Criminal Justice System Responses
In the last approximately 25 years, American society has made significant advances in providing support to people with developmental disabilities in the efforts of these individuals to achieve fair treatment. Major societal institutions, including education, business, and medicine, have responded to create fairer and less discriminatory treatment for all people with disabilities. However, not all societal institutions have responded with the same speed or thoughtfulness. We can quibble about whether education or medicine responded more quickly to the societal need to end discrimination, or even whether either institution has fully succeeded. But I don't think there is much question that of all societal institutions, the criminal justice system is the last to adequately respond to the special circumstances of people with developmental disabilities. This remains true whether the individual with a disability has been accused of committing a crime or is the victim of crime. For people with developmental disabilities, the criminal justice system is the last frontier of integration.
Ruth Luckasson, Workshop Presenter
Many people with developmental disabilities are ill-equipped to cope with the criminal justice system. Very little research exists on their interaction with the police or the courts. In an effort to address how the justice system currently responds to crimes against the developmentally disabled, and how that response can be improved, the workshop therefore concentrated on ways in which laws and legal practice concerning competence and consent may act as a barrier to involvement in the legal process of crime victims with developmental disabilities and the
ways in which laws, such as the Americans with Disabilities Act and hate crime legislation, may serve to overcome some of those barriers. This chapter examines these three responses of the law and the criminal justice system to people with disabilities. First, drawing on the paper by Robert Dinerstein, it examines the legal issues of consent, capacity, and accommodations as they affect people with disabilities. Second, drawing on the paper by Leigh Ann Davis, it considers how accommodations required by the Americans with Disabilities Act can be used to assist people with disabilities. Third, drawing on the paper by Ryken Grattet and Valerie Jenness, it explores the viability of using hate crime law to protect people with disabilities.
PARTICIPATION IN THE CRIMINAL JUSTICE SYSTEM
People with mental retardation may be defendants in criminal cases, charged with crimes that range from simple misdemeanors to serious felonies that can subject them to life sentences without parole or even the death penalty. They may be witnesses to crimes allegedly committed by defendants against others. They may be victims of crimes committed against themselves, with the crimes ranging from simple misdemeanor theft—for example, someone stealing an article of their clothing—to more serious crimes, such as sexual assault and rape. They may participate as jurors, judging the conduct of others charged with crimes. They may participate in civil cases in ways that are analogous to those delineated above in criminal cases. These forms of participation occur in the courts of all 50 states and the District of Columbia, and, to a lesser extent, in federal courts as well.
Dinerstein identifies basic principles that underlie the capacity (often called competency) of people with developmental disabilities to participate in and consent to various decisions as victims and witnesses in court proceedings.
Capacity and Consent
Historically, society often assumed that people with disabilities—especially those with cognitive disabilities such as mental retardation—were not competent to express their preferences or give consent. Many people with disabilities in fact may not have the functional capacity to consent to various actions. But the lack of capacity often has less to do with a person's inher-
ent limitations than with societal attitudes that limit opportunities for people to make choices and to receive guidance and training in making those choices wisely.
Capacity is not an all-or-nothing proposition. Individuals, including those with disabilities, can have capacity in some areas and lack it in others (Luckasson et al., 1992). Thus, for example, demonstrating that a woman has the capacity to enter into marriage and consent to the adoption of a child does not necessarily imply that she is capable of consenting to sexual relations with someone not her husband (see, for example, State v. Soura, 796 P. 2d 109, Idaho, 1990).
Nevertheless, as a matter of law, it has long been true that people with disabilities are presumed to be competent (or have capacity) unless proven otherwise. This presumption, which also applies to witness testimony in court cases, has important implications for people with disabilities and their meaningful participation in society. Among other things, it means that a person with disabilities is entitled to full participation on equal terms with others. A statute or practice that as a general matter prevents all people with mental retardation from testifying in court, for example, would violate this principle of presumed capacity (see, for example, State v. Henderson, 607 So. 2d 733, La. Ct. App., 1992).
