Disposition of mentally retarded offenders

Criminology Research Council grant ; (20/81)

This book examines the 'career' of the mentally retarded person who becomes involved in the criminal justice system, from the time he is apprehended for questioning by police, and brought before a court, through the serving of a sentence (which may be determinate or indeterminate; and served in prison or in the community), until the person is rehabilitated and able to take his place in the community as a law-abiding citizen.

In Chapter 1, mental retardation is defined, and delineated from mental illness. Myths associated with mental retardation are discussed, particularly the belief that mental retardation and criminality are linked causally. The limitations of the 'mad or bad' philosophy (which summarises the issue of responsibility for criminal offences) are examined, and the dilemma is raised that the mentally retarded offender may be neither mad nor bad. The principle of normalisation, that is, making available to mentally retarded people patterns and conditions of everyday life which are as close as possible to the norms and patterns in the mainstream of society, is applied to the mentally retarded person accused or convicted of crime.

Chapter 2 examines the size of the problem. Whilst at most approximately 2-3 per cent of the general population is mentally retarded, at least one Australian study has found that 5 per cent of the prison population suffers from this disability. This figure is probably an under-estimate, because not all offenders undergo psychological assessment. In the United States of America, a national figure of 9.5 per cent has been found, with there being marked differences between regions. The reasons for regional differences in prevalence rates are examined, as well as variations over time. Mental retardation and/or schooling and learning difficulties occur frequently in the juvenile offender population.

Mentally retarded offenders share many characteristics with the general prison population, including low socio-economic status and cultural-familial deprivation. Most retarded offenders fall into the mildly retarded category, and most are males. The type of offence committed tends to be against property or persons, but is seldom rape or sexual assault. There is a tendency to commit minor, but repeated offences, or a major, violent crime, resulting in a bi-modal distribution according to the severity of crime.

Chapter 3 discusses apprehension, questioning, and possible means of diversion out of the criminal justice system. Cases are documented where false convictions were obtained on the basis of confessional statements by retarded suspects who had not in fact committed an offence. There is a need for training for police officers and other criminal justice personnel in the recognition and handling of mentally retarded suspects. The range of appropriate alternative diversions needs to be increased so that police officers are not faced with a situation where the only choice is between the cells and a mental hospital.

Chapter 4 deals with the legal issues associated with competence in court, including fitness to plead and fitness to stand trial, and disposition of the unfit accused, namely, detention at the Governor's pleasure. The question is raised at to whether the concept of fitness to plead should be retained. Proposed amendments to New South Wales and Queensland mental health legislation are examined.

Chapter 5 outlines issues which may arise during the trial of a mentally retarded accused who is fit to stand trial. The retarded person's competence to take the oath, plead guilty, or give evidence is examined. Various defences are outlined, including the insanity defence (and its consequence, namely, detention at the Governor's pleasure), diminished responsibility, intoxication, automatism, mistake, and provocation. Areas of the law needing reform receive comment.

Chapters 6 and 7 concentrate upon the range of sentences which may be passed on a mentally retarded offender, Chapter 6 examining community-based options and Chapter 7 detailing custodial options. The criteria which the Court takes into account when deciding upon the sentence, and the impact of the various forms of sentence upon a mentally retarded offender are assessed. In Chapter 7, the effect of indeterminate sentences, such as detention at the Governor's pleasure, is critically reviewed. The effect of imprisonment is likely to be detrimental to the retarded offender, but this fact should not be used as an argument for establishing segregated correctional institutions for retarded offenders.

Chapter 8 focuses upon returning the offender to the community. The effectiveness of parole is examined, and the concept of dangerousness as the major criterion for release is criticised. Habilitation and rehabilitation programs for retarded offenders are outlined, together with training courses for corrective services personnel. The aim is that the retarded offender receive habilitative services - medical, mental health, social, vocational, educational, physical therapy, and counselling which will assist him to the extent and within the shortest time possible to function in the community as a self-reliant law-abiding citizen.