The criminal law and the person with intellectual disability

Abstract

Research shows that people with intellectual disability are over-represented in prison populations, and in the cohort of people presenting to lower courts in New South Wales. In comparison with their non-disabled counterparts, persons with intellectual disability in the criminal justice system are likely to be younger, and less often commit crimes requiring forethought and planning. Some criminal behaviour may be related to functional abilities, reasoning, and life experience. In the assessment process, it is necessary to obtain a meticulous description of the offence, and the client's motivations, thoughts, and feelings at the time of committing the act labelled as criminal. Clients with intellectual disability may be prejudiced by the lack of a pre-sentence report containing recommendations for alternative disposition, by a previous criminal record, by the offence ‘label’ appearing more serious than the act itself, and by lack of legal representation. Most people with intellectual disability in the criminal justice system are in the mild to borderline category as assessed on IQ tests, while social and adaptive skills are frequently significantly lower. The NSW lower court study found 6% of subjects fell at or below a standard score (SS) of 50, 10% below SS 60, and 14.2% below SS 70. The paper canvasses the custodial and non-custodial options for clients with intellectual disability, and makes recommendations for effective interventions by carers in the court process, and for programmes aimed at reducing recidivism.