Procedural Accommodation Needed for Persons with Psychosocial or Intellectual Disabilities in Criminal Justice Processes
VIEWPOINT
Gautam Gulati, Brendan D. Kelly, and Mary Donnelly
There is a significant over-representation of people with psychosocial and intellectual disabilities in penal populations worldwide.[1] This phenomenon results from penal populism, lack of investment in community, social, and health support, trans-institutionalization, and miscarriages of justice. Persons with psychosocial and intellectual disabilities in prisons experience greater distress through victimization, have higher rates of self-harm and suicide, and experience poorer outcomes post release.[2] There is an onus on society to address these disparities and human rights failings.
Prison is the endpoint of a criminal justice pathway that begins with policing. People with psychosocial and intellectual disabilities are overrepresented in contacts with police, and it is from here that all human rights challenges in the justice system begin.[3] However, while the importance of recognizing disabilities at the initial encounter with police is known, it remains unknown how many people are recognized as having a disability and requiring procedural adjustments at these initial stages.[4]
The dangers of not recognizing a disability are evident from databases of exonerations. For example, 25% of exonerations in a US dataset related to false confessions are for people with intellectual disabilities.[5]
The United Nations Convention on the Rights of Persons with Disabilities enshrines a right to equal access to justice (article 13), and a duty to prevent deprivation of liberty based on disability (article 14).[6] To achieve these rights and duties, ‘procedural accommodations’ as set out in article 13 can be used. These accommodations range from accessibility of information to the provision of intermediaries and support persons or specialist interviewers to allow people with disabilities to participate effectively in the justice system.
A failure to provide procedural accommodations may also be a violation of the European Convention on Human Rights (ECHR).[7] Article 6 of the ECHR guarantees the right to a fair trial, although there is limited case law on the role of procedural accommodations in respect of this right. Other rights may also be relevant. In ZH v Hungary, the European Court of Human Rights found violations of article 3 (prohibition on torture and inhuman and degrading treatment) and article 5 (right to liberty) in the case of a man who was ‘deaf, dumb, illiterate and suffered with an intellectual disability’ who was not adequately informed of the reasons of his arrest and was subsequently remanded where he reportedly suffered ‘molestation by other inmates’.[8]
Challenges in recognition
There is little consensus on how to ensure recognition of disabilities within the justice system with different countries using varied approaches, where such considerations exist at all. These vary from a checklist or screening tool as used in the UK and Australia, or simply observation or self-reporting as in Ireland.[9] Others, such as Romania and Portugal, have no consistent practical processes.[10] Slovakia and others refer to ‘discretionary processes’.[11] Checklists and screening tools where used are poorly validated. Assessor evaluation can be biased or stigmatizing without good training. In most jurisdictions where screening is used, it is limited to only the initial point of custody. The outcome is a justice system that may offer procedural accommodations inconsistently or not at all.
It is important that steps to recognize disability are undertaken to enable participation. In multiple jurisdictions, for example, Bulgaria, identification of a disability may lead to a finding of incompetence and exclusion from participation, which can then result in deprivation of liberty.[12]
A three-pronged universal approach
We propose a three-pronged universal approach to address the issue of recognition of people who have psychosocial and intellectual disabilities. The approach focuses on the provision of procedural accommodation that is neither jurisdiction- nor disability-specific, and does not rely on a medical diagnosis.
First, train all actors (including court clerks, judges, lawyers, police officers) within the justice system to increase their awareness of disabilities including hidden disabilities, and crucially, the importance of procedural accommodation. An international review noted that training as set out under article 13(2) of the UNCRPD remains notably inconsistent among the signatories of the convention.[13]
Second, people with disabilities, their advocates, or their legal representatives, must be able to request procedural accommodations at any stage of their engagement. People with disabilities may be reticent to do so for fear of negative treatment, or because they have experienced poor treatment previously.[14] Encouraging people to use advocates is beneficial at all stages of their justice system experience not just at the initial ‘reception screening’.
Finally, as recommended by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 30 years ago, the justice system must consistently offer three basic safeguards to people deprived of their liberty.[15] These include the right of the person concerned to have their detention notified to a third party of their choice (family member, friend, consulate), access to a legal representative, and access to a doctor. Each of these interfaces provides a key opportunity to re-assess the need for procedural accommodations. A family member may be able to advocate for support and accommodation. A trained legal representative may elicit support needed with reading, hearing, or having an intermediary present in interviews. A medical practitioner, with an individual’s consent, may be in a position to advocate for visual, hearing, sensory, cognitive, or other accommodations. A notice of rights (including in formats appropriate for people with disabilities) needs to promote and explain these three safeguards.[16]
Conclusion
Effective participation in legal proceedings for people with intellectual and psychosocial disabilities is a fundamental human right. Miscarriages of justice or disproportionate incarceration because of disability are unjust and do not serve the individual or society. It is essential to recognize the need for procedural accommodations and to adopt a universal approach to implementing them.
