TCDD Position Statement: Criminal Competency

Position Statements

People with disabilities often experience more frequent contact with the criminal justice system than other individuals for a variety of reasons, including discrimination, lack of knowledge and training about disabilities, and inadequate community supports. People with developmental disabilities are more likely than the general population to be arrested, convicted, sentenced to prison, and victimized while there.¹ Once individuals with disabilities enter the system, inadequate representation in criminal proceedings furthers unfavorable outcomes.

People with developmental disabilities may have functional support needs in one or more spheres of mental functioning that involve perceptual, memory, and judgment modalities. Their ability to process and retain information and to relate cause and effect may be may be affected. Accommodating individuals with cognitive and mental health disabilities in the criminal justice system thus presents various hurdles.² A particular problem is invalid and inconsistent assessments for: 1) competency to stand trial; and
2) criminal responsibility due to mental disease or defect (the insanity defense) as current assessment procedures do not fully address the needs of people with disabilities.

The Texas Council for Developmental Disabilities believes that the following fundamental principles apply to people with disabilities who undergo competency evaluations.

People with cognitive and mental health disabilities³ have the right to equal protection and due process under the law.
People with disabilities are entitled to certain protections, rights and benefits under Title II of the Americans with Disabilities Act, and these protections, rights and benefits extend to involvement in the criminal justice system.
A diagnosis of mental retardation or mental illness does not necessarily mean that a person is incompetent to stand trial, but it is incumbent upon counsel and the court to raise competency as an issue in appropriate cases and at any point in the proceedings where the defendant’s competency is in question.

The Council believes that criminal assessment procedures must fully address the needs of people with disabilities and include the following components:

Early intervention that includes a valid and clinically appropriate disability screening prior to, during, and following arrest, and comprehensive officer training in booking and intake procedures of individuals with developmental disabilities.
Ongoing training of criminal justice professionals that is based on research and best practices in assessment of individuals with disabilities. Curriculum should include training on recognizing the possible existence of a developmental or psychiatric disability, appropriate communication skills, and stereotypes and stigma about disabilities unrelated to criminal activity.
A competency evaluation that is performed by skilled professionals who have specialized training and experience in forensic evaluation. This specialized training should include training in legal competency for adults and fitness to proceed for juveniles.
Due process protections that include reliable, age-specific and culturally competent assessments of and standards for:
- Determining the existence of cognitive and mental health disabilities -- example formats include the uniform mental health assessment and the diagnostic eligibility for mental retardation and related conditions formats; and
- Determining legal competency for adults and fitness to proceed for juveniles -- example instruments include the CAST-MR (Competency Assessment for Standing Trial for Defendants with MR) and the MacCAT-CA (MacArthur Competence Assessment Tool – Criminal Adjudication).
These assessments should take into account any relevant impact on the results because of the individual’s cultural background, primary language, communication style, physical or sensory impairments, motivation, attentiveness, or emotional factors.
Reasonable accommodations must be provided at all stages of criminal proceedings to assist the individual in understanding and participating in the proceedings and their defense.

The Council recognizes that early intervention, assessment due process protections, and reasonable accommodations are overlapping components of a system that is responsive to the needs to people with disabilities and that these components must be available to alleged offenders at all stages of the individual’s involvement in the criminal justice system.

Reviewed February 12, 2010

**While the preferred terminology for “mental retardation” has changed to “intellectual and developmental disabilities,” mental retardation is still used in this position statement because of legal implications based on a specific diagnosis of “mental retardation.”

1 Up to 24 percent of this country’s adult prison populations are individuals with mental retardation. (Dagher-Margosian, J., Representing the Cognitively Disabled Client in a Criminal Case, Disabilities Project Newsletter, State Bar of Michigan, Volume 2, Issue 2, March 2006, Committee on Justice Initiatives and Equal Access Initiative Disabilities Project, Retrieved 9-24-09 at https://www.michbar.org/programs/disabilitynews/disabilities_news_6.cfm)

2 It is estimated that between 50-75 percent of youth in the juvenile justice system have diagnosable mental health disorders. (Texas Juvenile Probation Commission. “Mental Health and Juvenile Justice in Texas.” 2003. http://www.tjpc.state.tx.us/publications/reports/RPTOTH200302.pdf)

3 20-35% of all persons with intellectual disabilities have a co-occurring psychiatric disorder. (Effective Interagency Collaboration for People with Co-Occurring Mental Illness and Developmental Disabilities, Kathryn duPree, Deputy Commissioner, Connecticut Department of Mental Retardation Retrieved September 24, 2009 from http://www.nasddds.org/pdf/EffectiveInteragencyCollaboration.pdf)

