The First Critical Steps through the Criminal Justice System for Persons with Intellectual Disabilities

Accessible summary: • Sometimes, persons with learning disabilities have contacts with police because they are suspected of having committed an offence, such as shoplifting or having made too much noise on the street.• We met with 14 individuals we will call informants, who know about this type of situation to ask them what happens to persons with learning disabilities when they are suspected of having committed an offence.• The informants told us that the persons who called the police, the police officers and the lawyers can decide if the individual who is suspected will be released or will continue with through the justice system. If the person is known to the police or to the intellectual disability services, if the suspected offender has family members or friends who can support him then, chances are that he will benefit from some special attention. The problem is that very often, the persons who called the police, the police officers and the lawyers do not know that the suspected offender has a learning disability.• The informants we met also said that the persons with learning disabilities should receive special assistance when they are in trouble with the law, and police officers and lawyers should know more about intellectual disabilities.• When persons with intellectual disabilities want some help, they have to tell the police officers or lawyers. Otherwise, if the police officers and the lawyers do not know that the person has trouble completely understanding the situation, they cannot help when he or she goes through the stages following the arrest. Summary: This paper deals with the initial steps of the judicial process for persons with intellectual disabilities who are suspected of a minor offense; a stage where plaintiffs, police officers, and crown attorneys make a series of decisions that will have a significant impact on the course of the judicial process. The objective of this study was twofold: (i) to document the criteria that influence dispositions by police officers and crown attorneys about persons with intellectual disabilities in the criminal justice system (CJS), (ii) to report suggested improvements to better support them throughout the judicial process. Fourteen semi‐structured interviews were conducted with key informants from the CJS and from service and community organisations working in the field of intellectual disabilities. The results of this qualitative study indicate that decisions made and dispositions taken rely on a series of implicit criteria that influence the course of the subsequent judicial procedures against persons with an intellectual disability. Suggestions for improvement pertain to developing the screening of intellectual disability procedures, the provision of information to key actors about intellectual disabilities, a preference for the use of summons to appear over other types of procedures, and drafting memorandums of understanding between various organisations and police services regarding persons with intellectual disabilities. In conclusion, an emphasis must be put on screening and diversion procedures for persons with intellectual disabilities when appropriate.

Keywords: criminalisation; intellectual disabilities; learning disabilities; minor offences; vulnerable offenders; Criminal justice system

Many studies have shown that persons with intellectual (or learning) disabilities are over‐represented in the criminal justice system (CJS), encounter specific problems in their dealings with this system and do not receive the support they need to negotiate this system's complexities ([19]; [23]; [29]; [34]). This paper discusses the initial steps of the judicial process in the context of the Canadian CJS. Its focus is on the stages that immediately follow a criminal event and that may eventually lead to charges being formally laid. The primary objective is to document the criteria that influence the disposition in the CJS for persons with intellectual disabilities who are suspected of a minor offence. A secondary objective is to report suggested improvements of the justice system in dealing with persons with intellectual disabilities in the initial stages of the judicial process.

Previous studies have documented the vulnerabilities of persons with intellectual disabilities in general, and the possibility of compromising their basic rights, in particular, at the time of arrest, where they may have problems to understand the warnings regarding these basic rights ([9]; [10]; [12]; [24]; [30]; [34])1. Because of their greater susceptibility to suggestion and acquiescence and their elevated desire to please authority figures, persons with intellectual disabilities may be particularly vulnerable to intimidation, deceit, and coercion during interrogation, and are more prone to false self‐incrimination and confession ([3]; [7], [8]; [10]; [11]; [14]; [15]; [18]; [22]; [24]; [30], [31], [32], [33]; [34]; [35]). However, few studies have addressed the issue of the disposition of persons with intellectual disabilities alleged to have committed an offence. [26] reported that police officers' views of persons with intellectual disabilities may affect how they handle the situation. [27] noted that police officers generally followed mandatory procedures, although some did exercise discretion and take the circumstances of the alleged offence into account.

