ONE SIZE FAILS ALL
REPORT SERIES

MISUNDERSTOOD AND
MISTREATED
How Individuals with Intellectual and
Developmental Disabilities Experience the
Texas Criminal Legal System

OCTOBER 2020

One Size Fails All: Misunderstood and Mistreated

1

TEXAS CRIMINAL

JusT1cE coAuT10N

The Arc.
Texas

This series explores the failures of Texas’ criminal justice system to adequately address the needs
of undervalued and marginalized populations, including teenagers and young adults, people with
substance use and mental health issues, the LGBTQ community, people without stable housing
supports, and people with intellectual/developmental disabilities (I/DD). Not only are these
populations failed by the justice system, but Texas families and communities are harmed as more
people are driven into incarceration, and taxpayers are left to foot the bill for unsuccessful policies
and practices. We urge you to join us in calling for reforms that will create healthy, safe, thriving Texas
communities.
The Texas Criminal Justice Coalition advances solutions and builds coalitions to reduce mass
incarceration and foster safer Texas communities.
© 2020 Texas Criminal Justice Coalition. All rights reserved. Any reproduction of the material herein must credit the
Texas Criminal Justice Coalition. “Misunderstood and Mistreated: How Individuals with Intellectual and Developmental
Disabilities Experience the Texas Criminal Legal System” is available from the Texas Criminal Justice Coalition at
www.TexasCJC.org.

2		

One Size Fails All: Misunderstood and Mistreated

ONE SIZE FAILS ALL REPORT SERIES

MISUNDERSTOOD AND MISTREATED
How Individuals with Intellectual and Developmental
Disabilities Experience the Texas Criminal Legal System

Authors:
Megan Sissom, Policy Associate
Texas Criminal Justice Coalition
Alex Cogan, Manager of Public Policy & Advocacy
The Arc of Texas
Design by Catherine Cunningham

One Size Fails All: Misunderstood and Mistreated

3

Contributors:
Coalition of Texans with Disabilities: Tiffany Williams Teate, Policy Fellow
Integral Care (LIDDA & LMHA): Laura Slocum, Practice Administrator of Crisis and Criminal
Justice Initiatives; Sarah Kuykendall, I/DD Crisis Intervention Specialist Team Lead;
Kimberly May, Practice Manager of I/DD Authority Services; Michelle Collins, ANEW Program
Manager; Sarah Kincheloe, Hospital and Jail Diversion Team Lead
Child Protective Services: Kevin Thomas, MSSW, Region 7 Developmental Disability Specialist
Austin State Supported Living Center: Clare Benetiz
Hogg Foundation: Colleen Horton, MPAff, Director of Policy
Self-advocate, Sam
Self-advocate, Michael
Self-advocate, Crystal
Tri-Counties LIDDA & LMHA: Dr. Maria Quintero, Psychologist
Positive Enlightenment: Malika Pritchett, Board Certified Behavioral Analyst
Travis County Sheriff’s Office: Daniel Smith, LPC, CCHP, Director of Inmate Mental Health and
Programs; Jeffery Futrell, LSW, Social Services Coordinator
Texas Criminal Justice Coalition, Theresa Lauman, Policy Associate

4		

One Size Fails All: Misunderstood and Mistreated

Definitions
(Commonly Used Terms)
Developmental disability (DD) — DDs are characterized by substantial functional
limitations in at least three of the following areas: self-care, learning, walking/
moving, self-direction, independent living, economic self-sufficiency, or language.
These involve physical and/or mental impairments with an onset of symptoms
occurring before age 221 and include autism spectrum disorder and cerebral palsy.
DDs frequently co-occur with an intellectual disability (ID) and 50 to 80 percent
of those with autism spectrum disorder also have an I/DD.2
Direct support professional (DSP) — DSPs are hired staff members who
provide direct, necessary supports and services to individuals with I/DDs in the
community, in their homes, and at work sites.
Neurodevelopmental disability (ND) — A “group of conditions with onset in the
developmental period,” that “produce impairments of persona, social, academic or
occupational functioning.”3
Intellectual disability (ID) — IDs are “deficits in intellectual functioning,” which
include “reasoning, problem solving, planning, abstract thinking, judgement,
academic learning,” and/or “experiential learning.”4 An individual with an ID must
also have impairments in adaptive functioning, which include “communication,
social skills, personal independence at home or in community settings,” and “school
or work functioning.”5 Onset of an ID must occur before age 18.
Trauma — Individual trauma results from an event, series of events, or set of
circumstances experienced as physically or emotionally harmful or life-threatening
with lasting adverse effects on the individual’s functioning and mental, physical,
social, emotional, or spiritual well-being.6 People with I/DDs are especially
vulnerable to trauma and are more likely to have been exposed to trauma during
childhood than children without I/DDs.7

