‘UNEQUAL JUSTICE’

What can happen to a person with a mild intellectual disability or other developmental disability when they encounter the criminal justice system is alarming. Robert Perske, a freelance author widely known for his work on behalf of people with disabilities, particularly those who face the judicial system, has been intrigued with this topic most of his journalistic life by Kathy O’Grady Reilly

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For over a decade Robert Perske followed vulnerable people on death row in US prisons—persons whose confessions had come too easily, and with little or no evidence to back them up. In Deadly innocence, Perske tells the true story of Joe Arridy, from his birth in 1915 to his startling execution in the gas chamber in 1939. The likeable Syrian-American was expelled from elementary school, labelled ‘feebleminded’ and placed in a ‘state home for mental defectives’. During the Great Depression (1929–35), when thousands of Americans hopped freight trains from city to city, in search of work, Joe walked away from the institution and became an avid boxcar rider—that is, until a sheriff in Cheyenne, Wyoming, led the gullible Joe to confess to the vicious rape and axe murder of a teenager in Pueblo, Colorado. Joe was tried under strange circumstances and convicted of a crime he couldn’t have committed. He was executed in Canon City, even though a prison warden named Roy Best worked undercover to try to stop the execution. Readers of Joe’s story will can learn a lot about the history of ‘mental retardation’ in North America, and, while it recounts events that took place many decades ago, it has an eerie resonance for how we still treat people today.

While Ireland has no capital punishment, there are, nonetheless, disproportionately high numbers of people with intellectual disabilities incarcerated in Irish prisons. In 2002, the Department of Justice, Equality and Law Reform released findings of research carried out two years previously to study intellectual disability in Irish prisons. Approximately 10% of the prison population i.e. 264 prisoners were randomly selected. Clinical psychological interviews included solicited personal information, testing of literacy and numeracy. Shockingly, 28.8% of the sample scored below 70 on the Kaufmann Brief Intelligence Test (Epidemiological Studies have suggested that the proportion of the general population scoring with IQs below 70 would be in the range of 2–3%).

The simple question that acts as a starting point in Unequal justice is: Did the person receive equal justice? Whether guilty or innocent, was the person with ID treated the same by the system as other citizens are treated when charged with the same crime?

Perske reflects on the interrogation conducted by police and ‘misunderstood responses’. Some people possess a ‘particular susceptibility to perceived authority figures and will seek the approval of these figures (ie. Gardaí) even when that requires giving incorrect answers’. Such ‘outer-directed’ behaviour confirms a vulnerability to suggestion, whether intentional or unintentional, by authority figures or people held in high status. Perske highlights how inability to abstract from concrete thought, combined with acquiescence, can confound the interview situation:

Question: ‘Were you with John?’
Answer: ‘Yes’.

Question: ‘Were you with your family?’
Answer: ‘Yes’.

Question: ‘You couldn’t have been with both of them? Which was it?’
Answer:   (Silence)

Question: ‘Were you with your family or were you with John?’
Answer: ‘With John’.

Question: ‘Let’s run that one again; were you with John or were you with your family?’
Answer: ‘With family’.

(an extract from ‘A Man with an IQ of 49’)

Perske quotes Smith (1990) in the following extract from a court scene:

Question: ‘Did you assassinate President Lincoln?
Answer: ‘Yes’ Jerome said.

Question: ‘Did you assassinate President Kennedy?
Answer: ‘Yes’.

Question: ‘Did you assassinate President Reagan?
Answer: ‘Yes’

Perske concludes that it is vital to understand the limitations of someone, unless confessions are to be extracted too easily, and inaccurately. Yet, some would hold that there is a principle in interrogation that takes as given that a person will not admit to something they didn’t do, unless tortured or under extreme distress. Perske (1994) holds that people with ID ‘survive in the community by trusting certain authority figures, looking to them for guidance, and by trying to please them’.

Perske itemises traits all too typically associated with people marginalised by their restricted understanding of legal processes, including:

  • Looking for friends
  • Watching for clues from interrogators
  • Bluffing greater competence than one possesses.
  • A distancing and abhorrence of the label of ‘disability’
  • Real-time memory gaps
  • Restricted moral reasoning and a ‘quickness to take blame’
  • Problems with receptive and expressive language
  • Inability to understand rights, court proceedings, or the punishment
  • Short attention span.
  • Impulsive behaviour
  • Exhaustion and a tendency to ‘give in’.

By graphically coupling his knowledge of the world—that is also familiar to many Frontline readers—with real people with mild ID in trouble in the courts, Perske’s work has gone a long way to saving many lives. In particular he had an influence on the US Supreme Court’s recent ban on capital punishment for people with ‘mental retardation’.