Attention-deficit/hyperactivity disorder: implications for the criminal justice system.

Interaction between the mental health and criminal justice professions traditionally occurs over issues such as a defendant's claim of temporary insanity or overt mental disorders exhibited by criminal offenders. Recently, however, professionals in these two fields have begun to explore a broader range of behavioral disorders that could bring individuals into contact with the criminal justice system.

This article focuses on one set of temperamental qualities that occur in a small but significant group of people. The mental health community refers to these qualities under the diagnostic description Attention-Deficit/Hyperactivity Disorder (ADHD).(1) Because individuals with ADHD come into contact with the criminal justice system at a statistically higher rate than others in the general population,(2) criminal justice officials, including police administrators, should be aware of the implications ADHD has for the profession.

UNDERSTANDING ADHD

Problems characterized as attention disorders and hyperactivity have long constituted the most chronic childhood behavioral disorders and the largest sources of referral to child mental health centers.(3) Moreover, the diagnosis of ADHD among children and adolescents is increasing consistently. In 1993, nearly 2 million children and adolescents were diagnosed or being treated for ADHD.(4) It appears that this number will continue to rise in the years to come.

Behavior

Symptoms of ADHD largely stem from impulsive, non-thinking behavior. ADHD reflects an exaggeration of normal behavior - either too much or too little of what should be expected in a given environment.

Often, individuals with ADHD know what to do, but in the heat of the moment their sense of immediate need overwhelms their limited capacity for self-control. They act. Thus, their behavior might be inconsistent and unpredictable. If prone to violent behavior, their actions may be difficult to anticipate from moment to moment.

Three additional behavioral qualities of individuals with ADHD merit consideration. First, these individuals do not respond well to repetitive, effortful, uninteresting activities that others choose for them. It is not so much that they cannot pay attention but that they do not pay attention as well as others under demanding circumstances.

Second, in addition to a low threshold for emotional arousal, many individuals diagnosed with ADHD exhibit very strong emotional reactions. Thus, little things often provoke a disproportionately dramatic response. As adults, these individuals may be labeled as stress-intolerant.(5) Many are described simply as short-tempered.

Third, individuals with ADHD appear to require more immediate, frequent, predictable, and meaningful rewards than others. Thus, the payoffs sufficient for others to function in normal society often do not provide enough reinforcement for these individuals. They may seek excitement and stimulation, even at the expense of injuring themselves or violating the rights of others.

Ratios

The male to female ratio for ADHD is approximately 6 to 1. Nearly 80 percent of children and adolescents with ADHD experience problems related to the areas of impulsivity, hyperactivity, inattention, and rewards. Members of this hyperactive-impulsive group face the greatest risk for coming into contact with the criminal justice system as they approach adulthood.(6)

ADHD INTO ADOLESCENCE AND ADULTHOOD

The severity of ADHD symptoms in adolescence and adulthood apparently coincides with an increase of problems related to aggression and conduct. Thus, the worse an individual's ADHD symptoms get, the more likely that the individual might progress to criminal behavior. Further, the rate of borderline and antisocial personality disorders appears much higher in individuals with histories of ADHD.(7)

Well-controlled prospective studies of children with ADHD find that at least 70 percent continue to meet the full diagnostic criteria for the disorder into adolescence. By young adulthood, this population has more academic problems and is more oppositional and delinquent than peer groups. Compared to other young adults, they engage in activities that result in more school suspension (14 percent vs. 2 percent), have more adversarial contacts with law enforcement agencies (19:3), and are more likely to be admitted into juvenile justice facilities (5:1).(8)

Researchers increasingly identify the development of aggressive behavior during childhood and adolescence as the connecting bond between ADHD, substance abuse, and criminal behavior.(9) While aggression does not represent one of the diagnostic criteria for ADHD, approximately 50 percent of those with ADHD evaluated in clinics progress to a level of aggressive behavior defined by most law enforcement agencies as delinquency.(10) ADHD appears to be a catalyst with primarily family variables increasing the risk that ADHD behavior will lead to delinquency and substance abuse problems.(11)

