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Wachtler: Don't criminalize autism


Handcuffs. Photo Credit: iStock

More than half of the prisoners in this country have mental health problems, and 17 percent of New York State inmates have been diagnosed as seriously mentally ill, according to a Justice Department study. The deinstitutionalization of mentally ill people has led many to eventually land in prisons, essentially criminalizing mental illness. And that is true for a growing number of other young men and women confined in corrections systems that are unprepared to deal with them.

I speak of those who suffer from autism spectrum disorder, and who have other neurodevelopment disorders. Although there are some milder forms of autism, the characteristic of autistic men and women is deficient socialization skills, including the inability to act and speak appropriately.

As the godfather of two autistic children, one now an adult, I have some understanding of the world of parents with autistic children. Many parents have experienced interactions of their autistic children with untrained school administrators and police departments. Yet the parents are repelled by the thought of children being classified as mentally ill. They correctly insist their children suffer from a disorder, but they don't want their children classified as mentally ill. As a result, despite the efforts made by many judges, treatment for the mentally ill in prisons and diversion programs designed to keep those with mental illness out of prison are often denied those with autism.

I welcome the recent decision by correction officials to reform the use of solitary confinement in New York with new rules for the maximum time prisoners can serve in solitary.

Law enforcement's unfamiliarity with the condition has led to some who suffer from autism being imprisoned. A teen in Maine was arrested in 2010 for sexual molestation after he pinched a young woman's bottom in school. A day earlier, he had seen another boy do the same, and she laughed. A zero-tolerance school policy and the nuance of pinching a friend on the bottom was lost on him. Unfortunately, it was also lost on law enforcement, which considered it forcible touching.

And a 19-year-old in Illinois was arrested by police in 2010 as a possible pedophile for kissing a baby in a stroller. It was a peck on the cheek, but it was understandable that the baby's mother was terrified when an unknown tall young man descended on her baby. "I like babies," he told authorities. He did not understand that it is OK to kiss babies he knew, but not babies he didn't. His parents persuaded prosecutors not to file charges.

What's more, many autistic individuals are not able to maintain eye contact, which they find intimidating. When questioned, that inability is often considered evasive or deceptive. Also devastating is the misunderstood tendency of even high-functioning autistic individuals to have meltdowns without any triggers. To an untrained corrections officer that kind of rage is dealt with by the use of solitary confinement.

It is bad enough to imprison someone whose criminal act may be attributed to autism, but to place an autistic prisoner in solitary confinement does not result in appropriate punishment because the behavior was not controllable by the offender. The confinement can destroy years of progress because the offender does not understand why he or she is being punished. And using punishment rather than treatment works against rehabilitation. I welcome the court settlement to reform the use of solitary confinement in New York with guidelines providing for the maximum time disabled prisoners can be in solitary. This may limit the time autistic inmates spend in solitary, but it will not always keep them out of prison.

Those suffering from autism should not be treated by the criminal justice system as if they were seriously mentally ill. But if we are determined to imprison rather than treat those who suffer from autism, we deserve to be accused of criminalizing the disorder.

Sol Wachtler, a former chief judge of New York State, is a distinguished adjunct professor at Touro Law School.


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