C.  Special Education Issues at Different Stages of Juvenile Justice Proceedings



CECP and EDJJ, supra note 1 at 20.
1.  Intake

If a juvenile has a disability, counsel should notify the court and present information about the disability, including information relevant to a decision for further detention.
Burrell and Warboys, supra note 3 at 7.
The court should obtain a juvenile’s educational history, especially as related to special education, either with parental consent or by court order. 



Under IDEA, if the school district has reported the crime, it must provide special education records to authorities:



20 U.S.C. § 1415(k)(6)(B) (2005).
An agency reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom the agency reports the crime.

C.R.S § 19-3-506(1).
If it appears that a juvenile may have developmental disabilities or a mental illness, the court should order an eligibility determination or prescreening. 

C.R.S § 19-2-710(1).
Indeed, at any stage of delinquency proceedings, if “the court, prosecution, probation officer, guardian ad litem, parent, or legal guardian has reason to believe that the juvenile could benefit from mental health services,” that person is required to advise the court immediately.

C.R.S § 19-2-710(2).
The court, unless it already has sufficient information to determine whether the juvenile could benefit from mental health services, or a screening has been completed within the last three months, is required to order a screening. 

C.R.S § 16-11.9-102(1).
A standardized screening procedure for the assessment of mental illness is available for juveniles in the juvenile justice system.  



Buffington, supra note 6 at 8.
This should include trauma screening.

C.R.S § 19-3-506(3)(c).
If the juvenile does have developmental disabilities or a mental illness, and is then placed in treatment or receives services, “the court may suspend the proceedings or dismiss any actions pending in the juvenile justice system.”

CECP and EDJJ, supra note 1 at 3. 
The court and a juvenile advocate should consider whether there is a possibility that, because of a disability, the juvenile does not understand the charges and needs accommodations. 

Id. at 20. 
These accommodations may mean more time for the explanation of rights, providing written explanations of charges and the juvenile’s rights, and creating a quiet atmosphere in the court room. 

Id. 
If a juvenile is on medication and will continue to be detained, the court can enter an order providing for the administration of medication.

Id. 
The juvenile’s disability can be considered in the decision of whether to divert, and the diversion contract can reflect accommodations for the disability.
































Reference
2. Offenders with Mental Retardation

Research shows that offenders with mental retardation often fare poorly in the juvenile justice system for reasons related to their disability. The following factors may be true.  Offenders with mental retardation:
  • “May not understand the implications of the rights being read to them;
  • May confess quickly when arrested and say what they think another person wants to hear;
  • May have difficulty communicating with a lawyer and other court personnel;
  • May not be recognized as mentally retarded by lawyers and other court personnel;
  • Are more likely to plead guilty, are more often convicted of the arresting offense, and are less likely to plea bargain for a reduced sentence than a person without retardation;
  • Are less likely to have their sentences appealed;
  • Are less likely to receive pretrial psychological examinations;
  • Are less frequently placed on probation or in other diversionary non-institutional programs;
  • Once in a correctional facility, are slower to adjust to the routine, have more difficulty learning regulations, and accumulate more rule infractions, thus limiting access to programs and parole opportunities;
  • Are less likely to take part in rehabilitation programs;
  • Are often the recipients of practical jokes and sexual harassment in correctional institutions; and
  • Are more frequently denied parole and serve longer sentences than non-retarded offenders incarcerated for the same crimes.”


Burrell and Warboys, supra note 3 at 8.
3.  Detention

Juveniles “taken into secure custody at the time of arrest are entitled to judicial review of the detention decision within a statutory time period.” 

Id. 
Juveniles with disabilities are detained disproportionately, possibly because they lack the communication and social skills to make a good presentation to arresting officers or probation officers, and their behavioral affect may seem inappropriate—for example, hostile, unconcerned, or overly emotional. 

Tulman and McGee, supra note 16 at 1-5.
Both judges and attorneys should explore the existence of disabilities, and whether a juvenile’s difficulties with listening, thinking, and speaking may be creating an inaccurate impression of dangerousness or flight risk. 

