Autism Within the Criminal Justice System
October 04, 2022
For this issue looking at safety and the criminal justice system, OAR sat down with Haley Moss to get her perspective on safety, criminal justice, and autism. Haley Moss is an attorney, author, advocate, artist, and consultant. Diagnosed with autism when she was 3 years old, Moss now uses her personal and professional experience to bring insight and perspective on neurodiversity and inclusion to a broad range of audiences, including those in the legal profession.
OAR: Over the years, there have been a number of serious incidents involving autistic individuals and law enforcement. In other circumstances, autistic individuals have been charged and tried for criminal offenses where the charging officials and the courts show limited understanding of autism.
Understanding that you don’t specialize in criminal law, do you have any general thoughts on how we might drive education about autism within law enforcement and the criminal justice arena?
Moss: Autism trainings with law enforcement lack standardization at the local, state, and federal levels. I have been fortunate enough to participate in these trainings in the past and notice the most educated officers and actors within the system have personal connections to autism. A lot of trainings also often come from family members, and not always autistics themselves; if we’re lucky, we get a supporting role. Each department might not dedicate the same amount of time and resources on disability or autism education as others. There also needs to be more attention paid to autism and intersectionality when it comes to police and legal system interactions; we are remiss if we do not include the voices of racialized autistics in this.
As for the criminal justice system, autistics and other disabled folks are more likely to be victims than perpetrators, and the lack of understanding from lawyers and the judicial system is a whole other ballgame compared to law enforcement.
A book I really like for lawyers is Elizabeth Kelley’s Representing People with Autism Spectrum Disorders: A Practical Guide for Criminal Defense Lawyers. It’s so well done and covers a lot of what gets left out of the conversation for most attorneys.
OAR: What are your views on the criminal justice system and how it processes autistic defendants?
Moss: This is such a difficult question with answers that will vary case by case. I know we need more education for autistics like, for example, that invoking your Miranda rights is not an admission of guilt. There are also public policy considerations in procedures like interrogation. For example, here in Florida, we have the Wes Kleinert Fair Interview Act.
So much of inclusion is being treated like everyone else, but I think in certain cases where autism is obviously a factor, specific jury instructions, even as simple as defining what autism is, might be most helpful, rather than having a separate standard similar to an insanity defense.
OAR: What is the current level of neurodiversity understanding and inclusion among your legal peers? Do you think it can be improved?
Moss: There’s a huge knowledge gap on neurodiversity and disability within the legal field. Disability among lawyers is heavily stigmatized, beginning with law school and bar admissions all the way through. Something that really hit me while in law school was how I would become the “default” person to answer questions about interacting with neurodivergent legal clinic clients (one of our school’s clinics represented foster youth, often with disabilities), or how to handle IEP meetings, when really the professors and clinical faculty should be working with the student-attorneys on those issues rather than the resident autistic law student who wasn’t even working in the clinic to begin with!
Another thing that strikes me is how we think of disability as a separate entity in the law, but as a colleague and friend of mine, Robyn Powell, often explains to her students — every area of law is impacted by disability. For example, in family law, there is the question of who gets custody of an autistic or disabled child. In employment law, disability discrimination cases are often brought to the courts. The issue is whether or not you immediately recognize disability’s impact and role in a specific case or practice area.
We can close that gap, largely with continuing legal education (CLE), how clinical faculty teaches in law school, what law schools invest in their disability law courses or inclusion initiatives, what state and local bar associations offer for CLE, and even professional development initiatives at firms.
OAR: Are you aware of any neurodivergent training programs for lawyers representing neurodivergent clients? If so, how effective are they? If not, would such a training be helpful?
Moss: I do these trainings. I try to address what neurodiversity is, how lawyers can be more accommodating and understanding of interacting with others who do not experience the world in the same way, in addition of course to the legal aspects of neurodiversity. I think trainings would be extremely helpful for lawyers, as well as judges and other actors within the legal system. You can read more about my views here.
OAR: What are some challenges that neurodivergent clients face in the legal space, and how can lawyers, attorneys, prosecutors, and judges help them overcome these challenges?
Moss: One of the biggest issues, in my opinion, is the presumption of competence. Competence as we know it means one thing, and legal competence is another. When I presume competence with neurodivergent clients, it’s building trust, it’s allowing them to communicate and open up in a way that feels safe. I think our system is very impatient and judgmental, and the legal system often moves slowly. There’s also such a lack of understanding especially of our different social cues, that judges, prosecutors, etc. might misinterpret. They may not realize that a courtroom situation is highly unusual and stressful for an autistic person — even if they are just a witness, not a defendant or plaintiff.
Autistic people can sometimes be found incompetent to stand trial, meaning they don’t understand the charges against them or can’t meaningfully contribute to their own cases. As lawyers, we try to reduce that, and we should, by doing things like building trust and empathy with our clients and making sure they have access to resources like augmentative and alternative communication (AAC). There’s a lot of work to be done, that’s for sure.
OAR: Can you explain how the accommodation process works for neurodivergent clients? How do clients go about requesting them?
Moss: It really depends. If it’s with your specific lawyer or law firm, work with them and advocate for your needs. I know that can be difficult. Sometimes it might help to bring a support person but also keep in mind this may have implications on attorney-client privilege. During processes like depositions, you can request more frequent breaks, fidget toys, etc. to help you.
Accommodations during the process are according to jurisdiction. Each jurisdiction should have an ADA coordinator to help with courthouse or courtroom accommodations. Lawyers will advocate for other things, like specific jury instructions, on behalf of an autistic client if autism is a factor within a trial.
OAR: What inspired you to study law and what was your experience as an autistic student at law school?
Moss: I honestly didn’t grow up thinking I would be a lawyer. I was very introverted, and at one point, wanted to go to med school. Unfortunately, freshman year of college, chemistry and the sciences weren’t where my passions were. When I thought about what I actually enjoyed, that was mostly writing, speaking, and helping others — all things lawyers do.
I entered law school when I was 21, so I did not have the same life experiences as my mostly older peers. I felt a constant need to prove myself as competent. My law school also denied all my accommodation requests, and I didn’t have the self-advocacy skillset (or lawyer skillset) that I do now. I am a lot kinder to younger me now, and I am proud I survived and thrived as best I could in a high-pressure, high-stakes environment without all the support I needed. While I criticize my law school and legal education often, that does not take away from how grateful I am for the privilege of attending (and the scholarship I received) my law school’s public interest programming, and the personal and professional growth and opportunities.
I am confident so much is better for today’s autistic, neurodivergent, and disabled law students, not just at my school but nationwide.
OAR: Do you have advice for prospective autistic students interested in entering the field of law?
Moss: One thing I am glad exists now that didn’t when I was in law school: The National Disabled Law Students Association and its corresponding Facebook group, Law School Disability Advocacy Coalition. They’re fantastic resources, communities, and ways to meet like-minded people in similar situations.
My advice is to advocate for yourself, and be kind to yourself. Don’t be afraid to fight for the accommodations that you need to succeed; it’s one of my biggest regrets. I do not consider surviving three years of law school and a bar exam without accommodations to be a badge of honor but more of a sad reflection of how the legal education system failed me into thinking I was ineligible, unworthy, or undeserving of support. Being kind to my younger self for her strength and perseverance is something I am getting better at doing rather than beating up on her for not advocating more frequently.
Haley Moss is an attorney, author, advocate, artist, and consultant. Diagnosed with autism when she was 3 years old, Moss now uses her personal and professional experience to bring insight and perspective on neurodiversity and inclusion to a broad range of audiences, including those in the legal profession. You can check out her website here.