Capacity, which may be thought of as a person's inherent ability to make a rational decision or give meaningful consent (Stefan, 1996), is only one element of the consent equation. In addition, an individual must have sufficient information to give consent, and the consent must be given voluntarily (Appelbaum and Grisso, 1995; Ellis, 1992). Consent, and its co-relative concept, choice, do not exist in a vacuum. While freedom to choose and give consent are important values for people with developmental disabilities, they must sometimes be balanced against protecting them from exploitation, abuse, and other forms of harm.
Participation in Court Proceedings
The presumption of capacity applies in many court jurisdictions. For example, in the federal system, Federal Rule of Evidence 601 provides that “every person is competent to be a witness” unless proven otherwise. Many state evidence rules follow the federal rule and likewise presume the competence of all witnesses (Sobsey, 1994).
When there is cause to question a person's competence as a witness—which could be for reasons other than the person's disability or age (such as
lacking personal knowledge of the event in question)—the court can hold a preliminary hearing outside the earshot of the jury to determine if the person is competent to testify. Determining if a witness or victim is competent to testify does not mean that the testimony will necessarily be believed. It is for the trier of fact—usually a jury but possibly a judge—to determine if the witness's testimony is credible. But it may not always be possible for the trier of fact to understand the extent to which the witness's disability may affect the manner as well as the substance of the person's testimony. In such cases, it may be appropriate for the proponent of the testimony, or the court itself, to call an expert witness to explain the context (although it would be inappropriate for the expert to opine whether the witness's testimony is true) (see, for example, People v. Herring, 20 Cal. App. 4th 1066, Ct. App, 1993).
Capacity and consent play an important part in another aspect of the criminal justice system that is particularly relevant to people with developmental disabilities who are victims of sexual assault and abuse. Every state's rape law criminalizes sexual intercourse with a woman who lacks capacity or is unable to give consent (Denno, 1997; Larsen, 1992). At first glance, it might seem inconsistent to prosecute someone on the basis of a victim's lack of capacity to consent to sex, and then to permit the victim to testify to the events in question, which is necessarily dependent on her capacity to be a witness (see State v. Gonsalves, 706 P. 2d 659, 662, Haw. Ct. Apps., 1985). But the inconsistency is more apparent than real. State statutes typically define sexual offenses aggravated by the victim's incapacity as those based on her inability to understand the nature of the sexual conduct or appraise its consequences (Denno, 1997). This test presupposes the victim's inability to understand the moral and societal elements of the act as well as its possible medical consequences; it requires the victim to be able to engage in abstract thought (State v. Gonsalves).The test for witness competence, as noted above, focuses more on the accuracy of perceptions, the ability to communicate, and an understanding of the obligation to tell the truth. With the possible exception of the truth-telling obligation, these elements are decidedly more concrete than the ability to appraise consequences. The truth-telling obligation, even if somewhat abstract, entails a less complex thought process and is less dependent on social and community knowledge than is appraising the social meaning of sexual intercourse.
Enhancing the Capacity of Victims Within the Court System
Before Coming to Court
Enhancing the capacity of people with developmental disabilities to report crimes requires that agencies, family members, and advocates develop support mechanisms for them, according to Dinerstein. These supports can be as basic as providing an advocate who has had some training in criminal justice issues to assist the victim in understanding how the process works. The advocate also can serve as an important liaison between the person with a disability and police investigators. In this respect, the advocate can play a critical role in urging the police to vary their questioning techniques to increase the accuracy of the information the victim provides and to take the crime report seriously.
For example, the suggestibility and willingness to please of some persons with developmental disabilities counsel against some police investigatory techniques that might lead to unintentionally false testimony from the witness. Having an advocate assist the person with disabilities navigate through the criminal justice system is important, but agencies and caregivers can help by taking proactive measures to educate their clients about the criminal justice system before they become involved with it.
