DOES THE CRIMINAL JUSTICE SYSTEM CREATE CRIMINALS?

by Siobhán Nic Coitir, Senior Counselling Psychologist/Intern Forensic Psychologist & Patrick Randall, Director, Forensic Psychological Services highlight the need for more specialists with experience of intellectual disability within the criminal justice system...

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2010

Forensic Psychological Services (FPS) provides clinical and forensic services to organisations and to individuals in the public and private sectors. Referrals to FPS are made by the HSE, the gardaí, legal and medical professions, the courts, therapeutic services, professional bodies and individual clients. FPS provides psychological assessments, risk assessments, victim impact statements, parenting capacity assessments, expert witness testimony in family, civil and criminal courts, and individual and group psychotherapy.

Referrals to FPS for people with learning disability

Forensic Psychological Services has seen a significant increase in the number of referrals for people with intellectual disabilities since it was first established in 2009. Assessment and treatment for this group is a core element of the work carried out by the service.
The provision of services for intellectually disabled adults and adolescents attending FPS can be broadly divided into two categories.
1. The group of people with a diagnosis of intellectual disability and who are engaged in services.
2. The group of people who have an undiagnosed intellectual disability and who are involved in the Criminal Justice System.

FPS frequently receives referrals for the first group, mainly from specialised support services such as day services or residential units. The reason for referral is typically to assess and treat adults and adolescents of both genders who have exhibited violent behaviour, harmful sexual behaviour or challenging behaviour.

Although their behaviour can be characterised as forensic, this group is generally afforded some protection from the judicial processes by their diagnosis and the severity of their intellectual disability. The role of FPS is in the provision of psychological intervention through risk and needs assessments, input into the development of individual care plans and positive behavioural support programmes.

The second group consists of people who have an undiagnosed or undetected intellectual disability and who have entered the judicial system as a result of criminal behaviour. FPS receives requests to carry out risk assessments on male and female adults and adolescents, for both violent and sexual offending. The assessments are usually commissioned by the health services or by professionals working in legal disciplines.

Cause for concern

FPS has identified a concerning trend in the number of offenders who present to the service with an undiagnosed intellectual disability. It is often in the course of a forensic assessment that the client’s intellectual disability is diagnosed.

These people are no less vulnerable than those in receipt of disability services who, as stated already, are somewhat protected from the judicial process. The fact that those in the undiagnosed group have already entered the criminal justice system means that it is highly unlikely that they will be able to leave that system. Furthermore, their vulnerability places them in limbo without appropriate treatment, given the lack of clear procedure within the criminal justice system to cater adequately for their needs.

While this group is commonly able to distinguish ‘right from wrong’, and has engaged in offending behaviour, their high levels of vulnerability and need for specialist support is overlooked by the criminal justice system. This has resulted in the neglect of specialist service provision for them. Consequently their behaviours are not appropriately addressed, their recidivism levels increase and they become habituated to criminal behaviours and lifestyles.

Background history

It is likely that this group of people could be prevented from living a cycle of crime if the correct provisions were in place. The offender with intellectual disability has predisposed vulnerabilities and is easily taken advantage of by others. He/she often has a long history of behavioural problems, poor educational history, early school leaving, poor employment history and impoverished backgrounds (Farrington 2000; Murphy et al. 2000). There is often a familial history of offending behaviour (Richardson et al.1985; Day 1988). They have limited capacity to understand abstract thoughts and concepts, they lack consequential thinking and they are impulsive. Their criminal activity usually begins in early and middle adolescence and is reinforced by antisocial peers.

Given their complex needs and vulnerabilities, people with intellectual disability are easily enticed into criminal behaviour without being cognisant of the risks they are taking. They can initially be manipulated by someone with higher intellectual ability, into carrying out petty theft and minor crimes. It is not difficult to understand the temptations inherent in this.

Offenders with intellectual disability experience a strong sense of belonging and satisfaction when they complete an illegal request, albeit often without the realisation that they could be arrested for the act. They feel valued and they receive positive affirmation from their delinquent peers. They may receive financial and material gain soon after the fact, reinforcing the positive feelings experienced. This then leads the individual further into illegal or antisocial behaviour. More sophisticated criminals make contracts with the naive offender to carry out increasingly dangerous crimes, such as holding, delivering and supplying drugs, and other violent crimes. Offenders with an intellectual disability are taken advantage of by violent gangs who seduce them into a life of crime from which they find it impossible to escape.

