NCJ Number
65811
Journal
Family Law Quarterly Volume: 6 Issue: 1 Dated: (SPRING 1972) Pages: 59-71
Date Published
1972
Length
13 pages
Annotation
MOST LAWYERS IN GENERAL ARE UNFAMILIAR WITH THE LEGAL RIGHTS OF THE MENTALLY RETARDED; AS A RESULT, THE MENTALLY RETARDED LACK THE PROTECTION OF THOSE RIGHTS.
Abstract
SLIGHTLY MORE THAN 275,000 PEOPLE ARE INSTITUTIONALIZED IN THE NATION'S PUBLIC AND PRIVATE RESIDENTIAL FACILITIES FOR THE MENTALLY RETARDED, AND THERE ARE APPROXIMATELY 21,000 RETARDED PEOPLE IN JAILS (ALMOST 10 PERCENT OF THE INMATE POPULATION). MOST FREQUENTLY, RIGHTS ARE LOST WHEN THE RETARDED PERSON IS UNDER SOME FORM OF GUARDIANSHIP, EITHER INDIVIDUAL OR INSTITUTIONAL. IN AN INSTITUTION, THE RETARDED PERSON MAY SUFFER SOME DEPRIVATION OR LOSS OF RIGHTS BECAUSE OF THE NATURE OF THE INTAKE PROCEDURE. IN THE COMMUNITY, THE RETARDED PERSON IS ALMOST ALWAYS DEPRIVED OF THE RIGHT TO ENTER INTO A CONTRACT (TO MARRY OR EVEN TO BUY A SECONDHAND CAR), TO BE LICENSED, AND TO VOTE. PERSONAL RIGHTS, SUCH AS THE RIGHT OF PRIVACY OR THE RIGHT TO EDUCATION, TREATMENT, OR REHABILITATION WHEN IN PRISON OR IN AN INSTITUTION, MAY BE DENIED. MANY PEOPLE, INCLUDING LAWYERS, ARE UNAWARE THAT A GREAT DIFFERENCE EXISTS BETWEEN PROFOUNDLY AND MILDLY RETARDED INDIVIDUALS, AND THAT MENTAL RETARDATION IS A CONDITION, NOT A DISEASE FROM WHICH PERSONS RECOVER. IN ADDITION, THERE IS A GENERAL FAILURE TO DISTINGUISH BETWEEN MENTAL RETARDATION AND MENTAL ILLNESS, PARTICULARLY IN CASES WHERE A RETARDED PERSON IS CHARGED WITH HAVING COMMITTED A CRIME. RETARDED PERSONS ARE LESS LIKELY TO HAVE A FAIR TRIAL, SINCE THEY CANNOT UNDERSTAND THE CHARGE AND DEFEND THEMSELVES. THEREFORE, THEY MAY BE INSTITUTIONALIZED, IN SOME CASES FOR LIFE, FOR CRIMES THEY DID NOT COMMIT. AN ATTORNEY WHO REPRESENTS A RETARDED DEFENDANT MUST TRY TO FIND SOME WAY OF GETTING THE COURT TO ACCEPT AN ALTERNATIVE TO THE NORMAL CRIMINAL PROCESS. IT IS ADVISED THAT THE ISSUE OF RETARDATION BE RAISED BEFORE THE TRIAL AND DISCUSSED OPENLY AT THAT TIME, THUS GIVING LAWYERS A CLEARER PICTURE OF THEIR CHANCES. FOOTNOTES ARE INCLUDED.