The buzz phrase in Yorkton court last week was “cognitive issues.” Several defence attorneys argued that their clients’ cognitive problems were mitigating factors in their crimes.
“Cognitive issues” are a tricky thing for the courts. It is an umbrella term that is so broad and sometimes so ill-defined that judges often struggle to find appropriate dispositions for cases.
Basically “cognitive issues” covers anything that makes it more difficult for a person to perform mental tasks that
are seemingly simple for the majority of people.
On the clinical side, it includes Down Syndrome, autism, traumatic brain injury and dementia. On the functional
side, it includes much more subtle conditions including fetal alcohol spectrum disorder (FASD), attention deficit
disorder (ADD), dyslexia, dyscalculia and general learning difficulties.
In terms of the courts, the underlying causes are arguably not as important as how they relate to criminal behaviour. It includes memory, problem-solving, attention, impulse control, comprehension and literacy problems.
A few months ago, I wrote about a 57-year-old Yorkton man who had spent more than half his adult life behind bars basically because of a lack of impulse control and insight. His most recent offence was stealing a truck from a gas station. He told the judge he had no idea why he does the things he does.
This week, a young woman received a conditional discharge for stealing more than $6,000 from her employer. Normally a conditional discharge is not an available sentence in a breach of trust situation, but the defence successfully argued that the girl had always had difficulty with memory and problem-solving. He said, she had “slipped through the cracks” in the education system because of a policy of not leaving children behind and had
therefore never received the help she needed. He said her cognitive disability and need for acceptance made it very easy for others to take advantage of her, which is what led to the thefts, part of which financed a “friend’s” wedding.
In this week’s frontpage sexual assault story, defence attorney Kim Stinson referenced FASD and his client’s own alcohol problem as possible reasons for the young man’s inability to process that what he did was inappropriate
behaviour. He said James Keshane’s lack of cognitive development made him easily influenced by negative peers.
In this case, Judge Ross Green said he was troubled by a presentence report that he assessed as equivocal on
whether James Keshane actually had cognitive issues. He said the report “goes both ways.”
Stinson said the presentence report suggested that what was in the best interest of his client and society was not
jail, but programming for substance abuse, cognitive skills and sexual offending.
At the end of the 19th Century and beginning of the 20th, fledgling criminologists started to recognize there was a connection between cognitive issues and crime. Studies of the day hypothesized that developmentally disabled persons were predisposed to criminal behaviour. This line of thinking had a profound impact on legislation and justice policy. For the better part of the 1900s, we simply locked them up in special institutions and subjected them to all kinds of dubious treatments such as lobotomies and electric shock therapy.
In the latter part of the 20th century, however, the focus shifted from biological predisposition to crime to socioeconomic factors. The concept is that people with cognitive issues are more likely to suffer from poverty and addictions and the resulting low self-esteem and lack of social skills that are truly at the root
Although there is currently a shift afoot in Canada from rehabilitation toward punishment, the courts remain relatively compassionate, seeking to divert people with cognitive disabilities from the prison system to the healthcare system.
The fact remains, however, that these people remain disproportionately represented in prison populations. This is largely due to recidivism. While judges may give developmentally challenged individuals a break initially, with
each subsequent conviction, the focus shifts from rehabilitation to denunciation and deterrence.
Obviously, people are not getting the help they need when they do get those initial breaks. Programming in cognitive development and ongoing supports are inadequate to the task. As I mentioned before, this is, at least in part, due to the fact that the term is so broad and often illdefined that even finding the right treatment program, if indeed it exists, can be a shot-in-the-dark for the criminal justice system.
It is an almost overwhelming problem, but one that, if we want to be a caring and just society, we must address.