Report to the President 

Citizens with Mental Retardation 

and the Criminal Justice System 

U.S. Department of Health and Human Services 

Administration for Children and Families 

President's Committee on Mental Retardation 

Washington, D.C. 20201 
Report to the President 

Citizens with Mental Retardation 

and the Criminal Justice System 

1991 

U.S. Department of Health and Human Services 

Administration for Children and Families 

President's Committee on Mental Retardation 

Washington, D.C. 20201 

DHHS Publication No. (ACF) 93-21046 
DISCLAIMER STATEMENT 

Information contained in the Annual Report to the President: 

Citizens with Mental Retardation and the Criminal Justice System

was researched, collected and analyzed by experts in the field of 

mental retardation, law and the criminal justice system for the 

Presidential Forum on the Offender with Mental Retardation and 

the Criminal Justice System under contract with the U.S. 

Department of Health and Human Services, Administration for 

Children and Families, President's Committee on Mental 

Retardation. 

The Annual Report to the President: Citizens with Mental 

Retardation and the Criminal Justice System summarizes the 

expressions of the research and opinions of the participants at 

the Presidential Forum on the Offender with Mental Retardation 

and the Criminal Justice System and do not necessarily reflect 

the views of the President's Committee on Mental Retardation or 

any part of the U.S. Department of Health and Human Services. 

The President's Committee on Mental Retardation has selected and 

adapted a number of recommendations presented at the Presidential 

Forum on the Offender with Mental Retardation and the Criminal 

Justice System for inclusion in the Report to the President since 

they were considered to be informative and appropriate for 

consideration by the President. They help to provide a better 

understanding of the nature and scope of the problem and serve as 

an agenda for study and action. 
THE SECRETARY OF HEALTH AND HUMAN SERVICES

WASHINGTON, D.C. 20201

AUG 19, 1992 

The President 

The White House 

Washington, D.C. 20500 

Dear Mr. President: 

I am pleased to transmit to you the report of the 

President's Committee on Mental Retardation entitled Citizens 

with Mental Retardation and the Criminal Justice System.

The report focuses on many important aspects of the law and 

mental retardation. It addresses recent and current legal 

issues and needs, including the role of Federal, State, and 

local mental retardation agencies, law enforcement 

agencies, the judiciary, and corrections. 

The content of this report is a summary of the contributions 

of experts in the field of criminal justice and mental 

retardation who were participants at the Presidential Forum 

on the Offender with Mental Retardation and the Criminal 

Justice System. The Forum was held on September 14-16, 1989, 

in Bethesda, Maryland. Co-sponsors of the Forum included the 

U.S. Department of Health and Human Services, the U.S. 

Department of Justice, and the U.S. Department of Education. 

The President's Panel on Mental Retardation addressed the 

relationship between law and citizens with mental retardation 

over thirty years ago. The First National Conference on Legal 

Rights for Mentally Retarded Citizens was held in 1973 and 

the Second National Conference on Citizens with Mental 

Retardation and the Law was held in 1985. The President's 

Committee on Mental Retardation convened a number of 

conferences relating to law and the criminal justice system 

between these two major conferences. The present report 

provides a summary of current issues and recommendations on 

the subject of the criminal justice system, law and mental 

retardation. 
Page 2 - The President 

It is my hope that the information in this report proves useful 

as our nation works to develop strategies for the attainment of 

full citizenship and justice for all citizens with mental 

retardation. 

Sincerely, 

Louis W. Sullivan, M.D. 
TABLE OF CONTENTS 

PREFACE vii 

ACKNOWLEDGEMENTS ix 

PCMR NOVEMBER 1991 xi 

PCMR EXECUTIVE COMMITTEE xii 

& SUBCOMMITTEE MEMBERSHIP 

PCMR SEPTEMBER 1989 xiii 

PRESIDENTIAL FORUM xv 

PROGRAM PARTICIPANTS 

INTRODUCTION 1 

FINDINGS 3 

Nature and Scope of Issue 3 

Characteristics 4 

Types of Crimes 5 

Reasons for Committing Crimes 6 

Identification 6 

Understanding of Mental Retardation 7 

Miranda Warning 8 

Competence to Stand Trial 8 

Criminal Responsibility 10 

Forensic Services 12 

Sentencing 13 

Death Penalty 14 

Correctional Facilities 15 

Community-Based Programs 17 

Prevention 19 

Service System Problems 19 

Confidentiality 20 

Advocacy Programs 20 

Training 20 

Victims 21 

RECOMMENDATIONS 23 

National Focus 23 

Statistics 24 

Understanding of People with Mental Retardation 25 

Research 26 

Identification 27 

Forensic Services 28 

Sentencing 29 

Correctional Programs 30 

Community-Based Programs 31 
Prevention 31 

Service System 31 

Training 32 

Victims 34 

Concluding Observation 35 

QUOTES 36 
DEPARTMENT OF HEALTH & HUMAN SERVICES 

ADMINISTRATION FOR CHILDREN AND FAMILIES 

370 L'Enfant Promenade, S.W. 

Washington, D.C. 20447 

Preface 

The President's Committee on Mental Retardation (PCMR) was 

originally established by Executive Order 11280 on May 11, 1966, to 

provide continuing advice to the President and to the Secretary of 

Health and Human Services concerning a broad range of topics 

relating to mental retardation. The membership of the PCMR includes 

the Secretary of Health and Human Services, who serves as the Chair 

of the Committee, the Attorney General of the United States, the 

Secretary of Education, the Secretary of Labor, the Secretary of 

Housing and Urban Development, the Secretary of Transportation, the 

Director of ACTION, and 21 citizen members appointed by the 

President. The Committee is charged with submitting an annual 

report to the President concerning mental retardation, and any 

additional reports or recommendations as the President may require or 

as the Committee may deem appropriate. 

In 1961, five years before the establishment of the PCMR, the 

President's Panel on Mental Retardation was created to assess the 

status of mental retardation in the nation. The Panel was 

instructed to submit a report to the President at the end of one 

year, which would identify major issues and include recommendations 

to "combat" mental retardation. Among many areas, the Panel 

identified numerous legal and human rights issues concerning 

citizens with mental retardation. The Panel submitted its highly 

acclaimed report to the President in 1962, outlining major issues 

with a set of recommendations for the nation to consider. 

Based on the work of the Panel and the need for continuing 

assessment of the state of mental retardation in the nation, the PCMR 

was established. 

The PCMR has monitored legislation, policies and procedures 

affecting the relationship between citizens with mental retardation 

and the law since its establishment in 1966. Although citizens with 

mental retardation have the basic rights to "Life, Liberty, and the 

Pursuit of Happiness," American society has frequently denied 

people with mental retardation full access to these rights. The 

intent of this Report to the President is to strengthen the 

awareness of legislators, public policy makers and the general 

public regarding this dichotomy and to ensure development and 

continued availability of Federally protected rights for citizens 

with mental retardation. 

vii 
Page 2 

The information and recommendations contained in this Report are 

the result of the "Presidential Forum on the Offender with Mental 

Retardation and the Criminal Justice System" held in Bethesda, 

Maryland, September 14-16, 1989. The Conference was sponsored by 

the PCMR, the National Institute of Justice and the National 

Institute of Corrections of the U.S. Department of Justice, the 

Office of Human Development Services of the U.S. Department of 

Health and Human Services, and the Office of Special Education 

and Rehabilitative Services of the U.S. Department of Education. 

The participants at the Forum included a selection of nationally 

recognized leaders and experts in the field of mental 

retardation, law, and the criminal justice system. 

The focus of the Forum was to assess accomplishments and problems 

in the human and legal rights area since PCMR sponsored the 

following conferences: The First National Conference on Legal 

Rights for Citizens with Mental Retardation in 1973, the Second 

National Conference on Citizens with Mental Retardation and the 

Law in 1985, and several other conferences relating to legal and 

human rights and criminal justice between these years. In this 

report, PCMR considered current trends, defined a base for 

efforts in this area, and developed a scenario through and beyond 

the end of the century. 

The Report includes recommendations by the conference 

participants regarding mental retardation, law enforcement, the 

judiciary, and corrections. 

Albert L. Anderson, D.D.S. 

Vice Chairperson 

President's Committee 

on Mental Retardation 

viii 
Acknowledgements 

The members of the President's Committee on Mental Retardation 

(PCMR) acknowledge Dr. Albert L. Anderson, Vice Chairperson, 

PCMR, and Martin S. Appel, former Chairperson, Subcommittee on 

Full Citizenship and Justice, for their leadership in convening 

the "Presidential Forum on the Offender with Mental Retardation 

and the Criminal Justice System." 

The PCMR also wishes to give special acknowledgement to Richard 

Thornburgh, former Attorney General of the United States, for his 

contributions to the Forum. Special thanks to James K. Stewart, 

Director, Terry Simpson, Special Assistant, National Institute of 

Justice, and John E. Moore, Program Specialist, National 

Institute of Corrections, for their guidance and support. 

In December 1987, Dr. George N. Bouthilet, Coordinator, 

Subcommittee on Full Citizenship and Justice, developed and 

proposed to the PCMR the original initiative to conduct a forum 

relating to the numerous and complex issues faced by citizens 

with mental retardation when they come into contact with various 

components of the criminal justice system. He served as project 

officer for both the planning and convening of the Forum. Also, 

he served as an editor for the PCMR Report to the President. 

In addition, the PCMR is grateful to Ruth Luckasson, Associate 

Professor of Special Education, University of New Mexico, who 

provided consultation to the PCMR in the planning of the Forum. 

The PCMR also thanks Dr. Ronald Conley, Special Assistant, 

Administration on Developmental Disabilities within the 

Administration for Children and Families, Department of Health 

and Human Services, who assisted the PCMR with the Forum and the 

preparation of the PCMR Report to the President. 

The PCMR appreciates and recognizes the outstanding contributions 

made by all participants attending the Forum. The speakers, 

panel chairpersons, and paper presenters, as well as most of the 

attendees, are nationally known leaders and recognized experts in 

the field of mental retardation, law, and the criminal justice 

system. As a result, this Report represents a summary of the 

highlights of a highly successful Forum. 

ix 
Page 2 

The PCMR further acknowledges former and current members, 

especially the members of the Subcommittee on Full Citizenship 

and Justice, who have contributed to making the Forum a success. 

In particular, the Committee wishes to recognize the support 

staff for their persistence and timely work in carrying out the 

necessary activities to implement the Forum. Special note is 

taken of the work done by Jim F. Young, former Acting Executive 

Director, PCMR. 

Finally, the PCMR highlights the special contributions of the cosponsors of the Forum: The Office of Human Development Services 

(now part of the Administration for Children and Families) of the 

U.S. Department of Health and Human Services, the National 

Institute of Justice and the National Institute of Corrections of 

the U.S. Department of Justice, and the Office of Special 

Education and Rehabilitative Services of the U.S. Department of 

Education. Their financial and technical assistance provided the 

means by which the Forum could be convened. 

Sincerely, 

Sambhu N. Banik, Ph.D. 

Executive Director 

President's Committee 

on Mental Retardation 

x 
President's Committee on Mental Retardation 

November 1991 

Louis W. Sullivan, M.D., Chair 

Secretary, U.S. Department of Health and Human Services 

Albert L. Anderson, D.D.S., Vice Chair 

Citizen Members 

Albert L. Anderson, D.D.S. 

Norma G. Bordelon 

Patricia A. Caggiano 1 

Jack T. Dulworth 1 

Patricia Foss 

Vincent C. Gray 

Karen Moffitt, Ph.D. 

