• Acknowledgements
• Introduction
• What is a Developmental Disability?
• Communication Difficulties Confronted by Individuals with Mental Retardation
• Mental Retardation and Mental Illness are Not the Same
• Profile of the Offender with Mental Retardation
• Questions to Ask If You Suspect A Defendant Has Mental Retardation
• Disadvantages Faced by Defendants with Mental Retardation
  
• Initial Appearance
• Arraignment
• Pre-Trial Conference
• Sentencing
• Community Resources:
  • The Developmentally Disabled Offenders Program
  • Division of Developmental disabilities (DDD)
    • Sussex, Warren, Morris, Bergen, Passaic and Hudson Counties
    • Union, Essex, and Somerset Counties
    • Mercer, Middlesex, Ocean, Hunterdon, and Monmouth Counties
    • Camden, Atlantic, Salem, Gloucester, Cumberland, Cape May, and Burlington Counties

© 1996 The Developmentally Disabled Offenders Program and the New Jersey Bar Foundation, August 1996

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   Defendants with mental retardation often display poor judgment and do not fully understand the significance, nor the consequences, of their actions. In an effort to be socially accepted, they may unknowingly involve themselves in criminal behavior. Moreover, because of their heightened suggestibility, they are more easily led into criminal activity. Ostensibly, their limitations carry over into the legal system because defendants with mental retardation attempt to mask their disability (often from their own attorneys) and go along with the criminal justice process although they do not fully understand it.

   The purpose of this publication is to help attorneys identify a person with mental retardation, who would not be quickly identified by appearance or speech, by providing clues on what to look for. Defendants with mild mental retardation do not have easily recognizable characteristics that would distinguish them from the general population. They are streetwise and know how to hide their disability. Having mental retardation has always been a stigma for them and they will continue to pretend to understand what is going on around them. Until they are identified, defendants with mental retardation will face disadvantages at every stage of the criminal justice process. Mild mental retardation will go unrecognized if attorneys and judges do not know what to look for.

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• is attributable to a mental or physical impairment;
• is manifested before the age of 22, and is likely to continue indefinitely;
• results in substantial functional limitations of three or more of the following areas: self-care, self-direction, receptive and expressive language, learning, mobility, capacity for independent living, and economic self-sufficiency;
• reflects the person's need for a combination of special interdisciplinary or generic care, treatment, or other services, which are lifelong or of extended duration, and are individually planned.

• Autism is a lifelong developmental disability which is recognized and diagnosed before the age of three. Current research indicates that Autism may be caused by a biochemical or neurological disturbance.
• Cerebral Palsy is a condition caused by damage to the brain during pregnancy, labor or shortly after birth. It is a brain disorder of movement or posture.
• Epilepsy is a chronic disorder of the brain, which is characterized by the tendency to have recurrent seizures, without cognitive impairment. Seizures are sudden. uncontrolled episodes of excessive electrical charges of the brain cells.

Mental Retardation Defined

   Mental Retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation is manifest before age 18.

   Subaverage intellectual functioning is determined by scores on standardized intelligence quotient (IQ) tests. Mental retardation will yield a score of 70 or below on an IQ test. However, scores between 70 - 80 indicate a borderline intellectual functioning, and might be considered mental retardation. Deficits in adaptive behavior are reflected in poorly developed daily living skills.

   Eighty-nine percent of people with mental retardation have MILD mental retardation and score between 52-70 on IQ tests. This is generally where the defendant with mental retardation will score.

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1. An Eagerness to Please - Individuals with mental retardation do not communicate on an "equal footing". They are eager to please others and are often unusually accommodating, especially to those persons they view as being in positions of authority (police, attorneys, judges).
   
   
2. Concrete Thinking Patterns - Individuals with mental retardation are unable to engage in abstract thinking. They think only concretely. For example: When asked if he wishes to waive his rights to have an attorney present before talking to police, an individual with mental retardation may be concretely focused on waving his right hand as opposed to waving his left hand.
   
   
3. Communication Through Mimicking - Individuals with mental retardation often learn to do things the "right" way by copying others. They learn to communicate by affirming the choice that is suggested last.
   
   
4. Communication Through Protectors - Individuals with mental retardation learn to communicate through the "voice" of a protector. In the hands of the wrong "protector", instead of friendship there is domination and the person with retardation can engage in crime at another's bequest.
   
   
5. Communication Through Bluffing Greater Understanding - Individuals with mental retardation often seek to mask their disability, trying to pass for so-called "normal."
   
   
6. Communication Through a Pleasant Facade - Individuals with mental retardation learn that smiling is one way to get approval or to get their needs met. The problem that arises is that they do not know when their smiling is not appropriate.
   