A number of studies show that individuals with ADHD are as much as seven times more likely than others to develop an antisocial personality or drug abuse problem in adulthood.(12) Studies also suggest that this group is likely to cause and experience more automobile accidents, and sustain more bodily injuries associated with accidents, than others. Members of this group also are more likely to receive traffic citations, particularly for speeding.(13)

One study revealed that even before receiving their operator's permits, a group of adolescents with ADHD was three times more likely to have driven a vehicle without a valid driver's license and had done so nine times more often than others of the same age. Not surprising, a significantly higher proportion of adolescents with ADHD had had their licenses suspended or revoked.(14)

Researchers consistently report an overlap of ADHD and addictive disorders beginning in adolescence and continuing into early adulthood affecting at least 10 to 20 percent of the adult population with ADHD. Males appear to predominate. Problems with antisocial behavior in this subpopulation are the norm rather than the exception.(15) In addition, research suggests that one-third of adults with ADHD abuse alcohol, with one-fifth having a history of drug abuse.

Studies have found that nearly 40 percent of all cocaine and opiate abusers meet the diagnostic criteria for ADHD.(16) In comparison to other opiate and cocaine abusers, those with a history of ADHD generally began their abuse at an earlier age, exhibited more severe abusing habits, and showed higher rates of criminal and antisocial behavior.

Some studies have explored the relationship between childhood ADHD and later adult substance abuse and criminal behavior. One study, published in 1989, followed 103 males in New York State who had been diagnosed with ADHD at ages ranging from 6 to 12. When this group reached 16 to 23 years, the team conducted followup interviews with the subjects and their parents. The researchers then compared the subjects' arrest records with a control group of 100 individuals in the same age range. The researchers found that significantly higher percentages of individuals with ADHD had been arrested (39 percent vs. 20 percent), convicted of a crime (28:11), and incarcerated (9:1).(17)

However, the research showed that ADHD in adulthood by itself was not a significant factor contributing to delinquent behavior. These findings and others indicate that childhood ADHD represents a risk factor for later criminality but that this relationship is almost exclusively mediated by the onset of serious aggression during adolescence leading to development of an anti-social personality disorder in early adulthood. (18)

INTERACTION WITH THE CRIMINAL JUSTICE SYSTEM

Although studies indicate that adolescents and adults with ADHD interact with the criminal justice system more frequently than do members of the general population, research has yet to produce a comprehensive assessment that could be used by law enforcement personnel as a guideline for dealing with these subjects. The majority of data now available concerning adolescents and adults with ADHD may be more applicable to corrections and court officials than to law enforcement personnel.

However, a number of issues have emerged related to ADHD of which law enforcement personnel should be aware. As research in this area continues, law enforcement and the criminal justice community may benefit considerably from an expanded understanding of this disorder.

Identification and Interrogation 

Criminal offenders often act irrationally. How can law enforcement officers distinguish between individuals who merely act in a rash manner and individuals who suffer from ADHD? Further, is it important that they do so?

It never hurts for officers to understand as much as possible about the people with whom they come into contact. No data exists to suggest that symptoms of ADHD in and of themselves require any specific types of interview or interrogation techniques. However, impulsive qualities often compel affected individuals to lie, speak their minds, or say anything necessary to get themselves off the hook.

Although there is no simple way to determine if an individual suffers from ADHD, investigators interested in exploring whether the disorder may have contributed in part to an individual's criminal behavior may wish to consider the following questions as part of their interrogation:

* Do you have difficulty paying attention during conversations, classes, at work, etc., and find that your mind drifts off easily?

* Do you feel excessively stressed or overwhelmed?

* Do you become sidetracked easily, leave tasks unfinished, or disrupt tasks in progress to switch to other matters?

* Do you become frustrated easily?

