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Criminal Justice Advocacy Program

Q&A Webinar Follow-up

Q&A Follow-up to January 17th Equal Justice Talks Webinar

January 17, 2019 - ​Effectively Advocating for the Client with Developmental Disabilities who has been charged with a sex offense - Recorded Webinar | Slides

(The questions below were asked by webinar participants, and answered by Heather Ellis Cucolo, Mental Disability Law and Policy Associates Co-owner and Partner, Offering mental disability training and education both domestically and internationally.)

Question # 1: Do you know of any laws that require state I/DD agencies to find group homes/other community placements for individuals with I/DD and were convicted of a sex offense after they completed their sentence?  If the state does not find a group home and the individual is not able to live on their own, where should the individual go?

Answer # 1:  Americans with Disabilities Act discrimination claims have failed because sex offenders are exempt from its protections. Even mentally ill individuals who are required to be placed elsewhere once they are no longer "mentally ill and dangerous" under the Supreme Court precedent in the Olmstead v. L.C. case are still languishing in institutions because there are not enough appropriate community placements.  So - where do individuals go when there is a lack of appropriate housing and they cannot live on their own? They either remain in their current confinement indefinitely or fall into the revolving door of community/ jail sequence.  Even homeless shelters - the last resort - that might accept sex offenders have difficulty housing them because of zoning laws and lack of necessary resources to effectively care for the needs of someone who is ID/DD. There has been some recent discussion of this issue in New York. Check out these articles (one relates to a pending case in the system but without the added element of DD/ID)

-NY court: State must help sex offenders find housing once sentence complete 

-NY State OPWDD Placing Sex Offenders into Group Homes for Individuals with Intellectual and Developmental Disabilities

-There Are Very Few Places for Mentally Disabled Sex Offenders in America

Question # 2 - Is the public perception in this area as severely prejudicial to the defendant as the 'sanism' that Prof. Perlin discusses with regard to defendant's pleading NGRI?

Answer # 2 - In a book that Prof. Perlin and I wrote, Shaming the Constitution, The Detrimental Results of Sexual Violent Predator Legislation, we discuss how the prejudice against this population is similar, if not, more severe than those claiming or adjudicated NGRI. We also have written numerous articles echoing this same point. People are more able to accept that a mentally ill person is not responsible for a criminal act. Because sex offenders and sex offenders w/ an ID/DD are not generally viewed as "mentally ill" in the law but considered mentally abnormal or with a personality disorder, the public (jury) perceives this population as "choosing" to engage in the illegal act and that they are sexual deviants who could control themselves if they truly wanted. Also, the sanism that relates to NGRI often surrounds malingering - faking mental illness - and that the person is just trying to get a "free pass".  This "sanism" as it relates to persons charged with a sex offense is that they are not remorseful and that they are trying to excuse the severity of their behavior.  In addition people may generally more readily believe that mental illness can be treated but that there is no treatment for someone who commits sex offenses (outside of castration or death). 

- Shaming the Constitution: The Detrimental Results of Sexual Violent Predator Legislation Hardcover – March 24, 2017 by Michael L. Perlin (Author), Heather Ellis Cucolo (Author)