The primary objective of this study was to document the initial (pre‐trial) decision‐making processes of the main actors in the CJS concerning the disposition of persons with intellectual disabilities alleged to have committed minor criminal offences. The focus on offences that are minor in nature, such as shoplifting and disturbing the peace, was motivated by three arguments: (i) minor offences are common, (ii) minor offences may be disposed of with more latitude than more serious offences, (iii) individuals violating conditions of release for a previous offence may suffer adverse consequences if convicted of a minor offence ([20]). The secondary objective was to gather suggestions for improvements to initial judicial procedures that would better reflect the special needs of persons with intellectual disabilities.

Fourteen semi‐directed interviews were conducted with a purposeful sample of 14 key informants from the CJS, and from services and community organisations working in the field of intellectual disabilities. Potential participants2 had to have had experience with issues related to the interactions between the persons with intellectual disabilities and the CJS and the specific steps taken from arrest to final disposition. Every person contacted agreed to participate.

Five participants were selected from the CJS: a police officer, a crown attorney (local prosecutor), a public defender, a clinical director of a correctional facility, and a psychosocial court liaison. The five participants from the social and rehabilitation services network were: a clinical and programme advisor; a counsellor from a rehabilitation centre for persons with intellectual disabilities; a case manager working in a mobile intervention team specialising in mental health and justice; a case manager working in a homelessness intervention team; and a programme advisor from the regional health and social services board. Community organisations were represented by four informants: a director from a national family association, a project administrator from a local family association, a counsellor in a post‐detention programme and a community organiser from a self‐advocacy group.

All participants were directly involved in some component of the study issue for one of the following situations: (i) they were one of the key actors in terms of decision makers (police officer, crown attorney), (ii) they had been in contact with persons with ID in the context of their function within the judicial procedures (public defender, clinical director in a prison, psychosocial court liaison, counsellor in a post‐detention programme), (iii) one of their clients or members had to deal with the CJS in the context of an alleged minor offence (clinical and programme advisor, rehabilitation counsellor, case managers in a mobile intervention team and in a team for homeless, director and project administrator from family associations, community organiser in a self‐advocacy group) and (iv) they had a mandate related to the interactions of persons with ID with the justice system at large (advisor from the regional health board). This range of informants sampled covered most of the concerned actors, with the exception of a judge and a plaintiff.

At the beginning of each interview, the informant was invited to describe the circumstances surrounding their interest and role in the issues regarding the contacts of the persons with intellectual disabilities with the CJS, as suspects or offenders. Then, the interview guide closely followed the sequence of the pre‐court procedures: police intervention (plaintiff's decision); police officer's choice of a procedure if the charge is maintained (police officers' decision); the review of the case by the crown attorney (crown attorney's decision). Detailed information was obtained about the circumstances, practices, observations, opinions related to these procedures. The informant was also invited to make suggestions as to how to bring change to the current state of affairs to improve services to persons with an intellectual disability. The topics discussed were tailored to the role and affiliation of each informant. To maintain consistency, all interviews were carried out by the same research assistant. Interviews lasted on average for two hours. A synopsis of each interview was prepared and presented to the informants to ensure that this synopsis was a good representation of the participant's opinions and ideas. The participants were allowed to make changes, clarify their statements, or introduce new material at this stage.