Betty B. Osman, Ph.D. 

Edwina Dalton Phillips 

Donald Sapaugh 

Martin S. Ulan 

Kenneth L. Barun 

Robert E. Brown 

Dorothy C. Clark, R.N. 1 

Linda Felner 

Marcia Frey 

Thomas Gunnings, Ph.D. 1 

Dagne B. Olsen 2 

B. Dean Owens 

J. Alfred Rider, 

E. Duane Thompson

1 - Member, Subcommittee on Full Citizenship and Justice 

2 - Chair, Subcommittee on Full Citizenship and Justice 

Ex-Officio Members 

Lamar Alexander, Secretary, U.S. Department of Education 

William P. Barr, Attorney General, U.S. Department of Justice 

Andrew H. Card, Secretary, U.S. Department of Transportation 

Jack Kemp, Secretary, U.S. Department of Housing & Urban Development 

Jane A. Keny, Director, ACTION 

Lynn Martin, Secretary, U.S. Department of Labor 

Staff 

Sambhu N. Banik, Ph.D., Executive Director 

James J. Colarusso, Deputy Executive Director 

George N. Bouthilet, Ph.D.* 

Rosa Singletary-Cooper 

Terry A. Lion 

Laverdia T. Roach 

Peggy A. Butler 

Angie D. Green 

Ashot P. Mnatzakanian 

Bena L. Smith

*Coordinator, Subcommittee on Full Citizenship and Justice; and Project 

Officer, "Presidential Forum on the Offender with Mental Retardation 

and the Criminal Justice System." 

xi 
PCMR Executive Committee and Subcommittee Membership 

November 1991 

Executive Committee 

Albert L. Anderson, D.D.S., Vice Chair 

Vincent C. Gray, First Vice Chair 

Dorothy C. Clark, R.N., Secretary 

Kenneth Barun 

Robert E. Brown 

Dagne B. Olsen 

Sambhu N. Banik, Ph.D. 

Executive Director 

James J. Colarusso 

Deputy Executive Director 

Family and Community Services 

Robert E. Brown, Chair 

Linda Felner 

Vincent C. Gray 

B. Dean Owens 

Edwina Dalton Phillips 

E. Duane Thompson 

Martin S. Ulan 

Norma G. Bordelon 

Patricia Foss 

Ashot P. Mnatzakanian 

Subcommittee Coordinator 

Ex-Officio: Paul Hippolitus 

 Rey Tejada 

 Tacey Clausen 

Full Citizenship and Justice 

Dagne B. Olsen, Chair 

Dorothy C. Clark, R.N. 

Patricia A. Caggiano 

Jack T. Dulworth 

Thomas Gunnings, Ph.D. 

George N. Bouthilet, Ph.D. 

Subcommittee Coordinator 

Ex-Officio: Irene Bowen 

 Margaret Milner

Prevention 

(Vacant) Chair 

Norma G. Bordelon 

Karen Moffitt, Ph.D. 

Betty B. Osman, Ph.D. 

Alfred J. Rider, M.D., Ph.D. 

Laverdia T. Roach 

Subcommittee Coordinator 

Public Awareness

Kenneth Barun, Chair 

Dorothy C. Clark, R.N. 

Jack T. Dulworth 

Karen Moffitt, Ph.D. 

Donald Sapaugh 

Patricia Foss 

Betty B. Osman, Ph.D. 

Bena L. Smith 

Subcommittee Coordinator 

xii 
President's Committee on Mental Retardation 

September 1989 

Louis W. Sullivan, M.D., Chair 

Secretary, U.S. Department of Health and Human Services 

Albert L. Anderson, D.D.S., Vice Chair 

Citizen Members 

Lucia L. Abell 

Martin S. Appel 2 

Patricia A. Caggiano 1 

Margaret Ann Depaoli 

Ruth Govorchin 

Matthew J. Guglielmo 

William Kerby Hummer, M.D. 

Dagne B. Olsen 1 

Alfred J. Rider, M.D., Ph.D. 

Kate Semarad 

George M. Wilson 

Albert L. Anderson, D.D.S. 

Howard P. Blackman, Ed.D. 

Dorothy C. Clark, R.N. 1 

Jack T. Dulworth 1 

Vincent C. Gray 

Jean G. Gumerson 

Alexander L. Napolitano 

B. Dean Owens 

Dwight William Schuster, M.D. 1 

Martin Ulan

1 - Member, Subcommittee on Full Citizenship and Justice 

2 - Chair, Subcommittee on Full Citizenship and Justice 

Ex-Officio Members 

Donna M. Alvarado, Director, ACTION 

Lauro Cavazos, Secretary, U.S. Department of Education 

Elizabeth Dole, Secretary, U.S. Department of Labor 

Jack Kemp, Secretary, U.S. Department of Housing & Urban Development 

Samuel K. Skinner, Secretary, U.S. Department of Transportation 

Richard Thornburgh, Attorney General, U.S. Department of Justice 

Staff 

Jim F. Young, Acting Executive Director 

George N. Bouthilet, Ph.D.* 

Rosa Singletary-Cooper 

Angie D. Green 

Ashot P. Mnatzakanian 

Bena L. Smith 

Peggy A. Butler 

Ronald W. Conley, 

Ph.D. 

Terry A. Lion 

Laverdia T. Roach

*Coordinator, Subcommittee on Full Citizenship and Justice; and Project 

Officer, "Presidential Forum on the Offender with Mental Retardation 

and the Criminal Justice System." 

xiii 

PROGRAM PARTICIPANTS 

PRESIDENTIAL FORUM 

ON THE 

OFFENDER WITH MENTAL RETARDATION 

AND THE 

CRIMINAL JUSTICE SYSTEM 

Speakers

Conference Opening 

Albert L. Anderson, D.D.S. 

Vice Chairperson 

President's Committee on Mental Retardation 

Opening Statement 

James K. Stewart 

Director 

National Institute of Justice 

U.S. Department of Justice 

Conference Overview 

Martin Appel 

Chairman 

Subcommittee on Full Citizenship and Justice 

President's Committee on Mental Retardation 

Special Guest Speaker 

The Honorable Richard Thornburgh 

Attorney General of the United States 

Department of Justice 

Mental Retardation 

H. Rutherford Turnbull, III 

Professor of Special Education 

University of Kansas 

Law Enforcement 

Captain Robert Martin 

Commanding Officer 

Detective Headquarters Division 

Los Angeles Police Department 

The Judiciary 

Judge James G. Exum, Jr. 

Chief Justice 

North Carolina Supreme Court 

Corrections 

John W. Finn 

Director of Forensic Services 

New York Office of Mental Retardation 

and Developmental Disabilities 

xv 
Panel Chairpersons

Panel I 

Martin Appel 

Attorney at Law 

Chairperson 

Subcommittee on Full Citizenship and Justice 

President's Committee on Mental Retardation 

Panel II 

Dolores Norley, Esq. 

Attorney at Law 

Former Member 

President's Committee on Mental Retardation 

Panel III 

Louise Ravenel 

Executive Director 

South Carolina Protection and Advocacy 

System for the Handicapped, Inc. 

Former Member 

President's Committee on Mental Retardation 

Panel IV 

Virginia Thornburgh 

Consultant 

Religious and Disability Program 

Former Member 

President's Committee on Mental Retardation 

Presenters of Papers

Epidemiology 

John Noble, Ph.D. 

State University of New York 

at Buffalo 

Ronald Conley, Ph.D. 

U.S. Department of Health and Human Services 

Clarence Sundram 

New York State Committee on Quality Care 

Apprehension, Identification and Evaluation 

John J. McGee, Ph.D. 

Creighton University, Nebraska 

Competence to Confess and be a Witness 

James W. Ellis, J.D. 

University of New Mexico 

Competence to Stand Trial 

Richard Bonnie, LL.B. 

University of Virginia School of Law 

xvi 
Criminal Responsibility 

W. Lawrence Fitch 

Institute of Law, Psychiatry, and Public Policy 

Forensic Services 

Russel C. Petrella, Ph.D. 

Virginia Department of Mental Health 

and Mental Retardation 

Disposition and Sentencing 

Martin Gerry 

U.S. Department of Health and Human Services 

Frank Laski 

PILCOP 

Correctional Programs 

Jane Hall, Ed.D. 

Georgia Department of Corrections 

Prevention Programs 

David L. White 

Office of Special Offenders Services 

Lancaster, Pennsylvania 

Hubert Wood, M.A. 

Office of Special Offenders Services 

Lancaster, Pennsylvania 

Advocacy and Service System 

Christine Demoll, M.S.S.W. 

Texas Advocacy, Inc. 

The Death Penalty 

Richard Burr 

NAACP Legal Defense and Education Fund 

John Blume 

South Carolina Death Penalty Resource Center 

Training Programs 

Phil Davidson 

University of Rochester Medical Center 

Ruth Messinger-Rockowitz 

University of Rochester Medical Center 

Persons with Mental Retardation as Victims of Crimes 

Ruth Luckasson 

University of New Mexico 

xvii 

CITIZENS WITH MENTAL RETARDATION 

AND 

THE CRIMINAL JUSTICE SYSTEM 

The great majority of people with mental retardation reside in the community and engage 

in the same activities as other citizens. They live in apartments or houses, they work, they 

travel, they watch television, they attend sports events, they have social relationships, and 

increasingly they marry and have children. The majority of people with mental retardation 

are free to choose which activities they engage in, as well as when, where and with whom. 

And among those who require a degree of assistance, most retain some control over their 

activities, particularly over such matters as how they spend their leisure time and with 

whom they associate. 

The percentage of people with mental retardation who live in the community, and the 

amount of control they have over their lives, has increased substantially over the last 30 years. 

This includes people at all levels of mental retardation, including people with severe mental 

retardation. Great advances have been made in our understanding of what people with 

mental retardation can accomplish and in the development of programs designed to assist 

them to integrate into society. The number of people with moderate and severe mental 

retardation living in institutions providing 24-hour a day oversight has greatly declined and the 

number of people with moderate and severe mental retardation who are employed in 

integrated worksites has greatly increased. Many people with mental retardation obtain 

competitive jobs. 

The great majority of people with mental retardation are law-abiding and productive 

citizens and make appropriate choices in their activities. But, as with any other group of citizens, 

there is a small percentage who violate Federal, State, or local laws and who, in consequence, 

may face the prospect of being arrested, tried, and punished in the criminal justice system. 

Because of the intellectual limitations of defendants with mental retardation, 

important and complicated issues arise that must be considered if the integrity of our 

system of justice is to be realized. Do they understand the nature and consequences 

of their acts? Are they able to meaningfully explain the circumstances surrounding 

their alleged offense to law enforcement authorities and to their lawyers? Was there 

a voluntary and reliable confession? Are they competent to stand trial? Can they 
testify competently in court? Should they always be held fully accountable for their 

acts? What role should judges play to ensure the administration of justice? How 

should corrections programs be organized to facilitate their return to society if they 

are imprisoned? Under what circumstances should offenders with mental 

retardation be placed in diversion programs in the community rather than be 

incarcerated? 

The solutions to these and other issues are particularly complex since there are 

wide variations among people with mental retardation in their intellectual 

development, the number, type, and severity of associated disabilities, their ability 

to understand and control their actions, to communicate, and to respond to 

habilitation programs. In consequence, the appropriate response of the criminal 

justice system will vary substantially among offenders with mental retardation. 

Some offenders will understand the nature of their crime and some will not. Some 

will be competent to stand trial and some will not. Types of punishment that might 

be appropriate for some will not be appropriate for others. 