Burrell and Warboys, supra note 3 at 8.
Particularly if special education evaluation or adjustments in the IEP are needed, a program such as home detention may be appropriate. 

Tulman and McGee, supra note 16 at 2-10.
A juvenile’s eligibility for educational services that will reduce the risk of dangerousness or flight, such as counseling and other supports, may impact the detention decision. Even if the juvenile’s IEP does not require those services, the juvenile’s parent can request that the multi-disciplinary team reevaluate the IEP.

Reference
Juvenile detention facilities must provide a broad array of educational and rehabilitative services.

Reference
The educational process in the detention center is administered differently from the Division of Youth Corrections (DYC). In Colorado, schools in the detention centers are administered by the school district in which the detention center is located. 

Reference
The school districts count these students for purposes of financing. 

Telephone interview with Barb Taylor, supra note 56
Once a juvenile is sentenced, education falls under the DYC. Thus, although detained and sentenced juveniles may be at the same facility, a different administrative body is responsible for their education. 

Email from Maureen Wirth, Colorado Department of Education (May 19, 2008, 9:27 a.m.)(on file with author).
The Colorado Department of Education works closely with both the DYC and the Department of Corrections (DOC) to provide technical support and assistance to enhance academic standards and implement a Response to Intervention model.



Burrell and Warboys,  supra note 3 at 10.
The juvenile’s advocate should be aware of exactly who is responsible for implementing the IEP or performing evaluations.

Under IDEA, Child Find obligates institutions to identify all juveniles with disabilities. This should occur even in short-term facilities such as detention centers, partly because useful information can later be shared, and partly because some juveniles end up spending long periods of time in short-term facilities. 

Reference
Failure to provide services in a detention facility may be a violation of IDEA. 

Alexander S. v. Boyd, 876 F.Supp. 773, 802, 22 IDELR 139 (D.S.C. 1995).
However, for a short-term confinement, it is sufficient to implement the existing IEP.
CECP and EDJJ, supra note 1 at 19. 
At detention facilities, staff should ask if the juvenile is taking medications or has a valid disability. 

Id. at 19-20. 
Possible accommodations for a disability could include providing a clear explanation of detention rules with a written copy, contacting the juvenile’s school for the IEP, and making needed accommodations in programs.



Burrell and Warboys, supra note 3 at 8.
4.  Transfer to Adult Criminal Court

The determination as to whether a juvenile offense should be direct filed in adult court may be impacted by the existence of disabilities, and the possibility of addressing them through special education and related services available through the Division of Youth Corrections or other facilities for the secure confinement of serious juvenile offenders. 

Tulman and McGee, supra note 16 at 5-13.
The determination may also be impacted by proving that the juvenile never received services to which he or she was statutorily entitled, and that receiving those services might affect the potential for rehabilitation.



C.R.S § 19-2-905(1)(a)(VI).
5.  Pre-sentence Investigations and Probation

Special education needs should be part of the social study report prepared by the probation department. Statutorily, the pre-sentence investigation may address the “juvenile’s education history, including any special education history and any current individual education program the juvenile may have . . .”  

Burrell and Warboys, supra note 3 at 9.
Whether or not the probation department recommends probation, special education needs should be part of the social study report.

Tulman and McGee, supra note 16 at 5-14.
However, an order for probation may be a more likely and a more appropriate resolution, when a full range of special education services, formalized in an IEP, is available. If the probation department receives this information in advance of sentencing, it can determine how to incorporate the plan into the pre-sentence report and what recommendation to make.  

C.R.S § 19-2-925(2)(d).
If a court orders probation, “the court may order the juvenile to comply with his or her individual education program, taking into account the intellectual functioning, adaptive behavior, and emotional behaviors associated with the juvenile’s disabilities, and subject to a manifestation determination . . .”

State Bd. of Educ. Rule 9.03(2)(a)(ii), 1 Code Colo. Regs. 301-8 (2007).
The court would always want to have DHS involved to make a public placement, and DHS would want to notify the school district. “If a court or public agency makes a public placement but fails to provide the required written notice, such court or public agency shall be responsible for the tuition costs for the child until such time as the required notification is made.”












