The Disabled Among Us And Our Prisons

I want the reader to picture an unkind time in their lives – middle and high school.  A time when most of us were struggling to fit in, or to stand out on our own, in our own way.  A time when, to be charitable, we were not always kind to our fellow students, when we said or did cruel things to those who were singled out by the rest of the insecure and frightened for special abuse.  I am talking about how we, in school and today, in our very cruel, real world, treat the “slow kids.”

 

You remember them:  They were the ones in Special Education, or if you are as old as I am, the ones in the “remedial classes.”  They struggled to read, to understand the rules in school, to hold conversations with the rest of us.  They could not do the simplest of math problems, or diagram a sentence.  Perhaps the school system you were in didn’t label those young children “retarded” or the newer, more generous phrase “intellectually disabled.” Perhaps they were just placed in remedial reading or left to languish in the back row. They could not function in the classroom or on the playground without someone looking out for them, and there were never enough people willing to look out for them.  They weren’t bad kids, they were just dramatically different in the ways their minds worked- but too many times we didn’t really understand that difference.

 

The difference was not a helpful one.  The difference made them an easy target for the other insecure youngsters who needed to feel stronger or smarter than someone else, because they were afraid.  For the rare but occasionally truly cruel young person who simply wanted a human fly from which they could pull the wings, they were a source of evil delight, and only once in a while would the teachers or a good-hearted protective student step in to prevent the ugliness.

 

You remember them now, don’t you? You are thinking, in fact, of at least one little face.   You remember the sick feeling in your stomach when you watched but did not step in when someone picked on her, when the teacher rolled her eyes at him and everyone laughed.  You remember how you turned away, felt ashamed, when she waved to you on the playground?  How you felt when he was pushed to the ground or made a laughingstock by one of the inevitable little sociopaths who tried to rule that small penal colony we sometimes called high school?

 

Those disabled boys and girls grew into disabled adults, at least biologically, and unfortunately our adult world has been no kinder to most of them. Sadly, some of them wound up in our criminal justice system, because no one thought of how those hapless young underdeveloped minds would cope when faced with a criminal charge.

 

Picture those kids dealing with a police officer- not kind and understanding Andy Griffith, but a real street cop with little patience and a suspicious and paranoid mind.  Picture how afraid they would be.  We are all afraid when the police pull us over, at least a little.  Imagine the panic in those simpler eyes, just for a moment.

 

As far back as 1966, in a study of prisons and the population, the numbers of the mentally retarded were at ten percent of prison population.  That number was doubtlessly wildly under-reported, since many prison systems did not test for IQ in those days, and other measures of intellectual disability were yet undeveloped. That was before the explosion in our prisons, before the traumas of concussions were realized by our modern medicine and the traumatic brain injuries of those in our multiple wars in the last five decades. So, let me be very clear: the intellectually disabled exist in significant numbers in our jails and our prisons, largely because, just as when we were kids, we stand by or turn away.

 

Picture how one of those kids would have fared in an interrogation room with an experienced, cynical detective.  Picture how they would have done on the witness stand against an experienced, hardened prosecutor whose only job is to eviscerate even skilled, expert witnesses. Picture how those scared kids from your school would do in a jail awaiting trial.  How afraid would you be if you were in an open bay sleeping area with twenty rough men, accused of assaults, robbery, and addled by drug use? Now see in your mind’s eye how desperate would they be to do anything, even take a plea for something they did not do, just to get away from one more night where they were so scared they could not sleep?

 

Most of the struggling kids from our school days would qualify for a guardianship, for someone else to take care of all their adult decisions, including where to live or what to do with their money.  Most of them could qualify for disability from the Social Security Administration. Most used car dealers would hesitate to have them sign a contract for purchase of a car if they spent more than ten minutes with them.  Yet we continue to arrest them and convict them and sentence them with an alarming frequency for minor crimes, which at some point become major crimes, at least as far as the system is concerned.

 

We on the defense side of things are lucky.  We can, every once in a while, be that kid in school who stood up to the bullies who were hurting the kids who were different.  We can, if we take the time and make the effort, find a way to show that our clients are actually disabled under the law, and that makes a universe of difference once we get there.  Once we can show someone is truly not competent legally due to intellectual disability, we have just changed the world for this one client.  Instead of rotting in jail or prison, they could go home.  Instead of being convicted, they might go free, or they might be placed on community supervision with a diagnosis that could enable them to get the help they need.

 

You readers on the jury side of things are lucky too, at least once in a great while.  When you are called to serve on a jury, and someone provides you evidence of disability, you can take it into account on your verdict.  You can do whatever you want on those verdicts – acquit someone, find them incompetent, convict only of a lesser offense, be merciful in a sentence, or recommend probation.  I envy you that.

 

We do not do this enough on the defense side.  We do not recognize the signs of disability, such as time in special education classes, having a history of having someone else intercede when issues pop up, needing help in writing or reading even as adults, and leaving school at a young age.  We do not ask the follow-up on questions enough.  We do not ask the right questions.

 

I do not do this enough. I wish I did.  I wish I had gotten more testing done by a mental health professional whenever I have had a question about capacity of a client. I wish I had listened to a family more closely when they expressed a concern.  I wish I had fought harder for a client whose disability was masked from me because sometimes people do not ever want to be called or labeled slow or stupid.

 

Most of all, I wish I had done more for those kids back in school.  Maybe today I can. Maybe we all could.

About P. F. McCann

McCann is a Houston attorney and a past president of the Harris County Criminal Lawyers Association and the Fort Bend Criminal Lawyers Association. His office can be found online at writlawyer.net.

Speak Your Mind

*