The data was compiled using a progressive reduction method (selecting, focusing, simplifying, abstracting and transforming the 'raw' data), ([28]). At the analysis stage, content analysis was performed to select, abstract and index the relevant material. Three broad categories were defined on the basis of the decisions that set the course for a suspected offender within the CJS at different steps of the judicial procedures for minor offences in the Province of Quebec, Canada (Fig. 1). As these decisions are made successively by plaintiffs, police officers, and crown attorneys, the categories were labelled 'plaintiff level', 'police officer level' and 'crown attorney level'. For each of these three categories, content units were related to the circumstances, criteria for decisions and suggestions for improvement associated with the pre‐court disposition of persons with intellectual disabilities charged with minor offences. Only materials related to these topics were selected for analysis. Descriptive content units were kept very close to interview material. The analysis could be relied on 'low‐inference coding' ([1]) as a function of participants' characteristics (well‐informed, well‐focussed and articulate key informants). At the interpretation stage, the categories and descriptive content units were transformed using a 'connecting strategy' ([25]). The objective of the interpretation was to derive from the diverse perspectives conveyed in the interviews the 'whole picture' that would allow documenting one of the initial research questions: 'On which criteria are decisions made as to the disposition of a person with an ID in the case of a suspected minor offence?' A matrix ([28]) was used to present the issue of this integrative procedure. Regarding the second topic of interest, the suggestions to adjust the procedures, we proceeded with a mere enumeration of the content units presented as a table. Comments related to each suggestion were also extracted and reported as such in the results section.

Graph: 1 Judicial procedures following an offence.

The interviews allowed to identify the criteria relied upon for decision‐making in the first stages of the procedure following the suspected offence of an individual with ID. The results are reported along the sequence of these first stages, with an emphasis on the key actor who makes the decision at that stage. This will be followed by an integrative summary to link these criteria and their consequent decisions to the course of the procedures.

Following the commission of a suspected offence, the first decision comes to the plaintiff. If he or she decides not to press charges or withdraws the charges, the suspected offender may be unconditionally released. Some informants3 reported that police officers often suggest plaintiffs to withdraw complaints in the case of minor offences committed by persons with intellectual disabilities. This was noted to be especially true in situations where the offender is known to the police. The probability of withdrawal of complaint by the plaintiff is increased significantly if the suspected offender is receiving health and social services or has a known formal or informal support network. The nature of the offense and the individual's legal status can also play a significant role, according to the informants from the CJS and the rehabilitation counsellor. For instance, individuals who are suspected of sexual or violent offences are more likely to be arrested, when recidivists and individuals on probation or parole do not receive much mercy. Some participants mentioned that gender, the level of tolerance within the immediate social environment and the attitude of police officers towards intellectual disabilities can also play a role in the decision to withdraw the complaint. Finally, suspected offenders who show signs of mental health problems, substance abuse problems, or homelessness (all of which are possible among persons with intellectual disabilities) may be referred to an established diversion programme.4

If a complaint is filed, the police officer writes up an event report, which is forwarded to the crown attorney's office. This report influences how the event will be handled in the next stages of the judicial process. If the police officer suspects the existence of a mental health problem, they may note this in their report. However, the standard event report form is not designed to capture information on intellectual disability. The only circumstances in which the special needs of a person with an intellectual disability have a chance to be taken into account are when: (i) there is a manifestation of recognised mental health problems or (ii) the police officer will mistake intellectual disability for a mental health problem and complete the 'mental health' section of the police incident report.

In the next step, the crown attorney reviews the case and must decide whether or not to retain the complaint, or assess whether or not it is worth laying charges or pursuing the case in court. The crown attorney may also request that a summary assessment of the defendant's fitness to stand trial be conducted by a physician. The crown attorneys do not meet with defendants. In some cases, a fitness to stand trial assessment may be ordered. Individuals whom physicians declare unfit for trial but who require psychosocial support may be referred to an emergency psychosocial‐justice team (see Note 4). According to informants, the probability of there being a mental health note in the file of a defendant with an intellectual disability is relatively low, and the fact that a person with an intellectual disability is unfit to stand trial or requires support often goes unnoticed.

The crown attorney indicated that when her colleagues notice or suspect that a defendant has intellectual limitations, they tend to be reluctant to pursue criminal proceedings. In the best‐case scenario, the defendant is already known to intellectual‐disabilities services and the crown may recommend that the judge release the defendant to these services. In all other cases, the crown attorney must make a decision based on their estimate of the risk to public safety and of recidivism. In the absence of alternative resources, the recommendation is, more often than not, for pre‐trial detention. It is easier for crown attorneys to plead for clemency if some form of support network can be demonstrated, e.g. a third party who makes a commitment to visit the defendant regularly.