The challenges in doing so cannot be underestimated. Police and courts are often overwhelmed, underfunded, and under pressure. Resourcing challenges result in rights to advocacy and legal representation not being offered, and any political will can be stymied by a discourse of penal populism.
Yet, the value of a robust legal system with true ‘equality of arms’ cannot be overstated. For every exoneration based on a false confession from an individual with a disability, there is a human cost. For every individual who is incarcerated without accommodations, there is potential for poorer health and a negative social outcome. There are 11 million people incarcerated worldwide, and with a disability prevalence of 30% in some jurisdictions, the need to strengthen processes to fulfill their human rights has never been more urgent.[17]
Conflicts of Interest
This viewpoint is solely that of the authors and does not represent the view of their employer(s) or any other affiliation. Gautam Gulati is a member of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT); the views expressed are his own and do not represent the views of the CPT.
Gautam Gulati is Adjunct Full Clinical Professor, School of Medicine at the University of Limerick, Ireland
Brendan D. Kelly is Professor of Psychiatry at Trinity College, Dublin, Ireland
Mary Donnelly is Professor of Law at University College, Cork, Ireland
[1] S. Fazel, A. Hayes, K. Bartellas et al. “Mental Health of Prisoners: Prevalence, Adverse outcomes, and Interventions,” The Lancet. Psychiatry 3/9 (2016).
[2] Ibid.
[3] G. Gulati, A. Cusack, B.D. Kelly, et al., “Experiences of People with Intellectual Disabilities encountering Law Enforcement Officials as the suspects of crime – A Narrative Systematic review,” International Journal of Law and Psychiatry 71/101609 (2020).
[4] G. Gulati, A. Cusack, J. Bogue, et al.,“Challenges for People with Intellectual Disabilities in Law Enforcement Interactions in Ireland; Thematic analysis informed by 1537 person-years’ experience,” International Journal of Law and Psychiatry 75/101683 (2021).
[5] S. J. Schatz, “Interrogated with Intellectual Disabilities: The Risks of False Confession,” Stanford Law Review 70/2 (2018).
[6] United Nations General Assembly, Convention on the Rights of Persons with Disabilities, UN Doc A/Res/61/106 (2007).
[7] European Convention on Human Rights, European Treaty Series No. 5 (1950).
[8] Z.H. v Hungary, European Court of Human Rights, Judgment of 8 November 2012, case no. 28973/11.
[9] G. N. Baksheev, J. Ogloff, and S. Thomas, “Identification of Mental Illness in Police Cells: A Comparison of Police Processes, the Brief Jail Mental Health Screen and the Jail Screening Assessment Tool,” Psychology, Crime & Law 18/6 (2011).
[10] Validity, “Enabling Inclusion and Access to Justice for Defendants with Intellectual and Psychosocial Disabilities,” Briefing papers, https://validity.ngo/projects-2/enabling-inclusion-and-access-to-justice-for-defendants-with-intellectual-and-psychosocial-disabilities/national-briefing-papers/
[11] Ibid.
[12] Ibid.
[13] G. Gulati, B. D. Kelly, A. Cusack, et al., “Human Rights, Public Health, and Disability Awareness Training of Police,” Health and Human Rights Journal, https://www.hhrjournal.org/2021/12/human-rights-public-health-and-disability-awareness-training-of-police/
[14] Gulati et al. (see note 3).
[15] European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). “Police Custody”. Extract from the 2nd general report of the CPT, CPT/Inf (92)3-part1 (1992).
[16] G. Gulati, A. Cusack, B. Lynch, et al., “The Collaborative Development through Multidisciplinary and Advocate consensus of an Accessible Notice of Rights for People with Intellectual Disabilities in Police Custody,” International Journal of Law and Psychiatry 83/101815 (2022).
[17] Bureau of Justice Statistics, Disabilities among Jail and Prison Inmates 2011-2012, United States, (2015) https://bjs.ojp.gov/library/publications/disabilities-among-prison-and-jail-inmates-2011-12