Texas Medicaid and Health and Human Services Programs
Home and Community-based Services (HCS) — A Medicaid waiver program that
provides community-based services and supports to qualified individuals with
I/DDs. The HCS program provides individualized services and supports to people
with I/DDs who are living with their family, in their own home, or in other
community settings, such as small group homes.8
Intermediate Care Facility (ICF) — An ICF provides community residential
and habilitation services. ICFs are typically group homes that offer a variety of
services, including medical treatment, specialized therapy, and personal, social,
and vocational skills training.9

One Size Fails All: Misunderstood and Mistreated

1

Local Intellectual and Developmental Disability Authority (LIDDA) — LIDDAs
are points of entry for publicly funded I/DD services. They enroll eligible
individuals with I/DDs into various waiver programs (e.g., HCS and ICFs);
provide supports and services, such as employment support, skills training, and
crisis support; and engage in permanency planning for various individuals.10
Local Mental Health Authority (LMHA) — Texas Health and Human Services
contracts with 37 regional entities to provide an array of programs and services
that help people manage mental illness, including through case management,
pharmacological management, counseling, psychosocial rehabilitative services,
and skills training, among other supports.11
State-Supported Living Center (SSLC) — A large intermediate care facility
that houses 97 to 446 people; there are 13 SSLCs in Texas. SSLCs are structured
residential facilities operated by the Texas Health and Human Services
Commission to provide I/DD services, including medical treatment, specialized
therapies, and training in the acquisition of personal, social, and vocational skills.12

Where do people with IDD reside in Texas?
Home & Community Based Services
(HCS)--Medicaid Waiver
{5-15 year waitlist)
HCS staffed
group home
(4 HCS
recipients
max .)

Companion
Home (with
an HCS paid
family-like
setting)

Own Home or
Family/Friend Home

Unregulated Homes
(board & care).

Without housing
services

Homes are
unlicensed, &
privately owned

Typically numerous
people in a
residence (6-50)

Own Home

ICF GrouR Home-Medicaid reguired
6+ people in the
hom~,24/:.....
nursing ~

2		

-Q

State SURP-Orted Living Center-Medicaid reguired

13 facilities in the
state (average 24 7
people per faci I ity)

One Size Fails All: Misunderstood and Mistreated

ExP-eriencing
Homelessness
Camping, temporarily
residing in shelters or
~ couch surfing

On a cold January day in Austin, Texas, Jeff was picked up from his shift at

Goodwill. He is a six-foot tall, 18-year-old Black man who recently graduated
high school and works six hours per week at Goodwill, his first job. While
riding home silently with his direct support staff, Jeff abruptly opened the van
door, hopped out, and began walking down the shoulder of the road.
His support staff followed and called out to him; then a police cruiser
appeared. Two officers approached Jeff from behind, announced themselves,
and ordered him to stop walking and turn around. When Jeff did not
comply, the officers repeated their commands, stood in front of him, and
again repeated their commands as he continued to walk forward. When one
police officer began to handcuff him, Jeff spit on him. The officers tackled and
handcuffed him.
Jeff has a moderate intellectual disability, schizophrenia, and a traumatic
brain injury from early adolescence. Despite efforts by Jeff ’s group home staff
to intervene and explain his disabilities and communication style, officers
arrested and charged him with a felony for spitting on an officer.
Later, Jeff said he left the van because he was made fun of at work and was
practicing walking away when upset to “cool off ”—a skill his mental health
caseworker had been teaching him. Officers stated that he presented with
suspicious behavior, which prompted their interaction.
Jeff served five days in solitary confinement “for his own safety” because jail
staff identified he might have intellectual and/or developmental disabilities.
No other accommodations or referrals were made. He was placed on
probation for six months; however, because of his inability to maintain the
conditions of community supervision, such as paying fees, his probation
lasted 30 months.
Jeff ’s story is one of many that show how individuals with I/DDs often experience
significant and unique obstacles when confronted with the criminal legal
system. Some studies estimate that these individuals comprise two to three
percent of the U.S. population, yet represent four to ten percent of the adult
incarcerated population.13 This number is likely conservative since I/DDs are
often unrecognized by criminal legal professionals who are either untrained or use
untailored assessment tools to identify individuals with I/DDs.
Texas has an estimated population of 29 million,14 which includes more than
500,000 people diagnosed with I/DDs.15 However, not all of these individuals
receive a diagnosis or state services; thus, the number is likely much higher.16
Since the criminal legal system does not appropriately track data when a diagnosis
is known, it is only estimated that approximately 14,700 people with I/DDs are
currently incarcerated in Texas. There are presumed to be even more individuals
in the juvenile justice system whose disabilities have not yet been identified.17

One Size Fails All: Misunderstood and Mistreated

3

A lack of
fully funded
communitybased services
and a criminal
legal system that
does not consider
accommodations
for people with
disabilities
discriminates
against
individuals with
I/DDs, driving
people with
disabilities into
the criminal legal
system in Texas
and keeping them
there.