Only limited attention has been given to the special issues that may arise when 

people with mental retardation commit crimes. To begin to address these issues, the

President's Committee on Mental Retardation (PCMR) sponsored a Presidential 

Forum on Offenders with Mental Retardation and the Criminal Justice System in 

September 1989. The Forum also addressed Criminal Justice System issues 

concerning people with mental retardation who may be falsely accused of, or who 

may become victims of, crimes. The term, defendants, will frequently be used in 

order to stress the point that not all people with mental retardation who are accused of 

crimes are guilty. 

During the Forum, it was clear that the issues involving defendants and 

victims with mental retardation can be effectively resolved only through the 

cooperative efforts of the mental retardation and criminal justice systems. In 

consequence, a wide range of people with an interest in these issues were brought 

together at the Forum. Included among the participants were a State supreme court 

justice, a criminal court judge, a police captain, forensic specialists, state corrections 

specialists, county offenders program specialists, consumer advocates, lawyers, 

program managers, and scholars from the fields of law, mental retardation, and 

mental illness. A representative from the field of mental retardation and three 

representatives from the field of criminal justice (law enforcement, the judiciary, and 

corrections) were asked to set forth the issues from their particular points of view 

and to stress those matters which must be resolved if the areas they represent are to 

more effectively serve this population. At the end of the conference, they were asked 

to discuss what they believed they gained from their participation and what needed 

2 
to be done. 

Subsequently, the speakers at the conference prepared papers on issues

involving defendants with mental retardation as well as a paper on the difficulties 

that people with mental retardation who have crimes committed against them face 

when dealing with the criminal justice system, e.g., will their testimony be given full 

weight by the court? Will they be devalued as citizens? These papers were 

published in a book entitled The Criminal Justice System and Mental Retardation: 

Defendants and Victims.1

FINDINGS

What are the more important observations about issues involving defendants 

and victims with mental retardation that can be gleaned from the Forum and the 

papers subsequently prepared? 

Nature and Scope of Issue 

The number of people with mental retardation who commit crimes cannot be 

ascertained with much confidence. Obviously, it is impossible to know if a crime 

was committed by a person with mental retardation unless the perpetrator is 

apprehended, tried, and convicted. Even if apprehended, the accused person is 

usually not identified as having mental retardation by the police, the courts, or even 

by his or her lawyer. 

It is not until the defendant is convicted and sentenced to prison that 

systematic testing to identify the existence of mental retardation is conducted. Even 

at this point, there may be great uncertainty as to the accuracy of the diagnosis. 

Usually, a diagnosis of mental retardation is based on a test of intelligence. But 

individual test scores may be greatly affected by the type of test, the time at which 

the test is administered, the attitude of the prisoner being tested, and the existence 

of concomitant physical and mental disabilities. Two observations are critical. 

First, rates of mental retardation reported for prisoners are often overstated. This 

is because prisoners are often administered group tests shortly after entering prison 

when they are likely to be frightened, hostile, or in a non-cooperative mood. In 

addition, prisoners who have substance abuse problems (e.g., alcoholism, drug 

addiction), emotional illnesses, other physical disabilities, or who are functionally 

illiterate will often score below their capabilities. When individualized tests are 

1

Baltimore: Paul H. Brookes Publishing Co., 1991. 

3 
administered at a later time, average intelligence test scores are invariably higher. 

Second, rates of mental retardation reported by Federal and State prisons 

vary widely because of differences in the types of tests administered, the time of 

testing, and other reasons. Based on available evidence from States that employed 

individualized Wechsler Adult Intelligence Scale - Revised (WAIS-R) tests for 

prison inmates, usually after a settling down period, it appears that the best 

estimate of the percentage of people in Federal and State prisons with mental 

retardation is two percent, about one-fifth of earlier widely accepted rates that were 

based largely on less sophisticated group tests. In 1988, this would amount to about 

12,500 prisoners, an estimate that should be revised upward to about 14,000 

persons currently because of the rapid growth in prison populations that has been 

taking place since that year. 

Some people with mental retardation who commit or are accused of crimes 

are placed in residential facilities for people with mental retardation. It appears that 

at least five percent of the people in these facilities, or about 12,500 people, had 

previously engaged in activities that might be characterized as criminal or 

undesirable, e.g., they engaged in thefts or engaged in actions that injured others or 

damaged property, although most were not formally charged with committing a 

crime. Moreover, some people who are placed in institutions are there because of 

the fear that they may commit illegal or violent acts in the future. Other defendants 

with mental retardation are confined in local jails, in residential facilities for people 

with mental illness, or are placed in diversion programs in the community. 

Relative to an estimated population of seven million Americans with mental 

retardation, PCMR estimates that about 26,500 are confined in Federal or State 

prisons or in residential institutions for people with mental retardation, which is not 

an inordinately high number of individuals compared to the rest of the population. 

Even if the estimate is doubled to allow for defendants placed in local jails and 

prisons or in other programs, it does not appear that people with mental retardation 

are involved in an unusual amount of criminal activities. 

Nonetheless, the number is not insignificant and presents a challenge to the 

criminal justice system to assure that these individuals are accorded the same 

measure of justice as other Americans who commit crimes. 

Characteristics:

 The majority of offenders with mental retardation in Federal or 

State prisons are male. 

4 
 The percentage of prisoners identified as having mental retardation in 

Federal and State prisons who were Black tends to be much larger than 

their representation in the general prison population which itself tends to 

be disproportionate to their representation in the State population. 

 The great majority of prisoners have mild mental retardation, largely 

(and obviously) because most people with mental retardation have mild 

mental retardation. Moreover, offenders with moderate and severe 

mental retardation are sometimes diverted to institutions for people with 

mental retardation. Nonetheless, there are persistent reports of people 

with I.Q.s below the 50-55 range being held in prisons. 

 People with mental retardation should not be mistaken for people with 

mental illness, although some people with mental retardation may also 

be mentally ill. Unfortunately, this is a distinction that may not always be 

easily discernible or of immediate importance to the police investigating 

a crime. 

 Some inmates with mental retardation have additional disabilities, e.g., 

mental illnesses or physical disabilities, which may greatly impede a 

diagnosis of mental retardation as well as greatly influence the types of 

habilitation plans that are most appropriate. 

Types of Crimes

The frequent claim that offenders with mental retardation tend to commit 

serious crimes is misleading. To begin with, this observation is usually based on data 

from Federal and State prisons which are likely to receive inmates who commit 

serious crimes. Less serious crimes frequently do not lead to incarceration. In addition, 

a cross section of inmates in Federal and State prisons would encompass more severe 

crimes, on average, than admissions to these facilities. Prisoners who commit less 

severe offenses will be released, placed on parole, or receive shorter sentences and be 

released earlier than prisoners who commit more serious offenses. 

Frequently, people with mental retardation are followers, easily manipulated, 

and often used by others with more intelligence and/or experience. As examples, they 

may act as lookouts, transport drugs or other contraband, carry a forged check into a 

bank, or attempt to sell merchandise stolen by others. 

5 
Reasons for Committing Crimes

Persons with mental retardation who commit crimes do not do so because of 

mental retardation. They commit crimes for the same complex reasons that other 

people may commit crimes - childhoods in which appropriate discipline and moral 

values were not instilled, inability to find jobs, friends and companions who 

encouraged them to commit crimes, exclusion from habilitation and training 

programs that would develop needed job skills, errors in judgment, and the like. 

It cannot be emphasized too strongly that it is the family and community that 

usually teach values to people, including people with mental retardation. It is from 

these sources that people develop a sense of identity, learn right from wrong, gain 

cultural values, and acquire skills for interacting with other people. Many 

defendants with mental retardation come from broken or dysfunctional families and 

have poor community support. They may develop low self-esteem from performing 

poorly in school, the low expectations from family members, and the lack of support 

and encouragement from family and community. They seldom succeed at 

overcoming problems and often lack high self-regard. 

Although it is often noted that mental retardation, in contrast to many cases 

of mental illness, is expected to be life-long in duration, it must be emphasized that 

with training and education, people with mental retardation can almost always be 

taught appropriate social values and be helped to obtain skills for working and living 

in the community. 

Identification

The identification of a person as having mental retardation is often delayed 

until after trial and sentencing. This delay may prevent the prosecution, the defense, 

and the judge and jury from giving appropriate consideration to the effects of mental 

retardation in determining competency, criminal responsibility, appropriateness of 

punishment, and suitable habilitation programs. 

One reason for these delays is the limited understanding of mental retardation by 

many personnel in the criminal justice system. Another reason is the limited 

resources available to many courts for purposes of making a proper diagnosis. 

Forensic examiners are more likely to be trained in mental illness than mental 

retardation. 

Another difficulty in early identification is that most defendants with mental 

retardation have mild mental retardation and their disability may not be immediately 

6 
apparent. In addition, they often do not want to be identified as having mental 

retardation and will attempt to conceal its existence. Still another problem is that 

the existence of other disabilities increases the difficulties of identifying people with 

mental retardation. On the one hand, these disabilities may be so overshadowing 

that they obscure the existence of mental retardation and may even prevent 

intelligence testing from taking place. On the other hand, if the individual is tested, 

the effects of these other disabilities may cause an artificially low score. It is 

extremely difficult to obtain reliable test scores on conventional tests from individuals 

undergoing an emotional crisis, with a learning disability, who have visual problems, 

or who have difficulty with hand coordination. 

There are many technical problems in making a diagnosis of mental 

retardation, whether at the point of initial contact or at the time of imprisonment. 

All intelligence tests have limitations and can, at best, be considered an estimate of 

intelligence. One consequence of this is that intelligence test scores vary from test to 

test and, in some cases, the variation is substantial. And a further consequence is 

that an I.Q. measure which is a few points above or below (or even substantially 

above or below) the usual cut-off point does not constitute definitive proof that the 

individual has or does not have mental retardation. Considered and informed 

clinical judgment must be employed in order to make a diagnosis of mental 

retardation. The results of intelligence tests need to be supplemented by measures 

of adaptive functioning levels and by the past history of individuals with suspected 

mental retardation. 

Understanding of Mental Retardation

One theme that repeatedly came up during the conference was that judges, 

public defenders, and police and correctional officers often did not understand 

mental retardation sufficiently. In fact, it was noted that the primary focus of police 

officers was usually on determining the nature of a crime and its perpetrator. In 

these circumstances, the mental status of an accused person is not always considered. 

The determination of mental disability and the appropriate disposition of the case is 

sometimes regarded as a matter that should be left to the courts. Fortunately, this 

attitude is changing. 

In addition, apparently, there are still many people who do not understand 

that most people with mental retardation are self-supporting or nearly so and are 

worthwhile and productive members of society. Some people still attach a stigma to 

the term "mental retardation" - a stigma that may be greatly exacerbated when the 

label "offender" or "criminal" is added to it. Fear of these labeled individuals may 

affect the likelihood of a just and reasonable response when a person with mental 

7 
retardation commits a crime. 

Conversely, at the Forum, it was repeatedly stated that the criminal justice 

system is unfamiliar to many people in the field of mental retardation. The criminal 

justice system may not be seen as a resource to assist people in the same way as 

education, employment, social service, and other programs for people with mental 

retardation. 

