When the Defendant Flaps: An Overview of “Incompetent” Autistic Criminal Defendants and Courtroom Education

by: Haley Moss

In an interview with TIME Magazine, Simon Baron-Cohen, a psychology professor and autism expert said that “[autistic people] often have a strong sense of justice or fairness.”[1] But if autistic people have this understanding of moral rights and wrongs, then why does the criminal justice system view these individuals as incompetent to stand trial and insensitive in nature? Why are autistic defendants so misunderstood? Reform is moving much slower than the growing number of autistic individuals in the United States and the number who are entering the criminal justice system.

The story of autistic people in the criminal justice system begins with the numbers. It is not a rare condition – 1 in 68 children in the United States has an autism spectrum disorder.[2] So the misunderstanding on the surface seems inexcusable as these children become adults, and sometime in their lives, may interact with the justice system as criminal defendants. Adults with classic or atypical autism are less likely to be charged with crimes than their counterparts with Asperger Syndrome or a “higher functioning” form of autism, who have the same likelihood of conviction as nondisabled people.[3] However, juveniles with autism are overrepresented in the juvenile justice system.[4] For instance, the rate of autistic individuals who have had contact with the juvenile justice system in Pennsylvania is 1,423 per10,000 people.[5]

Protection from misunderstanding autism and its various signs as well education reform for actors in the criminal justice and legal systems is underway. Recently, Pennsylvania made it mandatory for judges to participate in an autism training program to help them recognize the various traits of an autistic individual who may be a defendant in a criminal proceeding. The required autism training includes recognizing a defendant’s autistic traits in the courtroom, such as rocking, hand-flapping, or a judge’s inappropriate understanding of how to interact with a suspected autistic defendant, or a diagnosed juvenile autistic defendant.[6] Judges are hearing from experts, educators and family members to understand the best practices for interacting with autistic juveniles who enter the legal system during the hour and a half training sessions.

However, there is little to no input on the new judicial training from autistic self-advocates, nor does the training include or cover adults on the autism spectrum and the various challenges that they face. This is especially concerning as an autistic adult myself because people like me could explain why we engage in certain behaviors (we either don’t understand what is asked of us, or we engage in self-stimulating behaviors such as flapping our hands in order to block out sensory input or to calm ourselves down).

My home state of Florida is further educating and protecting the competency interests and rights of autistic defendants, accused, victims and witnesses through the Wes Kleinert Fair Interview Act, which took effect on July 1, 2016.[7] The new legislation provides that a mental health specialist or expert is available at police questioning by request of the autistic person or a parent or guardian.[8] Critics of the Act express that law enforcement be trained, similar to the judicial officers in Pennsylvania, on how autism manifests in order to reduce reliance on parents and identification cards. Further, the right to an expert or specialist does not automatically attach – it must be requested, which indicates that the autistic person, or a parent or guardian, must know that someone with autism is afforded this additional safeguard.[9] It is not a guarantee.

The aim of these programs and legislative initiatives is to diminish incompetence. Autistic defendants can be found incompetent to stand trial due to their lack of understanding of charges they face, and inability to contribute to their cases.[10] This can be problematic for autistic individuals who also have comorbid conditions such as mental illness or a psychiatric disability[11] or have an intellectual disability as part of their autism diagnosis.[12]

Public defenders in Florida are given guidelines to restore their autistic clients to competency within two years through government placement.[13] Typically, if an autistic defendant is found incompetent to stand trial, he or she will be involuntarily committed to a facility.[14] Charges are dismissed after two years if the defendant is still incompetent, as in the case of Tony Rodriguez, a 25-year-old autistic man in Miami who also has an intellectual disability.[15] Rodriguez was charged with downloading child pornography on the Internet, but did not quite understand the severity or illegality of his actions.[16]

However, autism is not currently a defense to a crime, but courts do need to recognize its prevalence and considerations when sentencing and providing services for rehabilitation.[17] Others say that autism should not be a defense for major crimes, but should come into play beyond competency for mitigating sentences or placement as in the cases of involuntary commitment in least restrictive environments.[18]

I truly hope that autistic defendants not only get treated fairly under interrogation, but that the judicial education continues to spread past Pennsylvania in order to allow community services beyond involuntary commitment to flourish, and to decriminalize what we don’t see as socially normative behavior in autistic people.