Reference





C.R.S §19-2-1301(2);
C.R.S §19-2-1302;
C.R.S §19-2-1303;
C.R.S §19-2-1304;
C.R.S §19-2-1305.

C.R.S § 19-2-1301(3).






Burrell and Warboys, supra note 3 at 8-9.



Tulman and McGee, supra note 16 at 2-13.
6.  Trial and Evidentiary Issues

The extent and nature of a disability, and its effect on a youth’s thinking and acting, may be significant in determining evidentiary issues. For each of these evidentiary determinations, an accurate special education evaluation and diagnosis would be helpful.
  • Insanity:  when mental illness or mental status affect functioning to the point that a juvenile may be legally insane under State law (emotional disturbance, traumatic brain injury, etc.)
  • Incompetence:  when a juvenile is unable to understand the nature of juvenile court proceedings, unable to assist the defense attorney, or unable to make decisions to exercise or waive important rights (low level of intellectual functioning, emotional disturbance, distractibility, perceptual or communication problems).
When a juvenile is incompetent, the juvenile may not be tried or sentenced.



The motion may be raised by any one of a number of people, and the court must determine competency.
  • Intent to commit the offense (mens rea): may be affected by a disability, especially one involving limited mental functioning or severe emotional disturbance.
  • Confessions: admissibility of confessions in terms of validity of Miranda waivers may be affected by a number of disabilities (comprehension of written materials, mental retardation, involuntary confession by emotionally disturbed juveniles).
Studies of male adolescents’ ability to understand Miranda warnings indicate that “young people with lower IQ levels and those with learning disabilities misunderstand rights intended to guard against self-incrimination.”

Reference
A juvenile with a disability might need special accommodation in court proceedings. For example, an auditory processing disorder might require more clear communication and feedback, such as calling the juvenile up to the bench. Careful and simple explanations and extra discussion from judges and attorneys may help, as may parental assistance. 

Reference
Asking a juvenile to explain, in his or her own words, the information that has been conveyed may confirm understanding or reveal any problems.  



Tulman and McGee, supra note 16 at 3-8
7.  Disposition and Sentencing

Pursuing educational support for the juvenile may offer the court a broader range of constructive choices. 

CECP and EDJJ, supra note 1 at 3.
If a youth has an IEP, the court can ask if the juvenile received appropriate services and if the IEP was implemented. 

C.R.S § 19-2-710(2).
If a mental health screening was ordered, the court may also continue a dispositional or sentencing hearing to await the results.

Reference
The court can also consider any manifestation determination held by the school for “probative evidence about whether conduct was, in fact, a manifestation of disability.”



Burrell and Warboys, supra note 3 at 9.
The answer may have bearing on a just disposition.

A disposition order should reflect special education evaluations as well as goals and services under the IEP. Appropriate medication and mental health services may greatly change how a disability such as attention deficit hyperactivity disorder (ADHD) or bipolar disorder affects behavior. 

Brad Bittan, supra note 80 at 100
An IEP may give the sentencing judge insight about the juvenile’s current level of intellectual functioning, as well as other concerns related to mental health and social issues. 

Reference 
“Research has shown that the programs most likely to rehabilitate youthful offenders address key risk factors that contribute to their antisocial behavior, including disabling conditions that affect behavior and learning.” 

Reference
A large number of juveniles are incarcerated for non-violent offenses (estimates range around two-thirds to three-quarters) and so alternative dispositions may be appropriate. 

Testimony of the National Council on Disability, supra note 23 at 8.
These non-violent offenders are better served by a system of closely supervised community-based services, which may include elements of the following: “prevention, early identification and intervention, assessment, outpatient treatment, home-based services, wraparound services, family support groups, day treatment, residential treatment, crisis services and inpatient hospitalization.” 

Reference
These programs are especially effective for crossover youth—youth involved in both the child welfare system and the delinquency system—because of their extremely high risk factors.



Id. at 10. 
Although costly, evaluations of community-based services show they are highly effective and still less costly than alternative residential services.