In summary, informants identified a series of circumstances that influence the course of the procedures taken in the case of a suspected offense, as long as these circumstances play a role in the decisions made by the plaintiffs, the police officers and the crown attorneys. Thus, when defendants are known by the police, have contact with services or are connected to support networks, they are more likely to be diverted away from the CJS at some stage of the pre‐trial procedures (Table 1). When the defendant with an intellectual disability shows signs of another problem – such as a mental health problem, substance abuse, or homelessness – he will receive dispositions according to the guidelines, procedures or services related to this problem. Finally, when the intellectual and functional limitations of defendants go unnoticed or are not taken into consideration (undiagnosed, borderline, or mild intellectual disabilities), the mainstream procedures will be applied at the various stages of the processes.

1  Matrix of the course of the judicial procedures, according to the criteria used and the decision made. A synthesis of the interviews with reference to source of mentions (key informants)

1 1. Police officer

• 2 6. Clinical programme advisor
• 3 11. Director (family association)
• 4 2. Crown attorney
• 5 7. Rehabilitation counsellor
• 6 12. Project administrator (family association)
• 7 3. Public defender
• 8 8. Case manager (mobile team)
• 9 13. Counsellor (post‐detention program)
• 10 4. Clinical director (prison)
• 11 9. Case manager (homeless)
• 12 14. Community worker (advocacy group)
• 13 5. Psychosocial court liaison
• 14 10. Advisor (regional health board)

On the basis of informants' testimony, four scenarios were extracted with the last two being the most problematic:

• 1

• The defendant is known to intellectual‐disabilities services and/or has a support network. In this case, tolerance and return to the services or network seem the preferred option.

• 2

• The defendant has a known or apparent mental health or substance abuse problem, is in a crisis situation, is homeless, or presents obvious psychosocial problems. These conditions are noted in the event report, and the defendant can eventually be referred to specialised services.

• 3

• The defendant's intellectual and functional limitations are recognised or suspected by the police officers, but the individual is not connected with appropriate services, has no known support network, or is not known to the police. In these cases, in the absence of formal procedures for indicating a possible intellectual disability or asking for an assessment at either the time of the judicial process, chances are that the disability will go unnoticed.

• 4

• The defendant has an undiagnosed, mild or borderline intellectual disability, which is difficult to detect at first sight. If the police decide to make an arrest in such cases, there is little chance that the possible existence of an intellectual disability will be noted and taken into consideration in the next steps, unless it is considered a mental health problem.

The informants suggested a number of ways initial judicial proceedings related to persons with intellectual disabilities suspected of having committed an offence could be adjusted (Table 2). Many stated that early screening is essential. However, the police officer indicated that one cannot expect police patrol officers to perform intellectual disability screening procedures. When officers arrive at the scene of an event, they are often confronted with crisis situations or disruptive persons, and an intellectual disability can be difficult to detect at first sight. Furthermore, some informants considered that this type of screening is neither a priority for police officers nor even a part of their mandate. A more realistic measure may be to include a check box for intellectual limitations in the police event report form. A structured screening procedure could be performed at the holding centre, on the police's own initiative or at the crown attorney's request. However, there were some reservations expressed about screening, given the risk of stigmatisation, especially as persons with intellectual disabilities may deny, minimise, or attempt to hide their intellectual limitations to avoid the label of intellectual disability. It was suggested that police officers and crown attorneys be taught the basic facts about intellectual disabilities during their standard training – through handbooks, guides, or specialised in‐service training sessions – to ensure that they bear in mind the possibility of intellectual disability when confronted with someone who is 'different'.

