By Ashley Brompton, J.D., NCCJD Criminal Justice Fellow
This week, the Florida legislature passed legislation that will hopefully provide a stepping stone toward further protections for people with intellectual and developmental disabilities who are interviewed or questioned by law enforcement. The Wes Kleinert Fair Interview Act was introduced by Florida Senator Ring (D-29) named for Wes Kleinert, whose interaction with police inspired it. While the bill has some promising provisions, there are several areas that need to be strengthened and changed.
The new law does two things:
- Outlines a system for voluntary identification for people with developmental disabilities (this portion of the law goes into effect October 1, 2016)
- States that an effort must be made to have professionals with expertise in autism be present at all interviews involving individuals diagnosed with autism or autism spectrum disorders (this portion of the law goes into effect July 1, 2016).
The Arc of Florida and the National Center on Criminal Justice and Disability® commend the legislators for taking action on an important issue. However, there are significant gaps in the law. We are hopeful that this legislation can be updated, strengthened and molded to become a potential model for the rest of the country to follow. Some of the problems and solutions include:
- The interview portion of the law is specific to individuals with autism spectrum disorder – this should be broadened to include any individual with an intellectual and/or developmental disability (IDD).
- The person interacting with police must be diagnosed as having autism spectrum disorder – many individuals who become embroiled in the criminal justice system display characteristics of ASD, and therefore need the same protections, but were never formally diagnosed. Ensuring that law enforcement are trained on identifying IDD will decrease dependence on a formal diagnosis or ID card for identification.
- The protection of having an expert/ professional observe the police interaction is only triggered upon the request of the person with autism or his or her parent or guardian. This is not an automatic protection, but one they can receive only if they know to ask for it. Law enforcement are not required to tell them about this new right. It should be required that a professional/expert is present for police interaction, whether the person asks for their presence or not.
- Even when an expert is requested, law enforcement has to make what is called a “good faith effort” to ensure that such a professional is present at the interview. This is a subjective standard. How is a good faith effort defined? Exact steps or a protocol should be outlined.
- The law requires that the requesting party pay the costs of the expert/ professional. Asking an individual with disabilities to pay for this type of accommodation is a violation of the Americans with Disabilities Act. Under Title II of the ADA, it should be an acceptable accommodation that is paid for by the law enforcement agency or state (similar to how an interpreter is provided for a deaf person).
- The law does not outline what the role of the expert would be. There should be a specific and intentional role for the professional. Are they there to educate law enforcement about IDD and help them craft their interrogation or interview technique? Or are they there to advocate for the individual and ensure that they understand their rights? This should be defined more clearly.
- The law only applies if the person with autism is a victim, a suspect, or a defendant formally accused of a crime – it does not apply to witnesses or people of interest in a crime. Many people who interact with police do not fall into one of the applicable categories. This protection should be available to anyone interviewed by police.
- The law says that training must be provided based on the law but does not specify that training is needed on the identification of people with autism (or IDD more generally) or interacting with people with autism (or IDD more generally). General law enforcement training on IDD is needed. Without training on identification, many people who do in fact have autism will be excluded from these protections because they do not have an identification card.
- Any voluntary identification program is created and implemented through a process that includes individuals with IDD, to ensure that all privacy and rights issues are properly considered.
In interacting with police, individuals with disabilities are particularly vulnerable – it does not matter if they are witnesses, victims, or suspects. In these situations, protections for people with IDD ensures that each conversation with law enforcement and other criminal justice professionals is fair and understood equally by all parties. However, effective legislation must be thought through carefully in order to ensure its success. While this legislation is a positive step in the right direction, advocates must diligently work to make sure necessary improvements are made.