* Do you procrastinate?

* Do you forget to complete things that you intended to do?

* Is your work inconsistent and your performance erratic?

* Do you have sudden outbursts of intense anger?

* Do you easily misunderstand directions?

Affirmative responses to these questions strongly suggest that an individual manifests underlying symptoms consistent with ADHD. Law enforcement personnel or prosecutors should gather evidence and refer it to a qualified mental health professional for a diagnosis.

However, criminal justice officials should understand that problems with impulsivity generally play a more significant role in connection to minor status offenses. ADHD symptoms offer much less insight into understanding the behavior of criminals manifesting more serious violent and anti-social behavior. Investigators who believe that an individual suffers from ADHD should suggest a pre-trial psychiatric or psychological assessment for the subject.

ADHD as a Defense

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.

Courtroom Accommodations

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 as a Factor in Sentencing

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.(20)

In general, the underlying or explanative causes for an individual'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.

Incarceration and Rehabilitation

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 individuals 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.

ADDITIONAL CONSIDERATIONS

Individuals with ADHD are not criminals waiting to happen. Most will have no greater contact with the criminal justice system than individuals without the disorder. The best causal connection between ADHD and criminal behavior appears to be the development of antisocial problems in adolescence. Those with a tendency toward impulsive behavior run a greater risk of coming into contact with the justice system than others.

Most adults with ADHD still go undiagnosed, untreated, and unaware that help is available. Their symptoms occur in varying types and severity. These symptoms may cause significant impairments in interpersonal relations, marriage, emotional well-being, employment, and daily adaptive functioning. It is likely that law enforcement personnel will encounter a significant group of individuals with childhood histories denoting ADHD who exhibit these same symptoms - combined with serious antisocial behavior - as adults. At the present time, however, insufficient information exists to guide criminal justice professionals precisely concerning any adjustments they should make in the investigation, prosecution, or incarceration of these individuals.

CONCLUSION

From a mental health perspective, the understanding of Attention-Deficit/Hyperactivity Disorder is still in its infancy. However, continued research promises to yield considerable information relevant to the criminal justice community.

Several facts already have emerged from the research. By itself, ADHD does not appear to be a significant factor contributing to criminality. But, individuals who manifest symptoms of ADHD in childhood and develop antisocial tendencies in adolescence have a significantly higher rate of confrontational contacts with the criminal justice system than do members of the general population. Early diagnosis and intervention before individuals develop antisocial tendencies might be the best comprehensive, long-term approach to reducing these contacts. In the shorter term, prosecutors and the courts should consider referring offenders who exhibit ADHD symptoms to mental health professionals for diagnosis and treatment. Such positive intervention might not only ease crowded prison conditions but also might help individuals reclaim their lives and end cycles of criminality.

Law enforcement personnel should remember that crime is not a way of life for the vast majority of persons with ADHD. However, those who engage in activities that bring them into conflict with the police generally have considerable difficulty controlling their impulses. Thus, officers who believe that a subject suffers from Attention-Deficit/Hyperactivity Disorder should be prepared for highly impulsive and unpredictable responses to commands and requests for information.

In recent years, the mental health and criminal justice communities have begun to work more closely to address issues relevant to both groups. Research into ADHD and other disorders represents an area that could assist law enforcement, prosecutors, the courts, and corrections officials to better understand the dysfunctions that bring a significant number of offenders into conflict with the criminal justice system.

By better understanding these individuals' problems, criminal justice personnel can refer them to treatment programs designed to help them control their impulses and exercise more control over their own lives. With this as a goal, continued interaction and cooperation between the mental health and criminal justice communities can benefit everyone involved.

Endnotes

1 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (Washington, DC: American Psychiatric Association, 1994).

2 S. Mannuzza, R. Klein, P.H. Konig, and T.L. Giampino, "Hyperactive Boys Almost Grown Up: IV. Criminality and Its Relationship to Psychiatric Status," Archives of General Psychiatry, 46, 1989, 1073-1079.

