Advocacy on Behalf of Developmentally Disabled Offenders

Date01 April 1986
Published date01 April 1986
Subject MatterArticles
Advocacy on Behalf of
Developmentally Disabled
Sheldon R. Gelman*
While this article is intended to explore advocacy strategies
on behalf of developmentally disabled offenders, it must begin with
a discussion of two interrelated issues. The first issue centers on
the definition of developmental disabilities and the second involves
the recognition or identification of offenders who are develop-
mentally disabled.
term developmental disability&dquo; first appeared in federal
legislation in 1970 and included three categories of individuals
that had previously been treated as distinct populations -those
with mental retardation, cerebral palsy, and epilepsy. By 1975,
individuals with autism and dyslexia were included among the
populations considered developmentally disabled. In 1978 the
definition shifted from one focused on distinct diagnostic classifi-
cations or labeled disabilities to a more inclusive description that
centered on severe and chronic disabilities attributed to mental
and/or physical impairments (Gelman, 1983). The impairment, to
be considered a developmental disability, must manifest itself
before the person reaches the age of 22 and must be likely to
continue indefinitely. The impairment also must:
1. Result in substantial functional limitations in three or more
of the following areas of major life activity:
-economic sufficiency
-receptive and expressive language
-capacity for independent living
2. Reflect the person’s need for a combination of individually
planned and coordinated care, treatment, or other services
which are of extended duration (Rehabilitation, Compre-
hensive Services and Developmental Disabilities, Amend-
ments of 1978: P.L. 95-602).
*The author is professor of social work, Pennsylvania State Univer-
sity, University Park, Pennsylvania.

While the definition is designed to facilitate funding and re-
source development, it greatly expands the pool of individuals who
be identified as developmentally disabled and who may poten-
tially come in contact with the criminal justice system. This defini-
tion also greatly expands the population encompassed by the defini-
tion of mental retardation formulated by the American Association
on Mental Deficiency (Grossman, et al. 1983) which focuses on
deficits in intellectual functioning and adaptive behavior. Poten-
tial points of contact are also greatly increased as a result of the
deinstitutionalization movement and the shift in philosophy from
separation and containment to normalization and mainstreaming
for the developmentally disabled (Nirje, 1969; Wolfensberger,
When Santamour et al. ( 1971 ) wrote about the &dquo;naive offender&dquo;
and Brown and Courtless (1971) in the same year identified eight
critical issues requiring action so that our society could better
respond to mentally retarded offenders, they could not have en-
visioned the complexity or range of knowledge that would be re-
quired by a broadened definition and shifting context of service
provision. The phenomena of mental retardation itself exists in
diverse and complex forms and encompasses a variety of abilities
and capacities. Add the variations that exist within and among
the other groups encompassed by the definition of developmental
disabilities and one can generate an endless number of individuals
who fall within the class -a class with more differences than
The definitional issue cannot stop at this point because our
particular interest is not the developmentally disabled but the
developmentally disabled offender. An offender is one who com-
mits an act or offense which is against the law. The criminal justice
system by definition must concern itself not only with the physical
act or violation but also with the mental state of the alleged perpe-
trator. Criminal actions are defined by legislatures to provide
punishment for those who commit specific acts in the presence of
certain attendant circumstances while possessing certain states of
mind. The state of mind, intent or &dquo;mens rea,&dquo; is an integral element
of a crime (Kaplan 1973; Reisner, 1985; Sales, 1982). In order to be
found guilty of a crime, all three elements (act, attendant circum-
stances, and &dquo;mens rea&dquo;) must be present. In other words the ac-
cused must be culpable; must have acted purposely, knowingly,
recklessly, and negligently in order to be held accountable for the
offense. Definitional issues, which are linked to proper identifi-
cation, are thefirat ffmel or element of ad /’ocacy that can be afforded
those who may be labeled as developmentally disabled offenders.

Determination of Competence
Once it is found that the accused individual is developmentally
disabled, every effort must be made to determine whether the
individual’s mental impairment(s) and functional limitations mit-
igate against his coming to trial. An individual whose mental con-
dition is such that he lacks the capacity to understand the nature
and object of the proceedings against him, to consult with counsel,
and to assist in preparing his defense may not be subjected to a
criminal trial. Conviction of an accused who is mentally incom-
petent violates due process of law (United States v. Masthers, 1976).
By definition, those who are developmentally disabled are
functionally limited or lack certain competencies in daily life
activities. Their disabilities, although amenable to certain levels
of remediation, are by definition chronic or likely to continue in-
definitely. Some, because of the nature of their specific disabili-
ties, lack the capacity to appreciate the wrongfulness of their con-
duct -others, within the broadened definition, may not only be
competent, but indeed appreciate the wrongfulness of their actions
and have the capacity to participate meaningfully in their defense.
These definitional variations among the developmentally disabled
require that an approprate individualized assessment by com-
petent and experienced professionals be utilized at key points in
the criminal justice process.
Assessments are to be performed by individuals who are knowl-
edgeable about the range, scope, dynamics, and complexities of
the various developmental disabilities and should include elements
proposed by various authors or legal authorities designed to deter-
mine the individual’s level of competency. For example, Roth,
Meisel, and Lidz (1977) set forth five criteria which they believe
are critical in determining the competency of an individual to
consent to treatment. These criteria include an emphasis on reason-
able, responsible, and rational decision making and an ability to
actually understand risks, benefits, and alternatives and may be
indicators of a developmentally disabled offender’s capacity or
incapacity to stand trial. The requirement that the accused have
the capacity to consult with his attorney has been broadly inter-
preted to include the ability to communicate intelligently and to
follow the proceedings with a reasonable degree of rational under-
standing (Martin v. Estelle, 1977).
A more detailed set of inquiries regarding the capacity of a
defendant to participate in his/her own defense was set forth in
Dusky v. United States (1960) and includes the following:
1. Can the accused consult with you in a rational

2. Does he have a factual as well as rational un-
understanding of the proceedings?
3. Can he communicate with you (legal counsel)
-not just talk but does he understand the
defense or defenses?

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