Hearing Before the Senate Judiciary Committee

Subcommittee on the Constitution, Civil Rights and Human Rights

Law Enforcement Responses to Disabled Americans: Promising Approaches for Protecting Public Safety

April 29, 2014

Statement for the Record by Leigh Ann Davis, Program ManagerNational Center on Criminal Justice and Disability,

The Arc of the United States

Contact:Leigh Ann DavisProgram Manager, Justice InitiativesThe Arc of the United StatesPhone: (202) 534-3727Fax: (202) 534-3731Email: ldavis@thearc.orgWebsite: www.thearc.org/NCCJD

Senate Judiciary Committee, Subcommittee on the Constitution, Civil Rights and Human RightsHearing: Law Enforcement Reponses to Disabled Americans: Promising Approaches for Protecting Public Safety, April 29, 2014

STATEMENT FOR THE RECORD BY LEIGH ANN DAVIS ON BEHALF OF THE NATIONAL CENTER ON CRIMINAL JUSTICE AND DISABILITY, THE ARC OF THE UNITED STATES

Chairman Durbin, Ranking Member Cruz, and Members of the Subcommittee, thank you for the opportunity to provide testimony for this hearing concerning law enforcement responses to Americans with disabilities.

The Arc of the United States is the largest national community-based organization advocating for and serving people with intellectual and developmental disabilities (“I/DD”)1 and their families. The Arc has long recognized and responded to the need for law enforcement training on people with disabilities. In the 1970’s, one of The Arc’s local chapters in Florida developed a training key in collaboration with the International Association of Chiefs of Police (IACP), later developed into a full curriculum by The Arc’s national office in 1998. In 1996, The Arc testified to the U.S. Commission on Civil Rights regarding law enforcement use of Title II accommodations.2 A number of The Arc’s nearly 700 chapters provide advocacy support and services to victims and suspects/offenders with I/DD and provide training to the criminal justice community, both at local and state levels.3 Currently, The Arc is operating the National Center on Criminal Justice and Disability ( “NCCJD”), funded by the U.S. Department of Justice, Bureau of Justice Assistance. NCCJD is the first national effort to bring together both victim and suspect/offender issues involving people with I/DD in one comprehensive effort to educate criminal justice professionals. NCCJD partners with criminal justice professionals, including law enforcement and their respective national organizations,4 to create fact sheets, white papers and training materials, as well as provide information and referral and technical assistance to address public safety issues. NCCJD is accumulating a robust clearinghouse of information, and has already begun assessing promising practices regarding law enforcement training on disability issues from across the country.5

We commend the Subcommittee on their recognition of this burgeoning human rights issue at a time when increasing numbers of individuals with I/DD are transitioning from institutional to community living. NCCJD seeks to provide testimony on specific issues faced by the I/DD population and, to that end, submits this Statement for the Record.

I. BackgroundI/DD presents a unique set of issues and requires specific promising practice development to protect the safety of people with I/DD, the officers that serve them, and the community at large. To explain the selection of promising practices, NCCJD would like to first describe the current landscape for persons with I/DD as they come into contact with law enforcement. These facts highlight gaps in training, which can be eliminated with strong support for promising practices from Congress and the Executive Branch.

1 Intellectual disabilities and developmental disabilities are two distinct categories. Someone with a developmental disability (DD) like Cerebral Palsy may not have any cognitive problems. Someone with an intellectual disability (I/D) may not have any developmental problems. Please read I/DD as intellectual and/or developmental disabilities. 2 To learn more about The Arc’s history in criminal justice efforts, see: http://www.thearc.org/NCCJD/timeline3 See a list of The Arc’s Criminal Justice Programs, available at http://www.thearc.org/NCCJD/resources/general-resources/chapter-programs. 4 See Appendix E for a list of NCCJD’s partners and advisors in law enforcement, who, with other legal professionals, victim advocates, and self-advocates, make up NCCJD’s National Advisory Counsel. For a full list of partners, please see http://www.thearc.org/NCCJD/partners. 5 See NCCJD’s Model Programs and Promising Practices page, available at http://www.thearc.org/NCCJD/resources/general-resources/model-programs.

