INTELLECTUAL DISABILITY AND THE CRIMINAL JUSTICE SYSTEM

‘In our system, there is no scale of criminal responsibility calibrated to scales of intellectual, social and moral development’. Paul O’Mahony describes the unfairness of the Irish criminal justice system vis à vis offenders with a learning disability writes Dr Paul O’Mahony, Head, School of Occupational Therapy, Trinity College Dublin

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The question of the role of intellectual disability in offending—and especially the intellectual disabilities of the many young people imprisoned within the Irish system—should be a matter of immense public concern. Unfortunately there is little or no interest in this area and even within the system there is little positive action. A research project to examine the prevalence of learning disability amongst prisoners was announced a few years ago, but nothing has been heard of the initiative since.

For people with severe intellectual disability, who have problems sustaining an independent life, the main issue must be always be care, protection and the provision of services both outside and within the criminal justice system. These people are more likely to be victims than perpetrators of crime and abuse. Indeed, British studies have also suggested that there are widespread problems with the justice system’s readiness to prosecute or convict on the basis of allegations from or evidence provided by people with learning disabilities, and that only about one-sixth of crimes against such people are ultimately brought to justice.

While many books and reports on criminal justice simply ignore the sensitive area of the role of intellectual disability in crime, there is very compelling evidence from international as well as Irish studies that educational and learning difficulties play a hugely important role in common patterns of offending. This is most clearly demonstrated in studies of offender populations. One obvious scandal is that many of those executed in the US are of low intelligence and experience extreme learning difficulties—one study showed that of a group of 93 executed people, 6 had measured mental ages equivalent to those of 7 to 10 year olds. Indeed in 1989 the US Supreme Court ruled that ‘there is nothing unconstitutional per se in executing the mentally retarded provided this factor has been properly considered by judge and jury.’

In Ireland, an early worker in this field was the psychologist Ian Hart. In a 1968 study of young offenders, Hart found an average IQ score of 75. In those days this level of performance was termed ‘borderline mental handicap’. Thirty percent of the group scored at levels indicative of some clear degree of mental handicap. In a 1974 study of 150 young probationers, Hart found an even higher incidence of low IQ, with an average of 62 points for the group as a whole.

A study done for the Kennedy Report, based on intelligence testing in the reformatory schools, was even more shocking. This indicated that 38% of the youngsters examined were mentally handicapped and a further 46% with borderline mental handicap. This study classified only 15% of reformatory school children as of an average or higher-than-average intelligence, compared with 85% of the general population. This kind of research has, to an extent, gone out of fashion. More recently, however, an important study of this kind was published by O’Gorman and Barnes. It looked at 100 young people passing through St Michael’s Assessment Unit in Finglas. The IQ test results have a familiar appearance. The results categorised 21% of the young offenders as quite severely subnormal in intelligence with a further 62% in the ‘dull normal range’.

Results from my own studies of prisoners could be seen as confirming the results of the IQ studies. The evidence was clear-cut that prisoners had failed drastically within the educational system. In a 1996 random representative survey of Mountjoy prisoners, I found that 80% had left school before the age of 16 and one-third had not attended school beyond the primary or special school level. Twenty-nine percent of the sample claimed to have some difficulty with reading and 21% admitted to functional illiteracy.

The evidence is unequivocal that there is a seriously neglected problem here and part of the explanation for the neglect can be sought in the extreme complexity of the issue, especially regarding the role medical or quasi-medical or psychological diagnosis should play in determining criminal responsibility. There is a temptation, to which professionals often succumb, to over-pathologise deviant behaviour, ascribing it to medical conditions or deficits of one sort or another. Recent studies in Britain, for example, have suggested that the majority of prisoners can be counted as suffering from psychiatric syndromes, if one includes borderline personality disorders, and that a very large proportion of prisoners suffer from Attention Deficit Hyperactivity Disorder (ADHD).