   
7. Problems with Receptive and Expressive Language - The most common communication difficulty is the problem that individuals with mental retardation have in expressing themselves, usually because of intellectual deficits (illiteracy). They may not be receptive to the ordinary flow of spoken language, requiring that they be spoken to more slowly and clearly,
   
   
8. Limited Memory/Impaired Recall - Even when individuals with mental retardation can verbalize effectively, their ability to remember and recall events may be impaired. This is particularly true of events that the individual has not deemed to be important.
   
   
9. Impulsivity/Short-Attention Span - Individuals with mental retardation are often described as having poor impulse control. This characteristic is related to difficulties with attention span and focus.
   
   

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Mental Retardation refers to below average abilities to learn and process information.
Mental Retardation generally occurs before a person reaches adulthood.
Mental Retardation refers to a below average intellectual functioning (IQ).
Mental Retardation is lifelong and does not involve restoration (i.e., there is no cure).
Mental Retardation services involve training and education by psychologists.
Mental Retardation is NOT an illness and should not be treated the same as Mental Illness.

Mental Illness refers to a person's thought processes, moods, emotions.
Mental Illness can occur at any time in a person's life.
Mental Illness has nothing to do with IQ.
Mental Illness may be temporary, cyclic or episodic, and may be restorable.
Mental Illness services involved therapy and medication treatment by psychiatrists.

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• Male
• Mild mental retardation
• Economically disadvantaged background
• Unemployed
• Aware of and tries to hide disability
• Crimes committed
• Sex-related Crimes
• Drug-related Crimes
• Crimes Against Person (Robbery/Assault)
• Crimes Against Property (Burglary)
• Arson
• Ages 20 - 40
• Usually commits a crime in concert with others
• Usually last to leave the scene of a crime and first to be caught

A Person with mental retardation may have difficulty:

• Reading
• Writing (does not include signing name)
• Telling time easily
• Obtaining a Drivers License
• Recognizing coins and making change
• Giving coherent directions

Indicators that WOULD NOT determine mild mental retardation:

• Appearance
• Speech
• Ability to sign name (e.g., confessions)

How to Tell if Someone Has Mental Retardation

1. Psychological evaluation (IQ level 70 or below)
2. School Records (special education classes)
3. Lack of work history (workshops, occupational centers. never held a steady job)
4. Receives Social Security Income (SSI) to support himself. or is supported fully by family

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1. Was the person classified in school for special education?
2. Has the person ever held a steady job?
3. Does the person have a driver's license?
4. How does the person support himself?
5. Does the person receive any financial assistance such as Social Security Income (SSI)?
6. Does the person appear to understand the questions being asked?
7. Does the person respond to questions without unnecessary delay?
8. Does the person have an eagerness to please others?
9. Can the person explain his actions in his own words?

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• often confess quickly;
• react to friendly suggestions and intimidations;
• say what they think a police officer wants to hear;
• may not understand the implications of the Miranda Rights; and
• typically, will "mask" their disability.

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• are convicted more often of the arrested offense rather than a reduced charge;
• use plea bargaining less frequently; and
• often never request pre-trial psychological exams.

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• Probation and other diversionary non-institutional programs are used less frequently because defendants with mental retardation are often not considered to be good prospects for such programs
• Appeals of conviction are sought less frequently
• Post-Conviction Relief (PCR) is requested in only a few cases

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   The Program accomplishes this by creating a Personalized Justice Plan (PJP), which is presented to the court system as an alternative to incarceration. The PJP identifies community supports that emphasize the use of the least restrictive, community-based alternatives, while holding individuals accountable for their behavior.

   When presented as a special condition of probation or parole, the PJP can help stabilize the individual in the community due to the way supports are identified, coordinated and monitored. Once a client is placed on probation or parole, the Program monitors the PJP until the client completes his sentence. Monitoring can be weekly, bi-weekly, monthly, or annual, depending on the needs of the individual. Every PJP increases the individual's accountability and responsibility in the community. Our goal in every case is to help our client successfully complete probation or parole.

Whom to Call:

DD Offenders Program     985 Livingston Avenue     North Brunswick, NJ 08902    Tel: (732) 246-2525

Referral Procedure:
   An Intake Form which requests general information about the case will be completed by telephone,

Eligibility Determination:
   Eligibility is based on current background information including a psychological evaluation, and educational, medical, and criminal records.

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Whom To Call:

Eligibility Determination:
   An eligibility decision takes a minimum of four to six months. It is based on the Federal definition of a developmental disability, a current psychological evaluation, and background educational records documenting a developmental disability.

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