Tasteless confinement of juveniles with I/DD: How to keep juvenile offenders with intellectual and developmental disabilities out of confinement

• Published date: 01 April 2022
• Author: Madison Hays
• Date: 01 April 2022
• DOI: http://doi.org/10.1111/fcre.12645

STUDENT NOTES

Tasteless confinement of juveniles with I/DD:

How to keep juvenile offenders with intellectual

and developmental disabilities out of confinement

Madison Hays

Maurice A. Deane School of Law at Hofstra

University, Hempstead, New York, USA

Correspondence

Madison Hays, Maurice A. Deane School of

Law at Hofstra University, Hempstead, NY,

USA.

Email: madisonrhays@gmail.com

Abstract

A lack of screening for intellectual and developmental

disabilities (“I/DD”) in juvenile justice systems nationwide

results in a lack of appropriate accommodations. As a result,

juveniles with I/DD are at a heightened risk of recidivation

and adult incarceration than non-disabled offenders. Addi-

tionally, juvenile incarceration harms an individual's health

and educational and employment attainment. This Note

proposes model legislation that requires mandatory screen-

ing for I/DD and implements a pre-arrest restorative

community-based diversion program aimed at meeting the

needs of juvenile offenders with I/DD and teaching partici-

pants intellectual, emotional, and social skills, while reducing

incarceration and recidivism rates among youth with I/DD.

KEYWORDS

deferred judgment, diversion, intellectual and developmental

disability, juvenile justice system, probation before adjudication,

restorative justice

Key points for the family court community

•Over 545,000 American children between the ages of

6 and 21 have an intellectual disability.

•Although juvenile justice systems nationwide conduct

routine assessments for medical and mental health prob-

lems on juvenile offenders during intake, most do not

screen for I/DD.

DOI: 10.1111/fcre.12645

© 2022 Association of Family and Conciliation Courts

Family Court Rev. 2022;60:337–352. wileyonlinelibrary.com/journal/fcre 337

•Juvenile offenders with I/DD are more likely to experi-

ence physical violence and sexual assault within deten-

tion centers.

•On average, it costs states $588 per day, or $214,620

per year to confine a single child.

•Incarceration increases a juvenile's likelihood of recidi-

vism as an adult by 22% to 26%.

INTRODUCTION

Justin was only 12-years-old when he was sentenced to a maximum-security juvenile prison for a crime he had no

idea he committed.

1

Justin has Intellectual and Developmental Disabilities (“I/DD”) with an IQ score of 40 and the

functionality of a five-year-old.

2

He grew up in an abusive and dangerous environment and was often homeless.

3

One night, Justin and his mother ate dinner at a friend's house; Justin wanted another serving of dinner, but his

mother refused.

4

Justin became angry, and instead of communicating his frustration through spoken language, he

exposed himself to the friend's infant child.

5

As a result, Justin was arrested for child molestation at the age of 12.

6

After serving 18 months in a maximum-security juvenile prison, Justin had no family, legal counsel, or guardianto be

released to.

7

Additionally, the state could no longer care for him, and the prison superintendent was instructed to

abandon him at a homeless shelter without connecting him to further resources or contacts.

8

Justin has since been

in and out of in-patient placement facilities and group homes.

9

Unfortunately, youth with I/DDs, like Justin, are often

filtered through a similar abusive cycle in which they are abused at home, have inadequate access to accommoda-

tions, are placed within a correctional facility, and are consequently at a higher risk of recidivism.

10

Around six and a half million Americans have an I/DD and over 545,000 of those with I/DD are between the

ages of six and 21 years old.

11

Individuals with an I/DD are characterized by the Individuals with Disability Education

Act (“IDEA”) as having “significantly subaverage general intellectual functioning, [that exists] concurrently with defi-

cits in adaptive behavior and [is] manifested during the developmental period, that adversely affects a child's educa-

tional performance.”

12

In other words, an individual with I/DD has an onset of limited intellectual functioning and

adaptive behavior during the developmental period.

13

Intellectual functioning is most commonly measured by IQ.

14

In contrast to the average IQ score of 100, an individual is considered intellectually disabled if he or she has an IQ of

less than 70 to 75.

15

Adaptive behavior, on the other hand, is a collection of conceptual, social, and practical skills

1

NAT.CTR.ON CRIM.JUST.AND DISABILITY,Justice-Involved Youth with Intellectual and Developmental Disabilities. 2 (2015).

2

Id. at 3. (Justin was sexually molested by his father as a child and his mother was addicted to drugs for the majority of his life.)

3

Id.

4

Id.

5

Id.

6

Id.

7

Nat. Center on Crim. Just. and Disability, supra note 1 at 4.

8

Id.

9

Id.

10

Id.

11

What is an Intellectual Disability,NAT'LDOWN SYNDROME SOC'Y, https://www.ndss.org/resources/what-is-an-intellectual-disability/ (last visited on Sep.

12, 2020).

12

34 C.F.R. § 300.8(c)(6) (2017).

13

Youths with Intellectual and Developmental Disabilities in the Juveniles Justice System,OFFICEJUV.JUST.&DELINQ.PREVENTION,(2017), https://www.ojjdp.gov/

mpg/litreviews/Intellectual-Developmental-Disabilities.pdf at 2.

14

Id.

15

Definition of Intellectual Disability,AM.ASS'Non INTELL.&DEV.’LDISABILITIES, (last visited on Oct. 14, 2020).

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