By Shannon Wentworth, BREN Program Director
In June, I had the opportunity to present an MCLE with the Office of the State Public Defender addressing the intersection between special needs and crime. As a criminal defense attorney, I saw that most of my long-term incarcerated clients had their initial arrest at school with many of those stemming from behaviors associated with special needs (diagnosed and undiagnosed).
Now, with law enforcement on campus to protect children from gun violence, there’s an increased likelihood that a child having behaviors related to their disability will be met with the law, rather than trained special educators who understand how to address those behaviors. Children with special needs have necessary supports identified in their Individual Education Plan (IEP). The child’s IEP team is tasked with keeping detailed notes on behavior, so they can identify triggers and create supports around those triggers. Children with special needs are often overwhelmed by transitions, changes to schedule, and loud noises (like school bells and the cacophony of the cafeteria). Supports for that might look like putting on noise cancelling earmuffs or having a quiet space for the child to decompress or having the paraprofessional take the child for a walk prior to a transition (so the chaos of all the children moving around and talking between activities does not bother him or her). With an IEP, there is always a preventative plan tailored to the child’s unique needs. Everyone involved with the child should be trained to execute the plan. Unfortunately, that is not always the case.
A 2021 UCLA report, “Disabling Inequity: The Urgent Need for Race-Conscious Resource Remedies,” found that children of color with disabilities are less likely to have their needs recognized and met, and often face harsh discipline measures as a result. According to the U.S. Department of Education’s Office for Civil Rights, in the 2011-12 school year, students with disabilities served under the Individuals with Disabilities Education
Act (IDEA) represented 12 percent of the overall student population, yet they represented 25 percent of students arrested and referred to law enforcement. Students with disabilities were also found to be more than twice as likely to receive an out-of-school suspension than students without disabilities. This level of disproportionate punishment and criminal justice involvement mirrors the high incarceration of adults with disabilities.
U.S. Department of Justice reports 2 in 5 state and federal prisoners with disabilities. (2016) That’s 40 percent of the prison population. Children with special needs exhibit behaviors that are often misinterpreted or lead to injury to themselves or others. An overwhelmed child on the spectrum may strike or bite a caregiver or fellow student. A child with ADHD may not be able to self-soothe, so it may take a lot of time to restore equilibrium. Children with special needs (diagnosed or otherwise) experience bullying at a greater rate. I have clients who were injured while being bullied for a disability, resulting in an additional disability, like head injuries, seizures, or PTSD.
A person’s disability can be used as a factor in mitigation at all phases of a criminal case to assess guilt and determine an appropriate sentence. Defense attorneys can present evidence of how the defendant’s disability impacts behavior and decision making. The question is: What part of the offense is related to the child’s disability? School districts have an obligation under the law to identify all children with disabilities within their district boundaries as well as provide services to ensure a free appropriate public education. This includes unhoused children, foster children and migratory children. Identifying and appropriately serving these children will go a long way to preventing their future incarceration.