Contributors: Patricia H. Latham. J.D., Sam Goldstein, Ph.D., G. Emerson Dickman, III, J.D., Peter S. Latham, J.D., and Patricia O. Quinn, M.D.
INTRODUCTION
Why this pamphlet? What are the causes of criminal behavior? Is there a link to certain disabilities? Answers to these questions and information concerning disabilities may improve the fairness and effectiveness of our criminal justice system.
What is ADD? Attention Deficit Disorder (ADD) is a neurological disorder that impacts upon learning and behavior.
ADD is classified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, FOURTH EDITION, 1994, (DSM-IV) under the heading: "Disorders Usually First Diagnosed in Infancy, Childhood, and Adolescence." The DSM-IV diagnostic label for ADD is Attention Deficit Hyperactivity Disorder (ADHD), and it is discussed at Section 314. There are three types of ADD set forth in DSM-IV : Combined Type, Predominately Inattentive Type, and Hyperactive-Impulsive Type. (On the ADDA website the terms - ADD, ADHD, AD/HD - are used interchangeably.)
Specifically, ADD may involve attention deficits, impulsivity, hyperactivity, mood swings, low stress tolerance, and difficulty in following rules. Once considered a disorder of childhood, it is now recognized as a lifelong condition for many people. There are also positive traits seen in many individuals with ADD: high energy level, intensity about interests, creativity, and tendency to perform well in structured environments.
What is LD? Learning disabilities (LD) are neurologically based disorders that impact on in-formation input, output, integration and memory. These disorders may cause problems with various functions : sequencing, receptive and expressive language, visual perceptual and visual motor processes, auditory processing, memory input and retrieval, gross and fine motor processes, and attention. These functional problems may in turn interfere with learning in various contexts, including traditional academic courses, the workplace and social settings. Learning disabilities are classified in DSM-IV primarily under "Learning Disorders" and "Communication Disorders." Learning disabilities frequently co exist with ADD.
While ADD and LD cannot be "cured", medication, other treatments and accommodations are proving helpful. Persons with ADD and LD can do well in life and make their contributions in family, workplace, and social settings. Individuals with these disabilities are represented in a wide range of careers and at every level - from entry positions to leadership positions. Between 5% and 10% of all persons have ADD and/or LD. Some will become involved with the criminal justice system during their lives.
THE CRIMINAL JUSTICE SYSTEM
In General. The criminal justice system encompasses the organizations involved in the criminal process, including police, prosecutors and defense attorneys, court personnel, judges, probation and parole personnel, and corrections personnel. This system deals with a range of offenses - from minor traffic violations to murder. Thus, when we speak of criminal offenses, we encompass a wide range of behaviors.
ADD/LD as a Defense. Generally, ADD/LD does not excuse criminal con-duct or render a person incompetent to stand trial. It is worth noting that even more serious disorders may not necessarily excuse criminal conduct or result in a finding of in-competence. For example, persons with delusional disorders have frequently been held responsible for their conduct and found guilty of alleged crimes. ADD/LD could be a factor which could lessen the severity of an offense. For example, a crime requiring proof of intent might be reduced to one involving merely reckless behavior. A reading disorder might be a factor in the case of a law violation involving a posted written notice. In such a situation, it would be appropriate to document how ADD/LD impacted upon the accused person in the particular circumstances.
ADD/LD as a Factor in Sentencing. ADD/LD could be a factor that may lessen the sentence to be imposed. The United States Sentencing Commission was created, pursuant to 28 U. S. C. § 994 to establish uniformity and fairness in sentencing by U.S. District Court judges. The statute provides that regulations are to consider education, vocational skills and : "mental and emotional condition to the extent that such condition mitigates the defendant's culpability or to the extent that such condition is plainly relevant." The regulations provide that mental and emotional conditions, "whether mitigating or aggravating, may be relevant to determining length and conditions of probation or supervised release". ADD has been considered as a factor in disciplinary proceedings. For ex-ample, in an attorney disciplinary proceeding involving misuse of client funds, ADD, which was treatable by medication, was considered a mitigating factor in imposing the penalty. See In the Matter of Scibetta, 502 N. Y. S . 2d 565 (Ct . App. 1986).
