In recent years, a growing number of defense attorneys have consulted mental health professionals to determine whether a history of ADHD might offer a justifiable defense for offenses ranging from minor status or parole violations to more serious, even violent, crimes. Thus far, the courts have not been particularly receptive to this defense.
ADHD does not excuse criminal conduct or render a person incompetent to stand trial. The courts have found that individuals with more serious psychiatric disorders, such as psychoses, may still be held responsible for their conduct and found guilty of alleged crimes. However, defense attorneys increasingly may rely on claims of ADHD to reduce the severity of an offense and subsequent court penalty. A crime requiring proof of intent, for instance, might be reduced to one involving merely reckless behavior if ADHD can be demonstrated as the mitigating factor. In such situations, defense attorneys may attempt to document how the disorder impacted the accused in the particular circumstances surrounding the offense. To date, research has yielded very limited hard data on the relationship between ADHD and criminality. For this reason, and because of a lack of legal precedents in this area, prosecutors should keep courts focused on factors related to guilt and intent rather than explanations of cause.
Because the Federal Government considers ADHD a disability if the disorder limits a major life activity,19 individuals appropriately diagnosed with ADHD are entitled to reasonable accommodations in the courtroom just as they are in the classroom or workplace. Courtroom accommodations might include careful repetition of important information, additional time to think in response to questions, and nonconfrontational communication. When ADHD is coupled with a learning disorder, which occurs in approximately 30 percent of cases, the court also must accommodate the particular learning disability. For example, if an individual suffers from a reading disorder, the courts might need to present information orally.
ADHD could be a factor in lessening an imposed sentence. During a recent attorney disciplinary proceeding involving misuse of client funds, the attorney involved received a diagnosis of ADHD. The court considered the ADHD diagnosis as a mitigating factor when it sentenced the attorney.
In general, the underlying or explanative causes for an individ-ual's behavior play a greater role in the sentencing process than during the trial phase of a criminal case. Prosecutors should recognize that ADHD, combined with other life variables, represents an increased risk factor for repeated criminal behavior. To advance the best interests of the individual and the public, courts should focus on combining appropriate treatment with punitive sanctions.
Although discovering a cure for ADHD remains a remote possibility, data strongly suggest that appropriate diagnosis, counseling, and treatment significantly can improve the life course of most adults manifesting this disorder. No research indicates that indi-viduals with ADHD require special facilities for incarceration. In fact, individuals with ADHD function best in a consistent, well-structured, predictable environment. These qualities form the basis for most penal institutions.
However, correctional facilities should ensure that inmates diagnosed with ADHD have access to appropriate medication and trained counselors. Such measures will enhance rehabilitation and daily functioning. Facility administrators also should take steps to educate correctional personnel on the topic of ADHD.
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