Special Education in Juvenile Delinquency Cases
IDEA's comprehensive system of identification, evaluation, service delivery, and review has special relevance for juvenile justice professionals. The purpose of the special education system, like the juvenile justice system, is to provide individualized services designed to meet the needs of a particular youth. The enhanced behavioral intervention and transition service needs requirements in the 1997 IDEA amendments bring special education goals even closer to those of the juvenile court. Moreover, the careful documentation of service needs and ongoing assessment of progress required by IDEA bring valuable informational resources to juvenile justice professionals.
This section presents a brief overview of how special education information may be helpful as cases make their way through juvenile court. Some of the issues discussed, such as insanity or incompetence, arise only occasionally. Others, such as the impact on disposition of whether a child has a disability, are relevant in every case in which a delinquent youth is eligible for special education services.
The short timeframe for juvenile court proceedings leaves little room for missed opportunities. Juvenile justice professionals must be alert from the earliest moment for clues to the youth's special education status or existing unidentified disabilities. This process, which should become part of the standard operating procedure, includes carefully interviewing the youth and his or her parents, routinely gathering educational records, procuring examinations by educational and mental health experts, investigating educational services at potential placement facilities, and coordinating juvenile court proceedings with the youth's IEP team. Under the 1997 IDEA amendments, whenever a school reports a crime allegedly committed by a youth with a disability, school officials must provide copies of the youth's special education and disciplinary records to the appropriate authorities to whom the school reports the crime, but only to the extent that the Family Educational Rights and Privacy Act (FERPA) permits the transmission. FERPA allows school officials to transmit school records to law enforcement officials only if parents consent in writing to the transmission and in certain other narrowly tailored situations (see 34 C.F.R. § 99.30). This requirement should help ensure that, at least in appropriate school-related cases, special education history, assessments, and service information are readily available early in the court process.58
Juvenile justice professionals can learn to recognize disabilities by carefully reading the legal definitions of disability. It is important to understand that youth may have a variety of impairments that are not immediately apparent. Numerous checklists and screening instruments are available to help recognize signs of disabilities and to determine eligibility for special education services (National Council of Juvenile and Family Court Judges, 1991).
If circumstances suggest the need for an eligibility evaluation, modification of a previously existing IEP, or some other exercise of the youth's rights under special education law, juvenile justice professionals should ensure that appropriate action is expeditiously taken. They should request that parents give written consent for the release of records and should submit a written request for information, evaluation, or review to the LEA.
Juvenile justice professionals could start by contacting the LEA to obtain its policies and procedures for providing special education services to youth in the juvenile justice system. Some districts have designated an individual to deal with compliance issues, and that person may be helpful in expediting or forwarding requests to the right person or agency. Most jurisdictions have a number of other groups that can provide advocacy or other assistance in navigating the special education system. Protection and advocacy offices, special education advocacy groups, learning disabilities associations, and other groups providing support or advocacy for particular disabilities may greatly assist juvenile justice professionals.
Determination of Whether Formal Juvenile Proceedings Should Go Forward
Nothing in IDEA prohibits an agency from "reporting a crime committed by a child with a disability to appropriate authorities" or prevents law enforcement and judicial authorities from "exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability."59 These provisions, outlined in the 1997 amendments, were made in response to concerns that IDEA's procedural protections could be interpreted to preclude juvenile court jurisdiction over school-related crimes committed by youth with disabilities. In the past, at least one court ruled under State law that a school could not initiate a juvenile court prosecution as a means of evading the procedural requirements of IDEA.60 Other courts found the juvenile court lacked jurisdiction in cases involving noncriminal school-related misconduct in which special education procedures had not been followed.61
In at least one case decided after the 1997 amendments, the court confirmed that IDEA does not prevent juvenile courts from exercising jurisdiction over students with disabilities, even if the school is attempting to evade its special education responsibilities. Nonetheless, intake officers and prosecutors should scrutinize whether such evasion has occurred in determining whether a particular case belongs in the juvenile justice system and how it should be processed.62 Courts and hearing officers have stressed that the school's responsibility to comply with IDEA procedural requirements does not end when a youth with a disability enters the juvenile justice system.63
Even if courts have the power to act, that does not mean the power should be exercised in every case. Long before the 1997 IDEA amendments, a number of courts found that the best course was to dismiss the juvenile court case or defer it until special education proceedings stemming from the misbehavior could be completed.64
Many juvenile justice professionals have encountered cases in which a youth enters the juvenile justice system for a relatively minor offense and his or her stay escalates into long-term incarceration because of the youth's inability to succeed in programs developed for low-risk delinquent youth. This may happen either because the disability-related behavior makes it difficult for the youth to understand or comply with program demands or because his or her behavior is misinterpreted as showing a poor attitude, lack of remorse, or disrespect for authority.