It is important for advocates, family members, and others who may assist victims with disabilities to remember that it is the person with a disability who is the victim, not them. Oftentimes, witnesses without disabilities choose not to pursue criminal complaints. Sometimes their reasons are quite understandable; other times, they may be the product of real or imagined coercion from others. These same considerations apply for people with disabilities. The advocate or family member can counsel the client or loved one on the advantages and disadvantages of pursuing a complaint, and take steps to ensure that the decision to proceed (or to decline to do so) is truly the decision of the victim.
Participation Once the Matter Becomes a Court Case
The advocate for the victim with disabilities can play an important role in serving as a middle person between the prosecutor's office and the victim. While prosecution offices increasingly employ people as victim and witness coordinators, these staff members may or may not be knowledgeable about people with disabilities. The advocate for the victim, at a mini-
mum, can ensure that the prosecution office's coordinator is kept apprised of the needs of the victim for more information, provided in a nontechnical manner, than a witness without disabilities may require.
Florida, for example, requires the court to appoint an advocate for a victim or witness with mental retardation in abuse and neglect and sexual offense cases, and it permits such an appointment in any other criminal case. The advocate is empowered to represent the person in all court proceedings; must have access to all evidence and receive copies of reports introduced in the case; must receive notice of court proceedings; and may interview witnesses and request additional examinations by doctors, psychiatrists, or psychologists.
Advocates can help demystify the court process for the witness with developmental disabilities by having the person observe a court proceeding in advance of the one in which the person will be involved. The advocate would accompany the person to the proceeding and be available to explain the proceedings during and after the fact.
Testimony in Court
Once a trial begins, the focus will be on the testimony of the victim or witness with disabilities. As noted previously, most courts presume the competence of witnesses, although they may conduct a preliminary hearing to assure themselves that the person with developmental disabilities in fact has the capacity to testify. While the person's direct testimony is the preferred method of presenting evidence, indirect methods, including reports from people to whom the victim or witness confided or expert testimony regarding the effect of developmental disabilities, may also be admissible as adjuncts to, or in lieu of, the person's testimony. Courts also may be inclined to permit the witness with developmental disabilities to testify on videotape or otherwise out of the presence of the defendant (or in his presence but in a less intimidating atmosphere than a courtroom), although such substitutes for direct testimony may have a significant impact on a defendant's Sixth Amendment right to confront the witnesses against him.
These and other accommodations to the witness with mental retardation, as well as many others that could be described, not only represent good policy and practice, but also are required by Title II of the Americans with Disabilities Act and its accompanying regulations (28 CFR § 35.104 et seq.). But any accommodations must be provided in as nondiscriminatory and integrated a way as possible (28 CFR § 35.130(d)), so that if there
were two possible accommodations available, the court would be bound to choose the one that permitted the witness to testify most closely to the ways others do.
After the Trial
Witnesses and victims increasingly have the right to participate in sentencing hearings held for convicted defendants. Indeed, in some circumstances, a victim can present testimony, directly or indirectly, at such a hearing even if she did not testify at the trial (and, of course, could do so if there was no trial but rather a plea agreement). The advocate's role discussed in the pretrial context is fully applicable after trial as well. The advocate's role is to continue to explain the nature of the proceeding to the person with developmental disabilities, assisting the person, if necessary, in presenting oral or written testimony of the effect of the crime on him or her, and otherwise continue explaining the proceedings and reinforcing the person's understanding of them. Once the defendant is sentenced, the victim may also need to be kept informed of such things as parole eligibility dates, although the advocate should be sensitive to the person's desire not to have such information if that is the person's choice, and if consistent with his or her safety.
THE AMERICANS WITH DISABILITIES ACT
The Americans with Disabilities Act (ADA), signed into law on July 26, 1990, bans discrimination based on having a disability. It provides people with developmental disabilities the civil rights protections similar to the rights provided on the basis of race, sex, national origin, and religion. It guarantees equal opportunity for people with developmental disabilities in employment, public accommodations, transportation, state and local government services, and telecommunication relay services. Title II of the ADA specifically prohibits state and local governments from discriminating against an individual with a disability. State and local government services include police, court, and corrections systems.