4		

Compounding problems for individuals with I/DDs, Texas has the
highest percentage of people without health insurance in the country.18
Texas Medical Association data shows that 18 percent of Texans do
not have health insurance, of which 61 percent are Hispanic and 10
percent are Black.19 The lack of health insurance coupled with the lack
of unbiased medical and mental health care leaves Black and Latinx
individuals without proper diagnoses and unable to access treatment
options.20
Furthermore, people with disabilities are commonly misperceived as:
•

Unable and incapable of understanding and communicating
effectively with others

•

Being all the same

•

Problematic to themselves, others, and society

•

Unable to restrain themselves from self-harm or harming others
and unreasonable or irrational

Such misperceptions can wrongly drive individuals with I/DDs into the
legal system. The Arc of Texas estimates that 50 to 80 percent of police
encounters involve people with some type of disability.21 Black youth
and young adults with a disability have a 55 percent chance of being
arrested compared to 37 percent for those without a disability.22 While
the United States does not track the number of people with disabilities
killed by police, the Ruderman Family Foundation estimates that onethird to one-half of all people killed by police have a disability.
Bullying, trauma, isolation, misunderstanding and misinterpretation
by others, and exclusion from evidence-based therapies and preventive
treatments can result in individuals with I/DDs entering the criminal
legal system at higher rates than those without I/DDs. Once involved
with the criminal legal system, the I/DD population faces numerous
unique challenges and obstacles, such as increased victimization in jail
and prison, longer sentences, and decreased likelihood of probation or
parole.
This report focuses on the multitude of factors that have driven more
and more individuals with I/DDs into the criminal legal system, leaving
them and the system without solutions.

One Size Fails All: Misunderstood and Mistreated

Unique Vulnerabilities That Unfairly Increase
Criminal Legal System Involvement
and Personal Harm
Individuals with I/DDs experience vulnerabilities in navigating the criminal legal
system, which lead to more individuals with I/DDs being inappropriately assessed
as a danger to the community. These individuals also remain in the criminal legal
system longer than people without disabilities.

Common Challenges Persons with I/DD
Experience in the Criminal Justice System

'

Desire to ,
Please,
Authority ,
Figures,

'

\

, Often Give
, Incriminating
,statements
, and False
1 Confessions

;

Challenges /"'
with ,
Abstract '
Thinking, '
Judgement & \
Problem
Solving

'

'

\

\ Victimized
,at High
, Rates

,

- - ....

/

Individuals I
with I/DD I
Frequently,
have
Co-Occurring 1
Diagnosis I
with Complex \
Needs \

' ',

/

....

Feeling
, Isolated &
,Misunderstood
,in the
, Criminal
Justice
System

--One Size Fails All: Misunderstood and Mistreated

5

Lack of Support to Navigate the Criminal Legal System
The I/DD population often lacks the support needed to navigate the criminal
legal system safely and successfully, putting them at higher risk of harm. Research
suggests that individuals with I/DDs, who are not known by law enforcement to be
connected to a support system or services, have a higher chance of being processed
through the criminal legal system, rather than referred back to their support
network and/or services within the community.23 Further, the potential risk or
vulnerabilities of a person with I/DDs may not always be detected by criminal
legal system staff.24
Challenges with Communication
Individuals with I/DDs may experience communication challenges and are likely
to have difficulties understanding required advisements about their basic rights.25
They also have higher rates of “susceptibility to suggestion” and eagerness to
“please authority figures,” which can lead to unintentional “self-incrimination
and confession” and increase vulnerability to coercion, deceit, and intimidation.26
Additionally, expressive language (how a person communicates with others)
and receptive language (how a person receives communication from others)
often cause confusion and miscommunication when individuals with I/DDs are
communicating with someone who is unfamiliar with their communication style27
(e.g., grunts, gestures, or another language such as American Sign Language).
The Arc of Texas suggests that law enforcement use a modified Miranda warning
when communicating with someone with I/DDs:
Traditional Version

Modified Version

You have the right to remain silent.

I want you to know that you have rights. You don’t have to talk
to me about what happened.

Should you give up the right to remain
silent, what you say can and will be used
against you in a court of law.

But if you do talk to me, I can tell the court whatever you tell
me. The judge will find out what you say to me and decide if
you did something wrong or not. Can you tell me in your own
words what I just told you?

