Vermont Defendant Accommodation Project - Background

Background

The VDAP was originally conducted to understand the difficulty mentally retarded criminal defendants have navigating the criminal justice system. During the study, however, the authors found that mentally retarded criminal defendants often suffered from a combination of disorders, such as:

• mental illness
• substance abuse
• homelessness
• a history of physical and/or sexual abuse
• a history of foster home placement
• difficulty in school related to learning disorders
• assignment to special education programs, and/or school dropout
• a history of relatively minor criminal behaviors.

The VDAP authors labeled individuals with a combination of disorders as suffering from Horrible Life Disorder (“HLD”). This term is purposefully sensational to illustrate the extreme challenges that individuals with multiple disorders face in life and in the criminal justice system.

The first step in providing defendant accommodations to mentally retarded defendants and sufferers of HLD is recognizing signs of disability. This first step may be difficult for untrained attorneys because defendants often try to mask their disabilities during their short interaction with the court system. In fact, the VDAP authors found that attorneys often did not believe that defendants had disabilities that they did not recognize. One solution is to make sure defendants explain answers to questions rather than accepting a simple “yes.” Another solution is to train attorneys to recognize disabilities during initial client interviews. By asking clients about special education programs, IEP’s, mental health and substance abuse counseling, attorneys could determine whether accommodations are appropriate in the legal context.

Once a mentally retarded defendant is identified, the VDAP provides a list of accommodations to consider. First, attorneys should question whether their clients’ disabilities affected the voluntariness of their consent to searches, statements, or waiver of other rights. Secondly, the court should determine whether a “cognitive facilitator” is necessary to guide the defendant through the legal process by asking the court to use simple language or to slow down if the defendant needs further explanation. Third, the court, prosecutors, and defense counsel should ensure that defendants understand the legal obligations created by pretrial release, guilty pleas, and probation conditions. Finally, the VDAP suggests that the criminal justice system should use extensive case management for the mentally retarded and sufferers of HLD. This approach would provide housing, sheltered employment, substance abuse counseling, and mental health services rather than using the criminal justice system as the “institution of last resort” for disabled defendants.