Excerpted From: Michael L. Perlin, Heather Cucolo and Deborah A. Dorfman, “I Saw Guns and Sharp Swords in the Hands of Young Children”: Why Mental Health Courts for Juveniles with Autism Spectrum Disorder and Fetal Alcohol Spectrum/disorder Are Needed, 19 Northwestern Journal of Law & Social Policy 228 (Spring, 2024) (257 Footnotes) (Full Document)

PerlinCucoloDorfmanSpecialized courts that are created to address specific problems and the specific needs of a particular population--or “problem-solving courts”--are a fairly recent addition to the American legal system. They present an interdisciplinary approach to address issues that affect marginalized persons, including, but not limited to, drug use, domestic abuse, sex trafficking, and mental health or disability. However, there is little scholarship that reckons specifically with the experiences of people/juveniles with autism spectrum disorder (ASD) and fetal alcohol spectrum disorder (FASD) in the criminal justice system. It is essential to recognize the unique challenges these populations face in the court system so as to work toward solutions that more effectively address their needs.

In two recent articles, two of the co-authors have focused on the intersection between the criminal justice system and people with ASD and the criminal justice system and people with FASD. We concluded that “courts have been dismissive of claims that FASD needs to be taken seriously in the criminal law process, whether on questions of capacity to stand trial, responsibility, or sentencing punishment,” and that “persons with ASD consist of yet another vulnerable population the dispositions of whose cases are at the mercy of the quality and competence of attorneys, experts, judges, juries, and outdated court procedures.” There is virtually nothing in existing scholarship that would take issue with either of these conclusions.

In this piece, we offer a potentially (at least partially) ameliorative solution to this problem: the creation of (separate sets of) problem-solving courts specifically to deal with cases of juveniles in the criminal justice system with ASD and with FASD. There is currently at least one juvenile mental health court that explicitly accepts juveniles with ASD, and some scholarly support for the proposition that persons with an FASD diagnosis should be accepted to juvenile mental health courts. But there are, to the best of our knowledge, no courts set up specifically to address the unique needs of these populations.

There are two primary rationales for the creation of mental health courts: (1) a police power justification that mental health courts will reduce recidivism and thereby increase public safety, and (2) a parens patriae justification that incarcerating offenders with mental illness is ineffective and morally unsound.

At their inception, mental health courts were created with “therapeutic jurisprudence” principles in mind to help bridge the justice and mental health systems. For mental health courts (or any other problem-solving court) to work effectively, they must operate in accordance with baseline therapeutic jurisprudence principles: (1) the law should value psychological health, (2) the law should strive to avoid imposing anti-therapeutic consequences whenever possible, and (3) when consistent with other values served by law, the law should attempt to bring about healing and wellness.

It is especially important that dedicated mental health courts be created for the populations with ASD and FASD. Mental health courts would make it less likely for sanism (an irrational prejudice towards persons with mental illness) and other forms of bias to affect legal decision-making. Additionally, mental health courts would ensure that aspects of the defendants' underlying conditions that may have precipitated (or contributed to) their criminal behavior are contextualized in judicial decision making. Mental health courts would minimize the trauma that people with these conditions will inevitably suffer in the criminal justice system. Finally, mental health courts are situated to best ensure that therapeutic jurisprudence principles are employed in the dispositions of all cases.

The authors of this Article have all represented persons with mental disabilities in both civil and criminal processes. We have all represented persons with ASD and persons with FASD, whether or not it was acknowledged at the time. In retrospect, we realize how different these cases may have concluded had our clients been diverted to specialized juvenile mental health courts during their early involvements with the criminal justice system.

The Article will proceed this way. First, in Part I, we consider the range of specific issues that have an impact on juveniles with ASD and FASD face throughout the juvenile court process. We then look in Part II at the importance of problem-solving courts (and both positive and negative responses to them). In Part III, we focus on the specific role of mental health courts as part of the problem-solving court movement and take a closer look at the role of juvenile mental health courts specifically.