In Ireland, we have just raised the age of criminal responsibility from 7 to 12 by way of the Children Act 2001. A child below 12 will be considered not capable of crime. Some people with manifestly limited intellectual capacity are also treated by institutions and, in carefully defined circumstances, by the law, as if they were children. Obviously, it is vital that society make such concessions simply as a sensible recognition of the development process in children and the retarded development of those with a learning disability. Adult levels of judgement and intellectual skill cannot be expected of children and those who have not progressed through certain developmental phases. This is also a recognition that social behaviour, moral sensibility and proper conduct are to an extent dependent on the development of mature cognitive powers, as well as on experience-based learning. We must recognize that a certain level of developed intelligence and reasoning ability is a necessary precondition for criminal responsibility, because it is a necessary precondition for the planning and execution of autonomous action of any kind, criminal or not.

It is unfortunate, however, that our legal system is in most instances content to use chronological age alone as the guide. This is the case except where there is concrete, compelling evidence of, in the legal phrase, ‘such a defect of reason, from disease of mind, as not to know the nature and quality of the act he was doing’. The legal system requires cut and dried, yes-or-no decisions and so tends to set very stringent standards for excusing people on the basis of mental incapacity.

By using the device of a sharp cut-off point for the age of criminal responsibility, the system effectively ignores altogether the vexatious question of a person with learning disability’s actual level of cognitive and moral maturity. The law is not very interested in the kind of subtle distinctions and continuous

gradations that better reflect the multidimensional reality of human cognitive functioning. As a result, the law does not, with very few exceptions, excuse people from prosecution because they are functioning at a low cognitive level, and so should not be held to be criminally responsible in the same way as a ‘normal’ person. Criminal responsibility is seen as an all-or-nothing, not a matter of degree; disability has to be very obvious to be noticed by the law. In our system, there is no scale of criminal responsibility calibrated to scales of intellectual, social and moral development.

Germany is a rare example of a country that has made a real effort to capture the complexity and long drawn out nature of moral development and its relationship with cognitive development. This effort is reflected in a graduated, subtly differentiated system for finding young people legally responsible and culpable. The German approach looks at both the moral and intellectual maturity of the juvenile offender over 14 (the usual age of criminal responsible in that country). The so-called ‘criterion of discernment’ plays an important role, based on the idea that it is not enough that the youth understands the illicit nature of an act; he or she must also have the faculty to act according to this understanding. Even young people up to 21 years of age can benefit from special juvenile justice provisions and exemptions, if a judge, on careful professional assessment of the young person, so decides. We in Ireland should move in this direction, not only to prevent the unfair condemnation of disabled people, but also to help us design a better, more justifiable and more effective response to their offending conduct, whether or not we find them criminally responsible and process them through the criminal justice system.

It is clear that positive moral development can only be achieved in the socialisation process by treating the individual child as a morally responsible person with a certain degree of freedom of action and choice. We produce morally aware children by subjecting them to the normal processes of moral approval and disapproval, hopefully within an environment that exemplifies more pro-social than anti-social values. It can be argued that in the final analysis moral questions are about how people should behave towards others, regardless of their own make-up, intellectual or other limitations and life experiences.

There is a paradox here. On the one hand, we are rightly moved to exonerate people with a limited intellectual understanding from moral guilt and criminal culpability. On the other hand, in order to produce morally sensitive, pro-social adults, we (parents and society) clearly need to hold them morally responsible to the limits of their level of understanding and potential for growth. Of course, it is essential that this should be done in a sympathetic way that takes account of their level of development and their special needs. Unfortunately the present court system largely blurs such important distinctions, and the prison system does not meet any of the essential criteria for proper provision—indeed, it represents a highly damaging environment for these young people.

The tragedy is that many of our institutions for delinquent children and young people continue to be outstanding examples of what Julian Tudor Hart has called the ‘Inverse Care Law’, which holds that society tends to provide most care for those who least need it and least for those who most need it.

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