Richmond Advocacy Alone Cannot Fix Arlington’s Handling of Criminal Justice

By Juliet D. Hiznay, Attorney at Law

Published March 2019

There is a broad consensus among parents of children with disabilities, child advocates and attorneys that we need to transform Arlington’s approach to charging children and adults with crimes, particularly those with disabilities. In 2015, the Center for Public Integrity ranked Virginia as number 1 out of 50 states in referring students to law enforcement. The cited referral rate of 16 referrals per 1,000 children was reported as three times the national rate. According to Legal Aid Justice Center, a Virginia non-profit, this reflects “an over-reliance on law enforcement and harsh discipline policies that too often criminalize students for minor offenses.”  Without a purposeful effort by local officials to avoid the worst of Virginia “justice,” our children will continue to be subjected to a system that ignores developmental considerations. Children in Arlington will continue to be at the mercy of a system of laws that criminalizes disability, mental health and addiction.

At this time, we cannot even quantify the problem in Arlington. This is because the data is not being collected in a way that can yield analysis. However, we do know that in Arlington today, students can become court involved for matters as minor as vaping. We know that students who are bullied can be charged with assault and battery when they are victimized and it leads to a fight in school. We know that students who need prescription medication to treat AD/HD and share the medication with a friend are likely to face a felony drug distribution charge. If there is any injury that breaks that skin during a physical altercation, that can be charged as felony malicious wounding. We also know that if a disabled person becomes upset when communication breaks down, or a person becomes dissociative as the result of psychosis or PTSD, and in the course of the incident a family member is injured, that person is likely to be charged and detained even if the family member does not want to pursue charges.

I raise these issues because Virginia law is so incredibly punitive. The truth is that it does not treat children much differently from the way it treats adults, and in some ways treats them worse.  Part of the problem is that many prosecutors have no understanding of psychology or childhood development. Children age 8 and older are deemed criminally responsible, regardless of whether they have a disability. In fact, any felony conviction as a juvenile means having a record for life.  Prosecutorial discretion is a key protection from a system designed for punishment alone. It can be employed to make Arlington safer for everyone.

For anyone, it can be scary to go to court or to be confronted by an armed person in uniform. Consider if you are a child who does not have adult judgment. Commonplace interrogation techniques place young people at an extreme disadvantage.  In Arlington today, a student of color and a student with disabilities is far more likely to be disciplined by a school and charged with a criminal offense. Frequently there is a connection between lack of appropriate services and these outcomes. When I work on a special education or 504 case, tailoring services and accommodations to needs is my primary focus. A carefully designed and implemented individualized education plan or 504 Plan can help students avoid these terrible outcomes. In fact, federal special education law is specifically designed to help avoid such consequences.

Arresting and charging those with disabilities serves to exacerbate and accelerate existing behavioral problems, and will not solve them. Imagine for a moment that you have a disability and it interferes with your ability to communicate effectively. A person with a disability is likely to deteriorate when charged with a crime or incarcerated, not get better. If the behavior is related to the disability, it should be carefully assessed to determine if it is purposeful or simply a symptom of the disability. When incarcerated, a person with a disability loses access to their caregivers and loved ones, as well as their treatment providers. For all of these reasons, there needs to be a very significant public safety reason to charge and detain someone whose behavior is linked to disability.

The “reforms” in place are woefully inadequate. The extremely limited “Second Chance” program is available only for first offense vaping, alcohol and marijuana offenses, the narrowly defined “Drug Court” – which children cannot access – and “Detention Diversion” are simply not enough. Also, Second Chance does not offer any nicotine cessation or other treatment; it is merely an education program.

A decision needs to be made on the front end, with proper assessment, of how best to address public safety concerns. More often than not, linking an individual to human services is a far better solution, with improved outcomes. Families who are providing care to loved ones with disabilities bear significant economic burdens and time constraints. A court case can be extremely damaging to the entire family.

It is of great concern to me and to other advocates in the community that the Commonwealth’s Attorney’s Office continues to pursue cases without regard to disability, mental illness or the effects of addiction, continues to aggressively pursue the maximum charges possible to extract guilty pleas, and continues to count the number of convictions as the determining factor of whether the office is a success.

The severity of the situation came to my attention in 2015. At that time, I made a direct request to our local prosecutor Theo Stamos to drop a charge that criminalized extremely minor behavior of a disabled child. Ms. Stamos was relying on a vague and overly broad provision of law that makes any interruption of instruction in school a crime. Subsection C of the disorderly conduct statute is a disaster for children with autism and AD/HD who might have distracting behaviors such as speaking when not asked, fidgeting or “stimming”, vocalizing, or wandering around the classroom. I continue to advocate that the statute be amended to eliminate that subsection. However, prosecutors should never  enforce a law in such a way that it is unconstitutional. In fact, the duty of a prosecutor is to ensure that laws do not exceed constitutional bounds.

When Ms. Stamos refused to drop the case and informed me that there was no diminished capacity in Virginia, I decided I had to do something. I drafted a bill which took effect on July 1, 2016. It is now on the books as Va. Code § 16.1-274.2. It creates a diminished capacity defense in narrow circumstances. It addresses minor school-based offenses, such as disorderly conduct.  What it does not do is prevent decision making by our local prosecutors that criminalizes disability.

Turning a blind eye to the needs of those with disabilities and other injustices did not begin or end with the incident that inspired me to get a law passed.

In 2014, Arlington arrested Abreham Zemedagegehu, a deaf man who was homeless at the time, and charged him with a felony for stealing an IPAD. According to news reports he was actually innocent, as the person who reported the theft later found the IPAD in question and recanted his statement. Arlington County settled a related federal lawsuit under the Americans with Disabilities Act for $250,000.  Zemedageghu was reportedly  “held for more than 24 hours before he knew why he had been arrested. He was administered a tuberculosis shot without his consent, often went hungry because he couldn’t hear alerts for mealtime and was unable to call friends or an attorney because of inadequate technology in the jail — all of which violated the Americans with Disabilities Act.”

The systemic problems we have can be addressed and they need to be.

First, prosecutors have a duty to ensure they are not locking up innocent people.

Second, when a person with a disability is involved in a case, there should be an extra sensitivity to whether that individual can effectively communicate.

Third, prosecutors should exercise their discretion and not criminalize a disability when connecting the individual to services will result in better outcomes.  When I talk about outcomes, I mean for both the individual and for the public at large. In my special education legal practice, I have seen that aggression and other inappropriate behavior are linked to two things:  An inability to effective communicate – i.e. understand what is happening or communicate needs – and a failure to provide adequate services to address underlying needs.

If we can target services to the needs of individuals, concerning behaviors often stop altogether or can be significantly reduced. By contrast, if you criminalize behavior such as impulsive or hyperactive behaviors in school, the stress of court involvement will simply make behavior more erratic and extreme. Trauma and fear pay a very significant role in behavior. Being prosecuted and detained is an experience that even the most mature and resourceful person will find extremely stressful.

We need a transformation. To achieve that transformation we need leadership that can offer a self-critical eye. Only by openly and honestly identifying the problems with our system can we design a systems change in order to reform it. Instead, what we see in the public discourse on prosecutorial discretion is an effort to deny, to sidestep, to exaggerate progress and to shift blame.

The opinions offered here are those of the author, Juliet Hiznay, and do not reflect the position any other individual or entity.

A Democratic primary will be held on June 11, 2019 to determine who will be the party candidate for Commonwealth’s Attorney for Arlington and Falls Church. The candidates are Theo Stamos, the incumbent, and Parisa Dehghani-Tafti.