Law and Neurodiversity: Youth with Autism and the Juvenile Justice Systems in Canada and the United States

Authors: Dana Lee Baker, Laurie A. Drapela, and Whitney Littlefield
Publisher: UBC Press, 2020.  231 pages.
Reviewer: Melanie Clark Mogavero, PhD ǀ June 2022

Law and Neurodiversity: Youth with Autism and the Juvenile Justice Systems in Canada and the United States by Dana Lee Baker, Laurie A. Drapela, and Whitney Littlefield provides a thorough and complete guide to better understanding the needs of juveniles and juveniles with neurodevelopmental disabilities (NDDs) who engage in crime and delinquency. The authors also highlight and address the additional barriers juveniles with neurodevelopmental disabilities encounter while navigating the educational systems and the Juvenile Justice System (JJS) in these nations.

When person-first language became the preferred term over the identity-first language in the early 21st century, others embraced their neurodiversity and rejected the necessity to identify as a “person” first. The authors begin this conversation in chapter 1, explaining the distinctions and preferences regarding identity-first versus person-first language. A preference for one or the other is largely based on to what extent one identifies with their disability. Understanding this language preference is crucial for everyone working with neurodivergent populations. To insist or mandate one over the other can be demeaning, and therefore, one must be receptive to using both options. The authors use both terms interchangeably throughout the book, and similarly, I use both interchangeably in this book review.

The authors cover the history of the JJS in US and Canada in chapter 2, given that these systems have evolved tremendously since their formation more than 100 years ago. The early JJS in both countries focused on protecting children, prominently those who were neglected, abandoned, and/or delinquent. Both nation’s systems were designed in stark contrast to the adult criminal justice system (CJS). With a series of case laws, the JJS adopted policies that grew more consistent with the adult CJS as a result of movement towards both due process rights and crime control. Age is the common assumption or determination of culpability and capacity, and is used to determine which jurisdiction (JJS or adult CJS) will handle cases, depending on the offense. The authors explain how using age as a criterion for culpability and capacity is “ableist”. This ableist assumption is that juveniles with disabilities can still have the capacity to understand the consequences of their behavior, simply because they are “old enough” to know right and wrong. Baker, et. al. argue that a juvenile’s developmental stage, and not simple their age, should be used on a case-by-case basis to determine the best outcome for the juvenile and society. Because one’s developmental stage varies, the JJS should also collaborate with community resources to develop prosocial skills while addressing strategies for recidivism reduction. Although the intentions were to provide more rights to juveniles and to protect the public, the “broad brush” approach using age reinforces these ableist attitudes. The JJS continues the dilemma of balancing treatment and punishment, with deciding whether juveniles with or without disabilities should face the same consequences as adults, while also protecting society.

The authors describe the connection between school failure and involvement in the CJS, colloquially known as the “school to prison pipeline.” Successful school experiences for those with disabilities require specific accommodations based on need. Fundamental needs include inclusion (as opposed to segregation), accountability to the youths’ needs, and allowing disabled youths to maintain social connections within the school and the community. As the authors note, changes and improvements in the disability rights movement required state action in the form of anti-discrimination policies. Such policies in the US included the reauthorization of the Rehabilitation Act of 1973, the education for all handicapped children in 1975 (renamed the Individuals with Disabilities Education Act, IDEA), and the Americans with Disabilities Act in 1990. In Canada, the Charter Rights and Freedoms Act was enacted in 1982, and in 1996, the Federal Task Force on Disability Issues was created. Despite these anti-discrimination policies, ensuring adherence and holding schools accountable for violations continues to be a challenge, as noted throughout a discussion of the various court cases. Fighting discrimination and ableism in the education system obviously requires continued attention and political support.

In chapter 3, Baker, et. al. detail and summarize many problems with respect to how juveniles with autism spectrum disorder (ASD) are handled in the school and JJS. The authors also connect intersectionality and involvement in the JJS, and note how this can be influenced by the juvenile’s race, class, and ability. For example, those with ASD may display social skills that otherwise normally developed individuals may not understand, or who may misinterpret behavior because of a lack of education and knowledge of ASD (e.g., mistakenly interpreting certain behaviors as being non-compliant, perceiving non-threatening behavior as being threatening). Schools located in low-income areas with higher crime rates may have school resource officers patrolling halls. As a result, teachers in these schools may be more inclined to handle students with disabilities formally as opposed to informally (i.e., within the school). Parents can have a key role is supporting their child through the JJS, but their involvement may be limited by socioeconomic status barriers. Parents may be unable to attend hearings if they cannot afford the time away from employment, or they may lack transportation or childcare for younger siblings. The authors make note of what few resources and supports are available for some parents, which puts their children at a particular disadvantage.

In chapter 4, the authors highlight one of the major differences between Canada and the US, namely access to healthcare. In Canada, healthcare is a public service (i.e., run by the government), is available to all residents, and is considered a fundamental right. In the US, residents must deliberately enroll in a program based on their income and their ability and/or willingness to pay. Parents must also deliberately enroll their children in a health care program, meaning if they do not, their children may go without. From there, health care providers still predetermine which types of insurance they will accept. Despite these vast differences in approach, both systems nevertheless have barriers to the services particularly necessary for children with disabilities. In the US, access to care and screenings are limited based on whether a provider accepts the particular insurance. Wait periods for services in Canada, on average, are longer than those in the US. In Canada, services such as therapists and psychologists are not always covered, and thus patients must pay out-of-pocket. Often, coverage will not include assessments or will require longer waiting periods. Children with disabilities tend to need more complicated health care than those in the general population, making these barriers much more detrimental to their overall health and well-being.