You can talk to a lawyer if you want to. Your lawyer will help
you and is your advocate when you become a suspect of a
You have the right to an attorney present
crime. You can talk to a lawyer before I ask you questions. Your
during questioning.
lawyer can be with you when I ask you questions. Can you tell
me in your own words what I just told you?
If you don’t have enough money to hire a lawyer to help you,
If you want an attorney, but cannot afford we will get one for you. You don’t have to pay. You can have the
one, one will be appointed for you.
lawyer for free. Can you tell me in your own words what I just
told you?
Do you understand these rights as I have
explained them to you?

6		

Do you have any questions about what I have just told you? Do
you want me to get you a lawyer?

One Size Fails All: Misunderstood and Mistreated

Samantha's Story

llon Complex
Trauma uilh the
1/ UD Population
teadsto
1nc:u·t·t•rat ion

Higher Rates of Victimization
People with disabilities are three times more likely to be
violently victimized than people without disabilities.28 People
with developmental disabilities are between four and ten times
more likely to experience abuse.29 Further, childhood sexual
abuse of people with I/DDs is far more common than sexual
abuse against people without I/DDs.30
Those who experience childhood trauma are at high risk of
entering the criminal legal system later in adulthood.31 People
with I/DDs who experience violence, including sexual violence,
may be more prone to stress in adulthood and exhibit higher
rates of conflicts with peers.32 Further, unaddressed exposure to
physical and sexual violence likely leads to increased stress and
higher rates of offending in adulthood.33 In Travis County, it is
believed that a disproportionately high number of individuals
with I/DDs are arrested on felony assault charges.

Invisible Vulnerabilities
Due to prior trauma, abuse, and bullying, individuals with
I/DDs may feel stigmatized by their disability and choose not to
disclose it, causing their disability to go unrecognized by others,
including those in the criminal legal system. When entering
the system, professionals may be unaware of a disability,
thus overlooking a person’s needs for accommodation and
misinterpreting a person’s presentation or actions. For example,
if a person with I/DDs does not answer an officer promptly due
to delays in cognitive processing, the lack of response could be
misinterpreted as intentional noncompliance and lead to more
criminal charges or harsher punishments.
Also due to stigma, families often reject an I/DD diagnosis
label in the education system, so children might never receive
supportive services, transitional services, or services in
adulthood. Not only does this distort data about the number
of people with I/DDs, it is more challenging for individuals to
connect to support later in life, which may help prevent crisis
and criminal legal system involvement.
Individuals with I/DDs often have challenges with memory,
such as recalling basic information (e.g., names of group
home staff, phone numbers, or their home address). They may
struggle to recall event details and the sequence of events,
leading to misleading statements and increasing their chances
of arrest and wrongful conviction.

• 21 -yea r s-o ld
• M ild ID & PTSD di agnosis
• 3 ar rest s, inca rce rated 2 ti mes

. ,z,.

,s ~

Sam anth a is tal ked
down t o by t eac her s,
t he pr inci pal, and pee rs
at school. She is ca l led
" ret ard ed " in th e
~
schoo l's hal lways and
be at up aft er schoo l o n
t he scho o l's trac k .•

Samantha is arrested for the
first time for assaulting her
neighbor. She left her group
home after a peer yelled at
and threatened her. When
the neighbor approached
Samantha outside and
touched her back to offer
support, she kicked him to

getaway.

•

-

.

Samantha spat at and ran
from police when they tried to
detain her. She was scared,
uncertain what was occurring
and due to processing and
communication delays, ~
she did not say anything to

police at the time. She was
arrested and booked into the
jail for a felony (Harassment
of P.ublic Servant).

-

Samantha is given an unnecessarily
long sentence, far longer than

similarly accused individuals.
Samantha receives SSDI and her
family and Medicaid housing
provider are unable to pay her bail.

Once Samantha gets released and
goes to jail, she is given an 18month probationary sentence.

End mass incarceration of
Texans with I/DD NOW !
Fu nd mandat ed ye ar ly I/ DD
training for Texas' Criminal
Legal Syst em!

One Size Fails All: Misunderstood and Mistreated

7

Common Vulnerabilities

•

-----

''

'

'
'\

''

'
'

- - - - .,.

,
,

,'

Challenges Communicating
with Others
(ex: may use gestures)

Disability Goes
Undetected
(cloak of competence)

Furthermore, when under stress, such as being interrogated
or confined, an individual’s symptoms may be exacerbated.
Individuals with I/DDs are often put in segregated settings like
solitary confinement, increasing the chances they will regress
or mentally decompensate, which results in more disciplinary
offenses and prolongs their incarceration and solitary confinement.
However, an individual with I/DDs is less likely to be restored
to competency in a jail or institutional setting, decreasing their
ability to advocate for themselves and increasing their chances of
staying incarcerated.

-----'

,

''

1'

\

;

'

,'

. -- - ......

