When People with Mental Retardation go to Court

Information obtained from the Arc of Midland Web page on 12/12/07:

http://www.thearcofmidland.org/court_brochure.htm

The Americans with Disabilities Act (ADA) requires that state and local courts not discriminate against people with developmental disabilities. This brochure describes the ADA and what courts can and should do to ensure that people with mental retardation receive fair and equal treatment.

KNOW THE ADA

Title II of the Americans with Disabilities Act (ADA), which went into effect January 26, 1992, prohibits state and local governments from discriminating against people on the basis of a mental or physical disability. People with mental retardation are protected under the ADA. Further, activities of state and local courts are covered under title II of the ADA. Accordingly, judges, attorneys and other court personnel must understand that the ADA requires reasonable modifications in policies, practices or procedures when necessary to ensure that an individual with mental retardation is not subject to discrimination based on disability.

Title II of the ADA requires that:

"no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subject to discrimination by any such entity."

This prohibition requires Courts to ensure that individuals with disabilities are not discriminated against in the services, programs, or activities of a Court system. In addition to this general rule, the title II regulations require Courts to take affirmative measures to avoid discrimination. Specifically, Court personnel are required to make "reasonable modifications in policies, practices and procedures" when necessary to avoid discrimination based upon disability. A reasonable modification may include any modification necessary to enable effective participation in Court proceedings. However, the ADA does not require modifications, which would fundamentally alter the nature of the activity or proceeding.

MENTAL RETARDATION DEFINED

Mental retardation manifests before age 18 and involves significantly below average intellectual functioning combined with limitations in two or more of the following skill areas: caring for oneself, home-living, social skills, community use, self-direction, health and safety, leisure and work, use of basic reading, writing and arithmetic.

Important Note: Most people with mental retardation do not like being called "retarded" or even having the word "retardation" used in reference to their disability. When speaking to the individual, use the phrase, "person with a disability.

Many people with mental retardation have difficulty in their ability to learn, process information and independently care for themselves. However, most individuals with mental retardation can live independently in the community. Whether the individual has a mild or severe disability, all people with mental retardation are covered under the ADA, and often need assistance.

KNOW THE DIFFERENCE BETWEEN MENTAL RETARDATION AND MENTAL ILLNESS

Mental retardation refers to below average abilities to learn and process information. Mental illness refers to a person's thought processes, moods, and emotions.

Mental retardation generally occurs before a person reaches adulthood. Mental illness can occur at any time in a person's life.

Mental retardation refers to below average intellectual functioning or IQ. Mental illness has nothing to do with intelligence.

Mental retardation is usually life-long and is not subject to cure. Mental illness may be temporary, cyclical or episodic and may be curable.

Services required by people with mental retardation usually involve training, education and other support services provided by educators, psychologists, vocational specialists, etc. Services required by people with mental illness include treatment and medical or psychological therapy provided by psychologists, psychiatrists, etc.

KNOW THE SOLUTION

Minimize the difficulties encountered by many individuals with mental retardation in courtroom proceedings by using these suggested practical and inexpensive ways to comply with the ADA.

1. Identification/Screening

   
   Although there is no one way of knowing if a person has mental retardation, there are some traits to look for when identifying an individual with this disability. Look for clues in the individual's behavior that show a decreased ability to reason and think independently. If you notice any suggestive behaviors, assume the person does have mental retardation and use the steps in this brochure and available through our suggested links to help ensure communication with the person is clear. In the courtroom, the individual may...
   1. Not be competent to stand trial (i.e. difficulty understanding judicial proceedings, unable to understand charges)
   2. Not be competent to confess (i.e. unable to understand Miranda warnings, unable to give an accurate and reliable confession, overly eager to please authority figures by confessing)
   3. Not be competent to plead guilty (i.e. unable to understand consequences of actions, plead guilty without understanding why and only for approval

   Screening Strategies

   When reviewing an individual's record, look for obvious inferences to a disability, such as a history of special education, diagnostic testing, etc. Also look for other less obvious signs such as School failure Previous requests for competency hearing History of employment (involvement in vocational rehabilitation, sheltered workshop, etc.

2. Simplify Conversations

   There are some simple, low-cost tips that will enable good communication with people who have mental retardation. Using these suggested trips will not only benefit communication with people who have mental retardation, but will also aid communication with people who have other disabilities, such as traumatic brain injuries, learning disabilities, and Alzheimer's disease. Following are some suggestions:
   
   

   General Tips

   Speak directly to the person
   Keep sentences short
   Use simple language
   Speak slowly and clearly
   Ask for concrete descriptions (colors, type of clothing, etc.)
   Break complicated series of instructions or information into smaller parts
   Whenever possible use pictures, symbols and actions to help convey meaning.
   
   

   Courtroom Tips...

   1. Use simple wording that doesn't include complex terms
   2. Take time giving or asking for information and repeat questions more often than once if necessary when conducting interviews or trials
   3. Always use open-ended, non-leading questions when questioning a person with mental retardation
   4. Ask questions in a straightforward, non-aggressive manner
   5. Consider setting aside additional time for people with mental retardation, to understand trial communications. For example, the attorney of an individual with mental retardation may need additional time to explain carefully what the judge is saying
   6. Many people with mental retardation cannot read, or read well, so allow the person to use audio tapes of materials that otherwise may only be in a written form
   7. Use a support person (a relative, friend or professional who can better understand the person's communication skills) or assistive technology when needed to ensure that an individual with mental retardation understand trial activities. One example of an assistive device is a communication board for people who have speech impairments.
   8. When testifying, allow the person with mental retardation access to emotional support when appropriate via counselors, friends or family members. To reduce anxiety, allow a support person to be physically near the individual when he or she is testifying.
   9. If legal circumstances allow, consider videotaping the testimony of a victim or witness who may have trouble functioning if he or she is forced to testify in open court.

For more strategies for compliance throughout the judicial process, including arraignment, pre-trial and trial, and sentencing, please visit www.thearc.org and download the full brochure, " When People with Mental Retardation go to Court. "