If the juvenile court petition involves a youth with an identified or suspected disability, juvenile justice professionals should first consider whether school-based special education proceedings could provide services or other interventions that would obviate the need for juvenile court proceedings. This is particularly true for incidents occurring at school. The 1997 IDEA amendments require thorough scrutiny of behavioral needs and implementation of appropriate interventions that may far exceed what most juvenile courts are able to provide. In appropriate cases, the juvenile court may wish to consider:
- Continuing or deferring the formal prosecution pending the outcome of special education due process and disciplinary proceedings that may alleviate the need for juvenile court intervention.
- Placing first-time offenders and/or youth alleged to have committed offenses that are not considered too serious for informal handling into diversion or informal supervision programs. Through such programs, the court imposes specific conditions on the youth's behavior, such as regular school attendance, participation in counseling, observation of
specified curfews, or involvement in community service programs. If the youth successfully complies with these conditions, the case is dismissed at the end of a specified period—usually 6 months to 1 year. Allowing the youth to remain in the community, subject to such conditions, may facilitate the completion of special education proceedings while ensuring heightened supervision of the youth. Through IEP development or modification, the youth might be determined eligible for services that supplant the need for formal juvenile court proceedings.
- Dismissing the case in the interest of justice. This option should be considered in cases in which the disability is so severe that it may be difficult or impossible for the youth to comply with court orders. This may occur, for example, if the offense is relatively minor; the youth suffers from mental illness, emotional disturbance, or mental retardation; and/or services are forthcoming through the special education system.
Youth taken into secure custody at the time of arrest are entitled to judicial review of the detention decision within a statutory time period. Depending on the jurisdiction and characteristics of the case, the length of detention may range from several hours to several months. Many professionals view the detention decision as the most significant point in a case. Detention subjects the youth to potential physical and emotional harm. It also restricts the youth's ability to assist in his or her defense and to demonstrate an ability to act appropriately in the community.
Unfortunately, youth with disabilities are detained disproportionately (Leone et al., 1995). Experts posit that one reason for this is that many youth with disabilities lack the communication and social skills to make a good presentation to arresting officers or intake probation officers. Behavior interpreted as hostile, impulsive, unconcerned, or otherwise inappropriate may be a reflection of the youth's disability. This is another reason why it is important to establish the existence of special education needs or suspected disabilities early in the proceedings. Juvenile justice professionals must be sensitive to the impact of disabilities on case presentation at this initial stage and work to dispel inaccurate first impressions at the detention hearing.
In some cases, it may be appropriate for the court to order the youth's release to avoid disrupting special education services. This is particularly true if adjustments in supervision (e.g., modification of the IEP or behavioral intervention plans) may reduce the likelihood of further misbehavior pending the jurisdictional hearing. Similarly, if there are early indications that a special education evaluation is needed, it may be important for the youth to remain in the community to facilitate the evaluation. Many jurisdictions have home detention programs that facilitate this type of release by imposing curfews or other restrictions on liberty that allow the youth to live at home and attend school pending the outcome of the delinquency proceedings.
Waiver or Transfer to Adult Criminal Court
Every jurisdiction has a mechanism by which some juveniles may be tried in the criminal justice system. Juveniles waived or transferred to the criminal justice system are treated like adults and may receive any sentence that could be imposed on an adult criminal (with the exception, in some States, of the death penalty). Although some jurisdictions have automatic filing rules (statutory transfer) for particular offenses and others provide for prosecutorial direct file (concurrent jurisdiction), many have waiver provisions that involve the exercise of judicial discretion. In judicial waiver jurisdictions, the judge must consider whether the youth is amenable to treatment and rehabilitation in the juvenile justice system.
When making this determination, the existence of specific learning disabilities, mental retardation, serious emotional disturbance, traumatic brain injury, developmental disabilities, or other disabilities qualifying the youth for special education services should be taken into account (Barnum and Keilitz, 1992; Woolard et al., 1992). For example, it may be significant for the court to know that the youth has a previously undiagnosed learning disability that could be addressed through special education and related services available in the State's juvenile training school or other State facilities for secure confinement of serious juvenile offenders. Information about particular disabilities (e.g., mental retardation) may also help to dispel inaccurate images of the youth in relation to waiver criteria such as criminal sophistication or mitigate his or her role in the alleged offense.
The court should also be informed of the status of previous juvenile court orders or service mandates through the special education system for mental health, education, or other services (Beyer, 1997). If these services were not implemented, it would be unjust to place the mantle of rehabilitative failure on the youth. In such cases, the juvenile court should retain jurisdiction to ensure that appropriate special education and other services are provided.