,

More Likely to
'People Please'
(resulting in false
confessions)

-D- '

'
''
''

-- - - ...
Pre-trial Services:
Typically need to be
able to call someone to
help vouch for a bond
release

,

''

''
'
,,

Challenges with
memory recall

Lack of Access to Supportive and Preventative
Services
Mental Health/Dual Diagnosis
Early intervention is essential to prevent unnecessary arrests and
criminal legal system involvement for individuals with I/DDs. Many
have co-occurring needs and dual diagnoses that often go untreated or
undertreated, contributing to crisis events. Approximately one in three
individuals with an ID also has a mental illness like depression, bipolar
disorder, and/or anxiety disorder.34 This population has a high rate
of post-traumatic stress disorder due to their increased likelihood of
experiencing sexual, physical, and mental abuse.

Unavailable and Underfunded Community Programs

Texas ranks
49th out of
51 states* for
providing
I/DD Services
*Including Puerto Rico

8		

Wait times for the Home and Community-based Services (HCS)
Medicaid waiver in Texas can run from five to 15 years. Criteria for
Medicaid waiver programs are narrow and require extensive historical
information regarding an individual’s developmental period, which is not
always accessible later in life.

35

An individual has to be assessed by a clinician – typically a psychologist
through a Local Intellectual and Developmental Disability Authority
(LIDDA) – to qualify for community-based I/DD services. Many LIDDAs
cannot or will not meet with individuals when they are incarcerated; thus,
individuals go without services until they are released. If an individual
is incarcerated for more than 30 days, their state Medicaid services are
suspended or terminated and they must reapply for benefits upon release.
For individuals enrolled in community-based services, the criminal legal
system often does not know how to contact the service providers to divert
an individual from jail or plan for a safe release, increasing the chance
of recidivism. These barriers preclude many individuals from accessing
HCS.

One Size Fails All: Misunderstood and Mistreated

Program/Setting

Average Cost Per
Person Per Month

Average Cost Per
Person
Per Year

Community
Living

Home & Community
Based Services

$4,290

$51,481

versus

versus

Facility Living

State-Supported
Living Center

$26,768

$321,212

Facility costs in Texas are

6x

the cost of community
living for people with
I/DD in Texas.

Source: Texas Health and Human Services Commission

Lack of Access to Therapeutic Services
While community-based Medicaid services for people with disabilities cover
talk therapies or other clinical recovery or evidence-based programs to address
trauma or mental health needs, practitioners often incorrectly believe people with
I/DDs cannot benefit from talk therapy. Also, very few providers in Texas offer
individual therapy to those with I/DDs. Unaddressed abuse and trauma can lead
to stress response reactions (fight, flight, or freeze), opening another door into the
criminal legal system. Easily accessible and ongoing therapeutic prevention for
individuals with I/DDs will likely decrease their stress responses, which may
decrease their involvement in the criminal legal system.

Medicaid Waiver Programs

In Texas there can
be a 5 to 15 year
wait for communitybased Medicare
waiver programs.

One Size Fails All: Misunderstood and Mistreated

9

An Unjust Justice System

“There is just
very little
innovation
when it comes
to providing
services
for this
population; it’s
not drawing
clinical
professionals.”

Individuals with I/DDs experience excessively long waits in jail
due to procedural problems. In Texas, people charged with certain
violent felonies who are determined incompetent to stand trial must
wait for months in county jail to be transferred to a state hospital
for competency restoration. Even with extenuating circumstances
related to I/DDs that call into question the seriousness of the
offense, Texas statute designates only one facility, Vernon State
Hospital, to provide competency restoration for those charged with
felonies involving violence.36 The hospital has only one unit to treat
individuals with I/DDs. The entire process, from jail time to hospital
admittance, often takes a year to 18 months.
If Vernon State Hospital assesses an individual as not “manifestly
dangerous,” the individual is admitted to the Mexia State Supported
Living Center for risk assessment to determine whether the
individual is allowed to return to the community or a local SSLC.

Recommendations
The following are presented in order of importance:

Strategies to Prevent Involvement with the Criminal
Legal System
•

Increase funding for HCS Medicaid providers to pay their
full-time direct support staff a living wage while providing
ongoing trauma-informed and person-centered services,
which will ultimately help reduce the waiting list for those
needing community-based services. Salaries remain around
$10.72 an hour for direct support professionals working
with the I/DD population.37 Medicaid providers consistently
report challenges with hiring and retaining staff, which may
result in the provision of subpar services in the community.
Additionally, the lack of consistent trauma-informed and
person-centered practices contributes to crises, which
increase the frequency of calls to law enforcement and the
subsequent arrest of people with I/DDs.

