|
Justiceworks in
cooperation with The Institute on Disability |
Children with Disabilities in the New Hampshire Juvenile Justice System
A Report to the Division of Juvenile
Justice Services
Department
of Health and Human Services
State
of
Michael
Skibbie
april, 2004
This project would
not have been possible without the support and guidance of
The cooperation of
the Division for Juvenile Justice Services and of the District Courts has been
extraordinary, and essential to a successful study. In the court system, Administrative Justice
Edwin Kelley and Regional Court Administrator Pamela Neville were responsive
and supportive in arranging access to the studied courts. That initial cooperation was followed by the
excellent cooperation we received from Paula Hurley and Quentin Blaine, the
Clerks of the
At the Division, Joseph Diament and Egon Jenson took an early interest in the study, supporting funding of the project and authorizing our file examinations. At YDC, Philip Nadeau and the staff of the records and school departments cheerfully assisted us during the many days of on-site work.
Special thanks are
due to
The
Relationship between Disability and Delinquency
Theories
of the Disability-Delinquency Relationship
Prevalence
of Disabilities in the United States and New Hampshire
New
Hampshire Disability Rates
Characteristics
of Children with Disabilities
Disability
in the Court Sample
Effect
of Disability on Proceedings
Recommendations
for Further Study
Appendix
C:
Data Elements Collected
Appendix
D: IDEA
Definitions (34 C.F.R. § 300.7)
The New Hampshire Department of Health and Human Services,
Division for Juvenile Justice Services, engaged the
This study sought to go beyond the corrections population,
however. Little research has been
conducted in any jurisdiction to examine how disabilities are represented in
the juvenile court system as a whole[1]. By including both courts and corrections, the
study would describe the system in a way that promoted understanding of
populations and the decisions that affect them at two important stages of the
system. In addition, because such a
small fraction of delinquency actions result in a YDC commitment, the study of
a corrections population would be expected to overemphasize the circumstances
of youth with more serious offenses, or higher rates of noncompliance with less
severe sanctions, or both. The project was designed to examine two of
This study can be the foundation for further examinations of specific aspects of the handling of youth with disabilities. Scrutiny of court practices, defense representation, and competency evaluations, for example, may further reveal the dynamics that lead to disproportionate impact, as well as opportunities to reduce that impact and improve results for children with disabilities. The study may also set the stage for examination of school practices and other interventions that can improve outcomes for children at risk for delinquency. Finally, the study can be used as a benchmark against which to measure future developments at YDC and the two studied district courts.
The study was
largely descriptive and represents an attempt to identify the contours of the
population in the three locations, in terms of demographic information, types
of charges, and adjudication and disposition of cases. We did not set out to conclude how children with disabilities arrive in
the justice system, although we were aware that there might be opportunities to
identify avenues for potential intervention, particularly in the court
process.
Central to this
project is assessment of the juvenile justice system’s ability to identify children
with disabilities. Effective mechanisms
to do so are fundamental to the system’s ability to both adjudicate cases and
respond to the needs of youth. Timely
and accurate identification supports the system in several ways:
Children with
learning disabilities, emotional and behavioral disorders, and developmental
disabilities are represented disproportionately in the juvenile justice
system. Most research has focused on
incarcerated youth as opposed to all court-involved youth. Although estimates vary, some studies have
suggested that as many as 70% of residents of youth correctional facilities
suffer from one or more disabilities[3].
The prevalence of
mental health disorders alone is striking.
A research review conducted in 2000 concluded that the majority of youth
in the juvenile justice system had a diagnosable mental health disorder, and
that at least 20% of youth in the juvenile justice system had mental health
disorders serious enough to substantially interfere with community, home, or
school activities[4].
Mental health
disorders, like many other disabilities, do not typically operate alone in
increasing the chances that a child will engage in delinquency. Many children with diagnosable mental
illnesses also have other risk factors such as family instability[5]. Just as in the general adult population,
it is estimated that half or more of youth with mental health disorders have
co-occurring substance abuse disorders, with the possibility of even higher
rates of co-occurrence for court-involved or incarcerated children[6].
A broad range of
disabilities increase the likelihood of court involvement in general. One study concluded that 32% of children with
learning disabilities and 57% of those with emotional disturbances are arrested
at least once[7]. Learning
disabled youth are believed to be 200% more likely to be arrested than
non-disabled youth for comparable delinquent activity, are more likely to be
adjudicated, and spend longer periods of time incarcerated or on probation[8].