2  List of suggested improvements

15 See Table 1 footnote.

A recommendation pertained to the disposition when charges are pressed where police officers may choose to a) release the offender with a promise, commitment, or summons to appear in court, or b) detain the suspected offender pending a court appearance. The informants who referred to this step favoured a summons to appear in court over other available procedures when the police conditionally release an alleged offender following an arrest without a warrant (see Fig. 1). Procedures such as a promise or commitment to appear are considered particularly untrustworthy in cases involving persons with intellectual disabilities. These procedures require the accused to sign a commitment to appear in court upon a specific date, on average 30–45 days from the date of the offence. In no case is a reminder of the date of the court appearance sent before the trial, which is particularly problematic for persons with intellectual disabilities. It is foreseeable that persons with intellectual disabilities may not understand the significance of what they signed or will forget the date on which they are to appear. In addition, some persons with intellectual disabilities will be afraid of appearing before a judge and thus fail to appear. Failure to appear in court will, in turn, hinder the defendant from appreciating the consequences of their offence, and thereby facilitate recidivism. Some informants recounted how such a failure to appear in court resulted in some persons with intellectual disabilities unwittingly finding themselves with criminal records and, in some cases, heavy fines, for multiple offences related to the administration of justice. A summons to appear is a safer alternative for persons with intellectual disabilities, because a notice is sent to the defendant's home. This notice is a reminder of the date of appearance in court, and allows someone in the defendant's entourage to be alerted to the court appearance. However, unless someone in the defendant's entourage engages in communication with the defendant regarding the latter's offence, there remains a possibility that the defendant may not make the connection between the summons and their past behaviour, which may lead to an underestimation of the consequences of ignoring the summons, and failure to appear.

More than half of the informants suggested that memorandums of understanding be drawn up to establish links between the key players and support network interventions. These players include local police forces, crown attorneys, public defendants, legal aid services, the magistrate, the public curator, mental health and social services providers, and agencies and community organisations specialising in support for persons with disabilities. Some other suggestions (one mention) were considered as simple and inexpensive to implement, although they could have important impacts. These included limiting the number of persons from the judicial and social services systems assigned to a case; adjusting language and vocabulary to the comprehension level of defendants; and ensuring that defendants are able to go back home when they are released.

In addition to suggesting improvements addressing the CJS, Table 2 shows that the informants also formulated several recommendations concerning services that could help to divert persons with intellectual disabilities away from the justice system: crisis team and emergency residential facilities; community‐based follow‐up programmes. Most of the 'other' suggestions came from participants who are from family organisations. They proposed a mobile team of justice experts, a directory of relevant resources, court liaison services, an emergency card, as means to help the families and persons with intellectual disabilities to deal with the CJS. The rehabilitation practitioner, referring to the behavioural learning theory, mentioned that persons with intellectual disabilities can only understand the consequences and the inappropriateness of their behaviours if interventions in the judicial process are closely linked in time to the reprehensible behaviours in question. Consequently, the delays between the offence and the procedures should be as short as possible. Ideally, the interventions should be carried out in persons with intellectual disabilities' regular environment.

In most jurisdictions, plaintiffs, police officers and crown attorneys, by virtue of their discretionary powers, play a decisive role in the disposition of an alleged offender before judges even get to hear the case. They are responsible for three decisions that have significant impacts on the trajectory of an individual through the judicial process and eventually on services they receive: a) filing, withdrawing, or maintaining a complaint (plaintiffs); b) ordering unconditional release, conditional release, or pre‐trial detention (police officers) and c) authorising or not the pursuit of the proceedings (crown attorneys). The qualitative data gathered from informants allowed to identify some of the criteria on which these decisions are based. These criteria are not formalised as such in any procedure. The objective of this study was to extract these implicit, non‐written criteria. Contrary to conditions such as mental health problems, substance abuse or homelessness, no explicit procedures (e.g. check‐box on the standard event report) or guidelines for decision‐making currently exist in Montreal. Nevertheless, the interviews revealed that when an ID is suspected or acknowledged in a person suspected of a minor offence, some criteria are used in the decision‐making process related to the disposition of this person. Some links were proposed between the decisions made and the course of the procedures.