Miranda Warning

A fundamental right in the American system of justice is that at the point at 

which a person is arrested, he or she must be notified of Miranda rights, i.e., the 

right not to answer questions and the right to counsel. This poses particular 

problems in the case of offenders with mental retardation. A rapid recitation of the 

Miranda warning, which contains a number of complicated provisions, may be dimly 

comprehended by the offender or may not be understood at all. This is particularly 

important since the offender may be so frightened by the police that he or she would 

be fearful of invoking the protections that are identified, particularly if they are not 

well understood. In addition, individuals with mental retardation are sometimes 

easily led and intimidated, and may have a desire to please the questioner, which 

makes them vulnerable when questioned by authorities anxious to resolve a crime. 

In consequence, offenders with mental retardation may confess to crimes, or 

provide other information when it is not in their best interest to do so. In some 

cases, it was observed at the conference that persons with mental retardation confess 

to a crime, even though they did not commit it. Further, the information they 

provide is sometimes of doubtful accuracy, not because of an intent to deceive, but 

because of limited ability to observe, comprehend, and express themselves. 

Since prosecution cases are often based primarily on confessions and 

information given by accused persons, a failure to utilize the rights provided by the 

Miranda warning can place offenders with mental retardation at a severe 

disadvantage and sometimes result in a miscarriage of justice. 

Competence to Stand Trial

It is a well-established legal principle that an accused person should not be 

brought to trial if he or she is unable to understand the nature and purpose of the 

proceedings, or to consult with counsel and assist in his or her defense. There is 

reason to believe that insufficient consideration is given to this issue in the case of 

8 
defendants with mental retardation. 

To begin with, there is limited, but convincing evidence, that most defendants 

with mental retardation are not identified as having mental retardation, or referred for 

an assessment of their competency to stand trial. The failure to identify accused 

persons is partly due to the limited resources available to most courts and partly to a 

lack of understanding of mental retardation that is found to be common among many 

prosecutors, defense attorneys, and judges. Another problem is that people with 

mental retardation sometimes attempt to prevent discovery of their disability. Still 

another problem is that most forensic evaluations for competence to stand trial focus 

on the interaction of mental illness and competence rather than the interaction of 

mental retardation and competence. 

Accused persons with mental retardation who are not identified as having 

mental retardation are severely disadvantaged in arranging fair and appropriate legal 

representation. Their legal rights are less likely to be protected, and an 

appropriate and fair disposition of the case may not be made. They are unlikely to 

be aware of their right to remain silent or to refuse to answer incriminating 

questions. Lack of identification may be particularly widespread in cases involving 

minor offenses. These are the cases in which accused individuals are least likely to 

be represented by legal counsel and courts may lack both the resources and the 

interest to determine whether an accused person has mental retardation. 

Even if a defendant is identified as having mental retardation, the adequacy 

of representation and the fairness of adjudication depends largely on the ability and 

inclination of the defense attorney to compensate for the client's limitations. The 

pressures to cut corners in criminal defense, especially for public defenders and 

court-appointed counsel working for a set fee, are well known. Frequently, as 

observed at the Forum, inadequate time is spent on the case and important facts are 

masked or distorted. Lack of familiarity with mental retardation on the part of the 

defense attorney can make matters worse. In consequence, lawyers may be 

providing inadequate representation to a large number of clients with mental 

retardation who require more skillful interviewing and counseling than they provide. 

Note that it is not always in the best interest of an accused person to be 

identified as having mental retardation and declared incompetent to stand trial. 

Although an incompetent person may not be convicted, he or she may be committed 

indefinitely (without being tried for the offense) for the purpose of assessing the 

probability that competency can be effected in the foreseeable future and for making 

efforts to do so. In consequence, some lawyers prefer to plea bargain for a finite 

and known punishment rather than risk an indefinite commitment. One of the 

9 
perversities in the criminal justice system is that a person who is incompetent to 

stand trial may be better off if he or she is treated as competent to stand trial. 

A final problem in establishing competency is that the issue of what constitutes 

competency itself is complex. Competency is a legal concept referring to an accused 

person's ability to understand the nature and purposes of the trial and an ability to 

assist counsel in his or her defense. A defendant with mental retardation is not 

necessarily incompetent for legal purposes. There are crucial judgmental issues 

involving how much understanding the accused person must have and how accurately 

and effectively he or she must be able to assist in the defense. Few people would 

want to convict and punish a person who is unable to understand the nature of the 

proceedings, the charges against him or her, the nature of the punishment, and who is 

unable to provide counsel with reliable information or to give coherent testimony. 

There is, however, a grey area, where defendants have varying levels of competency 

where conviction may or may not be considered appropriate. Moreover, defendants 

may be competent in some ways and not others. For example, in theory, a 

defendant may be able to assist his or her attorney and stand trial, yet not be 

competent to plead guilty because of imperfect understanding of the effects of 

pleading guilty and available alternatives. 

Criminal Responsibility

The issue of criminal responsibility refers to the extent to which a person's 

impaired mental functioning may reduce the extent to which he or she should be held 

accountable for a criminal act. If, at the time of the offense, he or she had an 

impaired understanding that the act was wrong and that punishment could follow, or 

had an inability to control behavior, then he or she might not be held criminally 

responsible, depending upon circumstances. 

Clearly, some people with mental retardation who commit offenses are aware 

that their behavior is wrong, can control their conduct, and know the consequences if 

apprehended. However, the degree to which people with mental retardation 

understand these issues, appreciate their importance, and can control their conduct 

varies widely. For example, some people with mental retardation are susceptible to 

being led by others, have a desire to please, and are impulsive. These are factors 

which may or may not be regarded as affecting the level of criminal responsibility. 

In cases where people with mental retardation have an impaired understanding of 

the wrongness of an act, or reduced ability to control their behavior, difficult issues 

arise in determining the extent to which the effects of mental retardation should be 

a defense. 

10 
Numerous legal tests to determine whether a person is criminally responsible 

have been devised. These tests are usually developed for people with mental illness 

and then utilized, inappropriately, for people with mental retardation. A major 

shortcoming of most of these tests is that they employ an "either/or criteria". For 

example, the American Bar Association recommends that a person should not be 

considered criminally responsible if, at the time of the crime, he or she was unable 

to appreciate the wrongfulness of the act due to mental retardation or mental illness. 

But what if the accused person could only partly appreciate the wrongfulness of the 

act? Should he or she still be accorded the same rigorous punishment as prescribed 

for individuals who fully appreciate the wrongdoing? Or what if the accused person 

did not appreciate the wrongfulness of the act because he or she was never taught 

that the act was wrong, not because he or she was incapable of understanding that 

the act was wrong. 

Several remedies for this problem have been instituted or proposed, usually 

for persons with mental illness. In 12 States, verdicts of "guilty but mentally ill" can 

be rendered. In principle, this would lessen the punishment prescribed and assure 

that rehabilitation services are provided. In practice, such a verdict has provided 

little benefit to defendants and, in some cases, has caused harm. Such a verdict may 

still allow incarceration; in some States, involuntary commitment is automatic. One 

problem is that the imprisonment may last a lifetime rather than be the finite 

sentence that would otherwise be rendered. Another problem is that it appears that 

few individuals who receive this verdict actually receive needed treatment. 

It has also been proposed that people with mental retardation may have 

diminished criminal responsibility. Such a verdict is not currently possible under the 

law in any State in the United States. However, when there is discretion in the 

severity of punishment, a judge may implement this principle de facto by opting for 

a less severe sentence that would be given if the individual did not have mental 

retardation. 

As early as 1962, the President's Panel on Mental Retardation took the 

position that: "For such persons, imprisonment for the sake of punishment is never 

appropriate."2

 In effect, the goal would always be to habilitate the offender with 

mental retardation so that he or she could successfully return to the community. 

2

See Report of the President's Panel on Mental Retardation, 

1962. The President's Panel on Mental Retardation existed for 

one year, 1961-1962. The President's Committee on Mental 

Retardation was authorized in 1966 and has continued since that 

time. 

11 
Forensic Services

Forensic services are the application of a body of scientific knowledge and 

principles to issues in the legal system. A major task of forensic services is the 

determination of whether a defendant is competent to stand trial and is criminally 

responsible. In the case of people with mental retardation, the forensic examination 

must first establish the existence of his or her disability, and then must make a 

determination as to his or her competency to stand trial. Forensic evaluations for 

this purpose are typically ordered by the courts at the request of the defense, the 

prosecutor, or the judge. 

The adequacy of competence evaluations for defendants with mental 

retardation has been questioned on grounds that they are not carried out frequently 

enough and they are often inadequate. Consider the following data from Virginia. 

In 1987, there were 1500 forensic evaluations conducted to determine criminal 

responsibility and competency to stand trial. About 7.2 percent (108 persons) of the 

individuals evaluated were identified as having mental retardation. During the same 

time, 680 people admitted to correctional institutions were identified as having 

mental retardation. This indicates that approximately 550 to 600 individuals with 

mental retardation were arrested, convicted, and sentenced to prison and their 

disability was not identified until after imprisonment. 

The Virginia data appear consistent with other studies. Data from six other 

States indicates that the percentage of persons identified as having mental 

retardation after undergoing forensic evaluation range from 2.5 percent to 7.3 

percent with an average of 6 percent. 

Despite their intellectual limitations, the majority of people who were 

identified as having mental retardation by forensic examination were judged 

competent to stand trial, i.e., able to understand the proceedings and to assist in the 

preparation of their defense. In the six States for which information is available, the 

percentage of defendants found to have mental retardation and who were 

recommended as incompetent to stand trial ranged from only 12.5 percent to 33 

percent. As would be expected, the more severe the level of mental retardation, the 

less likely that an accused person would be assessed as competent to stand trial. In 

Virginia, 23 percent of defendants who were identified as having mild mental 

retardation were considered incompetent to stand trial as compared to 68 percent of 

defendants who were identified as having moderate mental retardation. 

An even larger percentage of defendants identified as having mental 

retardation were also judged to be responsible for their actions, i.e., they understood 

12 
that their act was wrong and that they would be punished if apprehended. In 

Virginia, during a four year period, 88.6 percent of individuals identified as having 

mental retardation were recommended as criminally responsible. Other studies have 

reported even higher rates of criminal responsibility. In Virginia, this came to 94.0 

percent of defendants with mild mental retardation and 66.7 percent of defendants 

with moderate mental retardation. 

In the Virginia data for 1987, most people with mental retardation who were 

found competent to stand trial were also held to be criminally responsible. But the 

converse was not true. Fifty-five percent of people with mental retardation who 

were found not competent to stand trial were judged by the forensic examiner to be 

criminally responsible for their acts. Unfortunately, information is lacking regarding 

the disposition of these cases. How many, if any, were eventually brought to trial? 

What types of punishments, if any, were prescribed? And if there were 

punishments, how could they be justified if people were unable to stand trial? 

Forensic examinations administered to people with mental illness or mental 

retardation are usually conducted by professionals in State or local departments of 

mental health and are focused on individuals with mental illness. In many cases, the 

forensic evaluators for people with suspected mental retardation are psychiatrists 

and/or psychologists who have received little training, and have little experience, in 

issues related to mental retardation. Thus, many evaluations are of questionable 

validity and have limited reliability. Unfortunately, the conduct of forensic 

evaluations in the public sector often does not include consultation with mental 

retardation experts. 

Sentencing

The sentencing of an offender attempts to balance the sometimes conflicting 

goals of punishment, rehabilitation, protection of the public, confinement of 

offenders considered dangerous, and public acceptance of the sentencing decisions. 

Prior to 1975, most States established maximum and minimum sentences and judges 

had considerable discretion between these limits. Since then, there has been a move 

to standardize prison sentences and limit the judges' discretion and in some cases to 

eliminate or restrict parole releases. Unfortunately, the effects of mental retardation 

have not been regarded as a mitigating factor in sentencing many offenders with 

mental retardation who have been found criminally responsible and competent to 

stand trial. 