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A. I/DD GenerallyMore than 54 million Americans have a disability, comprising he largest minority group in the country.6 Of those 54 million, roughly 2-3% have intellectual disability (“I/D”).7 People with I/DD may have familiar diagnoses such as autism, Down Syndrome, or fetal alcohol spectrum disorder (FASD), or they may have no particular diagnosis associated with their disability.8

The Diagnostic and Statistical Manual of Mental Disorders (DSM-5) classifies intellectual disability as impaired mental ability impacting adaptive functioning in three domains: conceptual, social, and practical.9 People with I/D experience increased vulnerability in interactions with criminal justice professionals because of heightened suggestibility, gullibility, naiveté, desire to please, and desire to feign competence.10 While these vulnerabilities may be present in certain individuals with mental illness, they are pervasive and problematic across the population of persons with I/D. In addition, a high number—75-90%—while having a severe intellectual impairment are not necessarily recognized by outward appearance.11

B. High Rates of VictimizationPeople with disabilities are especially vulnerable to victimization or manipulation by others, sometimes leading to criminal activity. In 2010, the age-adjusted violent victimization rate for persons with disabilities (28 violent victimizations per 1,000) was almost twice the rate of persons without disabilities (15 violent victimizations per 1,000). The age-adjusted rate of serious violent victimization (rape/sexual assault, robbery, and aggravated assault) was 16 per 1,000 persons with disabilities, compared to 5 per 1,000 for persons without disabilities.12 Among the disability types measured, persons with cognitive disabilities (I/D) had the highest rate of violent victimization (30 per 1,000).13 People with cognitive disabilities such as I/D, and developmental disabilities such as cerebral palsy represented the largest group of victims.14 When police officers fail to handle emergency situations involving victims with I/DD appropriately, the chances of offenders remaining at large and reoffending greatly increase. To protect the public safety, law enforcement needs specialized training on effectively dealing with victims with I/DD.

C. Inconsistency in TrainingLaw enforcement training on disability is inconsistent, sometimes inaccurate, and may or may not be effective.15 For example, a recent 9th Circuit decision addressed whether the Americans with Disabilities

6 Progress Report of the New Freedom Initiative, May 2002.7Daily DK, Ardinger HH, Holmes GE (February 2000). "Identification and evaluation of mental retardation". Am Fam Physician61 (4): 1059–67, 1070. PMID 10706158.8 CDC: Facts about Developmental Disabilities available at: http://www.cdc.gov/ncbddd/developmentaldisabilities/facts.html9 Intellectual Disability, AAIDD, available at http://aaidd.org/intellectual-disability/definition#.U1a34vldW4J. 10 Greenspan, S. (2006), Functional concepts in mental retardation; Finding the natural essence of an artificial category. Exceptionality, 14(4), 205-224; see p. 218 for a specific discussion of gullibility; available at http://webcache.googleusercontent.com/search?q=cache:http://acdlaonline.com/zoomdocs/presentations/Functional%2520aspects%2520of%2520MR%2520-%2520Greenspan.pdf. 11 Daily DK, Ardinger HH, Holmes GE (February 2000). "Identification and evaluation of mental retardation". Am Fam Physician61 (4): 1059–67, 1070. PMID 10706158. (This means they are slower than average to learn new information or skills. With the right support, most will be able to live independently as adults. However, the nature of these types of hidden disabilities can lead to negative outcomes when such individuals become involved in the criminal justice system as victims, suspects, or offenders.).12 NCVS: Crime Against Persons with Disabilities, 2008-2010 - Statistical Tables (BJS), Oct 2011.13 Id. at table 5.14 Id.15 This includes training about I/DDs such as autism, FASD (Fetal Alcohol Spectrum Disorder), Down syndrome and similar disabilities.

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Act (“ADA”) applies to police officers making an arrest in someone’s home and also addressed a 42 U.S.C. §1983 failure-to-train claim against a local law enforcement agency.16 While the failure to train argument ultimately failed, whether the outcome would be the same for someone with I/DD remains a question. In a world of limited resources for law enforcement, eliminating lawsuits by teaching compliance ultimately devotes more time and energy to public safety. Additionally, many law enforcement and other lay persons do not understand the difference between mental illness and I/DD, potentially leading to misapplied techniques and resulting officer and civilian endangerment.

