APRI Highlights - Summer 2002

National Juvenile Justice Prosecution Center

Caren Harp, Director

The increasing willingness of some mental health professionals to label criminal conduct as a manifestation of mental disorders is creating problems for prosecutors on several fronts. Mental health diagnoses that fit under federal education law definitions of a disability are the most recent cause of turmoil.

Defense attorneys and child advocates in some states are making use of the Individuals with Disabilities Education Act (IDEA) 20 USC 1400, the Americans with Disabilities Act (ADA) 42 USCA § 12101 et seq., and other Department of Education (DOE) regulations in an attempt to limit prosecutors’ ability to address the criminal behavior of children with disabilities. Generally, these child advocates argue that any filing of criminal or delinquency charges that results in detention or removal from the school constitutes a change in the child’s Individual Education Plan (IEP), and such a change cannot take place without a prior due process or “manifestation” hearing. Although the IDEA applies to schools and not prosecuting attorneys, the child advocates argue that school officials use prosecutors’ charging authority to violate the IDEA. The extent to which these attorneys have attempted to impact prosecution varies, but some suggested uses for IDEA and ADA claims have included:

• Prohibiting the filing of charges without a hearing to determine if the conduct is a “manifestation” of the disability,
  
  
• Prohibiting the filing of charges completely if the conduct is a manifestation of the disability,
  
  
• Extending coverage of the IDEA to criminal conduct that occurs off campus if it is a manifestation of the disability and changes the IEP,
  
  
• Removing delinquency cases to federal court, and
  
  
• Suing prosecutors in federal court for violations of these federal laws.
  

While these attempts to limit prosecutors’ authority have been largely unsuccessful, they have created delays and complex federal litigation. In response to this emerging problem, the staff of the NJJPC is in the process of preparing form pleadings to help prosecutors respond to these attempts to limit their charging authority and remove their cases to federal court. Draft briefs, or at least a collection of research, should be available within the next couple of months. The NJJPC hopes to act as a clearinghouse for information, arguments, cases and pleadings on these very important issues.

Anyone with experience, pleadings or pending litigation in this area is encouraged to contact us at (703) 549-4253 or juvenilejustice@ndaa-apri.org.