MDLPA: Overview - Autism and the Law

1 Hour | 1 CE

This on-demand professional training program on Overview: Autism and the Law is presented by Michael L. Perlin, JD, and Heather Ellis Cucolo, JD in partnership with Mental Disability Law and Policy Associates.

In the past 50 years, autism spectrum disorder (ASD) has gone from a narrowly defined, rare disorder childhood-onset to a well-publicized, advocated, and researched lifelong condition, recognized as common and very heterogeneous. It results from early altered brain development and neural reorganization and is seen as a spectrum that can range from very mild to severe. There are important questions regarding the “under-recognition of ... symptoms [of autism] in some racial/ethnic groups, cultural differences influencing the decision to seek services, [and] socioeconomic disparities in access to services.”

Persons with autism typically have deficits in social communication (struggling with sustained social interactions and two-way conversations), nonverbal communication (making poor eye contact, having difficulty understanding body language and facial expressions), and maintaining social relationships (often having difficulty in adjusting behaviors to match different social situations). They are perceived as lacking in both empathy and remorse.

All of this makes it much more difficult for a person with autism in the criminal justice system, especially when their fate is to be decided by jurors who may either have no familiarity with autism or whose “familiarity” is based on a television stereotype. As a result, participation in such a system is often humiliating and shaming.

Juror failure to understand the behavior and physical “cues and clues” of persons with autism spectrum disorder imperils fairness in criminal trials. Byways of example, judges must explain to jurors that they cannot rely on their false “ordinary common sense”: about what remorse “looks like” or what an empathetic person “looks like,” expert witnesses must be provided for the person at risk to explain to the factfinder the reasons for otherwise-strange-seeming behavior, and greater care must be taken in selecting jurors for such trials. Only if remedies such as these are adopted will we be able to break the cycle of shame and humiliation that this population now faces. If we wish to remediate this situation, we must adopt a new approach to trials of persons with autism to provide dignity to the persons at risk and to comply with the principles of therapeutic jurisprudence. We propose prophylactic remediations— ranging from questioning at the voir dire stage to jury instructions — to make it less likely that neurodiverse individuals will be stereotypically punished for behavior and appearances that may be, by and large, foreign to jurors. These reforms will make it more likely that trials comport with due process (by avoiding the sort of false ‘ordinary common sense that often drives juror behavior) and will enhance the role of therapeutic jurisprudence in this process.