When asked about suggestions for improvements, three of these (training of the CJS actors, early screening and assessment, and memorandums of understanding) implied strong intersectoral or multiagency initiatives. The literature provides some venues to support the implementation of these suggestions. For example, [16], [17] developed and validated a screening tool (Hayes Ability Screening Index) for intellectual disability. Guidelines for police officers ([37]), service providers ([2]), and judges, public defenders, and police and probation officers ([20]; [21]) already exist. Other tools could also be mentioned. In the United States for example, an alternative Miranda form, as well as an instrument to check if suspected offenders understand Miranda warning have been developed ([13]; [20]). Eight participants suggested that programmes specifically designed as alternatives to criminalisation be developed. Some literature is available to this effect. For instance, community case management programmes, probation procedures accompanied by specialised treatment plans, mediation processes and orientation and court accompaniment services. (e.g. ([4]; [5]; [6]; [36]).

Along the course of the study, special attention was given to procedures that are likely to contribute to the validity and reliability of the data and conclusions. Research participants were selected, because they were recognised as knowledgeable and articulate by the milieu. Every person who was contacted agreed to participate. Moreover, given the fact that very few persons are directly involved in some aspect of the issue limits the actual pool of potential participants. In this study, almost all the 'experts' in Montreal contributed, allowing for a diversity of perspectives within the limitations of the small pool of available knowledge sources. The interpretation of the content of the interviews was maintained at a minimum (low‐incidence coding), and the description of content units remained close to the literal meanings. The triangulation of sources/perspectives revealed convergences. In fact, many criteria were mentioned by many informants, from various milieus (justice, social services, community organisations) and in reference to all levels of decision‐making (plaintiff, police officer, crown attorney). To verify the trustworthiness of results, or to ensure that the data was 'interpreted in the right way ([1])', the research participants were offered the opportunity to validate the synopsis of their interview. Furthermore, the results were shared with participants and presented at the Interagency committee on Justice. The results were endorsed by the members who organised a meeting to communicate the study conclusions and recommendations to a larger audience of stakeholders.

As the CJS's disposition of persons with intellectual disabilities varies from one jurisdiction to another, and depends on the criminal laws and procedures, available services and support systems, and culture, the level of generalisability of this study will also vary from one context to another. The focus being on minor offences, it is not appropriate to postulate that the same observation would be relevant in every situation involving an offender with an intellectual disability. The fact that neither a plaintiff, nor a judge had been recruited represents another limitation of this study. One has also to recognise an 'elite bias', with all the informants being highly educated and leaders in their milieus. However, in spite of its exploratory character, the presence of convergence within data ensures a reasonable level of evidence to suggest a pattern. Nevertheless, this pattern should be submitted to replication for further validation.

This study focused on the entry into the CJS of persons with intellectual disabilities accused of a minor offence. During the first hours after a call has been made for police intervention, plaintiffs, police officers and crown attorneys make decisions, which influence the course of the judicial process. According to informants from the justice and disability agencies, these decisions, in particular whether to criminalise, rely on implicit criteria when persons with intellectual disabilities are not clearly identified as a group with special needs and explicit guidelines and structured processes are accordingly absent. These data emphasise the need for more effective screening and diversion mechanism within the CJS as well as policies and actions that target the interface between the CJS and the persons with intellectual disabilities to safeguard not only the correct application of criminal justice procedures but also the basic rights of persons with an intellectual disability.

This study was funded by a grant from the Agence de santé et des services sociaux de Montréal (Montreal Regional Board of Health and Social Services). This grant does not impose any restrictions on access to research data or publication of study findings. There are no financial conflicts of interest, and no direct salary or financial remuneration was received by the authors. We would like to express our thanks to our informants, to Rosanna Baraldi for conducting the interviews, and to Marion Steff and Isabelle Jacques for editing assistance. Anne Crocker would like to acknowledge the salary support from the Canadian Institutes of Health Research through a New Investigator Award.