Cincinnati Enquirer

Sunday, April 08, 2001

Retarded offenders lost in courts

Overwhelmed and embarrassed, many get no help and much trouble

By Debra Jasper
Enquirer Columbus Bureau

Hamilton County Court Administrator Mike Walton has seen it happen time and again. A person with mental retardation or mental illness is arrested on a misdemeanor charge, and the prosecutor agrees not to recommend jail time in exchange for a guilty plea. A deal is cut and the next day, the person is back on the street. “The more you look at it, the scarier it becomes,” Mr. Walton says. “The person gets no treatment, and the next time he gets arrested he has a prior record and is likely to be treated far more harshly. It's a frightening web.”

Hamilton County is trying to break that cycle. It is implementing a new system to identify people with mental disabilities earlier so court officials can explore treatment options instead of jail or prison sentences. Officials say such a system is needed because many people with disabilities are never identified or given the extra help they need to navigate the maze of rules and regulations in courts and jails. Experts and national studies say the mentally retarded are particularly vulnerable. That's because:

• They often don't want others to know they have a disability so they try to try to cover it up. They pretend to understand their rights even if they don't.

• They are more overwhelmed and confused by police questioning. They also are frequently poor and dependent on public defenders with little time or resources to spend on their cases.

• They are more likely to be arrested, convicted, sentenced to prison and victimized in prison. Once in the system, they are less likely to receive probation or parole or meet requirements if freedom is granted. They also tend to serve longer sentences because they have trouble understanding and following prison rules.

Hamilton County officials say they are trying to do a better job identifying people with mental disabilities, but it is a complex and time-consuming task. Wendy Niehaus, director of pre-trial services for the Hamilton County courts, says workers will soon start asking people if they attended special education classes in school and similar questions. And just last month, officials started giving some inmates in the county jail IQ tests and assessing their abilities to complete basic tasks. People flagged by pre-trial workers are sent for further assessment to a clinic directed by Walter Smitson, a professor of psychiatry at the University of Cincinnati Medical Center. He says the clinic assessed more than 2,000 people for the courts last year and found that about 20 percent were mentally retarded. Discovering disabilities as early as possible is key to helping people during their trials or at sentencing, Mr. Smitson says. “We are seeing a tremendous number of people who are retarded, or borderline retarded, and they are just bewildered trying to make their way through the system,” he says. “Many times the retarded person doesn't understand what the court is asking them to do. We struggle with this all the time. It's a glaring, glaring problem.”

Problems are hidden

Hamilton County Common Pleas Court Judge Melba Marsh says too often judges learn about a person's disability only after they are in jail or have violated probation. “You are telling someone something and they are responding normally and it isn't until they are in situations where they can't pretend they understand that they reveal their disability,” Judge Marsh says. “It would be a lot easier if someone said, "I've got problems,' but many times they are not forthcoming.”

Caroline Everington, a psychologist at Winthrop University in Rockhill, S.C., says the problems experienced by Hamilton County officials are occurring nationwide. “What I've found in many, many cases is that mental retardation was not brought up at trial, not even in death penalty cases,” she says. “One of the main reasons (it goes unnoticed) is a lot of folks are expecting someone who looks like they have Down syndrome or a genetic impairment, and these people don't. They look like anybody else.”

Such problems convinced 70-year-old Robert Perske, a retiree from Darien, Conn., to spend the past 20 years trying to free mentally retarded people he believes were wrongly convicted. He has helped prove the innocence of three men and is working to free about 100 others across the country. “The guys I (advocate for), if you keep them in an interrogation room for nine or 10 hours, they will confess to the crime if they did it and if they didn't do it,” he says. Mr. Perske says that even mentally retarded inmates who are guilty should be placed in residential treatment programs where they are at less risk of being abused or forgotten than in prison. “Corrections officers will tell you of people with mental retardation who have just disappeared into the system,” Mr. Perske says. “Nobody calls on them or knows they are there. They just live out their lives in the system until they die.”