Neurodiversity and the Criminal Justice System

Author: Caroline Cannistra

Editors: Flora Hu and Jasmine Armad

Introduction

One of the most pervasive causes of harm to neurodivergent people in the US is the criminal justice system and all of its branches. Neurodivergent people and other disabled people, including children, are disproportionately likely to be victims of police violence, to be involved in the court system, and to receive jail or prison sentences. Neurodivergent people of color are especially affected by this system. In this report, I will give an overview of data on neurodivergent populations and the criminal justice system, discuss some specific cases of neurodivergent people being mistreated by the police or courts, and touch on reform policies and their potential for success.

As a disclaimer, I use the word “neurodivergent” here to refer to people with any apparent “mental condition” or “mental illness”, as this is how most studies related to criminal justice classify people. In terms of specific diagnoses, this article focuses on autism and ADHD, but neurodiversity is far more than those two conditions.

Most of the data presented here was not collected in the United States. It is notoriously difficult to collect data on US criminal justice systems, so there are very few American studies on this topic. Some of the countries of origin that show up here, including the UK and Australia, have comprehensive mental health services that work directly with law enforcement. The country of origin of each study will be noted in context.

Policing and Neurodiversity

Interactions with police officers are common for many people living in the US and can be uniquely dangerous for neurodivergent people, especially neurodivergent people of color. An estimated 20% of autistic Americans are questioned by police at least once before the age of 21, and nearly 5% are arrested (Rava 2017). These rates may be higher for youth with co-occurring autism and ADHD. In a Canada-based study, autistic adults were surveyed on their experiences with police and more than half of respondents reported being dissatisfied with their experiences (Salerno 2019). Police violence also disproportionately affects neurodivergent people; an estimated 23% of people killed by police in the US in 2015 displayed signs of a mental illness (Saleh 2018).

Some common autistic behaviors, such as stimming or avoiding eye contact, may be perceived by police as suspicious and lead to more hostile interactions with autistic people. For example, Elijah McClain died in police custody in 2019 after being restrained by three police officers at once, who stopped him after a 911 caller reported that he was flailing his arms and “looking sketchy”. McClain cooperated with the officers while verbally asserting his rights, saying “I am an introvert, please respect the boundaries that I am speaking. Leave me alone.” He was then restrained with a carotid choke hold until he passed out, and died in police custody a few days later (Hutson 2022). The police officers and paramedics involved are currently awaiting trial for manslaughter (as of June 2022).

Police in the US are also commonly first responders to a mental health crisis such as an autistic meltdown. In these situations, police may react to harmless neurodivergent behaviors with aggression and even violence. For example, a lawsuit alleges that two police officers knelt on a ten-year-old autistic boy while he was having a meltdown, breaking his arm in the process (AP News 2020). (The current status of the lawsuit is unknown.) Being arrested or restrained with handcuffs or other methods can be especially distressing for people with sensory issues, and their reactions may be treated with further aggression by police.

After being arrested, neurodivergent people are vulnerable to further abuse during police interrogation. An Iceland study found that youth with ADHD are two to four times more likely than their neurotypical peers to be interrogated by police at some point in their lives, and two to four times more likely to give false confessions during interrogation. Younger teens and youth with more severe ADHD symptoms were especially vulnerable to interrogations and false confessions. (Gudjonsson et al. 2016). Police interrogation methods involve using psychological tactics to pressure people into making confessions, including hours-long interrogation sessions, verbal attacks on the suspect, and presentation of false evidence. People who are more suggestible, more driven to please others, or more easily distressed in this kind of environment are more likely to give a false confession to satisfy the interrogator or simply to escape the interrogation. This includes young people and people with mental illness or intellectual disabilities (Kassin 2017). People with ADHD are also impulsive and may be more likely not to fully appreciate the consequences of making a false confession.

Neurodivergent people are disproportionately affected by police violence from a young age. School resource officers are common throughout American public schools, where children spend about 20% of their time, and often arrest students at school for nonviolent offenses. Neurodivergent children of color, who are underdiagnosed and less likely than their white peers to receive special education services, may display symptoms or signs of distress in front of a police officer and be arrested for their behavior. A study of Black children with ADHD in Iowa showed that a childhood ADHD diagnosis increased the likelihood of being disciplined at school and the likelihood of being arrested later in life (Behnken 2014). This is part of the school-to-prison pipeline, a system that funnels children who get in trouble at school into the criminal justice system, disproportionately affecting Black children (Moody 2016).