Reference
Family and community based interventions have positive outcomes that:
  • reduce long-term rates of re-arrest;
  • improve family functioning and school performance;
  • decrease substance use and psychiatric symptoms;
  • reduce rates of out-of-home placements; and
  • save significantly on financial costs to the state.
Burrell and Warboys, supra note 3 at 9.
The court should consider whether a correctional setting being considered can accommodate and address the juvenile’s disability. For instance, the type of disability may affect a juvenile’s ability to cope in certain settings, such as a large dormitory in an institution. 

CECP and EDJJ, supra note 1 at 22.
For some juveniles, rehabilitation will require a facility that can give medications where appropriate, and where the staff is trained to understand various diagnoses such as ADHD and emotional disorders. 

CECP and EDJJ,  supra note 85 at 9.
Juvenile justice professionals should follow up to ensure juveniles with disabilities receive services ordered at disposition, and that special education rights under IDEA are protected. Depending on the nature of the disorder, when a juvenile must be institutionalized, hospitalization may be more appropriate than incarceration. 

Tulman and McGee, supra note 16 at 10-5.
Also, if the juvenile could not be educated in the public school, a residential placement for educational purposes under IDEA may be more appropriate than incarceration. Therapeutic and educational services may be available there that would not be available in a detention facility.



Reference
8.  Restorative Justice

Restorative justice focuses on repairing the harm that crime does to people, communities, and relationships. 

Id.  
The goal of restorative justice is repentance for the offender and healing for the victim and community. Approaches to restorative justice include: victim-offender mediation and dialogue, various community decision-making processes, restorative community service, restitution, victim and community impact statements, victim awareness panels, crime repair crews, victims intervention programs, family group conferencing, peacemaking circles, victim empathy classes for offenders, and victim-directed and citizen-involved community service by the offender. 

Id. 
Restorative justice policies “provide higher levels of victim and offender satisfaction and a greater likelihood of successful restitution completion by the offender than traditional justice programs,” as well as a reduction of fear for the victim, and greater rehabilitative effect for the offender.

CECP and EDJJ, supra note 85 at 8. 
Because juvenile offenders with disabilities may have difficulty understanding the connection between their actions and the consequences, requiring them to make direct restitution to the victims can help establish the link between actions and consequences and help build restorative relationships.



Because a juvenile with a disability may take much longer than average to understand the connections between choices and consequences, an ongoing rehabilitative program that focuses on restorative justice and allows the juvenile to confront the consequences of his choices and the impact on the victim may be very effective. An accommodation could be support in learning the cognitive skills necessary for this process.

C.R.S. section 19-1-103 defines restorative justice as follows:

“Restorative justice” means those practices that emphasize repairing the harm to the victim and the community caused by criminal acts. Restorative justice practices may include victim-offender conferences attended voluntarily by the victim, a victim advocate, the offender, community members, and supporters of the victim or the offender that provide an opportunity for the offender to accept responsibility for the harm caused to those affected by the crime and to participate in setting consequences to repair the harm. Consequences recommended by the participants may include, but need not be limited to, apologies, community service, restoration, and counseling. The selected consequences are incorporated into an agreement that sets time limits for completion of the consequences and is signed by all participants.



C.R.S § 19-2-303;
C.R.S § 19-2-706;
C.R.S § 19-2-708;
C.R.S § 19-2-907;
C.R.S § 19-2-925.
Restorative justice practices should also be integrated into diversion, advisement, entry of plea, sentencing, and probation.



Burrell and Warboys, supra note 3 at 10
9.  Institutional Settings and Youth Corrections:

“Institutional education has a clear, positive effect in reducing recidivism and increasing post-release success in employment and other life endeavors.”

Id.
Juveniles with disabilities are the least likely to have skills needed to hold a job. Special education and related services provided through the institution are critically important. 

Reference
The provisions of IDEA cover both juvenile and adult criminal corrections facilities, with certain exceptions for juveniles incarcerated in an adult criminal corrections facility.





(See 20 U.S.C. § 1414 (d)(7)(A) & (B); 34 C.F.R. § 300.324(d)(1) & (2); 34 C.F.R. § 300.102(a)(2); 34 C.F.R. § 300.114(a).)

34 C.F.R. § 300.118.
Thus, the state must provide a FAPE in the least restrictive environment to juveniles who are otherwise institutionalized in public or private institutions.