The importance of rehabilitation versus other correctional goals varies in the 

minds of judges and jurors when setting or recommending sentences. However, the 

13 
likelihood that a sentence will give significant weight to a habilitation program for 

defendants with mental retardation is reduced for three reasons. First, there is a 

growing emphasis on punishment rather than rehabilitation for all offenders. 

Second, the effectiveness of rehabilitation for offenders is sometimes questioned 

despite the existence of a number of successful rehabilitation programs. Third, 

appropriate community-based correctional rehabilitation services are usually not 

available for offenders with mental retardation. This emphasis on punishment may 

be self-defeating if offenders are not prepared to make a living and cope with the 

stresses of life outside of prison. The great majority of prisoners are released back 

to the community. 

An important element in formulating a sound response to the needs of 

offenders with mental retardation is a competent system of screening and evaluation 

prior to sentencing so that the suitability of alternatives to incarceration can be 

weighed, and the most appropriate disposition of the case effected. If the effects of 

mental retardation were consistently regarded as a mitigating factor when 

determining punishment, this would allow more emphasis on the use of probation 

and community programs. 

Death Penalty

Although professionals, consumers, and others in the field of mental 

retardation may differ in the extent to which they believe particular individuals with 

mental retardation should be held culpable for criminal acts, and the extent to which 

the effects of their disability should mitigate punishment in individual cases, most 

people in the field believe that the death penalty is never appropriate. 

The case of Johnny Paul Penry, a person with mental retardation convicted 

of a brutal murder and sentenced to death, can be used to set forth their arguments. 

Penry's case was appealed to the Supreme Court of the United States. The issue was 

whether the death penalty was an appropriate and constitutional punishment if the 

guilty person had mental retardation. A brief was prepared and submitted to the 

Supreme court as Amici Curiae by the American Association on Mental Retardation, 

the American Psychological Association, the Association for Retarded Citizens of the 

United States and eight other professional and voluntary associations knowledgeable 

about people with mental retardation. 

The brief argued against the imposition of the death penalty for Peary and, 

by extension, to all persons with mental retardation in the United States. The 

arguments made against the death penalty are summarized as follows: 

14 
 Mental retardation substantially diminishes people's ability to cope 

and function in the everyday world. 

 The death penalty is reserved for defendants with highest 

"blameworthiness and moral culpability," factors which are necessarily 

limited in the case of a person with mental retardation. 

 The death penalty is disproportionate to the degree of culpability of any 

defendant with mental retardation. The highest functioning individuals in 

the "mild" mental retardation category have, by definition, 

substantial cognitive and behavioral disabilities. 

 Execution of a person with mental retardation serves no valid 

phenological purpose. 

It must be emphasized that the brief did not argue that all punishment is 

inappropriate - only that the death penalty is too extreme in the case of a person 

with mental retardation. The Supreme Court was not convinced by these arguments 

and on June 26, 1989 decided, by a 5 - 4 vote, that it has not yet been proven that 

imposition of the death penalty upon a person with mental retardation is a cruel and 

unusual punishment. 

Correctional Facilities

It has been suggested that the sharp reduction in the number of residents in 

institutions for people with mental retardation that has occurred over the last 20 

years, and is still proceeding, has caused some people to be sent to prison who would 

formerly have been placed in these institutions. In part, this is due to a lack of 

alternative appropriate community programs. It should be emphasized, however, 

that the estimated percentage of inmates with mental retardation in Federal and 

State prisons appears to be less than the prevalence of people with mental 

retardation in the general population. 

There are a number of important issues concerning the imprisonment of 

people with mental retardation. There are, of course, the generic issues facing most 

correctional institutions of rapidly expanding populations, longer sentences, serious 

overcrowding, and rising costs. However, the more important issue concerns the 

usually inadequate or non-existent programs for rehabilitation and other services 

provided to inmates with mental retardation. It is estimated that less than 10 

percent of inmates with mental retardation receive any specialized services. It is not 

surprising that prisoners with mental retardation often do not adjust well in prison 

15 
or do well in interviews with the parole board. Consequently, the inmate with 

mental retardation is apt to serve a longer part of his or her sentence before parole 

than other inmates, be more frequently punished, benefit less from habilitation 

programs, and be returned to prison more often than other parolees. Without such 

programs, the chances of offenders with mental retardation becoming law-abiding 

and productive citizens after being released from prison are greatly reduced. 

A major cause of inadequate and inappropriate programs is a lack of 

resources and expertise with which to establish programs. In the long run, this may 

be "penny wise and pound foolish" if it leads to higher recidivism rates and more 

frequent and longer stays in prisons. 

Another problem in developing appropriate habilitation programs is that 

correctional personnel have multiple missions. Security and order are clearly the 

first priority of wardens, prison guards, and most other prison personnel. Their 

decisions regarding how to achieve these security goals almost always take 

precedence over the training and habilitation activities and procedures urged by 

prison counselors and other habilitation personnel. Conflicts between these goals 

lead to staff tensions and impede habilitation programs. Habilitation is best 

considered as a full-time process involving all prison employees, not something that 

only takes place during predetermined periods of the day and involving habilitation 

personnel only. 

The emphasis on security in prisons is enhanced because, at times, the 

prisoners themselves may appear aggressive and uncooperative. In consequence, 

there may be little incentive or interest in making the extra effort that is needed to 

provide habilitation and training programs to this population. 

In fact, the ability to survive in prison may require aggressive behavior which 

amplifies poor behavior rather than encouraging good behavior. It is not uncommon 

for certain prison inmates, especially those with mental and physical impairments, 

to be abused or victimized, have their personal property stolen, be forced to perform 

sexual acts, and be compelled to violate prison rules. Some inmates learn to cope 

by being the abusers rather than the abused. Others become perpetual victims. 

To be effective, habilitative services in correctional institutions must vary in 

accordance with individual needs, circumstances of the offenders (nature of crime, 

how long before release, disability, etc.) and must be supported by the entire staff, 

not just counselors and treatment personnel. In some ways, line staff are more 

important than treatment staff since they spend more time with inmates and are 

often more alert to problem behaviors. Unfortunately close cooperation is 

16 
infrequently achieved and program staff may feel isolated and unsupported in 

prisons. "Burnout" among prison staff becomes almost inevitable. 

Because limited prison resources and expertise often preclude the 

establishment of multiple programs, most programs for prisoners with mental 

retardation are operated at the maximum security level since all inmates at all levels 

of security risk can be placed there. This causes many of the inmates in these 

programs to be placed in unnecessarily restrictive arrangements. 

Despite these problems, excellent examples of prison programs for inmates 

with mental retardation have been developed in a few States. These programs 

typically involve line correctional officers as well as habilitation personnel, offer 

individualized programs, and focus on developing life skills training through special 

education, vocational activities, recreation, and case management. 

Children in juvenile detention facilities fall under the protection of Public Law 

101-476, the Individuals with Disabilities Education Act (IDEA), which requires that 

all children with disabilities be given a free appropriate public education. It 

appears, however, that this requirement is rarely met in the case of youth with 

mental retardation who are imprisoned. 

Community-Based Programs

For many offenders, the most effective correctional programs are usually those 

provided in community (diversion) programs rather than in prison settings. This 

avoids the negative consequences of imprisonment and immediately initiates the 

rehabilitation process. Community programs for offenders with mental retardation 

can take many forms, e.g., they can require that the offender with mental 

retardation stay in a supervised residential facility, or they can place the offender on 

probation on condition that he or she participate in a special program, or utilize 

some other form of diversion program. 

There are a number of outstanding community programs for offenders with 

mental retardation. The one characteristic that these different programs always 

have is that they are based on an individualized plan. These programs have 

demonstrated that, through special programming and assistance, offenders with 

mental retardation can be taught to adopt prevailing social values and be enabled to 

acquire vocational and other skills that help them to work and live in the 

community. 

17 
The Lancaster County, Pennsylvania joint mental retardation and criminal 

justice system program has been frequently cited for outstanding performance in the 

provision of services to offenders with mental retardation. This pioneering program 

has been in existence over 10 years. The program has had a recidivism rate of only 

five percent, which is less than one-tenth of what might be expected without such a 

program. From the onset, a critical feature of this program was close and ongoing 

cooperation between criminal justice and mental retardation personnel. In fact, the 

first priority in the development of the Lancaster model was to train criminal justice 

personnel in the characteristics of people with mental retardation and in the many 

issues involving offenders with mental retardation. In order for the program to 

work effectively, it is essential that all members of the criminal justice system 

understand these issues and the most appropriate way of dealing with them. 

Similarly, mental retardation professionals were trained in the operations and 

requirements of the criminal justice system. 

The Lancaster model assumes that most adults and juveniles with mental 

retardation, particularly among individuals with mild mental retardation and no 

additional disabilities, can and should learn to be responsible citizens and be 

accountable for their actions. To teach offenders with mental retardation to be 

responsible citizens, the Lancaster program provides education, training, counseling, 

and other services that are incorporated in an individualized plan designed to meet 

the needs of each client. 

Despite the success of the Lancaster and other programs in assisting offenders 

with mental retardation to change their behavior, similar programs are not generally 

available for offenders with mental retardation who could benefit from them. 

Consequently, most offenders with mental retardation are imprisoned or 

institutionalized because of the lack of alternatives. Often the community mental 

health and mental retardation programs are unaware of, uninterested in, or are 

overwhelmed by the special needs of offenders with mental retardation. 

Another reason why offenders with mental retardation may not be placed in 

appropriate community programs involving prison alternatives is that judicial or 

correctional authorities do not realize that these individuals can benefit from such 

programs. 

A final problem is that there is too little research on methods of habilitating 

offenders with mental retardation. 

18 
Prevention

The most effective habilitation strategy would be to instill the values and 

knowledge into people with mental retardation that would avert any need or 

temptation to commit crimes. It follows that the most effective prevention programs 

are those initiated at an early age. The Lancaster, Pennsylvania, program has 

developed a prevention strategy that consists of holding classes for special education 

students to instruct them on laws and the reasons for them. They are also provided 

information on arrest procedures, the detention center, placement facilities, the 

responsibilities of citizens to obey the law, and the consequences of breaking laws. 

The administrators of the Lancaster program believe that individuals with 

mental retardation break the law because of low self-esteem, the influence of more 

experienced and knowledgeable peers, and a lack of knowledge of the consequences 

of their actions. The Lancaster program for rehabilitation and treatment is designed to 

eliminate these causes of criminal behavior. 

Service System Problems

The combined efforts of the criminal justice system and the service system for 

people with mental retardation are required to resolve issues involving offenders with 

mental retardation, i.e. to protect their constitutional rights, to assure that 

punishment is appropriate, and to prepare them for eventual return to society. 

There are, however, many problems and barriers to effective cooperation and 

coordination between these systems. 

 Lack of specialized community services: There is a shortage of 

resources and personnel to work with offenders with mental 

retardation. This imposes major barriers to effective habilitation and 

may cause an offender with mental retardation to be imprisoned or 

institutionalized for lack of a suitable alternative. 

 Lack of Coordination: Defendants with mental retardation often fall 

through the cracks and receive inappropriate services because neither 

the criminal justice system nor the mental retardation system wishes to 

take primary responsibility for them. Most mental retardation 

programs are reluctant to assume responsibility for an individual with 

apparent mental retardation when he or she is apprehended by police 

officers. At the same time, criminal justice programs often expect 

19 
mental retardation programs to provide the needed services or 

intervention. Workers in both systems often do not know how to deal 

effectively with the offender with mental retardation or how to involve 

the other system. 