The ADA has improved the response of the criminal justice system to people with disabilities in a number of ways since 1990. Courts must make reasonable accommodations for people with disabilities upon request, unless such accommodation fundamentally alters its activity or structure or involves an undue financial burden. Accommodations are now being used
in classrooms, in court testimony, and in some instances in interrogations. Some courts do provide disability advocates to assist with criminal cases involving people with disabilities, although this appears to be rare. The ADA has also been useful in creating and disseminating information to educate law enforcement professionals, although this continues to be a major need.
The police have typically been the focus of attention with regard to training on disability issues, but other equally important professions remain in need of education. The victim assistance field has not identified the best practices for serving victims with unique needs, nor has it learned the most effective way to train the criminal justice community about assisting victims with developmental disabilities (Tyiska, 1998).
Law Enforcement Training
In a study of police officers' training on disability issues, McAfee and Musso (1995) found that the only disability receiving notable attention in police literature is mental illness. Their state-by-state analysis revealed that only four states had training on mental retardation, two states had training on developmental disabilities, and one included learning disabilities (McAfee and Musso, 1995). It is not surprising, then, that officers believe stereotypes about people with developmental disabilities as fact. Sobsey (1994) describes five areas that should be incorporated into the ideal police training on people with disabilities: attitude training; awareness of medical and legal needs; multidisciplinary teamwork—learning how to coordinate with other agency staff who work with this population; court orientation— recognizing the complexity involved in bringing a victim to court; and specialist versus generalist training, in which some officers are given more detailed training to act as consultants in cases involving people with disabilities.
The Arc of the United States has created a curriculum entitled "Understanding Mental Retardation: Training for Law Enforcement.” Designed to take about three hours, it includes a video, worksheets, and handouts. The training covers such areas as understanding and identifying people with mental retardation, understanding different mental retardation syndromes, including fetal alcohol syndrome, fragile X, and Down syndrome, and understanding other disabilities, such as cerebral palsy, epilepsy, deafness, Tourette's syndrome, and mental illness (see http://thearc.org/ada/crim.html). In addition, the training helps to create greater police aware
ness of the prevalence of victimization among people with developmental disabilities by including a section on why they are more likely to be victimized.
Critical Focus, a California training corporation, has produced a telecourse entitled “Law Enforcement Response to Persons with Developmental Disabilities,” which has been certified by the State of California's Peace Officer Standards and Training Commission. This course specifically focuses on people with developmental disabilities and is designed to give law enforcement and correctional officers an understanding of what developmental disabilities are and what techniques are the best in responding to this population. The training teaches officers how to recognize an individual with different developmental disabilities, how to communicate with them, and in the event of arrest or victimization, how to modify interview procedures. The disabilities covered include mental retardation, cerebral palsy, epilepsy, traumatic brain injury, and autism. Critical Focus also has a “Train the Trainers” course that teaches officers how to train other officers within their department about interacting with people with developmental disabilities. In addition to training, a few police departments are developing "crisis intervention teams" to deal with people with developmental disabilities. For example, the Seattle Police Department is starting to train detectives to work on cases involving domestic violence and sexual assault of victims with disabilities.
Overall, however, such efforts on the part of law enforcement are uncommon. The Davis paper concluded that certain changes can be made immediately that do not create undue hardship, and police can continue to learn about developmental disabilities in the process. She observed that waiting until the law enforcement profession learns more about developmental disabilities should not become an excuse for not taking action and implementing practical accommodations.
Improving Reporting Rates
As discussed in earlier chapters, there are many reasons why offenses against people with disabilities go unreported. According to Davis, most rape crisis centers do not have staff members who know about developmental disabilities and may never even recognize that a person needs accommodation. Some victim assistance centers may be overwhelmed by the needs of this population and are not trained how to assist victims with disabilities.