The record documenting the extent and nature of any disability—and its impact on the youth's thinking and acting—may play a critical role in helping to determine the existence of important evidentiary issues:
- Insanity. Occasionally, mental illness or mental status may affect functioning so drastically that the youth may be legally insane under State law. Records of special education evaluation and services in
connection with emotional disturbance, traumatic brain injury, or other disabilities may be helpful in evaluating sanity.
- Incompetence. A youth may be declared incompetent for adjudication if the court finds that he or she is unable to understand the nature of juvenile court proceedings or is unable to assist the defense attorney.65 Information about the impact of the youth's disability (e.g., a low level of intellectual functioning, problems in communicating, emotional disturbance, perceptual difficulties, and deficits in memory) may have a bearing on the court's finding (Grisso, 1997; Grisso, Miller, and Sales, 1987).
- Intent to commit the offense (mens rea). As in criminal cases, delinquency allegations may be sustained only if each element of the offense is proved beyond a reasonable doubt.
66 One of the required elements is the intent to commit the particular offense. Evidence of a disability, particularly one involving limited mental functioning, may suggest the need to evaluate this issue and may sometimes be relevant and admissible on the issue of intent.
- Confessions. The admissibility of confessions in State court may be challenged on the grounds that the youth did not make a valid waiver of rights under Miranda v. Arizona67 or the confession was not made voluntarily. In determining the validity of Miranda waivers, courts consider all of the circumstances, including the youth's age, experience, education, background, and intelligence, and his or her capacity to understand the nature of the warnings, the meaning of the right to counsel and privilege against self-incrimination, and the consequences of waiving those rights.68 Whether the confession was made voluntarily is also measured against all of the circumstances surrounding the interrogation, with the focus on circumstances showing coercion.69 Many of the criteria governing admissibility of confessions involve areas that may be affected by any number of disabilities.
Education may be the single most important service the juvenile justice system can offer young offenders in its efforts to rehabilitate them and equip them for success. School success alone may not stop delinquency, but without it, troubled youth have a much harder time (Beyer, Opalack, and Puritz, 1988). When special education needs are evident, they should be an essential part of the social study report prepared by the probation department to guide the court in making its disposition order. Moreover, juvenile justice professionals should coordinate disposition planning with education professionals to avoid conflict and to take advantage of the rich evaluation resources and services available through IDEA.
The resulting disposition order should reflect the court's review of special education evaluations and the goals, objectives, and services to be provided under the IEP. If the youth is to be placed out of the home, the court should demand specific assurance that the facility will meet the youth's educational needs under IDEA. The juvenile court should also use its disposition powers to ensure special education evaluation and placement for previously unidentified youth who show indications of having a disability.
In deciding whether or where to place a youth with a disability, it is also important for the court to understand the impact of the disability on behavior. Youth with attention deficit disorder (ADD), for example, commonly act impulsively, fail to anticipate consequences, engage in dangerous activities, have difficulty with delayed gratification, have a low frustration threshold, and have difficulty listening to or following instructions. They may begin to associate with delinquents or self-medicate through drugs and alcohol because they are rejected by others. Proper medication has a dramatic effect in helping many of these youth control their behavior, and a variety of professionals are skilled in treating ADD in medical, psychiatric, or educational settings (Logan, 1992). Unless the characteristics of ADD and the existence of effective interventions are recognized, youth with this disability stand a good chance of being treated harshly, often through incarceration, based on the outward manifestations of their disability. Juvenile justice professionals should respond appropriately to evidence of such disabilities by ensuring that appropriate medical, mental health, and other services are provided.
Juvenile justice professionals also must learn to recognize potential problems for youth with certain disabilities in particular settings, so as not to set the youth up for failure. This does not mean that juvenile justice professionals need to become diagnosticians or clinicians. However, they should consult with education, mental health, and medical professionals. It is important to seek professional advice about the kinds of settings in which the youth can function best and the kinds of settings most likely to lead to negative behavior. For example, a youth with an emotional disturbance may not be able to function in the large dormitory setting typical of some institutions. Such youth may feel especially vulnerable because of past physical or sexual abuse or may simply suffer from overstimulation in an open setting. They may require a setting in which external stimuli are reduced to the greatest extent possible and intensive one-on-one supervision is provided. Youth with other disabilities may need programs that minimize isolation and emphasize participation in group activities.
Postdisposition monitoring. Juvenile justice professionals should ensure that youth with disabilities receive the services ordered at disposition. Cases should be reviewed to determine whether different or additional services are needed and whether the placement continues to be appropriate. As part of this monitoring, juvenile justice professionals should ensure that special education rights under IDEA are being protected. When modification of the disposition plan is needed, they should coordinate its development with the youth's IEP team. When it appears that the youth's special education needs are not being met in the current placement, the court should order appropriate changes or, if necessary, terminate juvenile court jurisdiction.
