Academic journal article Forum on Public Policy: A Journal of the Oxford Round Table

Learning Disabilities and Attention Deficit Disorder: A New Approach for the Criminal Justice System

Academic journal article Forum on Public Policy: A Journal of the Oxford Round Table

Learning Disabilities and Attention Deficit Disorder: A New Approach for the Criminal Justice System

Article excerpt


As a judge, I was continually confronted with offenders whose behavior was unexpected and surprising. This was observed not only during their criminal activity but during their travel through the criminal process. This behavior did not appear to be intentional, but rather an inappropriate response to the circumstances that existed at the time. Furthermore, this behavior reminded me of the behavior of my two children who had been diagnosed with learning disabilities (LD) and attention deficit disorder (ADD). (2) This collision of my personal and professional lives began a journey into the fascinating and complex world of neurobiology and its impact on the criminal justice system.

In this paper, I will discuss these disorders, their impact on the criminal justice system, their resulting costs to society and why new measures must be taken to address these issues appropriately.

A System Failure

The criminal justice system in the United States has failed in its primary goal of reducing criminal behavior. Whether a government has based its theory of punishment on retribution, rehabilitation, incapacitation or deterrence, the statistics clearly reflect a lack of success. The number of inmates in federal, state and local prison or jail facilities has climbed from 1,203,572 in 1995 to 1,305,253 in 2000, a 28% increase, compared to a population increase of 13.17% from 1990 to 2000. (3, 4) The cost of incarcerating offenders in state prisons has risen from 11.7 billion dollars (2001 constant dollars) in 1986 to 29.5 billion dollars in 2001, a 150% increase. (5) The number of jails and prison facilities has grown from 1,464 in 1995 to 1,668 in 2000, a 14% increase. (6) Yet in the United States, public officials call for longer jail sentences as the answer to the public's cry for protection. Our rush to imprison people only gives us the opportunity to continue our course of failing to find workable answers. Albert Einstein's belief that the definition of insanity is continuing to do the same thing over and over while hoping for a different result could best explain the current state of the system.

Neurological Disorders

Our current system of punishment is costly and mostly ineffective. In an effort to reverse this trend, I suggest we examine the neurological disorders, attention deficit disorder and learning disabilities, that have remained for the most part ignored by the criminal justice system and certainly by political leaders. These disorders, which are rooted in each individual's neurological makeup, are not controlled by one's will, motivation or morality. It is interesting to note that most theories of criminal punishment are designed to change behavior. It is assumed that individuals have that capability. If, in fact, that is not true, it is easy to understand why our incarceration rates continue to rise despite our best efforts.

The disorders I wish to discuss are sometimes called the hidden disabilities since they are not easily observable. Unlike a learning disability, a physical disability can be seen, understood and accommodated. Even though many people can observe the symptoms of ADD and LD, few understand that they are neurological conditions. The effects on the individual are also difficult for many individuals to comprehend.

People can understand that a glitch in a computer or its software will cause innumerable problems. Therefore, it is ironic when a wiring glitch occurs in a person's neurological makeup, people condemn it as failure of character rather than biology.

Attention Deficit Disorder

ADD is essentially a malfunctioning of a person's neurological system. Most individuals who have ADD are of average or above average intelligence. (7) Recent advancement in brain imaging has begun to focus on the causes of ADD. (8) While what causes ADD is unclear, it is believed to be either inherited or from an outside event. …

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