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Public Policy Public Policy News TCDD Public Policy Input Advocacy 101 Texas Legislature TCDD Public Policy Priorities Position Statements Public Information Act Federal Policy Update Sunset Review	TCDD Position Statement: Criminal Competency Position Statements Access to Health Care Aging with DD Children and Families Community Living Criminal Competency Education Emergency Preparedness Employment Family Support Services Guardianship Public Transportation Right to Privacy Service Coordination Transition from School to Adult Life People with disabilities often experience more frequent contact with the criminal justice system than other individuals for a variety of reasons, including discrimination, lack of knowledge and training about disabilities, and inadequate community supports. People with developmental disabilities are more likely than the general population to be arrested, convicted, sentenced to prison, and victimized while there.¹ Once individuals with disabilities enter the system, inadequate representation in criminal proceedings furthers unfavorable outcomes. People with developmental disabilities may have functional support needs in one or more spheres of mental functioning that involve perceptual, memory, and judgment modalities. Their ability to process and retain information and to relate cause and effect may be may be affected. Accommodating individuals with cognitive and mental health disabilities in the criminal justice system thus presents various hurdles.² A particular problem is invalid and inconsistent assessments for: 1) competency to stand trial; and 2) criminal responsibility due to mental disease or defect (the insanity defense) as current assessment procedures do not fully address the needs of people with disabilities. The Texas Council for Developmental Disabilities believes that the following fundamental principles apply to people with disabilities who undergo competency evaluations. People with cognitive and mental health disabilities³ have the right to equal protection and due process under the law. People with disabilities are entitled to certain protections, rights and benefits under Title II of the Americans with Disabilities Act, and these protections, rights and benefits extend to involvement in the criminal justice system. A diagnosis of mental retardation or mental illness does not necessarily mean that a person is incompetent to stand trial, but it is incumbent upon counsel and the court to raise competency as an issue in appropriate cases and at any point in the proceedings where the defendant’s competency is in question. *The Council believes that criminal assessment procedures must fully address the needs of people with disabilities and include the following components:* Early intervention that includes a valid and clinically appropriate disability screening prior to, during, and following arrest, and comprehensive officer training in booking and intake procedures of individuals with developmental disabilities. Ongoing training of criminal justice professionals that is based on research and best practices in assessment of individuals with disabilities. Curriculum should include training on recognizing the possible existence of a developmental or psychiatric disability, appropriate communication skills, and stereotypes and stigma about disabilities unrelated to criminal activity. A competency evaluation that is performed by skilled professionals who have specialized training and experience in forensic evaluation. This specialized training should include training in legal competency for adults and fitness to proceed for juveniles. Due process protections that include reliable, age-specific and culturally competent assessments of and standards for: Determining the existence of cognitive and mental health disabilities -- example formats include the uniform mental health assessment and the diagnostic eligibility for mental retardation and related conditions formats; and Determining legal competency for adults and fitness to proceed for juveniles -- example instruments include the CAST-MR (Competency Assessment for Standing Trial for Defendants with MR) and the MacCAT-CA (MacArthur Competence Assessment Tool – Criminal Adjudication). These assessments should take into account any relevant impact on the results because of the individual’s cultural background, primary language, communication style, physical or sensory impairments, motivation, attentiveness, or emotional factors. Reasonable accommodations must be provided at all stages of criminal proceedings to assist the individual in understanding and participating in the proceedings and their defense. The Council recognizes that early intervention, assessment due process protections, and reasonable accommodations are overlapping components of a system that is responsive to the needs to people with disabilities and that these components must be available to alleged offenders at all stages of the individual’s involvement in the criminal justice system. Reviewed February 12, 2010 **While the preferred terminology for “mental retardation” has changed to “intellectual and developmental disabilities,” mental retardation is still used in this position statement because of legal implications based on a specific diagnosis of “mental retardation.” 1 Up to 24 percent of this country’s adult prison populations are individuals with mental retardation. (Dagher-Margosian, J., Representing the Cognitively Disabled Client in a Criminal Case, Disabilities Project Newsletter, State Bar of Michigan, Volume 2, Issue 2, March 2006, Committee on Justice Initiatives and Equal Access Initiative Disabilities Project, Retrieved 9-24-09 at https://www.michbar.org/programs/disabilitynews/disabilities_news_6.cfm) 2 It is estimated that between 50-75 percent of youth in the juvenile justice system have diagnosable mental health disorders. (Texas Juvenile Probation Commission. “Mental Health and Juvenile Justice in Texas.” 2003. http://www.tjpc.state.tx.us/publications/reports/RPTOTH200302.pdf) 3 20-35% of all persons with intellectual disabilities have a co-occurring psychiatric disorder. (Effective Interagency Collaboration for People with Co-Occurring Mental Illness and Developmental Disabilities, Kathryn duPree, Deputy Commissioner, Connecticut Department of Mental Retardation Retrieved September 24, 2009 from http://www.nasddds.org/pdf/EffectiveInteragencyCollaboration.pdf)
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