Confidentiality

In one jurisdiction, it was reported that when the police attempt to determine 

whether a suspect had been previously placed in a residential or treatment facility, 

facilities will sometimes refuse to divulge that information on the grounds that it is 

confidential. This sometimes makes it difficult for the police to arrive at a 

disposition of the case. 

Advocacy Programs

Many defendants with mental retardation do not have access to advocacy 

programs. There are, however, scattered examples of outstanding programs. For 

example, some units of local Associations for Retarded Citizens have instituted 

programs for offenders with mental retardation. The American Association on 

Mental Retardation has taken on a national leadership role in the education of 

professionals in mental retardation on issues involving defendants with mental 

retardation. 

State Protection and Advocacy programs for people with developmental 

disabilities are logical sources of advocacy for people with mental retardation and a 

number have established programs for this purpose. In principle, defendants with 

mental retardation should be able to obtain help from Protection and Advocacy 

agencies to assure that their rights are protected, that they are adequately 

represented in court, and that they are helped to obtain appropriate services. 

Protection and Advocacy agencies should also be involved in arranging for 

independent evaluations, and perhaps challenging the findings of evaluations, when 

people accused of crimes have mental retardation. However, the resources available 

to Protection and Advocacy agencies and other advocacy programs are limited and 

can meet only a small proportion of the need. 

Training

Repeatedly, it was stated at the Forum and in the papers subsequently 

prepared that neither the field of mental retardation nor the criminal justice system 

has enough people able to deal with the problems of offenders with mental 

retardation. People qualified in one system generally have little training or 

20 
experience in the other or much understanding of it. For example, Shilit, in 19793

, 

found that 90 percent of lawyers, judges, and police officers in New York State had 

no training in mental retardation. Subsequently, New York State undertook an 

initiative to improve the criminal justice system for people with mental retardation. 

Few States have training programs for the police, judges, lawyers, and 

correctional officers regarding the problems posed by defendants with mental 

retardation. The major barriers to training are a lack of resources with which to 

develop and provide training programs and a tendency by both the mental 

retardation and the criminal justice systems not to regard offenders with mental 

retardation as a priority area. 

Scattered efforts to expand training in the area have been made. 

Developmental Disabilities Planning Councils have funded a number of special 

projects in this area. As examples, the New York State Planning Council funded 21 

projects dealing with issues concerning offenders with mental retardation and made 

this a priority area. The Nebraska Planning Council funded the development of the 

Individual Justice Plan. The Arizona Planning Council funded the development of 

A Guide for Law Enforcement Officers.

University Affiliated Programs (UAPs) are a potentially important resource for 

the development of training materials and the provision of training in this area. 

However, UAP efforts are limited. In a 1989 survey of UAPs, 134

 reported that 

they had been involved in some training efforts concerning offenders with disabilities 

during the previous three years. Some of these UAPs had training materials 

available, but these materials did not appear to be well-known, even among other 

UAPs. These 13 UAPs planned to continue their activities in this area and three 

other UAPs planned to initiate training efforts. 

Victims

Inevitably, some Americans with mental retardation become victims of crime. 

In fact, the nature of their disability may make them especially vulnerable because 

of impaired judgment, deficits in adaptive behavior, and accompanying physical 

disabilities. In addition, they are vulnerable because they frequently live and work 

3

Shilit, J. (1979). "The Mentally Retarded Offender and 

Criminal Justice Personnel." Exceptional Children, 46, pp. 16-

22. 

4

40 UAPs, out of 54 which were sent questionnaires, 

responded.

21 
in high crime areas, lack knowledge of how to protect themselves, and sometimes 

have limited knowledge or ability regarding ways to seek protection from courts and 

law enforcement officers. 

There is little information on the frequency or the types of crimes committed 

against people with mental retardation. They appear to be especially vulnerable to 

physical and sexual assaults. Many are easy targets for being overcharged or shortchanged or of being tricked into buying things they neither desire nor need. They 

do not always know how to protect themselves from thefts or other economic crimes. 

People with mental retardation have even been victimized physically, sexually, and 

in other ways while undergoing habilitation services or while in residential care 

settings by staff or other residents. 

Crimes against people with mental retardation are frequently not reported.

Those crimes that are reported are often classified as "abuse and neglect" rather 

than crimes. Failure to report crimes or misclassification of crimes has several 

causes. Some people with mental retardation would not know how to report crimes 

committed against them, or may be intimidated into not doing so. Another problem 

is that staff of human service organizations are sometimes loath to admit that crimes 

occur on the premises. Failure to report these crimes also reflects a lower concern 

by some people for the rights of persons with mental retardation than for the rights 

of other citizens. 

Some aspects of suspected victimization of people with mental retardation 

require special attention. For instance, when should sexual encounters be considered 

assaults because of the impaired judgment of one of the individuals? 

When people with mental retardation become victims, the criminal justice 

system encounters difficult problems, some of which parallel the problems that exist 

when people with mental retardation are the accused. Among the critical problems 

are: 

 How to determine if a crime was committed, particularly if the victim 

is unable to accurately and completely describe the crime or identify the 

criminal. 

 How to assist a victim with mental retardation in 

prosecutions. 

 How to assure that testimony of a victim with mental retardation 

can be presented in court and taken seriously, even if he or she cannot 

withstand the pressure of cross-examination as well as other people. 
22 
• How to assure that the victim with mental retardation is not devalued 

so that crimes against him or her are somehow considered less 

important than if committed against another individual. 

These issues are critical. If crimes against people with mental retardation are 

not dealt with in a serious way, this not only devalues people with mental 

retardation, but increases the likelihood of future victimization. 

RECOMMENDATIONS

After careful consideration of the issues raised at the Presidential Forum on 

Offenders with Mental Retardation and the Criminal Justice System, the President's 

Committee on Mental Retardation submits the following recommendations to the 

President of the United States for his consideration and possible follow-up actions. 

PCMR also urges members of the U. S. Senate and House of Representatives, State 

governors, State legislatures, city mayors, county commissioners, and the heads of 

departments and agencies at all levels of government to give strong consideration to 

these recommendations. PCMR believes that implementation of these 

recommendations will improve the quality of justice and services to people with 

mental retardation, and to promote measures that will increase the number of lawabiding and productive Americans. 

National Focus

A Federal priority should be established to identify and implement ways of 

solving the problems and meeting the needs of defendants with mental retardation 

and of victims with mental retardation. A critical component of this priority would 

be to assure that program officials in various departments and independent agencies 

in the Federal Government be made aware of these needs and the steps that should 

be undertaken within their agencies. The Federal effort should involve collaboration 

and cooperation among Federal, State, and local agencies and private organizations 

that come in contact with people with mental retardation in the criminal justice 

system. 

PCMR recommends that: 

• An interagency committee composed of representatives of 

the President's Committee on Mental Retardation and the 

U.S. Departments of Justice, Health and Human Services, 

Education, and Labor be convened to develop and 

implement activities to improve due process and services 

23 
for people with mental retardation in the criminal justice 

system, and that this committee report back to the 

President on progress within three years from the date of 

establishment of the Committee. 

 The interagency committee develop standards and 

guidelines regarding the rights of people with mental 

retardation in the criminal justice system. 

 State Developmental Disabilities Planning Councils be encouraged to 

identify specific activities that are being undertaken in the State for 

people with mental retardation in the criminal justice system when 

submitting their comprehensive plans under the Developmental 

Disabilities and Bill of Rights Act. A report on these activities should 

be prepared. 

Statistics

The amount and quality of information about people with mental retardation 

who are accused of committing crimes, and about people with mental retardation 

who become victims of crimes, should be improved. Reliable statistics on the 

frequency of crimes committed by people with mental retardation, the 

characteristics of these individuals, the types of crimes they commit, the punishment 

that was imposed, the habilitation services provided, and the effectiveness of these 

services should be collected. 

In addition, in order to provide a basis for the development of appropriate 

habilitation and prevention programs, information regarding the underlying 

attributes of offenders with mental retardation should be collected. As examples, did 

they have a basic understanding that their behavior violated the law? Were they 

influenced by others to commit crimes? Did they engage in substance abuse? Did 

they commit crimes because of impulsive behavior? Were they victims of abuse and 

neglect? What type of homes did they grow up in? Did they encounter difficulty 

finding jobs? 

PCMR recommends that: 

 A national survey be funded to collect in-depth information on the 

attributes that lead offenders with mental retardation to commit crimes. 

This survey would encompass not only individuals with mental 

retardation who are in Federal or State prisons, but also those who are 

24 
in local jails, institutional care, and community programs. The survey 

should also encompass a sample of offenders with mental retardation 

who have recently been tried and sentenced, as well as offenders at 

other points in the criminal justice system, e.g., at time of arrest, at 

time of probation, or at time of initial incarceration. This would enable 

information to be collected shortly after the individuals were evaluated 

and would enable information to be collected from the judge, 

prosecuting attorney, defense attorney, and police and corrections 

officers concerning their attitudes about mental retardation, the nature of 

the evidence presented at their trial, the quality and effectiveness of that 

evidence, and other information. PCMR recommends that the U.S. 

Departments of Justice, Education, and Health and Human Services 

jointly sponsor this survey. 

 The U.S. Department of Justice routinely collect information on the 

number of persons with mental retardation in Federal and State 

prisons. The method used in each prison to identify inmates with 

mental retardation should be specified. 

Understanding of People with Mental Retardation: 

It is critical that there be greater understanding of mental retardation and the 

issues involving defendants with mental retardation within the criminal justice 

system. The awareness of judges, prosecutors, defense lawyers, police and 

correctional officers, and others about the special needs of people with mental 

retardation and how to identify when such a condition might exist should be raised. 

In addition to previous recommendations that would improve understanding, 

PCMR recommends that: 

 National, State, and local associations in the field of 

mental retardation focus more attention on the issues 

involving defendants and victims with mental retardation 

at their meetings, through newsletters, and other means 

that they may have. 

 National, State, and local associations encompassing 

officials in the fields of law enforcement, the judiciary, 

corrections, and in related specialties of the law and 

forensics increase their attention to this issue at their 

meetings, through newsletters, and other means that they 

25 
may have. 

 At meetings of the above organizations where the issues of 

defendants or victims with mental retardation are 

discussed, representatives from both the fields of mental 

retardation and the criminal justice system be asked to 

participate and exchange views. 

Research

Based on the background papers prepared for the Forum and the subsequent 

discussion, PCMR recommends that the Federal Government sponsor a vigorous 

program of research into the problems of people with mental retardation in the 

criminal justice system and the effectiveness of various approaches to deal with these 

problems. Among the areas in which research should be funded are the following: 

 Projects to examine the effectiveness of due process through the 

criminal justice system for people with mental retardation. 

 Projects to identify the risk factors which may cause 

people with mental retardation to commit crimes. The 

national survey described above should contribute heavily 

to this effort. 

 Projects to develop criteria for identifying the likelihood of 

serious behavior problems among children with mental 

retardation and to develop improved procedures for 

teaching and fostering law-abiding behaviors and 

interactions. 

 Projects to determine the availability, adequacy, and 

effectiveness of community support programs, both to 

prevent people with mental retardation from committing 

crimes, and to provide alternatives to prison for those that 

do commit crimes. 

 Projects to evaluate the effectiveness of alternative 

dispositions of offenders with mental retardation. 