Considerable attention has been paid in the literature to the relationship between disability and delinquency. Three predominant explanations have been proposed for the link:
1) Susceptibility Theory proposes that youth with disabilities are simply more likely to engage in delinquent acts. Attributes such as suggestibility and impulsivity contribute to a predisposition to anti-social behavior;
2) School Failure Theory explains that disproportionate offending patterns are due to the difficulties and frustration of failure in school, which in turn leads to separation from positive structures and relationships and thus to criminal behavior;
3) Differential Processing Theory holds that children with disabilities are actually no more likely to engage in delinquent acts than other children. Rather, they are more likely to be caught up in the system and adjudicated. For example, they may have greater difficulty concealing criminal activity. They may be less able to cope with the court process and all that it entails, such as decision-making, relationships with attorneys, and effective communication in the courtroom. There may also be a greater likelihood of receiving a harsh disposition upon completion of the case, even holding other factors equal[9].
Whichever of the
hypotheses best explains disproportionate representation of children with
disabilities, a number of characteristics seem to make these children more
likely to be involved in the juvenile justice system:
·
They
may be alienated from the school and community.
This alienation may be accelerated by greater contact with the school
disciplinary system, which particularly in a time of zero tolerance policies
increase the instances of both forced and voluntary separation from the school
community.
·
Their
reduced social skills and poor decision-making abilities may increase their
involvement in delinquent behavior.
·
They
may have a reduced ability to avoid detection and apprehension for delinquent
behavior by school and police authorities.
·
Their
social skills may be so limited that harsher treatment results from the
exercise of discretion by decision-makers in the school discipline system, the
police system, and the court system. At
virtually every stage, actors exercise discretion in deciding who to refer to
police, who to charge and with what, whether to divert children to family or
community sanctions, whether to place or release while the court process is
active, etc. Each decision can have
significant influence on the ultimate choice of whether a child is adjudicated
and incarcerated, and a child’s demeanor, communication skills, and general
ability to respond effectively to authority figures likely affect the exercise
of discretion.
·
They
may have learning problems that interfere with positive, constructive responses
to the actions of the school discipline and juvenile justice processes.
In addition to
making it more likely to be involved in the juvenile justice system, learning
problems, developmental disorders, and mental health conditions can
significantly affect the ensuing process.
Such disabilities can impair the ability to understand and waive Miranda
rights, rights to speedy adjudication, rights to counsel, and the array of
rights implicated when a juvenile pleads true to delinquency charges. They can also affect the ability to recall
and then accurately and completely narrate the facts that are important to the
case, identify important witnesses, and testify and behave in the courtroom in
a way that supports defense objectives.
Also affected can be the ability to understand and participate in
important decisions, such as whether to plead true or contest charges, whether
to testify, and the like[10].
Finally, such conditions can limit a juvenile’s ability to respond to
rehabilitative interventions, especially when they are not targeted at the
disability that is present.
The results of this
study are best understood in the context of the incidence of disability in
studies of the general population and of delinquent youth.
Table 1 summarizes
the frequency of various disabilities as found in the literature. The large amount of variability has been
attributed to the use of inconsistent definitions and methods of measurement in
the various studies, as well as the investigation of different population types[11].
Table 1 Estimates of prevalence of disorders among
adolescents
in community and delinquency samples,
|
Disorder |
Community |
Delinquent |
|
Conduct disorder |
2-10% |
41-90% |
|
Attention deficit disorders |
2-10 |
19-46 |
|
Substance abuse and dependence |
2-5 |
25-50 |
|
Mental retardation |
1-3 |
7-15 |
|
Learning and academic disabilities |
2-10 |
17-53 |
|
Mood disorders |
2-8 |
19-78 |
|
Anxiety disorders |
3-13 |
6-41 |
|
Posttraumatic stress disorder |
1-3 |
32 |
|
Psychoses and autism |
0.2-2 |
1-6 |
|
Any disorder present |
18-22 |
80 |
Almost all studies
of disability in delinquent populations have investigated institutionalized
populations, and the few court studies are believed to understate the incidence
of disability among court-involved youth.
Much of that population goes unidentified by the justice system. Justice agencies may not receive all
information relevant to disability, and the court-involved population is less
likely to be identified in the first instance by schools. Schools may fail to detect some members of
this population because they are more likely to be absent for prolonged periods
of time and less likely to have assertive (or even compliant) families who will
participate effectively in the special education identification process. Most research is based on records review
rather than actual evaluation and diagnosis conducted for the studies, so the
validity of results is highly dependent on previous identification. This project had similar limitations.
A related feature
of the delinquent population is that even an accurately determined disability
rate would probably understate the levels of impairment at work. Many children who fail to meet the thresholds
for particular diagnoses nevertheless are hindered in their functioning by one
or more conditions[12].
Despite these
restrictions, previous studies identify several key features of the
population. In all categories, the rate of
disability incidence in delinquency populations is higher, sometimes to a
dramatic degree. Mood disorders and
conduct disorders predominate among mental health diagnoses, and there is a
high incidence of post-traumatic stress disorder, generally considered to be a
lingering feature of child neglect and abuse.
Table 2
Disability Percentage (Based on Estimated Resident Population) of
Children Ages 6-17 in general population,
|
State |
All Disab. |
Specific
Learning Disab. |
Speech or
Language Impairment |
