The criminal legal system is failing people with intellectual disabilities | GUEST COMMENTARY

Last month, a Baltimore County judge ordered the Maryland Department of Health to pay over $600,000 for its failure to meet the needs of people in the criminal legal system who have intellectual disability and severe mental illness. Even though the law requires transfer to an appropriate treatment facility within 10 days of a court order, people with significant needs are waiting nearly half a year in jail without meaningful care.

It’s shameful that we have never truly moved away from incarcerating the most vulnerable among us. We need to find ways to decrease their presence in the criminal legal system—one disproportionately targeted group that we are failing is people with intellectual disability.

The American Association of Intellectual and Developmental Disabilities defines intellectual disability as “significant limitations in both intellectual functioning and adaptive behavior that originates before the age of 22.” Intellectual disability can look different depending on the person and the severity can range from profound (generally an IQ below 20) to mild (generally an IQ between 50 and 69). A person with intellectual disability often struggles with everyday tasks like keeping a job, maintaining personal hygiene, and literacy. Though a person with intellectual disability could also have other conditions such as mental illness or physical challenges, those are distinct.

During the COVID-19 pandemic, a colleague and I represented a client with intellectual disability seeking compassionate release. Not only did COVID-19 pose an increased threat because of health conditions, but he also had an unrelated medical issue that he struggled to manage due to deficits in working memory. The prison did nothing to help him, resulting in more than one hospitalization.

The slowed-down pace of the pandemic allowed us to understand the great impact intellectual disability had on his offense, sentencing and the challenges he faced in prison. We were able to use our increased understanding to advocate with the court, and he is now home with his family, successfully living in the community with appropriate supports. That experience made me reflect on my years as a public defender and the many clients who likely had intellectual disability, which I failed to recognize.

People with intellectual disability are more likely than their peers to become ensnared in the criminal legal system — not because they are more prone to criminal behavior, but due to environmental and social factors that make them more likely to be arrested and prosecuted. For example, they may engage in behavior that they are unaware is illegal. In addition, because of a desire to please authority figures, they are more likely to falsely confess to crimes.

Once in the system, they fare worse: they are more likely to be held in jail awaiting trial, offered worse plea deals, and sentenced to longer periods of incarceration. And once incarcerated, they are more likely to be targets of abuse from inmates and prison staff and often serve more time before getting paroled due to a lack of tailored programming.

These negative outcomes stem from systemic problems in the criminal legal system.

Due to their crushing caseloads, even the most committed public defenders often fail to identify clients with intellectual disability. If identified, they may lack the resources to provide proper support.

On the other side of the coin, judges and prosecutors frequently misinterpret behaviors associated with intellectual disability as signs of indifference or guilt. For instance, a person with intellectual disability might miss court dates due to struggles with working memory, leading a judge to order pretrial incarceration.

As a result, people with intellectual disability often receive harsher punishments. Some judges, upon learning of a defendant’s intellectual disability, even impose longer sentences.

This does not enhance public safety and contradicts the principles of justice. These individuals are not more likely to commit crimes. They are, however, less likely to get appropriate rehabilitative services while incarcerated, and prison sentences are unlikely to deter future offenses.

Due to their individual deficits and the systemic failures, people with intellectual disability are less deserving of punishment than others convicted of similar offenses.

As a first step to address these issues, we should require judges to treat intellectual disability as a mitigating factor in all sentencing decisions, meaning they must impose lesser sentences for those who demonstrate such a disability.

This change will lead to fairer sentences and incentivize identification of individuals with intellectual disability. It will also reduce the stigma and enhance the understanding of judges, prosecutors, and others on the impacts of intellectual disability throughout criminal proceedings.

The criminal legal system is deeply flawed, particularly in how it handles complex societal problems. While the recent ruling against the Maryland Department of Health is a step in the right direction, we need deeper reforms.

Katie Kronick (Katie Kronick) is an assistant professor of law and director of the Criminal Defense and Advocacy Clinic at University of Baltimore Law. Her scholarship has focused on the intersection of intellectual disability and the criminal legal system.