Another obstacle to reporting is the victim's fear of not being believed or taken seriously. According to several reports (Hickman, 1998; Roeher Institute, 1994; Sanders et al., 1997), women with disabilities often have negative experiences with police officers, which makes it unlikely they will pursue future contact with them. The reports suggest that many of the attitudes, stereotypes, and myths held by the public regarding women with disabilities are also prevalent among members of the police force. Police believe victims with disabilities lack credibility and, in addition, the police themselves lack standardized protocols for handling complaints by victims with disabilities, so that responses are often individualized by the first responder (Roeher Institute, 1994; Sanders et al., 1997).
For example, Hickman (1998) reports that if a woman who has a speech impairment calls the police, she may "sound incoherent and rambling. . . . [T]hey think you're drunk and just dismiss you.” This assertion is backed up by another report stating that officers' negative attitudes about people who have trouble communicating may impede the investigation (Roeher Institute, 1994), and one report from England stating that if “a person is not able to communicate well, the police officer may see this as grounds for not pursuing a complaint” (Sanders et al., 1997).
Some states have attempted to improve the rate of reporting by enacting legislation. For example, Connecticut passed legislation in 1985 making it mandatory to report suspected abuse of adults with mental retardation. Although such laws can help educate others about victimization among people with developmental disabilities, Davis suggested, they hold little power if attitudinal barriers are not addressed by building significant, ongoing collaborations among the systems involved.
HATE CRIME LAW
Given the problems regarding the shortcomings in the criminal justice response to people with developmental disabilities, proposals for reforms have been itemized and articulated by the Office of Victims of Crime in a bulletin on “Working with Victims of Crime with Disabilities” (Tyiska, 1998). Sponsored by the U.S. Department of Justice, this publication makes specific policy recommendations, including increasing the accessibility of the criminal justice system through everything from architectural changes to the introduction of communication technologies; creating training measures for sensitizing law enforcement officials to the needs of people with disabilities; fostering relations with disability service and advocacy
organizations in the community; improving data collection efforts; and introducing specific protocols to assist people with disabilities in the criminal justice process and to protect them from retaliation.
Writing for the Office for Victims of Crime, Tyiska recommended that hate crime law be applied to crimes against people with disabilities, specifically that “prosecutors should invoke hate crime statutes, if indicated, when prosecuting crimes against people with disabilities. Judges should apply equal sentencing or sentencing enhancements, when allowed, for offenders who victimize people with disabilities” (Tyiska, 1998:4). Notably, a critical discussion of the relationship between crimes against people with disabilities and the parameters of hate crime—as a social behavior and a recently developed corpus of law—has yet to develop. Several workshop participants therefore described the principles underlying hate crime statutes and then explored the connections between hate crimes and people with disabilities.
Criminalization of Discriminatory Violence
In the late 1970s and early 1980s, lawmakers throughout the United States began to respond to what they perceived to be an escalation of violence directed at minorities with a novel legal strategy: the criminalization of discriminatory violence, now commonly referred to as “hate crime.” Throughout the late 1980s and into the 1990s, most state legislatures passed at least one piece of hate crime legislation; the federal government also passed three hate crime laws (Jacobs and Potter, 1998; Jenness, 1999; Jenness and Grattet, 1996, 2000; Grattet et al., 1998; Soule and Earl, 1999). The general rationale for this legislation has been that harassment and intimidation, assault, destruction of property, and other forms of violent crime assume a particularly dangerous and socially disruptive character when motivated by bigotry and manifested as discrimination.
It is useful to ask two interrelated questions about hate crime law and its relationship to people with developmental disabilities. First, to what degree have state and federal policy makers recognized them as a constituency particularly vulnerable to discriminatory violence and thus worthy of recognition in hate crime law? Second, on what basis should specific constituencies, such as people with disabilities, be considered for inclusion in hate crime law?
The most direct way to answer the first question is to examine the status provisions (Jenness and Grattet, 2000) or what others have referred to as “target groups” (Soule and Earl, 1999) referenced in state hate crime
law. In 1988, the most common status provisions were for race, religion, color, and national origin. This represents a legal response to the most visible, recognizable, and stereotypical kinds of discriminatory behavior (Levin and McDevitt, 1993). Disability was included in only 5 of the 19 states that had passed laws by 1988. By 1998, however, a second tier of categories clearly emerged, with sexual orientation, gender, and disabilities becoming increasingly recognized in state hate crime law.
