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Volume 4 , Issue 1 Date: Spring 2004 Topic: Youth with Developmental Disabilities and the Juvenile Justice System

Parents Need to Know: Risks and Strategies in the Juvenile Justice System

by Lili Frank Garfinkle

Research has shown that youth with disabilities are disproportionately represented in the juvenile justice population. It is estimated that approximately 12-13% of youth in the justice system have some type of developmental disability, as compared to approximate 6-7% in the community population.

The population of offenders includes youth with mental retardation, serious cognitive disorders, autism, or traumatic brain injury (TBI). Unfortunately, there are few programs within the corrections settings that address their unique needs and, too often, these youth are housed with the regular population, where they are at risk for physical and sexual abuse, and have greater difficulty understanding or complying with a generally punitive system.

In many cases, these youth have dual diagnoses that can include attention deficit disorder (ADHD), Tourretes syndrome, depression, substance abuse, bipolar disorder or other behavioral and mood disorders. Characteristics of these co-occurring disorders may include impulsivity, memory lapses, difficulty in relaying or articulating feelings or information, inappropriately smiling and immaturity. If they are “expressionless” or “lacking affect”. they are perceived as uncaring or guilty. If they answer questions inappropriately, or answer the same question differently each time, they are thought to be lying, when in fact, they may be frightened, anxious and unable to comprehend what is going on.

In other cases, youth are used by other more skillful offenders to participate in criminal activity or to take the blame for them. In addition, youth with developmental disabilities may confess to crimes that they have not committed because they do not understand the events that happened, or they are more easily coerced into confessing.
Two examples of many are the case of “Brian”, a 16yearold boy with mental retardation who was a passenger in a stolen car. He had no idea that the car was stolen. Some older boys at school had invited him to come with them on a ride. He had never been asked to go for a ride before. He was charged, along with his friends, with car theft. Another case involved “Jon”, a 14yearold with severe mental retardation and anxiety disorder. He was accused of a homicide and was interrogated for 2 days without his mother or an attorney present. The police even had a “signed”confession, but Jon was unable to write his name. The case was dropped but had he been able to write his name it would have been extremely difficult to prove otherwise.

Most youth with developmental disabilities will never become involved in delinquent or criminal behavior. Because of this, many parents are unaware that both they and their child need to be well informed about their rights and those of their child’s in the justice process. Ideally this information should be included in school classes on safety and self advocacy. They should also be reinforced at home, in “teachable moments” such as a discussion of a TV show or a news bulletin.

This article includes some tips that parents need to know if they have a child with developmental or cognitive disabilities who is at risk for or already involved with the justice system.

Tips for Parents:
    · Whenever possible, youths should carry a laminated card with their name, a contact number, the name of the disability, and some of the behaviors that might appear unusual. A sentence saying “I cannot answer any questions unless someone I know or an attorney is in the room with me” would be helpful. If such cards are not available through a disability agency, it is easy to have them printed and laminated.

    · It would be helpful for parents to visit their local police station with their child and introduce him or her to the officers in the precinct. Leave some information about their disability and the name of a local organization they can call if they need more information. In this way each develops some familiarity with the other.
      · It is important that parents clearly identify potentially risky situations, assist their child to identify “friends” who might be acting inappropriately or involved in risky behaviors. Include examples such as using or transporting drugs, inappropriate behavior with children, “daring” someone to do something dangerous or illegal. Remember that most of these youth are motivated by acceptance by others and may not have the ability to make good choices.

    · Parents should teach strategies through role play, repetition, and positive reinforcement so that self advocacy skills become ingrained.

    · Parents can develop a game plan for your child about how to respond if they are stopped by or questioned by police.

    · Parents can teach children that they should be polite to the police officer and above all say as little as possible. Questioning by police can be a stressful experience for anyone. In these circumstances many youth can be easily persuaded to provide a quick or desired response to a question just so they can go home or no longer experience the anxiety of the questioning. They may fear that their peers will reject them or get in trouble if they don’t give the “right” answer.

    · Parents should designate a contact person besides themselves as well as a number to call in case of an emergency.

    · If their child is arrested, parent/surrogate should to go to the police station as soon as they learn that he or she is there. Parents need to find out as much as possible about the incident and if there are any witnesses. They should provide information about the youth’s disability to the court as soon as possible.

    · The school should be aware that if a child is picked up at school there is a procedure that the school must follow, including calling the parent and any other person designated to inform them of where the youth has been taken. This information should be in the youth’s Individual Education Program (IEP) and agreed upon by the IEP team.

When a person is charged someone will read him or her/his Miranda rights. It is likely that he or she will not understand what that means. Most importantly parents must tell him or her:
      · They do not have to speak or answer questions without their parent or an attorney present, no matter what someone may tell them.

      · They need to ask for a lawyer. Practice this scenario in role playing.

        · Explain in plain words that an attorney or lawyer is someone who can help them answer questions. Ask them to repeat what they should say to the lawyer. Stress that they should tell the lawyer the truth, no matter what anyone else has told them. Again, role playing and repetition are the most effective means of reinforcing this information.

        · Reinforce that the youth should never sign any papers without a parent or an attorney/lawyer there to help them. Anything that they say or sign could be used in a trial against them.
        · If your child must appear in court, he or she may need specific accommodations:
        • Repetition or explanation of questions
        • Questions presented in simpler language
        • Additional time to think about the answers

      If he or she is found guilty of an offense:
        · Make sure that the court has information about how the disability affects his or her behaviors and their understanding of the offense. Parents should present all this information before a pre-dispositional hearing is held. Include a letter from the child’s physician, psychologist and any other medical personnel to that speaks to the disability needs and behaviors. Ask individuals who know the child to write letters to the judge.

        · Advocate for a placement in a program or site that has programming for youth with developmental disabilities. Ask for assistance and support from your local disability organization, state parent center ( in making this request.


      · If your child is placed in a correctional setting, he or she still has rights to services under the Individuals with Disabilities Act (IDEA). Parents can continue to have the right to participate in the IDEA process, even if their child is placed in a different setting. If parents cannot travel to the facility, ask to be involved by phone conferencing or by fax or e-mail.

      · By law, when a youth is transferred to an out of home setting, including a correctional facility, a new IEP must be developed to reflect a “change in placement”. Every effort must be made to provide services that are as close to those provided in the most recent IEP.
        · Parents should request that their child’s special education and medical records from the school be transferred to the correctional setting as soon as possible.

        · Parents should request that a representative from their home school district be involved in the planning for your child’s services while in a facility of any kind. Include the probation officer in any planning while in the facility and in the transition back to the community.

        · Parents should plan for their child’s return to the community and consider the issues involved in his or her arrest and incarceration. How could a reintegration (aftercare) plan be developed that addressed these circumstances? What needs to change in their environment for him or her to succeed? What assistance will be needed? These are important questions to build on.

        Lili Frank GarfinkleLili Frank Garfinkel is the Coordinator of the Juvenile Justice Project at PACER Center in Minneapolis, Minnesota and the Associate Director at the National Center on Education, Disability and Juvenile Justice (EDJJ), University of Maryland, College Park. She is the author of many articles on the topic of juvenile justice and transitional issues for youth with disabilities. Ms. Garfinkel has presented at national and international conferences on the same topics. Ms. Garfinkel is the recipient of the Circle of Courage Award, awarded in April 2003 by Reclaiming Youth International.

        On a more personal note, Ms. Garfinkel is married with three adult daughters and one granddaughter.

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