It is widely considered that people with intellectual disability (ID) do not get a fair hearing in the judicial and penal system in France. If this is true they may be over-represented in the prison system. If accepted as true, how can it be proved and what studies have been carried out to confirm this perception? In order to really determine the amplitude of the question, valid and precise methods to measure the level of ID in a prison population need to be used. Logistically this can be difficult to carry out in the prison setting, and few such studies have been carried out in France.
People with ID in France are usually identified early in life, especially those in the profound, severe and moderate categories—whereas the person with a mild ID may continue through the school system and into the workplace without a diagnosis ever having been made. It is members of the latter group who are likely to be found in prison settings, but perhaps more for familial, social, economic disadvantages or environmental reasons, than because of reasons based purely on intellectual function. Because of the absence of proper methods of measurement, it is highly unlikely that correctional services in France will ever be able to obtain the necessary information to determine the needs and undertake means of assistance and appropriate re-adaptation for these individuals.
One of the few studies published in France to address this question was carried out several years ago by Aline Desequelles, demographer at the National Institute for Demographic Studies (INED), which used the classification based on the work of Dr P.H.N. Wood et al. in the development of the International Classification of Handicap Impairment and Disabilities. The questionnaire used was based on the ICD and filled out during a researcher-prisoner interview.
Desequelles’ study does not deal only with the category of ID as defined by the AADD, but it does shed some light on the question of handicap in prison, and incidentally on intellectual deficiency in prison. The questionnaire, carried out within prisons, included some 2800 detainees from 32 different prison settings (remand centers and long-term prison centres). It was found that over 60 % of the detainees auto-proclaimed a form of deficiency and of those, 50% implied either an intellectual deficiency or a psychiatric, psychological disorder or mental disease.
Intellectual, psychiatric or psychological disorders were thus over-represented to a greater extent than that found in the general population. These results seem excessively high. So how many people with an ID are to be found in French prisons? The most likely answer is a significant number, but the current available data is insufficient to be able to give any kind of precise figure. Desequelles’ study showed that those considered to have an intellectual deficiency also exhibited behaviour disorders and altered neurological spatio–temporal functions. Many also had drug- and alcohol-related addiction disorders. For the most part, these detainees were young and often had short-term sentences. Their general physical health was not found to be worse that the average prisoner.
On the contrary, a local study, carried out in one remand centre to determine ‘intellectual efficiency’ for those detainees volunteering for work in the prison work shelter, found that intellectual efficiency in this remand centre was higher than that found in the general population!
These two examples, although very different in their aims, do underline the exceedingly difficult task of properly identifying a population with ID before calculating their demographic representation. Furthermore no study in France has established that persons with intellectual deficiency are more likely to commit a crime (even though the two conditions may co-exist) than the general population. What seems to be clear from several studies is that people with ID do suffer more from incarceration, as they are likely to be exploited by other criminals. They are also less likely to understand what is expected of them and less likely to benefit from available re-adaptive programs.
Our experience is primarily in remand centres where, by definition, the time spent in prison is three years or less. In France perpetrators of serious crimes serve their sentences in other prisons, such as a ‘Centre de Detention’ or ‘ Maison Centrale’. Also, the more serious the crime the greater is the media coverage and public interest in diagnosis, guilt and responsibility. People with ID can occasionally commit serious crimes, for example, homicide. When this occurs and the death penalty results, the question of psychiatric evaluation is of utmost importance. In France a ‘juge d’instruction’ instructs the case and can at any time request an expert opinion. The psychiatric and psychological evaluation can be repeated several times, should there be any doubt. However, these expert reports are only considered as advisory information and are not binding on the judge—he or she can decide not to take into account the conclusions of the psychiatric evaluation.
However, should the Judge determine that the mental faculties of the defendant were altered at the moment of the crime, a request can be made for a ‘non lieu’ in which case the accused will not go to trial and be sentenced, but rather ‘sectioned’ under the responsibility of the administrative branch of the legal system. What this means in practice is admission to a high security prison unit (UMD – Unité pour Maladies Difficiles). It is common for these ‘patients’ to spend more time in these centres, than if they had received a prison sentence.
If people with mild ID are more frequently found to have committed crimes and consequently have to deal with the judicial system, how can support be provided to ensure a fair and just hearing? Do those considered to have a mild ID necessarily have an altered moral behaviour? Is their ability to distinguish between right and wrong—between what is a crime punishable by the law or not—any different than that of the general population? If not, then should they be treated differently than anyone else with respect to the law? These questions must be addressed of fair and just ways are to be found to support, to punish or to treat.