Following the states' lead, Congress passed three laws specifically designed to address bias-motivated violence, and it continues to debate additional legislation. In 1990, President Bush signed the Hate Crimes Statistics Act (PL 101-275), which requires the U.S. attorney general to collect statistical data on “crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity, including where appropriate the crimes of murder, nonnegligent manslaughter, forcible rape; aggravated assault, simple assault, intimidation; arson; and destruction, damage or vandalism of property.”
In 1994, Congress passed two more hate crime laws. The Violence Against Women Act (PL 103-322) specifies that “all persons within the United States shall have the right to be free from crimes of violence motivated by gender.” The Hate Crimes Sentencing Enhancement Act (PL 103-322) identifies eight crimes—murder; non-negligent manslaughter; forcible rape; aggravated assault; simple assaults; intimidation; arson; and destruction, damage, or vandalism of property—for which judges are allowed to enhance penalties.
As both the federal and state laws reveal, addressing crimes against people with disabilities has found a strategy in hate crime legislation, albeit rather late in the lawmaking process. Indeed, although disability is included formally in many state and the federal laws, its later entry into the laws has meant that its connection to the legal and conceptual definition of hate crime remains rather tenuous. Only half the states have laws that cover disability. Data collection efforts continue to lag behind other groups. Police training publications and curriculum at federal, state, and local levels tend to discuss disability-based hate crime only infrequently, if at all (Jenness and Grattet, 2000). There have been no appellate cases dealing with the disability provision, so that the special problems it might present have not been analyzed (Phillips and Grattet, 1999). Thus, as both a legislative provision and practical issue, disability remains less embedded in the law than the race, religion, ethnicity, sexual orientation, and gender provisions.
Although people with disabilities remain less visible as victims of hate crime than the other minority groups included in the laws (e.g., blacks, Jews, immigrants), they are still more visible than other groups that have been proposed (e.g., union members, the elderly, children, police officers). A comparison along these lines raises the question: On what criteria should selection for inclusion in hate crime law proceed? Why some and not others?
Key Criteria for Inclusion
For a group to be recognized, hate crime law requires that it be seen by some portion of society as an identifiable group of persons who, to some degree, maintain a collective identity (Taylor and Whittier, 1992). Two sources of evidence suggest that people with disabilities comprise a “self-regarding group.” First, survey data suggest that persons with disabilities do, indeed, feel a common identity with one another and see themselves as a minority in the same sense as people who are black or Hispanic (Hill et al., 1986). Second, people with disabilities have, over the past two decades, emerged to become a significant sector of the modern civil rights movement (Shapiro, 1993). Much like people of color, gays and lesbians, and women, people with disabilities constitute an identifiable sector of a larger civil rights movement in the United States (Shapiro, 1993).
Every self-regarding group, however, is not an equally viable contender for inclusion in hate crime law. Rather, those constituencies sharing a characteristic that implicates deep social divisions are prime candidates (Lawrence, 1999). Historians, criminologists, activists, and various state agencies have only recently begun to document the influence of disability as a predisposing factor in discriminatory violence. With the passage of the ADA in 1990, the federal government recognized “that disabled persons have been subject to a history of purposeful unequal treatment . . . in our society.”
According to Grattet and Jenness, research suggests that the visibility of violence against people with disabilities has reached the point at which the visibility of violence directed at people of color and gays and lesbians was not so long ago. Moreover, they noted that violence is being increasingly understood as central to the subordination of persons with disabilities.
Hate Crime Motivations
Symbolic crimes are best envisioned as social crimes, because the victim is selected precisely because of what he or she symbolizes. In contrast, actuarial crimes involve the selection of a victim based on his or her real or imagined social characteristic, but not for expressive or symbolic reasons.