D. Title II AccommodationsOther types of disabilities are often more straightforward to accommodate. Under Title II of the ADA, there are clear regulations for providing an interpreter for someone who is deaf17 or building a ramp for someone who uses a wheelchair.18 However, someone with I/DD may take up valuable police time and require patience and individualized effort. Take, for example, issues surrounding Miranda. It is a legal obligation for officers to recite the Miranda rights to every suspect before interrogation; that is, the suspect must be told that he or she has the right to remain silent and that anything said can be used against them in a court of law, and that he or she has the right to a lawyer, either appointed or hired by the individual. Providing the warning in writing to someone who is Deaf or hard of hearing or verbally to someone who is blind or low vision is relatively straightforward. However, someone with I/DD will not have the requisite seventh grade reading and listening skills to completely understand warnings provided in the Miranda rights.19 Intellectual functioning can affect one’s ability to even comprehend Miranda warnings, leading to waiver without true informed consent.20 Moreover, it is common for people with I/DD to have “hidden disabilities” that can lead to miscommunications or even to feigning understanding in an effort to mask disability.21 Accommodating this need requires patience and individualized assessment, as well as officer awareness that waiver of those rights may not be knowing and intelligent.22 Ultimately, public safety suffers when this part of the system breaks down.

E. Disparity in training contentConsiderably more law enforcement training is available on mental illness than I/DD. People with I/DD have distinct needs both as suspects/offenders and victims, different from persons with mental illness.

16 Sheehan v. City & County of San Francisco, ___F.3d___(9th Cir. Cause No. 11-16401 February 21, 2014); see Appendix B, “The Americans with Disabilities Act: Application of Title II to Police Officers Making an Arrest.”17 See the United States Department of Justice, Civil Rights, Disability Rights Section’s resources, “Communicating with People Who Are Deaf or Hard of Hearing ADA Guide for Law Enforcement Officers,” available at http://www.ada.gov/lawenfcomm.htm; and “Model Policy for Law Enforcement on Communicating with People Who Are Deaf or Hard of Hearing,” available at http://www.ada.gov/lawenfmodpolicy.htm. 18 ADA Accessibility Survey Instructions: Curb Ramps, available at http://www.ada.gov/pcatoolkit/app1curbramps.pdf. 19 Petersilia, 2000.20 This, in turn, can lead to false confessions, inadmissible evidence, or other circumstances that ultimately cost the criminal justice system time and resources. 21 See Appendix A for The Arc and AAIDD’s position statement on Criminal Justice. It is a joint position statement currently undergoing update and review.22 Section Review, Miranda warnings: The latest research and its implications, Erc Y. Drogin, available at http://www.massbar.org/publications/section-review/2009/v11-n1/miranda-warnings (An assessment of 107 defendants with mental disorders indicated that the 25 percent who were most impaired only understood about 24 percent of Miranda warnings, while the 25 percent who were least impaired could comprehend only about 66 percent of these warnings.); see Richard Rogers et al., Knowing and Intelligent: A Study of Miranda Warnings in Mentally Disordered Defendants, 31 Law & Hum. Behav. 401 (2007).

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Crisis Intervention Teams (“CIT”): CIT programs23 are proven to reduce both arrests and re-arrests of people with serious mental illness while simultaneously reducing officer stigma and prejudice towards this population. Upon learning to effectively identify persons in need of psychiatric care, CIT officers are 25% more likely to utilize psychiatric treatment facility options than other officers. Strikingly, “After the introduction of CIT in Memphis, officer injuries sustained during responses to “mental disturbance” calls dropped 80%.”24

CITs, while a thoroughly effective effort to address mental illness, do not provide the focus necessary to train law enforcement for encounters with persons with I/DD. Referencing the National Curriculum provided by the University of Memphis CIT Center, approximately 2 hours of a 40 hour training are spent addressing I/DD issues.25 Approximately 8.5 hours are spent addressing various types of mental illness.26 I/DD is distinct from mental illness and requires a targeted collaborative training approach utilizing the strengths proven by CIT, but tailored to the specific needs of the I/DD population.

II. Promising PracticesA sustainable national training program is needed to ensure law enforcement professionals and first responders receive consistent and effective training about people with I/DD. Congress should continue to support federal funding for initiatives like NCCJD in an effort to remedy disparity in access to quality training, and support a comprehensive mandatory training program.