•

Increase funding for the HCS waiver to allow more
individuals with I/DDs, especially youth aging out of foster
care, to receive this service yearly. Current wait times for
Medicaid waiver services are five to 15 years, including
HCS. Historically, a number of HCS slots have been
released yearly for youth aging out of foster care; however,
as of 2020, no slots are available for these youth in Texas.38

-Advocate for people

with I/DDs

10		

One Size Fails All: Misunderstood and Mistreated

•

Fund urgent therapeutic service options for individuals with I/DDs to
prevent unnecessary arrest/incarceration and psychiatric hospitalization.
Community members, law enforcement, jail staff, mental health and
I/DD staff, and persons with I/DDs who have experienced the criminal
legal system support the need for urgent therapeutic service options. To
prevent unnecessary law enforcement involvement, LIDDAs should build,
hire, train, and maintain — or contract with a similar agency — urgent
therapeutic service options for the I/DD population and partner with Local
Mental Health Authorities’ (LMHAs) crisis teams to coordinate care.

•

Offer incentive programs for mental health clinicians to work with
individuals with I/DDs. To attract clinicians, who bring clinical expertise
and innovation to services for individuals with I/DDs, Texas must increase
the provider rate. Addressing trauma and more complex issues with highly
trained clinical staff may help prevent crises and decrease criminal legal
system involvement for this population.

Strategies to Prevent Arrest
•

End overreliance on law enforcement to manage challenging behavior
of individuals with I/DDs. Individuals with I/DDs who are in crisis can
have traumatic and ineffective responses to law enforcement. To avert such
situations, mental health professionals should respond, which will help
reduce the number of individuals with I/DDs from entering the criminal
legal system. The I/DD population also should have access to fully funded
services to meet their needs in the community and have options for
immediate crisis support.

Strategies to Identify People with I/DDs in Jail and Rapidly
Coordinate Their Release
•

Revise jail assessment and housing standards for people with I/DDs.
Texas law requires jails to conduct assessments “at the earliest stages” of a
criminal proceeding to identify if people have mental illness or I/DDs.39
Texas has policies to assist jails in identifying whether people are receiving
services from a mental health authority or LIDDA. However, many people
with I/DDs do not receive services from LIDDAs. Whenever an individual
is assessed and determined to have I/DDs, a LIDDA should be notified.
Moreover, the assessment instrument is not written to ensure that people
with I/DDs understand. The State should require the Texas Commission
on Jail Standards (TCJS) and I/DD experts to jointly write and regularly
update the assessment instrument.
Further, because the jail standards for housing individuals with I/DDs are
unclear, TCJS should work with I/DD experts to promulgate standards
for protected housing, prevention of extended periods of isolation,
monitoring, etc.

One Size Fails All: Misunderstood and Mistreated

11

•

Mandate statewide ongoing training for magistrates, pretrial staff, defense
attorneys, prosecutors, and jail staff concerning individuals with I/DDs.
Individuals with I/DDs need access to criminal legal system personnel
who will provide fair treatment based on their disability. Appropriate
training for criminal legal system officials will provide better identification
and connection with supports, such as communication (interpreters
and/or accessible technology and collateral support for communication
preferences), access to community-based diversion programs, confidential
access to their attorney, and post-incarceration community re-entry support
(e.g., Medicaid waiver services, Social Security, and housing).

Strategies for Trainers to Hire Self-Advocates/People with I/DDs to
Co-lead and Provide Immersion-Based Training40
•

Maximize outpatient competency restoration and reduce the wait times
for people with I/DDs. Under Texas law, courts must release on bail people
determined to be incompetent to stand trial and who do not pose a danger
to others on a Class B or Class A misdemeanor.41 Recognizing that extended
periods of detention are dangerous and destabilizing for the I/DD population,
when individuals with I/DDs are found incompetent to stand trial, courts
must prioritize release without conviction or outpatient competency
restoration with a LIDDA. Courts may also place people who are charged
with felony offenses and do not pose a danger to others into outpatient
competency restoration programs. In both misdemeanor and felony cases,
the individual must be treated in an appropriate outpatient competency
restoration program and the court must be given a comprehensive
treatment plan. All LIDDAs, mental health authorities, and courts in
Texas must work together to establish outpatient competency restoration
programs.
Individuals with I/DDs who do not qualify for outpatient competency
restoration due to the nature of the offense must be sent directly to Mexia
State Supported Living Center, bypassing Vernon State Hospital. They also
should be reassessed yearly to determine if commitment by the courts is still
necessary.

•

12		

Provide ongoing education to individuals with I/DDs on how to navigate
the criminal legal system. To promote self-advocacy and self-confidence
in times of crisis, free courses on how to interact with police, fire, and
emergency medical professionals should be offered to individuals with
I/DDs. Reinforcing and supporting such individuals can help prevent
crises that lead to criminal legal system involvement and bolster these
individuals’ ability to anticipate and problem-solve solutions to barriers
(e.g., memorizing their home phone number and carrying a card to give to
first responders that outlines who they are, their preferred communication
style, and contact information for a collateral person) before an interaction
with first responders.