Related to the distinction between symbolic and actuarial crimes, a distinction can be made between what are called the discriminatory selection model and the racial animus model (Lawrence, 1999). The discriminatory selection model defines hate crime solely on the basis of the perpetrator's discriminatory selection of a victim, regardless of why such a selection was made. For example, like girls and women, people with disabilities may be targeted simply because they are perceived to be more vulnerable victims. In sharp contrast, the racial animus model focuses attention on the reason for discriminatory selection of victims. This approach assumes that the motivation for the selection of a victim is less instrumental and more expressive; perpetrators use the act of victimization to express animus toward the category of persons the victim represents (e.g., a person of color, a homosexual, a Jew, a person with a disability).
Both the discriminatory selection model and the racial animus model can be applied to the circumstances of violence against people with disabilities. Some evidence suggests that persons with disabilities face higher rates of victimization, not because perpetrators harbor ill will toward them, but because they are in vulnerable situations.
Since the invention of the term "hate crime" in the late 1970s, lawmakers and judges have increasingly agreed that the parameters of the discriminatory selection model provide the most legitimate foundation for modern hate crime law. Early in the history of lawmaking around hate crime, lawmakers experimented with ways of phrasing the intent standard as they grappled with how to write hate crime law. The emergent legitimate form of the law does not distinguish between mere bias-intent and hatred. Similarly, appellate court decisions on hate crime cases have, over time, increasingly endorsed the “because of” phrasing in hate crime law. In so doing, courts have maintained that it does not matter what political views or ideologies motivated the act. All that matters is that a victim was selected “because of” their race, religion, national origin etc., quite apart from the degree of malice involved on the part of the perpetrator (Phillips and Grattet, 1999). This has caused some to shift from using the term “hate” crime to the term “bias” crime. Presumably, the same logic would
apply to violence directed at people with disabilities. These trends in lawmaking and judicial decision making suggest that the least stringent form of motivational phrasing, which maps onto the discriminatory selection model, is increasingly dominant.
Hate crime laws treat people with disabilities as both “different from” and "the same as" other people by simultaneously segregating and integrating them from or into the criminal justice system. Envisioning crimes against people with disabilities as hate crimes entails according special treatment to them. This is accomplished by extending the “same” treatment accorded to other similarly situated groups. With regard to the difference dimension, when applied to persons with disabilities, hate crime law bestows minority status on 54 million people with disabilities in the United States (U.S. Census Bureau, 1997), thus distinguishing them from the rest of the U.S. population. With regard to sameness, the institutionalization of disability provisions in hate crime law serves to include people with disabilities into the coalition of status groups already covered under the law, ensuring there is nothing special or different about them.
Grattet and Jenness note that not all crimes against people with disabilities should be conceived of as hate crimes. Just as this approach would not be appropriate for other categories such as race, religion, sexual orientation, and gender, it would not be appropriate for disabilities. As with other sorts of bias crimes, enhancements should be reserved for instances in which there is persuasive evidence that the selection of the victim was based, in whole or in part, on the victim's disability.
There are a number of barriers to the participation in the criminal justice system of crime victims with developmental disabilities. Police and prosecutors may see them as unreliable witnesses and be reluctant to bring charges when the victim has a developmental disability. People with developmental disabilities may require support, such as a specialized advocate, to assist them in dealing with the criminal justice system, from dealing with the police investigating the crime through the entire court process. The Americans with Disabilities Act, in fact, requires accommodations to meet the needs of people with disabilities. The criminal justice system has begun
to make changes to accommodate the needs of people with disabilities, but much remains to be done in the areas of training law enforcement and court personnel and in providing advocates and other resources to people with disabilities.
An area of law that is emerging as another avenue to better include victims with disabilities in the criminal justice system is hate crime legislation. Although some states have included disability as one of the groups in their hate crime laws, few cases have made use of it, so that special problems it may present have yet to be analyzed.
Research is sparse on the effects of accommodations required by the Americans with Disabilities Act and inclusion of disability in hate crime legislation. It remains to be known how well these approaches will be able to overcome the barriers to participation by victims with disabilities in the criminal justice system.