A. Focus on Inclusion: Community PolicingTo foster relationships between persons with disabilities and law enforcement, effective training needs to focus on relationship building. Training must focus not on teaching law enforcement to diagnose disabilities, but on creating a greater awareness about people with disabilities, and assisting officers in creating an attitude of doing what it takes to ensure understanding of the citizen being served. Building principles of inclusion into the training, as well as how the training is incorporated into policing overall, can help remedy misperceptions from both the officer and the person with a disability. For instance, involving persons with disabilities in community policing through volunteer opportunities (such as neighborhood watch programs) will naturally create an increase in interaction with police on a regular basis, ultimately fostering healthy relationships in non-threatening situations on both sides.27

England’s example of Disability Engagement Officers highlights officers who work to develop communication networks with people with disabilities, eventually improving trust and confidence in the Police Service. They also act as a liaison between the police and people with disabilities. Called “DEOs,” these police officers and police community support officers work as part of Neighborhood Policing Teams. They are provided with additional training to engage with, and offer support and advice to, people

23 NAMI, Crisis Intervention Teams, available at “https://www.nami.org/template.cfm?section=CIT2” (“CIT (Crisis Intervention Team) programs are local initiatives designed to improve the way law enforcement and the community respond to people experiencing mental health crises. They are built on strong partnerships between law enforcement, mental health provider agencies and individuals and families affected by mental illness.”) 24 National Alliance on Mental Illness (NAMI) CIT Toolkit: CIT Facts, available at http://www.nami.org/Content/ContentGroups/Policy/CIT/CIT_Facts_4.11.12.pdf, emphasis added.25University of Memphis CIT Center, curriculum, available at http://www.cit.memphis.edu/curriculum.php (This 2 hours also covers Child & Youth issues, Adolescence, TBI (traumatic brain injury), Dementia, and Delerium.)26 Id. (Cognitive Disorders, Dementia, Delerium, TBI (9:00-10:00, Tuesday); Child & Youth, Adolescence, Autism, Dev. Disabilities (8:00-9:00, Wednesday); Severe, Persistent Mental Illness (9:00-11:00, Monday); Thought disorder, mood disorder (11:00-12:00, Monday); Substance Abuse Issues, Co-Occurring disorders (1:00-3:00, Monday); Special Focus Issues, Personality Disorder (8:00-9:00, Tuesday); Special Focus Issues, PTSD (8:00-9:00, Thursday); Special Focus Issues, Suicide (9:00-10:30, Thursday).27 Police Officers and Disability: Perceptions and Attitudes Scott J. Modell and Dave Cropp INTELLECTUAL AND DEVELOPMENTAL DISABILITIES VOLUME 45, NUMBER 1: 60–63 FEBRUARY 2007.

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in the community who have a disability.28

B. Communication Boards for First RespondersLaw enforcement and other first responders should take communication boards when responding in preparation for dealing with non-verbal individuals. These boards, available in multiple languages, allow individuals with alternative means of communication a possible way to interact with first responders.29

C. Evaluate past and current training strategies and related policiesEvaluation measures and evidence-based practices are key to identifying effective strategies for raising overall awareness and changing law enforcement attitudes about people with disabilities. Over the years, criminal justice and disability experts have debated possible strategies, but none have resulted in a strong, coordinated, national-level plan ensuring consistent, accurate, quality training throughout the states.

One approach includes disability awareness training in current mandatory police courses.30 Secondly, police departments need policy from the federal level supporting their efforts to infuse effective practices into their training curricula.31 Knowledge sharing across professions and collaboration on core principals, policies, and positions is critical to impacting law enforcement nationally. In addition, while the Department of Justice has created a model policy for law enforcement on communicating with people who are deaf or hard of hearing,32 policies are needed on communicating with citizens with other types of disabilities; specifically I/DD where accommodations needed are not always physical in nature, but cognitive. DOJ should provide guidance on specific cognitive accommodations that law enforcement must use to promote both citizen and officer safety during either typical or highly dangerous encounters between law enforcement and persons with disabilities.