One Size Fails All: Misunderstood and Mistreated

•

Collect and publish aggregate data on individuals with I/DDs who come
into contact with law enforcement and/or enter the criminal legal system.
This will allow an understanding of when, where, and how often Texans
with I/DDs are interacting with the criminal legal system and will inform
exact lengths of incarceration. Ultimately, data-informed services can
improve the I/DD population’s interactions with the criminal legal system
and provide fair and just treatment to people with I/DDs.

One Size Fails All: Misunderstood and Mistreated

13

Endnotes
1.

Diagnostic and Statistical Manual of
Mental Disorders (DSM-5), American
Psychiatric Association (APA).

2.

Emily Simonoff, Andrew Pickles, Tony
Charman, Susie Chandler, Tom Loucas,
Gillian Baird, “Psychiatric Disorders
in Children with Autism Spectrum
Disorders: Prevalence, Comorbidity,
and Associated Factors in a PopulationDerived Sample,” Journal of the American
Academy of Child and Adolescent
Psychiatry, 47(8):921–9 (2008).

3.

DSM-5, 33.

4.

DSM-5, 33.

5.

DSM-5, 33.

6.

John Keesler, Trauma-Informed Day
Services for Individuals with Intellectual/
Developmental Disabilities: “Exploring
Staff Understanding and Perception
Within an Innovative Programme,”
Journal of Applied Research in Intellectual
Disabilities 29, 481-492 (2016).

7.

“Intellectual and Developmental
Disabilities,” The National Child
Traumatic Stress Network, https://
www.nctsn.org/what-is-childtrauma/populations-at-risk/
intellectual-and-developmentaldisabilities#:~:text=Research%20
indicates%20that%20youth%20
living,sexual%20abuse%2C%20and%20
emotional%20neglect.

8.

“Home and Community-based Services
(HCS),” Medicaid.gov, https://hhs.
texas.gov/doing-business-hhs/providerportals/long-term-care-providers/homecommunity-based-services-hcs.

9.

“Intermediate Care Facilities (ICF/
IID),” Texas Health and Human Services,
https://hhs.texas.gov/doing-businesshhs/provider-portals/long-term-careproviders/intermediate-care-facilitiesicfiid.
“Local IDD Authority (LIDDA),” Texas
Health and Human Services, https://hhs.
texas.gov/doing-business-hhs/providerportals/long-term-care-providers/localidd-authority-lidda.

10.

“Adult Mental Health,” Texas Health and
Human Services, https://hhs.texas.gov/
services/mental-health-substance-use/
adult-mental-health.

11.

12.

13.

14.

14		

“State Supported Living Centers
(SSLCs),” Texas Health and Human
Services, https://hhs.texas.gov/services/
disability/intellectual-or-developmentaldisabilities/state-supported-livingcenters-sslcs.
Joan Petersilia, “Doing Justice?
Criminal Offenders with Developmental
Disabilities – Detailed Research
Findings,” California Policy Research
Center, 2000.
United States Census, Quick Facts Texas,
https://www.census.gov/quickfacts/TX.

15.

“Strategic Plan Update and the
Foundation for the IDD Strategic
Plan Fiscal Years 2017-2021,” Texas
Health and Human Services Statewide
Behavioral Health Coordinating Council,
February 2019, 77, https://hhs.texas.
gov/sites/default/files/documents/lawsregulations/reports-presentations/2019/
hb1-statewide-behv-hlth-idd-planfeb-2019.pdf.

16.

Texas Mental Health and Intellectual
and Developmental Disabilities Law
Bench Book, Texas Judicial Commission
on Mental Health, May 2019, http://
texasjcmh.gov/media/1636/jcmh-benchbook-may-2019.pdf.

17.

Jacqueline Gonzalez, “Improving
the Handling of Mentally Retarded
Defendants in the Criminal Justice
System,” Texas Wesleyan Law Review 17,
143 (2011): 143–163.

18.

Edward R. Berchick, Jessica C. Barnett,
and Rachel D. Upton, “Health Insurance
Coverage in the United States,” U.S.
Census Bureau, November 8, 2019,
https://www.census.gov/library/
publications/2019/demo/p60-267.html.

19.

“Quick Statistics on the Uninsured
in Texas and the U.S.,” Texas Medical
Association, https://www.texmed.org/
template.aspx?id=5519.

20.

