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ways in which laws, such as the Americans with Disabilities Act and hate crime legislation, may serve to overcome some of those barriers. This chapter examines these three responses of the law and the criminal justice system to people with disabilities. First, drawing on the paper by Robert Dinerstein, it examines the legal issues of consent, capacity, and accommodations as they affect people with disabilities. Second, drawing on the paper by Leigh Ann Davis, it considers how accommodations required by the Americans with Disabilities Act can be used to assist people with disabilities. Third, drawing on the paper by Ryken Grattet and Valerie Jenness, it explores the viability of using hate crime law to protect people with disabilities.
PARTICIPATION IN THE CRIMINAL JUSTICE SYSTEM
People with mental retardation may be defendants in criminal cases, charged with crimes that range from simple misdemeanors to serious felonies that can subject them to life sentences without parole or even the death penalty. They may be witnesses to crimes allegedly committed by defendants against others. They may be victims of crimes committed against themselves, with the crimes ranging from simple misdemeanor theft—for example, someone stealing an article of their clothing—to more serious crimes, such as sexual assault and rape. They may participate as jurors, judging the conduct of others charged with crimes. They may participate in civil cases in ways that are analogous to those delineated above in criminal cases. These forms of participation occur in the courts of all 50 states and the District of Columbia, and, to a lesser extent, in federal courts as well.
Dinerstein identifies basic principles that underlie the capacity (often called competency) of people with developmental disabilities to participate in and consent to various decisions as victims and witnesses in court proceedings.
Capacity and Consent
Historically, society often assumed that people with disabilities—especially those with cognitive disabilities such as mental retardation—were not competent to express their preferences or give consent. Many people with disabilities in fact may not have the functional capacity to consent to various actions. But the lack of capacity often has less to do with a person's inher-