D. NCCJD’s Multidisciplinary Teams (“MDTs”): An Evidence-based ApproachWhen an individual who has different needs or communicates differently becomes involved in a complex system with many moving parts, tapping the expertise of multiple parties facilitates the smoothest possible outcomes. Utilizing the promising practice seen across person centered planning in health care and also in the Office for Victims of Crime materials on assisting crime victims with disabilities,33 28 See http://www.sussex.police.uk/help-centre/ask-us/disability-engagement-officers/what-are-disability-engagement-officers-(deos).29 See Appendix D (useful for many types of disabilities).30 See http://ici.umn.edu/products/impact/133/prof4.html ( In 2000, the Bureau of Justice Assistance funded a project to infuse disability terminology, information, and issues into existing mandatory training provided by the California Commission on Peace Officer Standards and Training (POST). The commission periodically revises core and crime-specific curricula, and worked with disability experts, advocates, and trainers to include disability throughout the curricula. General disability information, recognition of disability, and accommodation skills were infused in multiple courses including the Core Interview and Interrogation Course, crime specific curricula on sexual assault, and courses on child/adult abuse, robbery, and financial crimes. Disability was to be included in all institute courses by winter of 2001, along with practicals to test learned skills.).31 See IACP’s National Law Enforcement Policy Center Concepts and Issues Paper, March 2004, “Law Enforcement Encounters with Persons who are Developmentally Disabled” available at http://www.cforjustice.org/wp-content/uploads/2008/08/encounters-w-persons-dev-disabled-paper.pdf (Recently, NCCJD met with the International Association of Chiefs of Police (IACP) to discuss revising their model policy on “Encounters with the Developmentally Disabled,” last revised March, 2004. Model policies are often developed into concepts and issues papers, informing training materials for officers nationwide. Once policy is collaboratively updated, it will be included in both IACP and NCCJD training materials, creating a consistent, content-rich foundation for effective training.). 32 See “Model Policy for Law Enforcement on Communicating with People who are Deaf or Hard of Hearing” available at http://www.ada.gov/lawenfmodpolicy.pdf. 33 See OVC Multidisciplinary Response to Crime Victims with Disabilities, available at http://www.ovc.gov/pubs/victimswithdisabilities/index.html.

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NCCJD is supporting the evidence-based approach of training multidisciplinary teams (MDTs) to bring together criminal justice professionals (including law enforcement, legal professionals, and victim advocates), disability professionals, and people with I/DD and their family members to share expertise on behalf of people with I/DD. NCCJD’s goal is to create a shared sense of ownership around the issue and spark innovative ideas that will lead to greater awareness of the challenges people with disabilities face when involved in the criminal justice system as victims or suspects/offenders. MDTs can take various forms, have specific goals for each particular community or state, and conduct a range of activities, such as offering joint training, developing memoranda of understanding and protocols, or forming interagency task forces. NCCJD believes that if criminal justice professionals can develop a personal understanding of and develop relationships with people with disabilities in their own communities, the resulting positive impact will reduce the number of miscommunications, needless arrests, overlooked victims, and possibly deaths of people with I/DD.

NCCJD’s MDTs will consist of law enforcement, victim advocates, disability advocates, people with disabilities and/or family members, and prosecution and defense attorneys, who will then become the "go-to" source for knowledge about people with I/DD introduced into the criminal justice system—either as victims, or suspects /offenders. By accessing The Arc's broad Chapter network across the country, NCCJD's experts will utilize a "train the trainer" model to prepare The Arc's Chapters to recruit and train MDTs. While the training sessions themselves will be relatively short—only one - two days of in-person instruction—the MDTs will obtain continued support from NCCJD through the extensive state-by-state resource list, expert witness database, and technical assistance services.

III. ConclusionTo ultimately prioritize safety, there are promising practices all along the spectrum of interactions between law enforcement and persons with I/DD. The most obvious practices deal with the emergency itself—communication boards, identifying disability as a cause of behavior, community policing, and building relationships prior to the emergency—these and other practices must be implemented well before the emergency happens.

Beyond the emergency itself, however, there are other promising practices throughout law enforcement leading to safer outcomes. If officers know how to interact with victims with I/DD, they get perpetrators off the streets by effectively utilizing witnesses—regardless of witness communication style or ability. If officers know how to appropriately approach suspects/offenders with I/DD, they can prevent recidivism and target the truly responsible criminals in cases where vulnerabilities associated with I/DD were exploited.34 Knowledge about this segment of the population, gained from training, interaction, and relationship building, leads to better policing and safer communities.

NCCJD asks this committee to consider these issues and take note of the work NCCJD has begun. With a small staff and limited resources, we are seeing hundreds of people sign on to our free monthly webinars; receiving Information and Referral and Technical Assistance requests from professionals and family members; and cataloging thousands of hits on our website. There is clearly an interest in and a need for a comprehensive national effort to address law enforcement interactions with Americans with disabilities. We thank you for acknowledging this need and hope to see strong steps towards broad implementation of promising practices.

