The Texas Council for Developmental Disabilities supports the position that people with intellectual, developmental and/or mental health disabilities who are victims, suspects or witnesses have the right to justice and fair treatment in all areas of the criminal justice system, including reasonable accommodations as necessary. While those with intellectual disabilities comprise 2% to 3% of the general population, they represent 4% to 10% of the prison population, with an even greater number in juvenile facilities and jails, and are 4 to 10 times more likely to be victims of crime than those without disabilities.1
Detainees with Intellectual and Developmental Disabilities (I/DD)
Because there are several types of jails and courts, determining the true numbers of juveniles and adults with disabilities who are being detained or incarcerated is guesswork.
The total number of people with intellectual and developmental disabilities (I/DD) being detained in local jails is unknown. Being detained means the person has been arrested for suspicion of committing a crime.
Under Texas law, jail personnel must notify the court within 72 hours of receiving credible information that a defendant may have an intellectual disability. However, due to lack of training and experience with intellectual disability, criminal justice and court personnel are often unable to quickly identify that an individual may have an intellectual disability. In addition, even if these professionals swiftly identify that an individual may have an intellectual disability, current assessment tools are not always effective in identifying these disabilities.
In Texas, if the court determines the defendant may have an intellectual disability, the court must order the local mental health authority (LMHA)or local intellectual and developmental disability authority (LIDDA) or another qualified expert to conduct an assessment of the individual.
Article 16.222 of the Texas Code of Criminal Procedure sets out the requirements regarding early identification of defendants suspected of having mental illness or intellectual disability. It requires the sheriff’s office to notify the judge or magistrate within 72 hours if corrections reasonably believe a jailed suspect has a mental illness or intellectual disability. The code requires that an assessment be done to determine if the detainee is a “person with mental retardation as defined by Section 591.003, Health and Safety Code, including information obtained from any previous assessment of the defendant.” This should happen at intake, pur-suant to the Texas Commission on Jail Standards (TCJS) administrative rule that requires jails to run a check against the CCQ system (Continuity of Care Query in TCJS) to determine whether the detainee has a history of mental illness or mental retardation.
Perhaps the first breakdown is an initial assessment or observation of intellectual disability. The American Association on Mental Retardation (AAMR) defines intelligence as “a general mental ability [that] includes reasoning, planning, solving problems, thinking abstractly, comprehending complex ideas, learning quickly, and learning from experience.” Assessing intellectual functioning requires specialized professional training. And, an assessment of intellectual functioning is just one element of diagnosing intellectual functioning. Experts find it is not appropriate to make a competency recommendation based solely on the score of a test.
Attorneys, law enforcement and court officials often fail to recognize intellectual disability. Even when jails and attorneys believe the person has an intellectual disability, they are not familiar with the special procedures and laws that apply to persons with intellectual disabilities3 that are applicable. Competency of a detainee is focused on restoration of competency, which includes mental health and substance abuse treatment services, as well as legal education, to remedy the detainee’s lack of understanding and thus be determined fit to stand trial. Intellectual disability is permanent. Hastening a determination of competency does appear predictive of justice.
If a detainee is determined to be incompetent, the court still has several options. They can commit the person for 60 days for a misdemeanor and 120 days for a felony charge to a mental or residential facility under Texas Code of Criminal Procedure Article 46B.073. Individuals with I/DD experience undue lengths of time in jail due to a procedural problem. If the person with I/DD is charged with a felony and found incompetent to stand trial, they must first go to the Vernon State Hospital, a state facility specifically for individuals with mental illness. Vernon State Hospital has only one unit for people with I/DD, resulting in these detainees waiting in jail for up to a year before being sent to Vernon to determine if they are “manifestly dangerous.”
Once determined by Vernon not to be manifestly dangerous, individuals with I/DD are then sent to Mexia SSLC, where they must be found to not be high risk before they can be transferred to the community of a closer SSLC.
