The Mandate to Use Special Education at Juvenile Delinquency Sentencings

• Publication year: 2003
• Pages: 99
• Citation: Vol. 32 No. 10 Pg. 99

32 Colo.Law. 99 Colorado Lawyer 2003.

2003, October, Pg. 99. The Mandate to Use Special Education At Juvenile Delinquency Sentencings

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99

Vol. 32, No. 10, Pg. 99

The Colorado Lawyer
October 2003
Vol. 32, No. 10 [Page 99]

Specialty Law Columns
Juvenile Law
The Mandate to Use Special Education At Juvenile Delinquency Sentencings
by Bradley M. Bittan

This column is sponsored by the CBA Juvenile Law Section to apprise practitioners of substantive and procedural information concerning the field of juvenile law

Column Editors

Bradley M. Bittan, a sole practitioner in Denver - (303) 283-1791, BBittan@aol.com; David Furman, Magistrate; and Ellen Toomey-Hale, an attorney in Platteville - (720) 280-6449, ToomeyHale@aol.com

Bradley M. Bittan
About The Author

This month's article was written by Bradley M. Bittan, Denver, a juvenile law attorney and an editor of this column - (303) 283-1791. He chairs the CBA Juvenile Law Section and the Learning Disabilities Association of Colorado's Public Policy Committee and is a member of the Colorado Special Education Advisory Committee. He authored H.B. 1025, discussed in this article.

The author thanks Joysa Maben Winter for her assistance in the preparation

of this article.

Special education is a valuable tool to address the needs of disabled youth in the juvenile justice system. The recent enactment of House Bill 03-1025 can bring significant benefits by making sentencings more equitable, effective, and accountable.

Youth with learning, emotional, and developmental disabilities are disproportionately involved in the juvenile legal system.1 This disproportionate treatment has serious implications for the disabled youth and the community. House Bill 03-1025 ("H.B. 1025") was unanimously passed by both the House of Representatives and Senate during the 2003 Colorado legislative session and subsequently signed into law by the Governor.2 This law, which went into effect August 6, 2003, provides clear legislative direction for juvenile courts to use special education in juvenile delinquency sentencing proceedings. H.B. 1025 also facilitates the objective of basing the final disposition of a delinquency case on relevant facts that accurately reflect the juvenile's disabled background.

Historically, the juvenile justice system has been premised on protecting the "best interests" of the juvenile instead of punishment.3 In fact, the legislative declaration of the Colorado Children's Code states in relevant part:

. . . [W]hile holding paramount the public safety, the juvenile justice system shall take into consideration the best interests of the juvenile, the victim, and the community in providing appropriate treatment to reduce the rate of recidivism in the juvenile justice system and to assist the juvenile in becoming a productive member of society.4

With those objectives in mind, this article provides background on disability and delinquency, special education, and juvenile delinquency sentencings. It explores the specifics of H.B. 1025 to discover legislative intent, and examines how the practitioner may effectively use changes brought about by the bill for the benefit of the individual juvenile client and Colorado communities. Finally, the article analyzes future possibilities concerning this subject.

Disability and
Delinquency in
Juveniles

Research indicates that most juvenile justice practitioners, as well as the general public, have minimal understanding of cognitive disabilities and how they may affect a youth's behavior.5 There also is evidence that youth with disabilities receive inadequate defense representation that fails to take into account their specific needs and potential vulnerabilities in a fundamentally adversarial process.6

Youth with disabilities are differentially targeted and processed than non-disabled youth by schools, law enforcement, and the courts. Such disparity in treatment may contribute to their disproportionate representation in the juvenile justice system.7 A number of additional factors are associated with an increased likelihood of delinquency, including hyperactivity, impulsiveness, poor behavioral control, attention problems, low intelligence, and poor attainment in school.8

Disabilities Commonly
Found in Juveniles

The prevalence of special education disabilities in the juvenile correctional system typically is four to five times greater than the rate of special education disabilities in the general population. Nationally, up to 60 percent of incarcerated youth are qualified to receive special education services.9 Some juvenile correctional personnel believe this number should be significantly higher. For example, findings from a Rhode Island correctional facility indicate that approximately 78 percent of its incarcerated juveniles are eligible for special education services.10

Estimates for specific disabilities vary. Nonetheless, the two most common disabilities found in youth in the juvenile justice system are: (1) emotional disturbance;11 and (2) specific learning disabilities.12 In addition to these, almost 13 percent of incarcerated youth have been diagnosed with developmental disabilities (mental retardation).13

Emotional Disturbance: Estimates of the prevalence of juvenile offenders who suffer from some form of emotional disturbance are between 77 and 93 percent. This range far exceeds the 10 to 20 percent estimated prevalence rate among the non-delinquent juvenile population.14

The most common diagnoses for juvenile offenders are conduct disorder, oppositional defiant disorder, alcohol dependence, major depression, dysthymia, attention deficit hyperactivity disorder ("ADHD"),15 bipolar disorder (manic depression), generalized anxiety disorder, and post-traumatic stress disorder. Multiple diagnoses of mental illnesses (comorbidity) also are common among juvenile offenders.16

Learning Disabilities: Some studies suggest that nearly 36 percent of youth in correctional facilities have specific learning disabilities.17 The harsh reality is that learning-disabled youth have been found to be more than twice as likely to commit a delinquent offense than non-learning disabled children.18 Numerous learning disabled youth have comorbid diagnoses, such as ADHD and depression.

Theories Linking Disability And Delinquency

There are three commonly cited theories correlating the link between disability and delinquency. As discussed below, these include: (1) susceptibility; (2) school failure; and (3) differential processing.

Susceptibility Theory: This theory holds that youth with disabilities are more likely to engage in delinquency because of particular characteristics associated with the disability. These characteristics may include impulsiveness, suggestibility, and poor social perception.19

School Failure Theory: According to this theory, a disabled student who has not developed appropriately at school will look for acceptance in other ways, such as through delinquent behavior. The student may act out in anger toward school staff and others as a result of the educational failure.20

Differential Processing Theory: This theory presupposes that youth with disabilities are different from their non-disabled peers and, as a result, may not respond appropriately to juvenile justice professionals. Because these inappropriate responses are not properly recognized, disabled youth are more likely to be arrested and move further down the delinquency system.21

Basics of Special
Education Law

In 1975, Congress enacted a special education law that eventually became the Individuals with Disabilities EEducation Act ("IDEA").22 The intention of the federal law was to enable disabled students to obtain a free, appropriate public education ("FAPE"). FAPE refers to special education and related services that: (1) have been provided at public expense, under public supervision and direction and without charge; (2) meet the standards of the state educational agency; (3) include an...