34 Perske's List: False Confessions From 75 Persons With Intellectual Disability, Intellectual and Developmental Disabilities: Vol. 49, No. 5, pp. 468–479, October 2011 available at: http://www.robertperske.com/Articles/Perske's_List_False_Confessions_From_75_Persons_With_Intellectual_Disability.pdf, (Too many suspects have been “at the wrong place at the wrong time” and coerced into giving false confessions, some of whom have lost their lives by execution.).

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Appendix A: The Arc and AAIDD’s Position Statement on Criminal Justice

Criminal JusticePeople with intellectual and/or developmental disabilities1 who are victims, suspects or witnesses, like other residents of the United States, have the right to justice and fair treatment in all areas of the criminal justice system, including reasonable accommodations as necessary.

IssueWhen individuals with intellectual and/or developmental disabilities become involved in the criminal justice system as suspects or victims, they often face fear, prejudice, and lack of understanding. Attorneys, judges, law enforcement personnel, forensic evaluators, victim advocates and jurors may lack the adequate and appropriate knowledge to apply standards of due process in a manner that provides justice for our constituents. Individuals with intellectual and/or developmental disabilities are:

Four to ten times more likely to become victimized, yet are frequently devalued and ignored, and their cases rarely prosecuted;

Subject to routine exclusion because of outdated and stereotyped views of their competence to testify or denial of their needs for supports and accommodations;

Often denied due process and effective representation at each stage of the proceedings; and Abused, exploited, and excluded from habilitative programs when incarcerated. When individuals with intellectual and/or developmental disabilities come into contact with the

criminal justice system, they find few organized resources for information, training, technical assistance, and referral. Moreover, people living with intellectual and/or developmental disabilities who enter the criminal justice system encounter problems in excess of their nondisabled peers, such as:

Failing to have their disability identified by authorities who lack the expertise to discern the presence of a disability (and often individuals with intellectual disabilities compensate very well so that the disability can be somewhat hidden);

Giving incriminating, but inaccurate “confessions” because the individual wants to please or is confused or misled by inappropriately used investigative techniques;

Being found incompetent to stand trial because the individual cannot understand the criminal justice proceeding;

Being found incompetent and being inappropriately placed in an institution for a long period of time in order to “regain competency;”

Being unable to assist their lawyer in their own defense; Waiving rights unknowingly in the face of required warnings such as Miranda; and Being denied their right to speak because their testimony is not deemed credible whether as a

witness, victim or defendant.

While the Supreme Court ruled in Atkins v. Virginia2 that it is a violation of the Eighth Amendment ban on cruel and unusual punishment to execute people with “mental retardation3," the states continue to play a major role in defining the term mental retardation and in deciding the process for consideration of the defendant’s mental retardation. Laws vary from state to state on how a defendant can prove the presence of mental retardation. States also vary widely regarding whether it is the judge or jury who decides if the defendant has mental retardation. States may use non-clinicians who are not knowledgeable about mental retardation to make such determinations. As a result, defendants may not have their mental retardation identified because of states’ unfair and inaccurate procedures.

PositionPeople with intellectual and/or developmental disabilities must have the same opportunities to experience justice as victims, suspects or witnesses, similar to those without disabilities, when in contact with the criminal justice system.

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As victims, witnesses, or suspects they must: Have their right to justice and fair treatment assured; Receive assistance and accommodations to effectively participate in legal proceedings Have necessary supports and accommodations available so that their testimony is heard and fairly

considered; Have access and the right to present expert evaluations and testimony by professionals with

training and expertise in their disability; Be treated fairly by all personnel including judges, defense lawyers, prosecutors, court personnel,

forensic evaluators, law enforcement personnel, victim assistance personnel, and criminal justice policymakers;

Have the right to an advocate, in addition to their lawyer, who has specialized, disability-related expertise;

Have their conversations with their advocate covered under, or treated similarly to, attorney-client privilege;

Have available to them judges, lawyers, prosecutors, court personnel, and others who are educated about the effects of their disability;

Have access to victim supports and compensation as appropriate; As a suspect, be protected from harm, self-incrimination, and exploitation at all stages of an

investigation, including when they are questioned, detained, and incarcerated When sentenced they must: Have available reasonable and appropriate accommodations, treatment, and education, as well as

alternatives to sentencing and incarceration that include community-based corrections; Have access to adequately trained probation and parole officers who will treat them fairly based

on their individual disability and need for reasonable accommodations; Continue to be exempt from the death penalty because existing case-by-case determinations of

competence to stand trial, criminal responsibility, and mitigating factors at sentencing have proved insufficient to protect the rights of individuals with mental retardation (or intellectual disabilities);

Have access to expert witnesses and professionals who are experienced in mental retardation who can accurately determine the presence of mental retardation; and

Have their mental retardation determined by state procedures that are accurate and fair. Those state definitions and procedures must ensure that people with mental retardation (or intellectual disability) are not executed as a consequence of falling through the cracks in the system.