Recently, some advocacy groups have pushed for training police officers to recognize symptoms of mental illness/neurodivergence in civilians and de-escalate mental health crisis situations. The idea is that a police officer with this kind of training would be less likely to misjudge a person as dangerous based on their symptoms, and so would be less likely to use force against mentally ill or neurodivergent people. However, there is currently little empirical data to support the claim that autism training prevents police violence. Most police departments don’t collect data on the efficacy of their training programs outside of officer-reported evaluations (Ball and Jeffrey-Wilensky 2020), and one 2019 meta-analysis of the effects of Crisis Intervention Training (CIT) in police departments across the country found no evidence that CIT reduced police use of force (Rogers et al. 2019). Many Black autistic advocates are critical of these efforts, saying that the problem of police violence runs too deep for new training programs to solve it:

“Everyone under the sun has had a terrific idea about what should be done [about police violence],” says Camille Proctor, executive director and founder of The Color of Autism Foundation, a nonprofit that trains Black parents of autistic children on the ins and outs of diagnosis and services. “They don’t have the key. The key is, you’ve got to get police to stop killing Black people.” (Ball and Jeffrey-Wilensky 2020)

Court System and Prison

Structural oppression of neurodivergent people continues in the court system, including the juvenile court system, and in prisons. According to a meta-analysis of worldwide data, people diagnosed with ADHD as children are much more likely to be arrested as adolescents or adults, to be convicted of crimes as adults, and to receive jail time as a sentence (Mohr-Jensen et al. 2016). An estimated 25% of adults in American prisons are thought to meet the criteria for an ADHD diagnosis, and this rate is likely higher for children in juvenile detention centers (Young 2015). This problem also exists for juveniles who are not incarcerated, but still involved with the criminal justice system. Out of all juveniles on probation in Washington state, 39.6% qualify for special education support (Kim et al. 2021).

Part of this may be due to bias against people with neurodivergent behaviors from judges and jurors. One UK study gave jury eligible residents a description of a man who had been arrested for suspicious and aggressive behavior, and showed symptoms of autism in court. Some participants were told that the man was autistic and got a description of autism, and other participants didn’t get this information. The group that didn’t hear about the diagnosis rated the defendant as less credible and more dishonest, and were more likely to recommend a guilty verdict (Maras et al. 2019). There are also cases of blatant ableism being leveraged against defendants in the courtroom. For example, Reginald Latson, an 18-year-old Black autistic man, was convicted and sentenced to ten years in prison for injuring a police officer during a confrontation between him and the officer. During the trial, the prosecution pushed against alternative sentences to prison, called Latson’s diagnosis a “diagnosis of convenience”, and used ableist slurs against Latson. In prison, Latson was regularly restrained and put in solitary confinement to punish behaviors related to his diagnoses. He was finally pardoned in 2021 (ASAN 2021).

However, neurodivergent people are also disproportionately affected by the structure of the criminal justice system, which punishes noncompliance with harsh sanctions instead of prioritizing support even in a more “reformed” state. Many of the children incarcerated in the US were jailed for probation violations (Tulman et al. 2009). One of them was Grace, a 15-year-old Black girl with ADHD who was in jail for 78 days for not doing her homework during COVID lockdown in May 2020. Grace was on probation for assault and theft charges at the time, and received regular support from her special education teacher and from a counselor. When her mother told her probation officer that she had missed some assignments, she was jailed and lost access to all of her support system, despite her teacher saying that the amount of work she missed was typical for high school students at the time (Hornsby 2021).

Some advocates argue that the solution to criminalization of mental illness and neurodivergence is specialized mental health courts that get people the support they need instead of punishing them. Indeed, juvenile mental health courts are becoming more common in the United States. However, 60% of these courts punish offenders who violate probation terms with incarceration (Callahan 2012). Grace’s probation sentence was part of a diversion program that was meant to keep her out of jail, but that probation came with high standards of behavior for Grace and no allowances for her disability, and resulted in her being jailed regardless (Hornsby 2021).

An example of a potentially effective diversion program is the Law Enforcement Assisted Diversion (LEAD) program, which originated in Seattle in 2011 and has been adopted in many cities across the world. This program diverts offenders who commit drug or sex work-related crimes from criminal court to a case management team that provides offenders with supportive services, such as drug treatment or transitional housing. In Seattle, this program reduced re-arrest rates of participants by 60% in its first three years (Collins 2017). This especially benefits neurodivergent people, who are more likely to self-medicate with drugs and to be poor or homeless. In other cities such as New Haven, the program’s implementation was slowed by anti-addict stigma from police officers (Joudrey 2021). This suggests the need for diversion programs that involve police officers as little as possible.

Closing Thoughts

Neurodivergent and mentally ill people are some of the most affected by our country’s highly punitive and violent criminal justice system. As such, it’s in all of our best interests to be part of the conversation on how to end police violence, keep children out of jail, and end other harms caused by the criminal justice system. This is especially vital for Black neurodivergent people and other neurodivergent people of color, who are often not given a voice in the neurodiversity movement. We need to amplify these voices. We also need to remember that reforms might not always be enough, and sometimes it takes radical rethinking of the justice system to prevent widespread harm.

Note: As of June 2022, the U.S. Senate is posed to pass the “Bipartisan Safer Communities Act” as a response to the recent mass shooting in Uvalde, Texas. This bill includes funding for community behavioral health clinics, improved access to telehealth through Medicaid, and increased mental health services in schools. Despite these policies being born from the misconception that most mass shooters are mentally ill, they still stand to benefit many mentally ill and neurodivergent people, and hopefully keep them out of the criminal justice system. However, we must also be skeptical of any push to hire more school resource officers. Not only are police officers in schools a danger to disabled students, their efficacy at protecting students during mass shootings is also currently being questioned.

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