Misunderstood and Mistreated: How Individuals with Intellectual and Developmental Disabilities Experience the Texas Criminal Legal System

Recommendations

The following are presented in order of importance:

Strategies to Prevent Involvement with the Criminal Legal System

  • Increase funding for Home and Community-Based Services (HCBS) Medicaid providers to pay their full-time direct support staff a living wage while providing ongoing trauma-informed and person-centered services and to 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. 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 HCBS 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 HCBS. Historically, a number of HCBS 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.

  • 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 justice 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 justice 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. 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.

  • 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 justice system personnel who will provide fair treatment based on their disability. Appropriate training for criminal justice 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 with 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 Training

  • 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. 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.

  • 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 justice 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.   

  • 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.