It is generally accepted that forensic disability clients experience discrimination and disadvantage when interacting with the criminal justice system (CJS) and, although overrepresented, are underserviced regarding access to necessary programs. The law can be a barrier to required programs and services upon contact with the court, within corrections and human services, and in the community upon reentry.
Prejudice against offenders with cognitive disabilities has been long-standing. Famously, in Buck v. Bell, Justice Oliver Wendell Holmes, Jr. noted that “three generations of imbeciles are enough.” This chronic attitude was bolstered by the expert testimony of a eugenicist who proclaimed, “These people belong to the shiftless, ignorant, and worthless class of anti-social whites of the South.” When this view was later endorsed by a state trial court judge, it resulted in no community reaction. Between 1929 and 1974 North Carolina sterilized 7600 people deemed “socially or mentally unfit,” many of whom were sterilized “forcibly or with inadequate consent.”
Persons with a mental disability are viewed by society as more deviant, “disproportionately dangerous,” and having less worth. It is expected that offenders with a mental disability would be viewed no differently. Joan Petersilia provided a typical example of what occurs when a person with an intellectual disability is sentenced to prison. If identified with a disability, the offender is placed separately with other offenders with special needs, including those with mental disability. This places the person in closer contact with inmates who are likely to victimize the person through physical and sexual abuse, theft, and ridicule. If not identified with a disability, the person is placed in the mainstream or general offender correctional system. Here, the person is more likely than higher- functioning inmates to be unable to follow the prison rules and is at risk of victimization from both staff and inmates. In both settings, the person is unlikely to be able to participate in activities and programs, as the necessary accommodations are not made.
This article will first define disability, focusing on the prevalence of forensic disability clients. Second, the dichotomous view of forensic disability clients that poses seemingly irreconcilable differences or conflicting values between the dual role of the person as an offender and a person with a disability is explored. This includes habilitation versus rehabilitation, duty of care versus dignity of risk, and social rights versus legal rights. Third, legal and psychological theories with principles that would support access to programs are considered in relation to a person with a disability and the person as an offender. These include international human rights law, U.S. human rights law (with an emphasis on program access), and psychological theories that include Positive Behavior Support, Risk-Need-Responsivity, the Good Lives Model, Desistance theory, and the Old Me-New Me model. Finally, a set of principles based on human rights and psychological theories are proposed to reduce the likelihood of discrimination against forensic disability clients, who should have rightful access to programs in correctional services.