As with the violent offenders, sexual offenders often act out of impulsive urges and are impervious to the consequences of their actions. They lack information relating to sexual issues and are limited in their capacity to regulate their emotions and behaviour. In sexual acting-out they may be relieving sexual impulses that they do not understand. They may also be attempting to alleviate overwhelming negative emotions. Given that the underlying causes for sexual offending in people with learning disability are complex and intricate in nature, it is unlikely that they will be in a position to address their difficulties of their own volition.

Challenges and deficits in the criminal justice system

Often legal professionals and gardaí find it difficult to recognise cognitive deficits in offenders (Murphy et al. 2000) because these offenders are practised at social interactions and can present as more capable than they are. The implications for intellectually disabled offenders are many:
■ They are unlikely to understand legal language and processes.
■ They may not have the capacity to take legal advice.
■ They may not have the ability to advise their solicitor.
■ Their verbal expression and comprehension may be limited.
■ They may be easily confused and frustrated.
■ They may find it difficult to contain and moderate their behaviour in the court when emotionally overwhelmed.
■ Their ability to cope with stress and fatigue may be significantly diminished.
■ They may be suggestible during Garda interrogation.
■ They may be prone to making false confessions during Garda interrogations.
■ They may not comprehend supervisory conditions.
■ While they may desire to observe supervisory conditions, they may not be successful in adhering to them.
■ The courtroom procedure will likely be overwhelming for them.
■ Incarceration will not address their specific problems and will likely reinforce their vulnerabilities and lead to increased recidivism.

Historically, this group of offenders has been overlooked by the judicial system. It is a highly vulnerable population with multi-faceted problems. It is likely that the dearth of appropriate community resources and services for this group of people have resulted in increasing the offending population to date. People with intellectual disabilities are reported to be over-represented in prison services (Murphy et al. 2000; Holland et al. 2002).

Hayes (1998) proposed that the main cause for the high occurrence of people with learning disability in the Criminal Justice System could result from the lack of community supports. Given that the introduction into criminal behaviour by people with intellectual disabilities often stems from their personal backgrounds, poor educational history and early school leaving, it is plausible that their offending behaviour could be addressed in the community before it becomes a significant social problem. In fact, if these offenders were involved in appropriate services at an early stage, they might not have engaged in criminal activity.

Many offenders with intellectual disability have additional difficulties, such as substance misuse and mental health difficulties (Rose et al. 2008; Day 1988). These difficulties often go undiagnosed in this population and this increases the likelihood of further recidivism (Rose et al. 2008).

Recommendations

A number of interventions could be put in place to address the above challenges. One obvious shortcoming within the criminal justice system is the lack of specialised professionals working in the area of intellectual disability. It is well documented that gardaí, solicitors, judges and associated professionals would benefit from training in the area. This recommendation is supported by Murphy et al.i( 2000), Bean and Nemitz (1995) and Palmer and Hart (1996). Such training would enable professionals to address the needs of this group within their specific occupations.

It would also be expedient to set up a screening programme to identify intellectual disability as new offenders become known to the gardaí.

Given that there is currently no specialist provision for this population, other than the Central Mental Hospital, an alternative service is much needed. This is supported by Murphy et al. (2000) and by the National Disability Authority.

It would also be beneficial to set up day-service treatment centres for offenders with intellectual disabilities. These could be set up on a nationwide basis.

Community-based programmes would be the most accessible and least disruptive of services for people with intellectual disability (Rose et al. 2008). Day-service treatment centres could address core criminal issues such as those that first entice the offender into offending behaviour. This would best be achieved through structured and constructive programmes. Critical issues such as the need for affirmation, social connection, financial support, life skills and education could be addressed within the programme. This population would respond well to stimulating, practical and meaningful routines. Treatment could also include individual and group therapy where appropriate.

Putting the above interventions in place could reduce the recidivism rates for this vulnerable population. Research with other criminal populations has demonstrated that offending behaviour is reduced by increasing quality of life, opportunities to contribute meaningfully to society, and to have one’s basic human needs met appropriately (Law and Ward 2010). The burden on the already over-crowded prison system would be significantly decreased and the quality of life for those with intellectual disability and criminal behaviour would be considerably improved.

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