Aggressively Defending My Clients Since 1990


On Behalf of | Aug 11, 2019 | Firm News

The criminal system is a blunt tool used to deal with society’s most delicate problems.

Delicate meaning difficult.  Delicate meaning complex.  Delicate meaning misunderstood.

Problems meaning everything from violence between strangers and family, drug (including alcohol) abuse, theft, homelessness, and the poor.

One of the most common delicate social problems the criminal system is called upon to address is caring for persons who have a mental disease or defect.  According to the Treatment Advocacy Center, “Serious mental illness has become so prevalent in the US corrections system that jails and prisons are now commonly called “the new asylums.” In point of fact, the Los Angeles County Jail, Chicago’s Cook County Jail, or New York’s Riker’s Island Jail each hold more mentally ill inmates than any remaining psychiatric hospital in the United States. Overall, approximately 20% of inmates in jails and 15% of inmates in state prisons are now estimated to have a serious mental illness. Based on the total inmate population, this means approximately 383,000 individuals with severe psychiatric disease were behind bars in the United States in 2014 or nearly 10 times the number of patients remaining in the nation’s state hospitals. . . .A 2004–2005 survey found there were ‘more than three times more seriously mentally ill persons in jails and prisons than in hospitals.’”  Moreover the Treatment Advocacy Center found that mentally ill inmates remain in jail longer than other inmates, cost more to house than other inmates, cause problems that too often result in stays in solitary confinement, and are more likely than other inmates to commit suicide.

The Wisconsin Department of Corrections in May 2018 published its “inmate profile for 2017.”  This publication identified 37% of males and 84% of females as having a “mental health condition.”  The Department of Corrections 2019-21 budget request indicates that among the serious mental illnesses affecting inmates are “major depressive disorder, bipolar disorder, psychotic disorders, and behavioral disorders, which significantly impact the inmate’s ability to function effectively.”

According to Mental Illness Policy, in Wisconsin as of 2005, there were 36,154 prisoners in jail and prison, the estimated number of those prisoners who were seriously mentally ill was  5785, the number of patients in state or private psychiatric units in general hospitals was 1500 meaning that the odds of a seriously mentally ill person being in a Wisconsin jail or prison compared to in a hospital was 3.9 to 1.  This means that is Wisconsin, more mentally ill persons are in jails and prisons than hospitals.

Using the blunt force of the criminal system to warehouse people is costly to taxpayers.  According to a 2014 study of Los Angeles County, the average cost of jailing an individual with serious mental illness exceeds $48,500 per year. By comparison, the price tag for providing Assertive Community Treatment, or ACT, and supportive housing—one of the most intensive, comprehensive, and successful intervention models in use today—amounts to less than $20,500 annually, just two-fifths the cost of jail.

These numbers are staggering in and of themselves.  However, what is really important from these numbers is what is not said.  All these facts and figures relate directly to mental illness with nothing said about prisoners with a mental defect like intellectual disability.  So it is clear, in the Diagnostic and Statistical Manual of Mental Disorders version 4 (DSM-IV), there was a diagnostic category called “mental retardation.” When the new DSM-5 came out in 2013, mental retardation had disappeared; in its place was a new disorder called “intellectual development disorder.” This change likely was influenced by congressional action in October 2010 with the passing of Rosa’s Law, which required references to “mental retardation” in specified Federal laws to become “intellectual disability,” and references to “a mentally retarded individual” to “an individual with an intellectual disability.” Public Law 111-256.

Rosa’s Law is part of a long line of changes that has been ongoing since the early 1900s. Words such as idiot and moron were common in court documents and diagnosis throughout the early 1900s for intellectually disabled persons. See, e.g., Biennial Report of the Commission for Segregation and Control of the Feeble-Minded. This early belief has contributed to this nation’s mistreatment of intellectually disabled people which has been described as ‘grotesque’ by five members of the Supreme Court. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S. Ct. 3249, 3262 (1985) (Stevens, J., concurring, joined by Burger, C.J.); id. at 3266 (Marshall, J., concurring in part and dissenting in part, joined by Brennan and Blackmun, JJ.). In the 1960s, changes in the law led to the use of such terms as mental retardation. With the loss of idiot (IQ 0-25), imbecile (IQ 26-50) and moron (IQ 51-75), specific descriptors of IQ-based intelligence were abandoned because of negative public sentiment. Under Rosa’s law, these would be described respectively as moderate, profound, and severe levels of intellectual disability. See <as%20law%20-%20dear%20colleague%20(2).pdf” href=”’s%20Law%20-%20Dear%20Colleague%20(2).pdf”>Letter of Senators Barbara A. Mikulski and Mike B. Enzi urging fellow senators to adopt “Rosa’s Law.”