Reference
However, juvenile correctional institutions serve a number of perhaps competing purposes: rehabilitation, incapacitation, and punishment.Correctional education programs may also face difficulties beyond those of regular public schools with respect to adequate funding and trained personnel. They are working with a challenging population of students, usually in an overcrowded environment. Thus, it is not uncommon for the provision of special education services to be impeded.

C.R.S § 19-2-922(1)(a).
Under IDEA, Child Find obligates institutions to identify all juveniles with disabilities. In the Colorado Division of Youth Corrections (DYC) (which falls under the Colorado Department of Human Services (DHS)), “[e]ach juvenile committed to the custody of the department of human services shall be examined and evaluated by the department prior to institutional placement or other disposition.” 

E-mail from Barb Taylor, Division of Youth Corrections (June 11, 2008)(on file with author).
Every student who enters the DYC is assessed by a multi-disciplinary team. This team includes education diagnosticians who research prior school placements, and obtain transcripts and/or IEPs (if appropriate). Within thirty days, a staffing is held (which includes the team, the guardians, and the student). At this point, a Personal Learning Plan or an IEP (transfer, annual, or triennial, depending on the timelines) is developed. If the student has not been identified as a special education student and there is reason to believe that he/she could possibly have a disability, a referral can be made.

National Children’s Law Network, In School, the Right School, Finish School 30 (Holland & Hart and Rocky Mountain Children’s Law Center 2007).
A parent or advocate can request an evaluation from the correctional facility, can assist in the timely transfer of school records, and can be involved in developing the IEP plan, in person or by teleconference.
Id.
If a parent is not available, an educational surrogate parent (ESP) may be appointed.

Burrell and Warboys, supra note 3 at 10.
When a juvenile comes to a facility with an IEP, the facility must implement the existing IEP or hold a new IEP meeting, just as a school district would. 

Rule 8.06(1)(a).
The DYC is responsible for IEP meetings for incarcerated juveniles, but the DYC invites the administrative unit of residence to attend. 

31 IDELR 250.
Failure to request or transfer educational records, by either the facility or the school district, may be a procedural violation that results in a denial of a free appropriate public education (FAPE). 

Reference
“Under the IDEA and FERPA, neither parental nor juvenile consent is required for the school districts to forward school records to a juvenile detention facility when a [j]uvenile is confined there.” 

Burrell and Warboys, supra note 3 at 11.
As in a regular school, special education students should be educated with non-disabled students where appropriate. Juveniles with disabilities should be informed of due process protections under IDEA, which are distinct from institutional grievance procedures.

31 IDELR 250.
If a detention facility cannot provide the services needed by a juvenile under his or her IEP,  the facility “can, and has a duty to, petition the Juvenile Court for educational release for the child as a means of complying with the Individuals with Disabilities Education Act.” 

31 IDELR 250.
The school district then has a duty to accept the juvenile unless it follows the proper due process procedures set out in IDEA for changing the educational placement of the juvenile.

20 U.S.C. § 1414(d)(7)(B) (2005);
34 C.F.R. § 300.324 (d)(2).
The use of a lockdown or restricted setting for a juvenile with disabilities depends on the facility and the situation. The Code of Federal Regulations provides for modifications of IEPs for a juvenile incarcerated in an adult criminal corrections facility when there is a “bona fide security or compelling penological interest.” 

Burrell and Warboys, supra note 3 at 11.
This would probably permit lockdowns or restricted settings at times.  No such modification is provided for juvenile corrections facilities. Therefore, if a lockdown or restricted setting is being considered, the normal rules for modifying IEPs would seem to apply, such as the procedural safeguards surrounding a change of placement. These procedural safeguards include review of behavioral intervention plans, functional behavioral assessments, manifestation determinations, and time limits on exclusions, along with the procedural rights to challenge changes in placement. 

Id. 
Appropriate behavioral intervention strategies may also reduce the need for lockdown or restricted settings.

Reference
Transition services may be the most neglected aspect of corrections special education. 

Reference
Transition services under the IEP (beginning at least by age fifteen in Colorado), should be closely coordinated with institutional planning for parole or release of juvenile offenders. 