[1] Maia Szalavitz, Q&A: Psychologist Simon Baron-Cohen on Empathy and the Science of Evil, TIME (May 30, 2011), http://healthland.time.com/2011/05/30/mind-reading-psychologist-simon-baron-cohen-on-empathy-and-the-science-of-evil/.

[2] Data and Statistics, CENTERS FOR DISEASE CONTROL AND PREVENTION, http://www.cdc.gov/ncbddd/autism/data.html

[3] Marina Sarris, What Do We Really Know About Autism and Crime?, Interactive Autism Network (December 2014). https://iancommunity.org/ssc/autism-crime

[4] Leslie A Gordon, 102 A.B.A. J. 11 (Sept. 2016). http://www.abajournal.com/magazine/article/autism_awareness_pennsylvania_juvenile_courts.

[5] Alex Zimmerman, Study: More Pennsylvanians with autism ‘getting tangled up’ in criminal-justice system than ever, Pittsburgh City Paper (November 19, 2014). http://www.pghcitypaper.com/pittsburgh/study-more-pennsylvanians-with-autism-getting-tangled-up-in-criminal-justice-system-then-ever/Content?oid=1792098

[6] Id.

[7] Fla. Stat. § 943.0439 (2016).

[8] Id.

[9] Ashley Brompton, New Florida Law Seeks Protection for People with I/DD Questioned by Law Enforcement: A Positive Step, but Needs Improvement, The Arc (April 11, 2016). http://blog.thearc.org/2016/04/11/new-florida-law-seeks-protection-people-idd-questioned-law-enforcement-positive-step-needs-improvement/.

[10] Fla. Stat. § 916.3012 (2016).

[11] Emily Simonoff et. al., Psychiatric Disorders in Children With Autism Spectrum Disorders: Prevalence, Comorbidity, and Associated Factors in a Population-Derived Sample, 48 J. Am. Acad. Adolescent Psychiatry. 921 (2008). 70.8% of autistic individuals also have an additional psychiatric diagnosis. https://www.researchgate.net/profile/Andrew_Pickles/publication/51419327_Psychiatric_Disorders_in_Children_With_Autism_Spectrum_Disorders_Prevalence_Comorbidity_and_Associated_Factors_in_a_Population-Derived_Sample/links/564cd58408ae4988a7a3f0b6.pdf.

[12] Patricia Howlin, Intellectual Disability and Health, University of Hertfordshire (November 25, 2015). http://www.intellectualdisability.info/diagnosis/articles/autism. 75% of autistic individuals have a corresponding intellectual disability.

[13]Katherine DeBriere & Winnie Gayler, Developmental Disabilities and the Criminal Justice System: A Handbook for Florida Defense Attorneys at 26-27, 31 (2010). http://www.floridatac.com/files/document/Public%20Defender%20Handbook%20updated%202-10-10%20(statewide%20use).pdf.

[14] Fla. Stat. § 916.303 (2016).

[15] Jay Weaver, Judge finds autistic Miami man ‘incompetent’ to stand trial on child-porn charges, The Miami Herald (September 29, 2016). http://www.miamiherald.com/news/local/article105018551.html.

[16] Jay Weaver, Is autistic adult ‘competent’ to stand trial on child-porn charges in Miami?, The Miami Herald (October 17, 2015). http://www.miamiherald.com/news/local/crime/article39312753.html.

[17] See generally Heather A. Strickland, Autism and Crime: Should Autistic Individuals Be Afforded the Use of an “Autism” Defense?, 14 UDC/DCSL L. Rev. (2011).

[18] Christine N. Cea, Autism and the Criminal Defendant, 88 St. John’s L. Rev. 495, 496-497 (2015). http://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=6683&context=lawreview

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