Baker, also highlight the myriad problems presented to those held in juvenile detention centers. A crucial element in assessing one’s needs and reoffending risk and to determine the appropriate placement and treatment, is the use of risk assessment instruments. Assessments tools are, however, plagued with bias, as they were not standardized for those with ASD. Therefore, juveniles with ASD may be under- or over-served based on their assessment outcomes. The authors highlight the research that has shown that although standards of care are in place, many centers are not meeting those standards. In both nations, such facilities are essentially run like correctional facilities, with a great deal of structure and rigid routines. Such rigidity means little flexibility for medical and psychiatric appointments. The authors stress the importance of offering services similar to those offered in mental health courts, in order to better coordinate services with JJS and health care systems.

In chapter 5, the discussion of the education system and juvenile delinquency notes the additional barriers for those with disabilities. Concerns about school safety arose after the 1999 mass shooting in Columbine High School in Littleton, Colorado. Placing law enforcement officers in schools or employing school resource officers became a popular response. Another effort to address school safety was the implementation of so-called zero-tolerance policies, which often include mandatory suspension or expulsion for rule violators. Both nations implemented such policies, which tend to be strict and rigid, but that often fail to take into consideration behavior arising from one’s disability. For example, outbursts due to overstimulation, disruption in routine, or provocation from other students are often misinterpreted as being insubordinate or dangerous. Other segregation punishments take the form of seclusion rooms or “time-out” rooms or restraints. An unfortunate consequence of zero-tolerance policies is a disproportionate number of juveniles with disabilities being referred to the JJS. Despite the anti-discrimination policies to address exclusion and segregation in schools based on ability, much of this continues under the guise of zero-tolerance.

The treatment of juveniles with disabilities should be addressed through more education and training for those working with neurodiverse populations in schools and in the JJS. Juveniles require not only inclusionary education, but appropriate education services specific to their needs. The authors note that in both nations parents often must advocate for their children to receive these specific services. But advocating for services is difficult for many, as both nations have large immigrant populations, which means additional barriers to not only access these services, but that many parents may not even be aware that these programs exist.

In chapter 6, the authors describe the social world in juvenile facilities and highlight the importance of prosocial behaviors and the acquisition of prosocial skills. Social and communication deficits are, however, a component of ASD, and many have not had the appropriate outlets to learn prosocial behaviors. The means to determine prosocial behavior, communication skills and measuring progress, are all plagued with bias and ableism. Therapeutic programs and measuring progress are based on the communication skills and style of those who are considered the norm, making progress nearly impossible to measure among autistic juveniles.

Specific needs across genders are another factor where services are lacking — as systems have largely been designed for normed males. By design, institutions limit one’s identity, yet the intersectionality of one’s identity largely determines their needs, experiences, and social progress. Mental health differences also vary; for example, risk factors for delinquency for girls may be self-harm, and may be dismissed as manipulative or attention-seeking. The specific needs of LGBTQ juveniles with disabilities are also largely ignored, as many of their risk factors are unidentified. To fully understand the role of intersectionality and to bring meaningful change, the needs of all neurodiverse youth must be included in assessment and programing needs. The goal of the JJS in both nations is permanent discharge from a facility, and successful reintegration into the community. Successful reintegration depends on the specific needs of the juveniles, including their home environment, and on the community. These authors note that diversity itself is diverse, and that both nations consider this intersectionality and the importance of wellbeing. Both nations encourage community-based treatment plans, although, depending on the complexity of one’s mental health needs, longer stays in institutions may be necessary.

The authors focus further on community reintegration in Chapter 7, where the reader begins to understand and think about all the challenges discussed in the previous chapters. Success depends on well-planned and well-coordinated transition services. Transition plans should include short-term (within the first year) and long-term (5-10 years) plans, which include education and employment goals. The authors highlight the importance of restorative justice frameworks and note that they draw heavily from practices among some First Nations peoples. This holistic approach takes into consideration the needs of the youth, and what services are necessary and/or available. Family also has a significant role, but parental support may be different from one juvenile to the next. Some parents are highly supportive and involved, while other parents lack the necessary skills to support their child, making community reentry extremely stressful. The authors highlight some of the best practices and evidence-based interventions in both countries that have been shown to be effective. Plans and supports for both the juveniles and parents must be in place prior to discharge, so that they can be rendered as soon as possible.

The authors conclude with recommendations, organized in accordance with short-term, medium-term, and long-term needs. They note that navigating the JJS or CJS is complex for those with disabilities and their parents. The barriers have a common theme, and that is that the standards and expectations of the educational system and the JJS are mostly predicated on the needs of those who are deemed to be the norm. This unfortunately facilitates ableism, ableist attitudes, and unrealistic expectations for those with disabilities. Often the needs of neurodivergent juveniles are unidentified, or if identified, are often ignored or dismissed. Baker, compare systems while identifying the strengths and weaknesses of programs and policies in each of the two nations. The authors also recognize the potential multidisciplinary audience for this book, and carefully define justice system and educational terms with which readers may be unfamiliar. What readers take away from this book are that the educational system and the JJS are currently failing many neurodivergent juveniles, but that stakeholders can indeed make meaningful changes to address their neurodivergent populations.

Melanie Clark Mogavero is an Associate Professor & Department Chair of the Department of Criminal Justice, Anthropology, Sociology, and Human Rights at Georgian Court University.

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