Aid to Disabled Defendant

Criminal cases can sometimes involve defendants that are mentally disabled, but not to the extent that they are excused for their crimes. However, the State legislature has acknowledged the fact that sometimes the Courts need more sentencing options for these types of defendants. Often, prison or other traditional sentencing options are not appropriate for a mentally disabled defendant. Defendants in this category would frequently benefit from services in the community, specifically tailored to their disability. Likewise, involving the disabled Defendant in these types of services is in the best interest of the community, to ensure the Defendant is able to maintain law-abiding behavior in the long-term.  

This idea is encapsulated by Indiana Code 35-36-12. This chapter of the Indiana Code is called “Court Appointed Forensic Advocate for Persons with Intellectual Disabilities, Developmental Disabilities, or Autism Spectrum Disorders”. An attorney representing someone with a intellectual disability, developmental disability, or autism spectrum disorder can file a request under this chapter. The request is for the Court to appoint a forensic advocate to recommend treatment programs or other services available to the Defendant that may reduce recidivism. The idea is that this person could make suggestions to the Court that may result in a better long-term outcome than prison or other traditional sentencing options.  

While there are community resources available to Defendants with these disabilities, they can be difficult for families and attorneys to find. The court appointed forensic advocate is someone familiar with service providers. That person is in a better position to identify and set up services for the Defendant. The goal of which is to reduce recidivism. While the court appointed special advocate works directly with the Defendant in a social worker role, it is important to know that they are considered an Officer of the Court, and essentially work for the Court.  

The advocate is required to work until the Court orders them to cease their work. They can even continue to work with the Defendant while they are serving their sentence. For example, a Court can order a disabled Defendant to serve probation, and as part of that probation they can be required to continue working with the forensic advocate, who will provide reports to probation and the Court. The length of their service is ultimately up to the Court. The Defendant can be ordered to pay a fee while the services of the advocate are being utilized.  

It is also important to note that whether or not the advocate is appointed in the first place is entirely in the discretion of the Court. There is no legal standard by which the court should grant or deny the request for the advocate.  

If you or someone you know is involved with a case where a person with mental disabilities is charged with a crime, please contact the office of Banks and Brower by calling (317) 870-0019 or email info@banksbrower.com right away. We would be happy to help.