3 P.H. Wender, "The Minimal Brain Dysfunction Syndrome," Annual Review of Medicine, 26, 1975, 45-62; R.A. Barkley, Hyperactive Children.' A Handbook for Diagnosis and Treatment (New York: Guilford Press, 1981).

4 L. Williams, M. Lerner, and J.M. Swanson, "Prevalence of Office Visits for ADD: Gender Differences Over the Past Five Years (1990-1994)," unpublished manuscript, 1994.

5 P.H. Wender, F.W. Reimherr, and D.R. Wood, "Attention-Deficit Disorders in Adults," Archives of General Psychiatry, 38, 1981, 449-456.

6 S. Goldstein and M. Goldstein, "Attention-Deficit Disorder in Adults," Directions in Clinical Psychiatry, 15, 1995, Lesson 18.

7 S. Goldstein, ADHD/LD in Adults (New York: John Wiley and Sons, Inc, 1996).

8 Supra note 2.

9 S.O. Lilenfield, I.D. Waldman, "The Relation Between Childhood Attention-Deficit/Hyperactivity Disorder and Adult Anti-social Behavior Re-examined: The Problem of Heterogeneity," Clinical Psychology Review, 10, 1990, 699-725.

10 J. Biederman, J. Newcorn, and S. Sprich, "Comorbidity of Attention-Deficit/Hyperactivity Disorder With Conduct, Depressive, Anxiety, and Other Disorders," American Journal of Psychiatry, 148, 1991,564-570.

11 P.J. Frick, "Family Dysfunction and the Disruptive Behavior Disorders: A Review of Recent Empirical Findings," Advances in Clinical Child Psychology, 16, 1994, 203-226.

12 S. Mannuzza, R. Klein, N. Bonagura, P. Malloy, T.L. Giampino, and K.A. Addalli, "Hyperactive Boys Almost Grown Up: IV. Replication of Psychiatric Status," Archives of General Psychiatry, 48, 77-83.

13 R.A. Barkley, D.C. Guevremont, A.D. Anastopoulos, G.J. DuPaul, and T.L. Shelton, "Driving-related Risks and Outcomes of Attention-Deficit/Hyperactivity Disorder in Adolescents and Young Adults: A 3- to 5-year Follow-up Survey," Pediatrics, 92, 212-218.

14 J. Biederman, K. Munir, and D. Knee, "Conduct and Oppositional Disorder in Clinically Referred Children with Attention-Deficit Disorder: A Controlled Study," Journal of the American Academy of Child and Adolescent Psychiatry, 26, 1987, 724-727.

15 J.A. Halikas, J. Meller, C. Morse, and M.D. Lyttle, "Predicting Substance Abuse in Juvenile Offenders: Attention-Deficit Disorders Versus Aggressivity," Child Psychiatry and Human Development, 21, 1990, 49-55.

16 J.A. Cocores, R.K. Davies, P.S. Mueller, and M.S. Gold, "Cocaine Abuse and Adult Attention-Deficit Disorder," Journal of Clinical Psychiatry, 48, 376-377.

17 Supra note 2.

18 Supra note 7.

19 Because Titles II and XVI of the Social Security Act (42 USC) provide for the payment of supplemental security income to disabled persons, including those diagnosed with Attention-Deficit/Hyperactivity Disorder, defense attorneys can be expected to explore every possibility of an ADHD defense. See Aviles v. Bowen (715.F.Supp.509 S.D.N.Y., 1989).

20 P.S. Latham and P.H. Latham, "Legal Rights of Individuals With LD and ADHD," in S. Goldstein (ed.) Learning Disabilities and Attention-Deficit Disorder in Late Adolescence and Adulthood (New York: Wiley Interscience Press, 1996).

Dr. Goldstein is a clinical instructor at the University of Utah School of Medicine in Salt Lake City.