Intellectually disabled persons often “look normal” and learn to mask their deficits even while suffering from a disability that delays learning, diminishes memory, curtails problem solving and distorts the understanding of cause and effect.  A person with significant intellectual deficits lacks a normal person’s ability to reason and understand simple relationships (both similarities and differences) and therefore cannot relate to others on an equal footing.  See generally, White, Critical Influences in the origins of competence, 21 Merrill-Palmer Q 243, 246 (1975), as cited in the amicus brief for the APA in Penry v. Lynaugh, 492 U.S. 302 (1989) at p. 6.  In a nutshell, he is profoundly impaired.  Being intellectually disabled leads to severely debilitated decision making. The result is a person who may appear normal but is, in fact, a very vulnerable person, particularly within the confines of the criminal justice system. See James W. Ellis and Ruth A. Luckasson, Mentally Retarded Criminal Defendants, 53 GEO. WASH. L. REV. 414 (1985).

For example, many intellectually disabled people are predisposed to ‘biased responding’ or answering in the affirmative questions regarding behaviors they believe are desirable, and answering in the negative questions concerning behaviors they believe are prohibited. See generally Sigdman, Budd, Stankel & Schoenrock, When in Doubt, Say Yes: Acquiescence in Interviews with Mentally Retarded Persons, 19 MENTAL RETARDATION 53 (1980) The form of a question can also directly affect the likelihood of receiving a biased response, Sigelman, Winer & Schoenrock, The Responsiveness of Mentally Retarded Persons to Questions, 17 EDUC. & TRAINING MENTALLY RETARDED 120, 123 (1982); Budd, Sigelman & Sigelman, Exploring the Outer Limits of Response Bias, 14 SOCIOLOGICAL FOCUS 297, 305-06 (1981), and thus police officers, judges, and lawyers may inadvertently or intentionally cause the susceptible intellectually disabled accused person to answer in an inaccurate manner by asking a question in an inappropriate form. Further, many intellectually disabled persons are reluctant to resist questioners by refusing to answer questions that are beyond their ability. Kernan & Sabsay, Getting There: Directions Given by Mildly Retarded and Nonretarded Adults, in LIVES IN PROCESS: MILDLY RETARDED ADULTS IN A LARGE CITY (R. Edgerton ed. 1984) (Mentally retarded persons were asked for directions to their homes. Fifty-five percent of the sample gave directions which, although complete, proved inaccurate in significant ways.)

According to a Bureau of Justice Statistics report, 30% of jail inmates reported having a cognitive disability—far higher than among the general public, where less than 5% of people self-report a cognitive disability.  This is clear overrepresentation of person’s with a intellectual disability.  The Bureau of Justice Statistics notes this number is an underestimation based on the limits of the questioning.  Id.  Cognitive disabilities—such as Down syndrome, autism, dementia, intellectual disabilities, and learning disorders—are among the most commonly reported.  Id.
So why are so many people with disabilities arrested?  Several factors can lead to higher rates of arrest for people with cognitive disabilities, including:

  • The ARC explains that people with low IQ and other developmental disabilities can engender suspicion because they lack the necessary social cues that other adults understand, resulting in inappropriate responses—such as becoming overwhelmed by the police presence and running away or hiding. When questioned by police or other authority figures, they often smile inappropriately, fail to remain still when ordered to do so, or act agitated and furtive when they should be calm and polite.
  • People with cognitive disabilities may say what they think the police want to hear, even to the point of confessing to crimes they didn’t commit.  Id.
  • As reported by the Journal of Psychology and Law, they may waive Miranda rights without realizing the repercussions of doing so, while saying they do understand.

As one police officer put it, “They are the last to leave the scene, the first to get arrested, and the first to confess.