 Projects to determine the dispositions of cases in which 

defendants with mental retardation were found 

26 
incompetent to stand trial. 

 Projects to determine the extent and appropriateness of 

habilitation programs in prisons and in the community. 

 Projects to identify and evaluate methods, other than 

incarceration, to prevent and change unacceptable 

behaviors, e.g., counseling, community service, and 

restitution. 

 Projects to identify the most effective methods of 

habilitating offenders with mental retardation and 

preventing recidivism. 

 Projects to identify the extent and types of reported and 

unreported crimes against people with mental retardation, 

including crimes committed in residential facilities, crimes 

committed by service providers and other residents, and 

crimes committed by relatives. The project should assess 

the vulnerability of people with mental retardation to 

certain types of crimes. It should explore ways to decrease 

victimization and increase the ability to prosecute 

victimizers. 

 Projects to determine the frequency and causes of false 

accusations and false or coerced confessions among people 

with mental retardation. 

 Projects to determine the prevalence of physical and sexual 

abuse of inmates in prisons, both by staff and by other 

prisoners, and ways to prevent this abuse. 

PCMR realizes that some projects may encounter substantial technical 

difficulties, for example, the last two. In these cases, it may be desirable to fund 

studies designed to develop improved methodologies. 

Identification

More consistency in defining and identifying offenders with mental retardation 

is needed. To this end, PCMR recommends that all Federal, State, and local 

correctional facilities adopt the testing procedures recommended by Spruill and May 

27 
(1988)5

 that would give inmates time to adapt to the prison system before testing, 

administer a group test for screening purposes, and administer a follow-up individual 

Wechsler Adult Intelligence Scale (Revised) test or equivalent tests to all inmates 

tested who score below 85 on the group test. In addition, all persons with suspected 

mental retardation should be tested for levels of adaptive functioning and their 

developmental history should be obtained. 

Forensic Services

Immediate and substantial efforts should be made to improve the quality of 

forensic services. Without such support to identify people with mental retardation, 

to assess factors which led them to commit crimes, and to identify the likely effects 

of alternative dispositions of a case, there is little prospect of protecting the 

constitutional rights of Americans with mental retardation or promoting their return to 

productive and useful community life. 

In addition to providing training to forensic examiners, as recommended 

below, PCMR recommends that: 

 State and local governments examine their laws regarding 

the procedures for conducting forensic evaluations for 

people with possible mental retardation and assure that 

professional examiners with knowledge and experience in 

mental retardation conduct evaluations. If needed, the 

forensic examiners should be able to draw upon outside 

expertise for consultation. 

 States assure that experts knowledgeable in mental 

retardation are available to assist defense counsel alone. 

These special experts could assist the client and the defense 

counsel to make critical decisions concerning guilty or not 

guilty pleas, how to testify, etc. Although there are 

various methods of accomplishing this, the use of 

Protection and Advocacy agencies, when available, should 

be explored. However, the Protection and Advocacy 

option will not be available in many areas and other 

mechanisms must be considered. 

5

The mentally retarded offender: Prevalence rates based on 

individual versus group intelligence tests. Criminal Justice and 

Behavior. 15(4), 484-491. 

28 
Sentencing

The effects of mental retardation should always be taken into account when 

making assessments as to competence to stand trial, criminal responsibility, the 

severity and type of punishment, the establishment of habilitation programs, and 

when making decisions as to probation and parole. People with disabilities must at 

times receive special consideration in order to ensure protection of their rights and 

to ensure equal opportunity to benefit from services. 

PCMR recommends that: 

 In accordance with the American Bar Association Criminal 

Justice Mental Health Standards, Federal, State, and local 

courts always consider mental retardation and its impact 

as a possible mitigating factor and also consider the effect 

of alternative dispositions of a case, e.g., confinement, 

probation, etc., on the individual with mental retardation. 

 The disposition of any case involving a person with mental 

retardation always be based on an Individualized Justice 

Plan which takes account of the advice of both mental 

retardation and correctional experts. The individualized 

plan should set forth the methods and resources needed to 

rehabilitate incarcerated individuals with mental 

retardation along with the due process protections 

required to assure implementation by responsible officials. 

The service plan should include educational, vocational, 

and life-skills objectives necessary to assist the probationer 

to acquire the skills necessary to avoid further criminal 

activity and assume a productive role in the community. 

This applies to cases that are diverted from prison, cases 

that enter prison, and cases that are placed on parole from 

prison. 

 There be a strong presumption that community correction 

and probation programs are preferable in the case of 

offenders with mental retardation. 

 Capital punishment be prohibited for persons with mental 

retardation. It already is prohibited under the laws of 

29 
some States and pursuant to the Federal Anti-Drug Abuse 

Act of 1988 (P.L. 100-690, section 7001 (1). (This Act 

permits the imposition of the death penalty for killings 

committed in pursuance of a continuing criminal 

enterprise, but prohibits a death penalty from being 

carried out upon a person with mental retardation). 

PCMR recommends that all States enact such legislation 

as promptly as possible. 

 Federal Sentencing Guidelines be modified in order to 

give greater flexibility to judges in determining the type 

and extent of punishment that is appropriate for people with 

mental retardation who have been convicted of crimes. 

 "Guilty but mentally retarded" verdicts which 

provide a basis for indefinite imprisonment not be 

utilized. 

 Offenders with mental retardation not be sentenced to 

any program that does not have a habilitation program that 

would be suitable to their needs. 

Correctional Programs

It is imperative to recognize that most individuals in correctional facilities will 

eventually be released and that they must be prepared to become law abiding, 

productive, and relatively independent upon leaving prison. Steps should be taken 

to improve services in Federal, State, and local correctional facilities. 

PCMR recommends that: 

 Existing correctional facilities be assessed to determine if 

all inmates with mental retardation are placed in programs 

that are appropriate and in accordance with an 

individualized plan. In cases where the programs are nonexistent or inappropriate, PCMR recommends that 

authorities be urged to develop or improve programs. 

Programs should be established which meet the needs of 

inmates in different categories, e.g., minimum security 

inmates with short sentences, maximum security inmates 

with life sentences, inmates in protective custody. 

30 
 The extent and appropriateness of the efforts of State 

correctional education programs to meet the public 

education requirements of the Individuals with Disabilities 

Education Act (P.L. 101-476) be assessed. 

Community Based Programs

Whenever possible, offenders with mental retardation should be put on 

probation and placed in community habilitative programs to assist them to be 

effective citizens. 

PCMR recommends that: 

 Specialized and intensive probation, supervision, and 

support services be developed and made available to all 

offenders with mental retardation placed in community 

programs. 

 State vocational rehabilitation programs be strongly 

encouraged to serve offenders with mental retardation who 

have been convicted, while in prison or in a community 

(diversion) program and after they have completed their 

sentences. 

Prevention

PCMR recommends that all students with mental retardation should be 

provided with instruction that explains their rights and responsibilities as citizens, 

the consequences of breaking the law, and what to do and who to call for assistance 

if they become involved with the criminal justice system. 

Service System

Both the criminal justice system and the service system for people with mental 

retardation are composed of a large number of public and private programs. 

Offenders with mental retardation may come into contact with numerous programs in 

both systems. Steps should be taken that will enable and encourage these 

programs to work in a more cohesive and coordinated way to achieve the goals of 

individualized plans for offenders with mental retardation. Recommendations made 

elsewhere to establish individualized plans and to conduct joint training for people 

31 
from these two systems are essential steps in meeting this goal. 

In addition, PCMR recommends that: 

 State and local governments be encouraged to establish 

new, or charge existing, agencies to be responsible for 

coordinating the efforts of programs for people with 

mental retardation and the criminal justice system. For 

example, New York State has a Bureau of Forensic 

Services within the State administering agency for mental 

retardation and developmental disabilities services. The 

Lancaster County, Pennsylvania program, described 

earlier, is a good example of a joint effort between the two 

systems. 

 State and local governments initiate efforts to achieve 

more integration of the mental retardation service delivery 

system with the criminal justice system. They should 

assure that mental retardation professionals are utilized to 

identify and screen persons suspected of having mental 

retardation at the time of apprehension. They should also 

develop procedures to ensure that the two systems 

cooperate in determining the disposition of cases and 

carrying out habilitation plans. Among other measures, 

these programs need to develop meaningful interagency 

agreements which facilitate development of an array of 

services extending from alternatives to incarceration to 

community-based living for persons who have been 

released from prison. 

Training

There is an urgent need to greatly upgrade the training of individuals in the 

criminal justice system in the issues involving people with mental retardation. The 

types of training needed will, of course, vary by occupation. The police need to be 

trained to be alert for indications that a person might be mentally retarded, how to 

meaningfully describe Miranda rights, and how to question people with mental 

retardation. Lawyers, judges, and probation and correctional officers need to 

appreciate the factors that may cause a person with mental retardation to commit a 

crime or to confess to a crime he or she did not commit. They need also to 

consider the appropriateness of the sentence for convicted persons with varying levels 

32 
of mental retardation. People in the forensic professions, particularly psychiatrists 

and psychologists, need training in identifying mental retardation and understanding 

the interaction between mental retardation and legal issues. They also need to learn 

where they can obtain consultation from people with specialized knowledge of mental 

retardation. In addition, mental retardation experts need to be trained to provide 

forensic services. 

In general, attorneys without specialized training cannot effectively represent 

clients with mental retardation in the majority of cases. Judges, probation officers, 

or parole officers cannot generally make an appropriate disposition of the cases of 

these individuals without specialized knowledge. A simple reading of the Miranda 

rights to a suspect unable to understand these rights can become a vehicle for severe 

abuse of police power. 

PCMR recommends that: 

 A national project, perhaps through the University 

Affiliated Program(s) be funded to identify and 

disseminate information on existing training materials in 

the area of people with mental retardation in the criminal 

justice system. In addition, the project should assess the 

use of, and the effectiveness, of this material, and 

periodically update and improve on it. 

 Universities and colleges be encouraged to systematically 

integrate materials on issues related to defendants with 

mental retardation into their curricula. This will help 

prepare general educators, special educators, 

psychologists, psychiatrists, social workers, lawyers, and 

others for future work in this area. 

 Training programs be established to meet the needs of 

different groups, e.g., judges, prosecutors, defense 

attorneys, police officers, probation and correctional 

officers, forensic examiners, and others. Issues involving 

offenders with mental retardation should be made a 

mandatory part of continuing legal education programs for 

judges and lawyers. 

33 
 Training programs be established for mental retardation 

service providers to learn about the criminal justice system 

and how they can work with the correctional justice 

system to more effectively serve people with mental 

retardation. 

 A Federally funded study to review and improve training 

programs designed to assist individuals with mental 

retardation to protect themselves and avoid becoming 

victims be initiated. The study should identify the 

different ways to provide training, e.g., in schools, as part 

of an orientation for admission into all categories of day 

and residential care, e.g., group homes, specialized foster 

care, supported apartment living, and include training that 

will help people with mental retardation understand their 

rights as citizens. 

Victims

Federal, State, and local governments should explicitly take action to assure 

that perpetrators of crimes against victims with mental retardation will be charged and 

punished as vigorously as they would be if the crime were committed against a person 

without mental retardation. In addition, these governments should assure that 

victims with mental retardation are accorded the same redress in court as any other 

American. 

PCMR recommends that: 

 People, including employees of service providers, be 

encouraged to report crimes committed against people with 

mental retardation. 