Alan Nelson, “Unequal Treatment:
Confronting Racial and Ethnic
Disparities in Health Care,” Journal of
the National Medical Association, 94, no.
8 (August 2002), https://www.ncbi.nlm.
nih.gov/pmc/articles/PMC2594273/pdf/
jnma00325-0024.pdf.

21.

The Arc National Center on Criminal
Justice & Disability, “Disability
Awareness Training: A Train the
Trainer Program for First Responders,”
Presenters: David V. Whalen, Chief
John Askey, and Captain Patrick Mann,
https://thearc.org/wp-content/uploads/
forchapters/NCCJD%20webinar.pdf.

22.

23.

Chrissy Packtor, “Disability, Race, and
the Risk of Arrest,” Boston University
School of Public Health, Public Health
Post, Blog Post May 4, 2018, https://www.
publichealthpost.org/databyte/disabilityrace-risk-of-arrest/.
Celine Mercier and Anne Crocker,
“The First Critical Steps through the
Criminal Justice System for Persons with
Intellectual Disabilities,” British Journal
of Learning Disabilities, 39, no. 2 (2011):
130–38.

24.

“First Critical Steps,” 131.

25.

“First Critical Steps,” 131.

26.

“First Critical Steps,” 131.

27.

Bench Book.

28.

“Pathways to Justice: Get the Facts,”
The Arc National Center on Criminal
Justice & Disability, 2015, http://thearc.
org/wp-content/uploads/2019/07/
NCCJDFactSheet_ID-Copyrightd--BJA.
pdf.

One Size Fails All: Misunderstood and Mistreated

29.

“Special Publication: Councils on
Developmental Disabilities Addressing
Sexual Violence & Neglect,” National
Association of Councils on Developmental
Disabilities, https://nacdd.org/wpcontent/uploads/2017/11/DD-CouncilsSpecial-Publication.pdf.

30.

Tone Aker,” Sexual Abuse and Violence
Against People with Intellectual
Disability and Physical Impairments:
Characteristics of Police Investigated
Cases in Norwegian National Sample,”
Journal of Applied Research in Intellectual
Disabilities, August 20, 2019, https://
onlinelibrary.wiley.com/doi/full/10.1111/
jar.12656.

31.

Maxia Dong, Robert Anda, Shanta Dube,
et al., “The Relationship of Exposure
to Childhood Sexual Abuse to Other
Forms of Abuse, Neglect, and Household
Dysfunction during Childhood,” Child
Abuse & Neglect, 2003, 27 (n.d.): 625–39.

32.

Sarah Kuykendall, interview with the
authors on June 7, 2019.

33.

Billy Fogden, Stuart Thomas, Michael
Daffern, and James Olgloff, “Crime and
Victimisation in People with Intellectual
Disability: A Case Linkage Study,”
BMC Psychiatry, May 28, 2016, https://
bmcpsychiatry.biomedcentral.com/
articles/10.1186/s12888-016-0869-7.

34.

“Including Individuals with Intellectual/
Developmental Disabilities and CoOccurring Mental Illness: Challenges
that Must Be Addressed in Health
Care Reform,” NADD, https://www.
aaidd.org/docs/default-source/policy/
including-individuals-with-intellectualdevelopmental-disabilities-and-cooccurring-mental-illness-challengesthat-must-be-addressed-in-health-carereform.pdf?sfvrsn=decf2caf_0.

35.

“The Case for Inclusion 2020 Key
Findings Report,” United Cerebral Palsy
and the ANCOR Foundation, 2019,
https://caseforinclusion.org/.

36.

“Criminal Justice Issue Brief,” Texas
Council for Developmental Disabilities,
https://tcdd.texas.gov/resources/
criminal-justice-and-idd-in-texas/.

37.

“Direct Support Professionals.”

38.

Kevin Thomas, interview with authors,
June 25, 2019.

39.

Article 16.22, Texas Code of Criminal
Procedure.

40.

“Ethan Saylor Alliance will Prepare and
Support Individuals with Intellectual
and Developmental Disabilities to Serve
as Educators for Law Enforcement,”
Maryland Department of Disabilities,
May 24, 2018, http://mdod.maryland.gov/
pub/Documents/FINAL%20press%20
release%20Loyola%20partnership.pdf.

41.

Articles 46B.0711 and 46B.072, Texas
Code of Criminal Procedure.

ONE SIZE FAILS ALL REPORT SERIES

MISUNDERSTOOD
AND MISTREATED
How Individuals with Intellectual and
Developmental Disabilities Experience the
Texas Criminal Legal System

For more information please contact:
Doug Smith, Senior Policy Analyst
Texas Criminal Justice Coalition
1714 Fortview Road, Suite 104
Austin, Texas 78704
(512) 441-8123 ext. 102
DSmith@TexasCJC.org
www.TexasCJC.org

Texas

16		

One Size Fails All: Misunderstood and Mistreated