Alternatively, the court could release the person on bail. If the detainee is ultimately determined incompetent to stand trial, the court can jail them for a maximum term of commitment in an SSLC or state hospital for a period that cannot exceed the maximum sentence term for the crime with which the defendant was charged. If the defendant is determined not competent and all charges dismissed, he or she can be civilly committed. Civil commitment for individuals with intellectual disabilities is court-ordered placement in a residential care facility for individuals presenting a substantial risk to themselves or others, and who are not otherwise able to adequately care for themselves in a less restrictive setting.
Alleged Offenders with I/DD
State Supported Living Centers (SSLC)
At the end of August 2015 there were a total of 195 alleged offenders, including adults and juveniles, in residence at SSLCs. The majority (73%) are males located at Mexia SSLC with the remaining 14% of females at San Angelo SSLC. Just over 30% of alleged offenders are 22 years old or younger. African Americans are disproportionately represented, making up over 33% of alleged offenders in June 2016, more than double the state’s general population (13%). Hispanics and Latinos made up approximately 26% while Non-Hispanic Whites comprised 29%, although they make up almost 39% and 43% of the general population, respectively.4
Between 2010 and 2015, a total of 387 alleged offenders were admitted.5 Over these five years, 40% of the alleged offenders were returned to jail having been found competent to proceed through the court system and 60% were transitioned to community services.6 A significant issue facing alleged offenders is that the SSLC may recommend that the alleged offender move to community services, but the court can say no without a hearing. Individuals do not have the right of appeal if the court decides against the SSLC recommendation for community placement.
Offenders with I/DD
As of March 31, 2016, there were 679 offenders with a custody code of “intellectually impaired.” Of these, 582 male offenders with intellectual disabilities were housed at the Hodge Unit in Rusk, Texas and 88 females with intellectual disabilities were housed at the Crain Unit in Gatesville, Texas. The remaining 9 offenders with intellectual disabilities were temporarily in intake, transient, release or medical units on that date.
A state jail is a facility that houses offenders who receive state jail sentences. State jail sentences cannot exceed two years for one offense, but a repeat offender may receive overlapping state jail sentences not to exceed three years. The offenders are usually convicted of property and low-level controlled substance offenses. The number of offenders with I/DD in state jails could not be identified by the author.
Texas Legislative Responses
Interim Select Committee on Criminal Commitments
The 81st Legislature passed SB 643 establishing the Interim Select Committee on Criminal Commitments of Individuals with Mental Retardation [sic] to study the criminal commitment process for individuals with intellectual disabilities.7 The committee found that even though there is a 72 hour window to notify the court that a detainee may have an intellectual disability, the lack of training and experience with intellectual disability results in criminal justice and court personnel not quickly identifying individuals who may have an intellectual disability. To ensure individuals are quickly identified and receive both timely and appropriate treatments and services in the setting most appropriate to their needs, changes were recommended.8 Some of the Committee’s recommendations were acted upon by the 84th Texas Legislature:
- When the court determines an individual incompetent to stand trial and not likely to regain competency, the court should either civilly commit the individual for a specified time, or release the individual into the community. The Committee report did not go into detail about civil commitments, but did reference conditional release programs as examples of alternatives to criminal commitment.
- Provide training by local authorities on intellectual disabilities similar to training currently provided by LMHAs on mental illness to law enforcement, criminal justice and court personnel.
- Enumerate circumstances under which the court should dismiss all charges against a juvenile committed to an SSLC and release the juvenile from the court’s jurisdiction. The court’s ability to retain jurisdiction until a juvenile’s 18th birthday, as well as the lengthy process of transferring a juvenile cases to the adult criminal courts upon their 18th birthday, has resulted in some juveniles remaining at SSLCs for inordinate amounts of time. Providing clear guidance to the courts on when charges against a juvenile should be dismissed would help to limit the potential for indeterminate or prolonged commitments to SSLCs.