ADD/LD and Courtroom Accommodations. ADD/LD which substantially limits a major life activity is a disability under the ADA and the RA. Individuals with these disabilities may require and be entitled to reasonable accommodations in the courtroom, as they are in the classroom and workplace. A person with a reading disorder, for example, may need information presented orally, and one with an auditory processing difficulty may need information in written form. Many will need repetition and additional time in which to absorb information and comprehend questions. Individuals with social skills deficits or problems with impulsivity and overreaction to confrontation or stress would respond best to calm, clear, non confrontational communication. In each instance, the range and nature of permissible direct and cross examination at trial may need to be modified. In Segerstrom v. State, 301 Ark. 314; 783 S .W . 2d 847 (1990) the court found constitutionally proper police interrogation of a suspect with ADD that used a simple explanation of the suspect's rights and slow questioning. In State v. Woody, 449 S.E.2d 615 (Ga. Ct. App. 1994), blood alcohol test results were sup-pressed where an individual with deafness was not provided with a qualified sign language interpreter following arrest for driving under the influence. These cases represent the principle that the individual with a disability must be provided accommodations that enable him or her to comprehend communications.
Incarceration. Key issues are posed by incarceration. These include education, vocational training, counseling, and allowing individuals access to medication which they wish to take and which has been recommended for them by qualified professionals. Appropriate medication and access to counselors knowledgeable concerning ADD and LD may facilitate rehabilitation. Education of correctional system personnel on this topic should decrease existing opposition on the part of some officials to allowing the use of stimulant medication in treating individuals with ADD.
ADD/LD AND THE "CRIMINAL MIND"
Are Individuals with ADD/LD "Borderline Criminals?" In Zurfluth v. State, 620 P. 2d 690, (Alaska 1980), the Supreme Court of Alaska held that a maximum sentence, including incarceration, a medical psychiatric examination, and probation to follow incarceration, is justified for a first time offender with dyslexia and hyperactivity, since "deterrence of borderline criminals is an essential purpose of sentencing." 620 P. 2d 690 at 692.
Individuals with ADD/LD are not "borderline criminals." ADD's relationship to criminality has not been studied in depth. There is some evidence that, in comparison to siblings, persons with ADD experience lower educational achievement, lower self-esteem, somewhat greater problems with alcohol and drug abuse, and somewhat greater problems with law enforcement officials. Certainly we see many instances in which adolescents and young adults with ADD experience problems with the criminal law. Persons with symptoms of hyperactivity and impulsivity would appear to be at greater risk for such problems. Most often these are relatively minor violations. There may be an increased tendency for persons with ADD to be arrested, prosecuted, convicted and incarcerated for their offenses.
There are not conclusive, consistent studies on the link between LD and criminal behavior. Some studies suggest that persons with learning disabilities, especially non-verbal learning disabilities, may be more at risk for problems with the criminal justice system. This type of learning disability may impact upon ability to interact socially, including ability to read facial expression and body language. As with ADD, it seems un-clear whether this would significantly increase the likelihood of criminal behavior or simply the likelihood of arrest, prosecution, conviction and more severe penalties.
Differential Diagnosis. In analyzing ADD and LD in the criminal context, it is important to distinguish them from other disorders that may co exist with and or be confused with them : con-duct disorder and anti-social personality disorder. Conduct disorder is a disruptive behavior disorder discussed at DSM-IV, Section 312.8. Antisocial personality disorder is a personality disorder discussed at DSM-IV, Section 301.7. These disorders involve a pattern of violation of the basic rights of others and major rules (e.g. initiating aggression, physical cruelty, lack of feelings). This pattern is different from the overreaction and confrontational statements and behaviors some-times associated with predominately hyperactive-impulsive ADD. For example, a per-son with anti-social personality disorder might be more likely to initiate a cruel and un-provoked attack, whereas a person with hyperactive-impulsive ADD might be more likely to overreact to a provocation. A diagnosis of antisocial personality involves a history of conduct disorder before the age of fifteen. The development of aggressive behavior in childhood and adolescence decreases the prognosis for a good adult outcome.
When conduct disorder and anti-social personality disorder appear together with ADD or LD, then the presence of ADD or LD would appear to be of considerably less significance in assessing interventions and possible outcomes. It would be most helpful both for individuals with ADD/LD and for society as a whole if criminal justice professionals had an increased awareness of the symptoms of ADD/LD and the differences between these disabilities and conduct disorder/anti-social personality disorder.
ADVOCACY
Advocates for persons with ADD/LD ordinarily should promote awareness concerning ADD/LD and strategies that could increase the effectiveness of criminal justice system personnel in dealing with persons with ADD/LD. Such personnel should also be made aware of the rights of persons with ADD and LD to accommodations in the criminal process. An instructive case is Jackson v. Inhabitants of Sanford, Me., No. 94-12-P-H (D. Me. 1994). There, police arrested a stroke victim whose speech was slurred and charged him with operating a motor vehicle while under the influence of alcohol or drugs. The court held that the Town had violated Title II of the ADA and ordered it to provide appropriate police training in the identification of disabilities.
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