In Part IV, we briefly consider jurisprudential filters that contaminate all mental disability law: sanism, pretextuality, heuristics, and false “ordinary common sense.” In Part V, we consider the meaning of therapeutic jurisprudence (TJ) globally and why we believe adherence to TJ principles is essential to all properly functioning problem-solving courts, especially in the context of mental health courts. In Part VI, we consider why such courts are especially essential for the populations that we discuss here. Finally, we conclude with some recommendations for the future to best maximize the likelihood that juveniles with the conditions we discuss be treated with dignity and compassion in the criminal justice system.

Our title comes from Bob Dylan's brilliant, ferocious and apocalyptic song, A Hard Rain's A-Gonna Fall. This is the fourth time that one of the co-authors, Perlin, has drawn on this song, a masterpiece of “cascading imagery and shimmering power,” that evokes, variously, devastation, vulnerability, and places of lingering death, but one that concludes with “suggestions of hope--glimmers of light in a shrouded world.” Before that hopefulness, though, comes this verse from which the title of this paper is drawn:

I saw a black branch with blood that kept drippin'

I saw a room full of men with their hammers a-bleedin'

I saw a white ladder all covered with water

I saw ten thousand talkers whose tongues were all broken

I saw guns and sharp swords in the hands of young children

As one of the co-authors, Perlin, has noted in another article, when Dylan wrote this song “we had not yet learned about the 'child soldiers' [armed with guns and sharp swords] who were to be an integral part of the civil wars that ravaged Africa for decades.” But we do know that we regularly punish children--some with guns and sharp implements, most with neither--who have ASD or FASD. We hope this Article will change, in some way, the current state of affairs.

[. . .]

As co-author Perlin has previously written:

The promotion and creation of [mental health] courts [is] consistent with TJ's aims and aspirations, especially where litigants are given the “voice” that TJ demands. The courts are grounded and rooted in TJ; they reflect TJ “theory in practice;” and they acknowledge that a defendant's appearance in such a court comes at a “painful and crucial point in life.”

We believe that this is especially applicable in cases involving juveniles with ASD and FASD. Juveniles with ASD and FASD currently suffer, needlessly and disproportionately, in the criminal justice system. The jurisprudential factors that we discuss above--sanism, pretextuality, heuristic biases, and false “ordinary common sense”--have an especially negative impact on cases involving this population. This will continue, unless the legal system takes bold new steps to minimize their suffering; treat them with dignity and compassion; ensure adequate counsel; ensure the availability of support services to the population in question; and provide a way for them to meaningfully communicate with court actors.

Further, as we noted above, “[p]roblem-solving courts ... play an important role in protecting the rights of persons with trauma-related mental disabilities,” a cohort that includes many with ASD and FASD. Engaging in trauma-informed practice “fits squarely within existing scholarship about client-centered lawyering, cross-cultural lawyering, and therapeutic jurisprudence.”

In a recent article, Perlin and his co-authors considered the five principles that would lead to trauma-informed service delivery: (1) facilitating a sufficient sense of safety (both physical and emotional); (2) being sufficiently trustworthy; (3) working collaboratively; (4) providing choice to individuals, to the degree possible; and (5) empowering individuals. Mental health courts specifically designed to serve children with ASD and FASD using TJ principles are more likely to adhere to these principles. Also, the creation of such courts would inevitably lead to a reduction of the stigma that often accompanies such trauma.

Again, our proposal for an ASD and FASD problem-solving court will only be effective if such courts are based on therapeutic jurisprudence. Adherence to TJ principles will most effectively minimize the stigma that often accompanies court proceedings involving children with ASD and FASD and make the healing of this vulnerable population more likely. Just as “therapeutic jurisprudence encourages mental health lawyers to engage in appropriate civil rights lawyering,” so too does it encourage lawyers to adequately and fully represent clients with ASD and FASD.

To return to the title of the article, Harvard Professor Richard Thomas has characterized Hard Rain--the song from which this Article title is drawn--as “a song of indignation but also of resolve.” We think that is absolutely right. We are indignant about the way that juveniles with ASD and FASD are treated in the criminal justice system, but we hope that the path that we have proposed will help resolve this problem.

Professor Emeritus of Law, New York Law School; Founding Director, International Mental Disability Law Reform Project; Co-founder, Mental Disability Law and Policy Associates; This email address is being protected from spambots. You need JavaScript enabled to view it..