Texas Council on Offenders with Medical and Mental Impairments (TCOOMMI)
Founded in 1987, the Texas Council on Offenders with Medical and Mental Impairments (TCOOMMI), as found in Health and Safety Code Section 614.001 (C).
Their authorizing statute requires TCOOMMI to “coordinate the provision of treatment, care, and services between the various agencies who provide treatment, care, or services such that they may continue to be provided to the offender at the time of arrest, while charges are pending, during post-adjudication or post-conviction custody or criminal justice supervision, and for pretrial diversion.”9
Historically, TCOOMMI has focused on offenders with mental illness, but noted in a 2009 report to the Texas Board of Criminal Justice a need to improve efforts towards identifying and responding to the needs of individuals with intellectual disabilities. A review of TCOOMMI reports since 2009 reflect the need to implement the Special Needs Offender Program. No action on diversion was found.
TCOOMMI Special Needs Offender Program
The Special Needs Offender Program (SNOP) includes mentally impaired, intellectually disabled, terminally ill, physically handicapped, and medically recommended intensive supervision caseloads. SNOP maximizes the treatment provided to offenders diagnosed with mental impairments, intellectual disabilities, terminal illness and physical impairments by providing specialized supervision.10
- In determining competency of individuals with I/DD, the law should bypass the requirement to send alleged offenders to Vernon State Hospital in order to send them directly to the Mexia facility.
- Individuals with I/DD who are committed by the courts should receive an annual review hearing to determine if the commitment is still required and necessary.
- Establish a state priority on identifying individuals with I/DD and diverting them from the criminal justice system.
- Increase the number of case managers in the Special Needs Offender Program at TCOOMMI.
- Set aside sufficient statewide funding for LIDDAs to develop and carry out training for law enforcement on recognizing people with I/DD and providing crisis intervention.
Visit the Texas Public Policy Foundation’s Civil and Criminal Justice Issues webpage. Kate Murphy is the primary author of reports on issues of individuals with mental illness in criminal justice.
In May 2016, CMS issued the letter, Guidance to Surveyors on Federal Requirements for Providing Services to Justice Involved Individuals, www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-16-21.pdf. In the letter, CMS states that they are in the process of writing separate guidance on justice involved individuals in ICFs/IID and invite advance questions and comments.
- Davis, Leigh A. People with Intellectual Disabilities in the Criminal Justice System: Victims & Suspects. www.thearc.org/page.aspx?pid=2458. 2009. Retrieved October 1, 2012 ↩
- Code of Criminal Procedure, §16.22. www.statutes.legis.state.tx.us/Docs/CR/htm/CR.16.htm. ↩
- 2005 Opening the Door for Justice to Defendants with Mental Retardation. www.texasappleseed.org/sites/default/files/13-Mentalhealth-AttorneyHandbook.pdf. (Texas Appleseed) Retrieved May 4, 2016 ↩
- US Census QuickFacts: Texas Population Estimates July 1, 2015. www.census.gov/quickfacts/fact/table/TX/PST045216. Retrieved October 6, 2016 ↩
- Annual Report on Forensic Services in State Supported Living Centers Fiscal Year 2015. hhs.texas.gov/reports/2016/01/annual-report-forensic-services-state-supported-living-centers-pdf. Texas Department of Aging and Disability Services. Retrieved May 4, 2015 ↩
- Ibid ↩
- Overview of Texas’ Correctional System ↩
- Select Committee on Criminal Commitments of Individuals with Mental Retardation Interim Report to the 82nd Legislature. www.senate.texas.gov/cmtes/81/c855/CriminalCommitmentsInterim81Report.pdf. Retrieved May 4, 2016 ↩
- TCOOMMI responsibilities. www.statutes.legis.state.tx.us/Docs/HS/htm/HS.614.htm. ↩
- Reentry and Integration Division — Texas Correctional Office on Offenders with Medical or Mental Impairments (TCOOMMI). tdcj.state.tx.us/divisions/rid/index.html. ↩