Adopted:  Board of Directors, The Arc of the United StatesAugust 4, 2008Board of Directors, AAIDDAugust 18, 2008Congress of Delegates, The Arc of the United StatesNovember 8, 2008 ___________________________________________________________________________________1 “People with intellectual disabilities and/or developmental disabilities” refers to those defined by AAIDD classification and DSM IV. In everyday language they are frequently referred to as people with cognitive, intellectual and/or developmental disabilities although the professional and legal definitions of those terms both include others and exclude some defined by DSM IV.2 Atkins v. Virginia, 536 U.S. 304 (2002).3 The term “mental retardation,” though outdated, is still used in the legal and criminal justice system.Appendix B: The ADA: Application of Title II to Police Officers Making an Arrest

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In a recent three judge panel decision, the 9th Circuit again brought to the forefront the question of whether the Americans with Disabilities Act (ADA) applies to police officers when they make an arrest. Sheehan v. City & County of San Francisco, ___F.3d___(9th Cir. CauseNo. 11-16401 February 21, 2014).

This opinion addressed 42 U.S.C. §1983, 4th Amendment, and ADA issues, the ADA issue is divisive among the Circuits. The opinion references United States Department of Justice ADA regulations stating:

A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity. 28 C.F.R. §35.130(b)(7).

The issue is unsettled across the country with various Circuits expressing different opinions. 4th Circuit: Considered a reasonable accommodation claim involving arrest, but held that

“exigency is one circumstance that bears materially on the inquiry into reasonableness under the ADA.” Waller ex rel. Estate of Hunt v. City of Danville, 556 F. 3d 171, 175) (4th Cir. 2009).

5th Circuit: “Title II does not apply to an officer’s on-the-street responses to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer’s securing the scene and ensuring that there is no threat to human life.” Hainze v. Richards, 207 F.3d 795, 801 (5th Cir. 2000).

6th Circuit: Similar to the 4th circuit, discussing exigency as bearing materially into the reasonableness inquiry.

9th Circuit: “The ADA therefore applies to arrests, though we agree . . . that exigent circumstances inform the reasonableness analysis under the ADA, just as they inform the distinct reasonableness analysis under the Fourth Amendment.” Sheehan v. City & County of San Francisco,

10th Circuit: “a broad rule categorically excluding arrests from the scope of Title II. . . is not the law. Gohier v. Enright, 186 F.3d 1216, 1221 (10th Cir. 1999).

11th Circuit: “the question is not so much one of the applicability of the ADA because Title II prohibits discrimination by a public entity by reason of [a person’s] disability. The exigent circumstances presented by criminal activity and the already onerous tasks of police on the scene go more to the reasonableness of the requested ADA modification than whether the ADA applies in the first instance. Bircoll v. Miami-Dade County, 480 F.3d 1072, 1085 (11th Cir. 2007).

In addition to the ADA claim, Sheehan brought a 42 U.S.C. § 1983 claim under a “failure to train” theory. In this particular instance, Sheehan conceded that, “the department employed appropriate training materials to guide police officers’ responses to persons they knew to be suffering from mental illness.” Therefore, the city could prove that they were not “deliberately indifferent.” Price v. Sery, 513 F.3d 962, 973 (9th Cir. 2008) (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)) (“The ‘inadequacy of police training may serve as the basis for §1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.”).

The department avoided liability in this particular instance, but the lack of training surrounding I/DD in many departments does arguably approach the level of “deliberate indifference.” As this area of the law continues to evolve, perhaps persons with disabilities arrested by law enforcement may have recourse when officers fail to make reasonable accommodations—particularly if police departments have failed to train around I/DD issues.