 People who report crimes against people with mental 

retardation not be penalized by being fired, denied 

promotions, or denied jobs. This is particularly important in 

the case of crimes committed against people with mental 

retardation in residential facilities or day programs. 

34 
 A national system be implemented to assist service 

providers to screen applicants for jobs working with 

people with mental retardation to assure that they do not 

have a previous record of victimizing people. 

 Victims with mental retardation be provided specialized 

victim assistance services. These services should include 

counseling, advice as to possible court actions, 

transportation to court, escort to court, special 

accommodations (such as hearing aid devices in court), 

follow-along services so that the victims understand court 

scheduling and proceedings, help with arranging medical 

treatment, and alternative dispute resolution services. 

 All courts should recognize the unusual difficulties that 

people with mental retardation may have when testifying 

in court and adopt procedures to assure that their 

testimony is presented as fully and as accurately as 

possible. In some cases, this may require that the 

information be obtained in a specialized manner by 

persons trained in the area of mental retardation. It is 

absolutely critical that this testimony not be devalued 

because the victim is mentally retarded. 

Concluding Observation

Implementation of the above recommendations would represent major steps 

forward in assuring that defendants and victims with mental retardation are 

accorded fair and appropriate treatment in the criminal justice system. 

The stakes, in terms of justice and equity for defendants and victims with 

mental retardation, are high. 

35 
QUOTES

"As is true in most areas of disability rights law, equality does not necessarily mean equal 

treatment. In other words, persons with disabilities must at times be treated differently from 

others in order to ensure protection of their rights and to ensure equal opportunity to benefit 

from services. Persons with mental retardation cannot be 'processed' exactly like others who 

come in contact with our criminal justice system, because, for them, it may be a system they 

do not understand or a system that does not understand them." Richard Thornburgh, 

Attorney General of the United States. Speech given to the Presidential Forum on 

Offenders with Mental Retardation and the Criminal Justice System. September.15, 

1989. 

DEFENDANTS WITH MENTAL RETARDATION: 

MS. MESSINGER-ROCKOWITZ: I was watching a videotape in which a man with mental 

retardation was giving a very, very damaging confession to four police officers. It was 

clear that each of those officers knew that he was a person with mental retardation and had 

an understanding of how that mental retardation was directly leading to this confession, and 

were, in fact, manipulating him on the basis of his mental retardation into giving a very 

damaging confession. 

MS. RAVENEL: Limmie was 26 years old in June of 1987. He had been convicted of killing 

his neighbor. He was sentenced to death. Limmie sat on death row for two years before anybody 

realized that he was mentally retarded. 

One thing I realized was that the judge and the solicitor had absolutely no 

understanding of what mental retardation was. The Judge thought Limmie was a poor Black 

farmer. The solicitor felt that the reason that Limmie hadn't learned how to read was that he 

didn't try hard enough in school. Limmie was smiling shyly and was totally unaware that he 

had been resentenced to death. 

SERVICE SYSTEM FOR DEFENDANTS WITH MENTAL RETARDATION: 

MR. SUNDRAM: With the exception of a small percentage of offenders who have committed 

truly serious crimes, and for whom the correctional system is probably the only appropriate 

place, many of the other offenders with mental retardation who come into the criminal justice 

system do so because the other social supports have broken down and there aren't any 

alternatives available other than jail. 

36 
DR. PETRELLA: They are not going to recover in a maximum security mental 

health forensic facility. They are not going to get appropriate training. They 

languish in these facilities for lengthy periods of time because their condition doesn't 

change. 

PROFESSOR BONNIE: In Virginia, once the person is into the forensic services 

system, apparently methods are not readily available to get them into the civil side; 

in part because there aren't secure placements within the mental retardation services 

system. 

THE POLICE 

CAPTAIN MARTIN: If a violent crime is committed, this is not the time that the 

police are going to sit down and administer tests to find out whether this person is 

functioning at the mental retardation level. In fact, a uniformed field officer is more 

likely to be talking to victims and witnesses. 

MIRANDA WARNING 

PROFESSOR BAROFF: I have been struck, in the cases I have been involved with, 

as to how extraordinarily distorted understanding of their Miranda warning has been for 

people who have confessed to crimes - some of whom have been charged with first 

degree murder, and some of whom are on death row. 

JUDGE EXUM: I think the courts are very concerned with whether people who 

waive their Miranda rights do so knowingly and understandingly. 

MR. BURR: In death penalty cases and in many serious felony prosecutions, 

confessions have several consequences. If they are complete confessions and found 

to be credible by the police, they cut short further police investigation. They will cut 

off consideration of other suspects. They will cause the police to shape the evidence 

around the person who has confessed. In death cases, if there is a confession, it is 

the center piece of the State's case. 

People with mental retardation don't usually have the ability to argue with the police 

on their understanding of their Miranda rights. It seems to me that issues 

concerning the knowing and understanding of Miranda warnings are major and have not 

been addressed to any major extent by the Courts. 

37 
PROFESSOR ELLIS: I think there is independent value, and the Courts have held 

that there is independent value, in the right to counsel and the right to be free from 

coerced, self-incriminatory statements that are independent of guilt or innocence. 

People with disabilities are the ones least likely to be able to exercise these 

rights. I come across cases in which factual innocence after conviction, in both capital 

and noncapital cases, is a real question. Invariably, these cases involve confessions 

or guilty pleas. 

EVALUATION 

DR. PETRELLA: No one likes to say that the emperor has no clothes, but in reality, 

many psychiatrists and clinical psychologists don't know a lot about mental 

retardation, don't consider it very carefully in forensic evaluations, and don't do a 

very good job of documenting it. 

JUDGE RICHARDSON: In Massachusetts, we are looking at the question of how 

to deal with defendants with mental retardation. What I envision happening is that 

we are not going to be able to afford to have a truly expert forensic evaluation for 

persons with mental retardation. What we are going to be able to do, I think, is to 

train the mental health forensic team to be alert to, and recognize those indicia that 

would lead one to think that they may be dealing with persons with mental 

retardation. In these cases, they would involve local regional people in carrying out 

a further evaluation. 

MS. NORLEY: The courts seem to be as intimidated as the rest of us are by doctors 

and think that they will have the answers, and that is not always true. 

JUDGE EXUM: The competency issue, particularly with respect to the guilty plea, 

is troublesome. I recall when I was on the trial bench that a young defendant 

wanted to plead guilty. He was represented by counsel. I was going through all of 

the questions that trial judges ask to ensure that the defendant understands the plea. The 

trial judge must make sure that the defendant understands what he is doing when he 

enters his guilty plea, that he understands that he is waiving certain rights, particularly 

the right to trial by jury. I asked this defendant if he was willing to waive his right 

to a jury trial. He said, "Yes, your honor," and waved his hands. Nobody suggested, 

nor did it occur to me, that he might be mentally retarded. 

38 
LEGAL COUNSEL: 

MR. BURR: ........... I think that the client population that we are concerned with is 

poor people who must rely on public defenders or court appointed counsel. Almost 

invariably, my colleagues in that part of our profession don't expect much of their 

clients. We don't expect them to be very verbal or to give a lot of information. 

MR BURR: ......... if lawyers do what they are supposed to, which is to investigate 

their cases, they will inevitably learn something about their clients which is highly 

relevant to the issue of mental retardation. Their client's school history is an 

extraordinarily reliable indicator. This information requires very little work and 

almost no lawyers do it. 

MR BURR: ............defense counsel must have assistance from experts not publicly 

known by the State or the court to whom they can turn and talk and who will 

conduct an evaluation: There is a case from the Supreme Court, Ake v. Oklahoma, 

which was decided in 1985, which said that as a matter of due process, in a death 

penalty case, where mental health is an issue in a trial, an indigent defendant is 

entitled to have state-paid assistance that is not public and that is not available to the 

court or to the prosecutor. 

MS. NORLEY: One trouble with public defenders is that they don't stay on the job 

very long. 

MS. DEMOLL: We have court appointed public defenders who get paid $50.00 a 

case. They have almost no resources with which to develop a case. We haven't had 

much success in getting training programs on agendas at State Bar Conferences. 

POLICY CONSIDERATIONS 

DR. PETRELLA: My experience has been that there is not a lot of interest or 

attention for offenders with mental retardation and that most policy makers would 

prefer that this issue go away. 

MR. WHITE: I think that there is great hope for diversionary programs because of 

prison overcrowding. In addition, it is cost effective. It costs $15,000 in a county 

prison while it only costs $1,000 to be in our program. 

39 
SENTENCING 

PROFESSOR ELLIS: The sentencing guidelines for Federal judges have a provision 

for departures downward from the fixed levels that would otherwise apply for what 

is called "diminished capacity" as a result of a mental condition that might help 

explain the offense. But unlike other departures in the guidelines, that provision is 

not available to people with mental retardation or mental illness who have committed 

a violent offense. 

MR. FINN: Last year we intervened in over 35 cases where a person was well on 

the way to being deemed incompetent to stand trial and committed to an institution. 

We asked the courts to entertain a more informal disposition or a probationary 

outcome with the client agreeing to participate in a plan of services. In more than 

half of the cases we were successful in arranging such dispositions which provided 

client services in more appropriate settings, and were much more therapeutic for the 

individuals. 

MR. BURR: I am confident that in every death penalty State where a poll was 

conducted, you would get two-thirds to three-fourths of the people agreeing that they 

did not want the death penalty for people with mental retardation. 

JUDGE RICHARDSON: Every time I order somebody committed.................the Master 

lets somebody out the back door. That is ridiculous. Therefore, I look for an 

alternative disposition other than incarceration. When somebody has a particularly 

unique situation, a disability of some type, mental illness, mental retardation, and 

if this has been brought to the attention of the judge, many of us will follow what 

the Federal courts do automatically - defer sentencing to another day, ask our 

probation officer to investigate the matter, and come back with a presentence report. If 

you can educate a judge to the nature of the problem, and the alternatives, I think that 

judge, no matter how stony hearted he or she may be, is going to opt for the 

alternative. 

PROFESSOR ELLIS: Fewer than two percent of the people who are convicted of 

capital murder are sentenced to death. Far fewer are executed. 

VICTIMS 

PROFESSOR TURNBULL: I recall a State court which, in the few cases of criminal 

prosecution brought against the caregivers at the local institution, had great 

difficulty in finding that they had committed any crimes, even when it was perfectly 

40 
clear that they had very serious crimes committed against people who were 

institutionalized. Referring to victims, he once said: "Well, you know, they are 

retarded. They can't really feel pain." 

PROFESSOR ELLIS: In both capital and non-capital cases, there are questions of

aggravating and mitigating circumstances. One thing that might usefully be thought 

of as an aggravating circumstance is where the perpetrator has selected his or her 

victim because of the vulnerability of that victim due to disability. In particular, 

where the perpetrator has fiduciary or custodial responsibility for that victim, it 

seems to me that is the sort of circumstance that legitimately draws outrage that 

ought to be considered as an enhancement in punishment. 

MS. DEMOLL: The Protection and Advocacy Systems have a clear mandate to 

investigate incidents of abuse. 

PROFESSOR ELLIS: Most communities now have, both in their law enforcement 

and their health provision systems, a rape intervention and crisis team that assists 

both law enforcement and helps victims cope with the traumatic consequences of 

those crimes. There is no reason to think that the people who are running those 

operations have learned what they need to know about people with mental 

retardation to be able to adopt their services to their needs. 

PROFESSOR ELLIS: One of the things that we have not done sufficiently in our 

special education curriculums is to adapt and develop elements of the curriculum 

that would help people with mental retardation avoid becoming victims of crime. 

41