COLUMBIA, Md. — You might not expect criminal defense attorneys to be on the Rolodex of an autism advocacy nonprofit. But as Melissa Rosenberg, executive director of the Autism Society of Maryland, explains, it's necessary.
"We are seeing a growing number of calls from adults overall, but I think other groups across the nation are getting calls from family members or individuals themselves who are caught up in the legal system looking for resources," Rosenberg told WMAR-2 News.
She says individuals with autism are more likely to interact with the criminal justice system - both as victims and offenders - because they can have trouble picking up on social cues, communicating, or expressing emotions.
"It can escalate very quickly whether it's involved with a police officer or somebody else," Rosenberg said. "Something happens, and they get anxious, and start acting in a way that you and I would not react to a police officer, and things can very quickly unravel."
The Autism Society of America, and its local chapter, the Autism Society of Maryland, are advocating for two bills in the state legislature this year. Both bills are sponsored by Delegate Aaron Kaufman, who has a developmental disability himself, cerebral palsy.
House Bill 940 would require judges to place defendants with autism or an intellectual disability on probation, in certain circumstances.
"Maybe they go to a diversion program here or out of state that would help them address why this situation happened and maybe learn different social skills, rather than doing jail time," Rosenberg explains.
"The jist of it is - in my view and the research shows that people with autism and other developmental disabilities have less culpability than you or I would because of the fact that the crime they commit is often a direct manifestation of their disability. Neither bill is a get-out-of-jail-free card. But it is a recognition that the punishment has to fit the crime," Delegate Kaufman (D), who represents Montgomery County's 18th District, told WMAR-2 News in an interview.
The bill leaves room for exceptions, such as if the individual is a threat to public safety, and also requires the judge to consider the views of both the prosecutor and the victim.
"Some will say the bill ties the judiciary’s hands, but nothing could be further from the truth, because before granting the sentence of 'probation before judgment,' or diversion program, the judge clearly has to take into account the views of the victim, the victim’s representative, and most importantly, public safety," Del. Kaufman said.
We asked Rosenberg and Delegate Kaufman, how do you prevent people from taking advantage of the law, if passed?
"You would have to have a medical diagnosis of your disability, of your autism. You couldn't just come in and say, 'well I did it because I have autism.' You absolutely have to have a diagnosis," Rosenberg said.
"You can’t just say, oh I have a diagnosis willy-nilly," Del. Kaufman told WMAR-2 News. "The defense counsel has to say here’s something from when Johnny was 6 or Sally was 7. Are there instances where a judge could say, ‘well this kid seems autistic to me.’ Could they order it from the bench? But I think the bill establishes a high bar for 11th hour diagnoses."
Del. Kaufman provided an example of why this bill is necessary: "I had a student - we’ll call him Joe - and Joe was in Rehobeth Beach with his family and he was talking to these 15-year-old girls. He has a condition called Williams syndrome, which is an intellectual disability. He thought he was just being friendly so he talked to them for a little bit and he was enjoying the conversation, so he followed them up and down the beach. It scared them, because here was a guy twice their age and you can’t see that somebody with Williams syndrome has a disability. So he was charged with stalking. Fortunately, that was a compassionate prosecutor who dropped the charges."
Other prosecutors may not be as willing to do so, he said. For example, a mother who testified in favor of HB 940 told the Judiciary Committee her autistic son is suffering greatly in jail, and has been placed on suicide watch more than once. “I believe a diversionary program or a ‘probation before judgment’ would be better in this instance,” Del. Kaufman said.’’
Another bill under consideration, House Bill 703, allows a diagnosis of a developmental or intellectual disability to be admissible as evidence, and requires judges to consider the diagnosis when making a decision on whether to release someone on bail or not.
"Because the reality is that in jail, somebody with autism is more likely to be bullied or assaulted, isolated, solitary conferment, and just so many things that do not need to happen," Rosenberg told WMAR-2 News.
Maryland would only be the third state to have a law like this on the books. Similar legislation has been passed in Virginia and Kentucky.
Brian Kelmar, co-founder of Decriminalizing Developmental Disabilities, testified before the Judiciary Committee in favor of HB 940. His nonprofit has tracked 180 cases where people with a disability have been diverted rather than convicted. He testified that the recidivism in those cases has been zero: "Not even a parking ticket," he told lawmakers.