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Appendix C: Outline of NCCJD Training—currently in draft form

Phase One: A call to Chapters of The Arc

NCCJD puts out a notice to the Chapter network35 seeking host training sites. Chapter personnel are trained in the following areas: recruiting a multidisciplinary team (MDT)—who to talk to, which key players to contact, and which points to emphasize in describing why the training is important; basic Information and Referral services--even if this means simply referring MDT personnel to NCCJD; resource submission—each Chapter will be encouraged to submit applicable local criminal justice resources to be included on the state-by-state resource list compiled by NCCJD; recruiting self-advocates—one main goal of the training is to introduce criminal justice professionals to persons with disabilities that live in their area; and other support—for instance establishing criminal justice issues on the Chapter's website or identifying key national and local players in criminal justice in the Chapter's area.

Phase Two: Training the MDT

The training, still in the development stages, spans two days. Law enforcement, victim advocates, and legal professionals (both prosecuting and defense attorneys) are gathered for the in-person training. NCCJD staff host and administer the training along with local self-advocates recruited by Chapters of The Arc.

Day one: Issue Spotting

9:00am—12:00pm: Disability OverviewCore Competency: Communicating with Persons with Disabilities IThis session serves as an introduction into why skills for dealing with persons with disabilities are increasingly important for criminal justice professionals. This section features discussions about various types of disabilities accompanied by stories of individuals with disabilities. Communication tips will be a core competency

1:00pm—4:00pm: Breakout SessionsLaw EnforcementCore Competency: Communicating with Persons with Disabilities IIVictim AdvocatesCore Competency: Communicating with Persons with Disabilities IILegal Professionals (Prosecution and Defense Attorneys)Core Competencies: Communicating with Persons with Disabilities II; Competency to stand trial—legal and practical definition; Understanding Miranda and people with I/DD; Defenses, mitigation, and the plea deal

Day two: Building an MDTProblem solving as an MDT. Various hypothetical situations are presented to the newly formed teams, and the skills learned day one are applied to real life situations. Where possible, scenarios are tailored to the particular locality where training is taking place and the people that actually had these experiences will talk about them.

35 684 Affiliated Chapters, updated 3/31/2014

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Appendix D: Communication Boards for First Responders

See: http://cdd.unm.edu/products/tips3rdedition.pdf http://www.temple.edu/instituteondisabilities/aacvocabulary/e4all/EprepPictureAid.pdf http://www.temple.edu/instituteondisabilities/aacvocabulary/e4all/EprepPictureAidES.pdf

(Spanish) http://www.temple.edu/instituteondisabilities/aacvocabulary/e4all/

EprepPictureAidCREOLE02010.pdf (Haitian creole)

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Appendix E: NCCJD’s National Advisory Council Members in Law EnforcementPartners

International Association of Directors of Law Enforcement Standards and Trainings (IADLEST)The International Association of Directors of Law Enforcement Standards and Training (IADLEST) researches, develops, and shares information, ideas, and innovations which assist states in establishing effective and defensible standards for employment and training of law enforcement officers and, in some states, correctional officers. With a focus on criminal justice training, IADLEST offers members an opportunity to exchange ideas with other staining and standards managers, and to compare progress on the national level.

The National Sheriff's AssociationEstablished in 1940, NSA is a non-profit organization dedicated to raising the level of professionalism among those in the criminal justice and public safety fields. Through the years, NSA has been involved in numerous programs and trainings and other resources to enable sheriffs, their deputies, and others in the field of criminal justice to perform their jobs in the best possible manner and to better serve the people of their jurisdictions.

Police Executive Research Forum (PERF)The Police Executive Research Forum (PERF) is a police research organization and a provider of management services, technical assistance, and executive-level education to support law enforcement agencies. PERF helps to improve the delivery of police services through the exercise of strong national leadership; public debate of police and criminal justice issues; and research and policy development. PERF has an extensive history of measuring all aspects of police agency performance, striving to find the best policing practices, and disseminating that knowledge to police agencies. PERF’s groundbreaking projects on use-of-force issues and crime reduction strategies have earned it a prominent position in the police community.

The Police FoundationThe purpose of the Police Foundation is to help the police be more effective in doing their job, whether it be deterring robberies, intervening in potentially injurious family disputes, or working to improve relationships between the police and the communities they serve. To accomplish our mission, they work closely with police officers and police agencies across the country, and it is in their hard work and contributions that their accomplishments are rooted.

Advisors

Carolyn Gammacchia, The Law Enforcement Awareness Network

David Whalen, First Responders Disability Awareness Training (FR-DAT)

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