Burrell and Warboys, supra note 3 at 11.
If the juvenile is transitioning back into the home school district, it may help to coordinate further services under IDEA with the local educational agency. For more detailed information, see the section on transition.

Sheri Meisel, et al., supra note 101 at 3.
If a juvenile is not eligible for special education services under IDEA, but meets the guidelines under Section 504, a “504 plan” must be developed that specifies accommodations that will be provided to help the juvenile participate in the general curriculum.

CECP and EDJJ,  supra note 4 at 5-21.
10.  Best Practices in a Prevention or Intervention Program
  • Assess juvenile to determine skill needs in social, family communication, psychological, academic, and vocational areas;
  • Plan goals in these areas and strategies to attain the goals;
  • Plan how progress will be monitored regularly;
  • Change goals with progress (or failure to progress);  and
  • Interventions that may be successful in teaching skills and dealing with underlying behavior;
    • counseling that teaches problem solving or social skills;
    • cognitive therapy or social cognitive training;
    • social skills training program, including interaction skills, cognitive social skills, and self-control skills;
    • academic intervention in a context suitable for juveniles with disabilities, including a highly structured routine with clear transitions and academic accommodations;
    • vocational training, especially coupled with other interventions;
    • medical intervention where legitimately needed, and in combination with instruction on appropriate skills;
    • substance abuse programs where needed;
    • behavioral system with natural and logical consequences, a continuum of desired incentives, and direct application to the overall intervention plan (many facilities in Colorado use Dialectical Behavioral Therapy, an indepth cognitive behavioral approach); and
    • family involvement and family counseling.
     


20 U.S.C. § 1412(a)(11)(C) (2005).
11. Children and Youth Incarcerated as Adults Under IDEA

Either the state educational agency or another public agency has the responsibility to ensure that the requirements of IDEA are met “with respect to children with disabilities who are convicted as adults under State law and incarcerated in adult prisons.” 

Rule 8.06(1)(b).
The Department of Corrections is responsible for all IEP meetings for juveniles incarcerated in adult facilities.

20 U.S.C. § 1414(d)(7)(B);
 34 C.F.R. 300.324(d)(2).
Certain requirements of IDEA do not apply to juveniles with disabilities incarcerated in adult prisons. 




34 C.F.R. § 300.114(a).



Reference









Reference



30 IDELR 607;
20 U.S.C. § 1414(d)(7)(B).



39 IDELR 270;

IDEA also limits the rights of juveniles with disabilities who are incarcerated in adult correctional facilities in the following ways:
  • While a juvenile with a disability generally must be educated in the least restrictive environment, this does not apply to a juvenile with a disability in an adult prison.
  • Special education services to juveniles with disabilities, age eighteen through twenty-one, need only be made for juveniles who previously had an IEP or at least were actually identified as being a juvenile with a disability under IDEA, prior to the incarceration in an adult correctional facility. (However, “states must make FAPE available to students with disabilities in adult prisons who do not fall into those exceptions.”)
  • Juveniles with disabilities in adult correctional facilities need not participate in general testing programs.
  • Transition services do not apply to individuals whose eligibility under IDEA will end because of their age before they will be released from prison.
  • “[T]he educational program and placement of eligible youth with disabilities who are convicted as adults and in adult prisons can be modified if the State shows bona fide security or compelling penological interests that cannot otherwise be accommodated.” 
This would include situations where the juvenile poses an immediate threat to self or others. “[T]his specific provision contemplates post-conviction incarcerations.”

30 IDELR 607.
Despite these limitations, the U.S. Department of Education has stated that “providing special education to incarcerated youth with disabilities is good public policy.”

30 IDELR 607.
[E]ducation has a positive effect on reducing recidivism and a positive effect on post-release employment success. This is hardly surprising in light of the fact that nationwide, the literacy of prisoners is very low. . . Young prisoners with disabilities are among the least likely to have the skills they need to be able to hold a job. For them, education is probably the only opportunity they have to become productive, independent members of society.

Therefore, the best practice is for young prisoners to be provided general and special education where possible.