typical-looking person who is equally unable to understand or process spoken language may have an intellectual, learning, or mental health disability. In this case, the disability is non-apparent.

In the above example of the individual with an apparent disability, there is general agreement that he or she requires specific supports such as a hearing aid and/or sign language interpreter. In the case of an individual with a non-apparent disability, there is no such agreement. Accordingly, the risks that accrue to people with non-apparent disabilities are high, especially within the criminal justice system. Their inability to understand typically is judged in terms of character: non-compliant, defiant, and dangerous.

In the following section, the risks to people with non-apparent disabilities in the criminal justice system are cast in the traditional categories of intellectual disability and learning disability. These divisions reflect the institutional structures in disability services. The common trait is that the impairment is not easily detected. The examples are relevant across non- apparent disabilities.

The Problem is Systemic

With passage of the Americans with Disabilities Act of 1990 (ADA), inmates with disabilities gained the right to litigate to attain reasonable accommodations. According to the Criminal Policy Justice Coalition in Massachusetts, a number of landmark cases "held that disabled inmates are protected from discriminatory actions under the provisions provided pursuant to the ADA."
The report continues, "However, the civil actions brought before the court concerned only physical disabilities. Therefore, correctional institutions made little to no progress bringing about changes to benefit inmates with learning disabilities."

The lack of progress in the criminal justice system also can be said to exist for people with intellectual disabilities. According to the New Jersey ARC's Developmentally Disabled Offenders Program (DDPO),

There are at least 25,000 people with intellectual disabilities in the nation's prisons, and some studies indicate that the actual number may be twice that. This means that approximately one out of every 20 prisoners in the United States has an intellectual disability.

Early identification of offenders who may have an intellectual disability is critical to providing appropriate treatment within the criminal justice system. Without knowledgeable advocates, offenders with developmental disabilities may not obtain equal justice.

Offenders with an intellectual disability face certain disadvantages at various stages of the criminal justice system:

Arrested individuals with an intellectual disability often confess quickly, might say what they think a police officer wants to hear, and may not understand the implications of Miranda Rights.
Most defendants with an intellectual disability more readily plead guilty to and are convicted of the arrested offense rather than a reduced charge. Inmates with an intellectual disability have more difficulty learning the rules and regulations of correctional facilities, which results in more accumulated rule infractions.
Inmates with an intellectual disability are denied parole more frequently, serving on the average 2-3 years longer than non-disabled inmates convicted of the same offense.

The Criminal Policy Justice Coalition outlines additional risks.

Without accommodations, inmates with learning disabilities such as dyslexia are less likely to participate in prison educational programs or remain in contact with family and friends. Studies suggest that even the most basic educational opportunities and community support while incarcerated can lower prisoner recidivism rates

[i]. Inmates who lack accommodations often depend on other inmates to provide services like letter-writing for them. This situation humiliates and frustrates disabled inmates. Dependency on other inmates also puts disabled inmates at a greater risk of being victims of violence, extortion, or being forced to perform favors in return.

A recent U.S. Department of Justice survey found that 10% of inmates report having a learning disability[ii], although this figure is likely to be misleading, since many inmates are unaware of their medical conditions given their lower economic state prior to incarceration. Frank Wood, a professor of neurology at Wake Forest University and expert in the field of learning disabilities, asserts that individuals with dyslexia are overrepresented in prison populations[iii]. Studies proving that 50-75% of prisoners are functionally illiterate

[iv] seem to corroborate Dr Wood’s claim.

Conclusions and Recommendations

The above citations represent a small accounting of risks to individuals with disabilities in the criminal justice system. These risks have been shown to be particularly significant for individuals with non-apparent impairments, such as intellectual disabilities, learning disabilities, and/or mental health disabilities. Additional data exist, especially in the area of juvenile justice and for individuals with mental health impairments.

The lack of services to people with non-apparent disabilities in the criminal justice system is discriminatory. The New Jersey State Advisory Committee to the U.S. Civil Rights Commission should consider this topic as a major civil rights focus for our 2010 agenda, call in state a national experts to provide testimony, generate a report of findings, and recommendations.

Jane Dunhamn is a member of the National Minorities with Disabilities Coalition. She is also a member of the New Jersey Advisory Committee to the US Commission on Civil Rights.

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