Autism Criminal Defense Lawyer

Autism Spectrum Disorder (ASD) is a life-long neurodevelopmental condition which affects how people communicate and and interact with the world around them. How autism presents in an individual is highly variable (a spectrum), but it is often marked by difficulties in social communication, a strong need for routine, focused interests, and sensory processing issues.

In 2000, the Diagnostic and Statistical Manuel, Fourth Edition (DSM-IV-TR) was published, and it provided a much wider diagnostic framework for autism (i.e., a spectrum ranging from high functioning autism to severe autism). This change was extremely important, because it recognized that individuals with high intelligence can have autism (i.e., severe deficits in social functioning).

In 2013, the DSM-5 was published, and it combined the diagnosis of Asperger’s Disorder and Autism Disorder under the umbrella of Autism Spectrum Disorder (ASD). This change was not simply for organizational purposes. This change set forth a new understanding of the shared deficits in people with autism despite intellectual ability.

Yes. Many high-functioning adults with autism go undiagnosed until they are arrested later in life. An official diagnosis obtained by a medical expert after an arrest can still be used to build a powerful defense or seek a deferred disposition.

Many individuals are not diagnosed with autism until later in life (30s, 40s, 50s, and even 60s) when they become entangled with the criminal justice system. This is due to a variety of factors, but it is usually because they are high-functioning or grew up in a time when developmental disorders were largely unknown or ignored by parents and teachers.

As discussed above, the definition of autism has also changed significantly. Someone who qualifies for an autism diagnosis today may not have received a diagnosis when they were young.

Yes, many of our ASD clients are intelligent, successful individuals with careers and families. But there is often a disconnect between their high IQ and their level of social adaptability. A 40-year-old man with autism may be a genius in terms of IQ, but he may also have the social functioning of a ten-year-old.

You won’t know if you have autism until you are diagnosed by a medical professional such as a psychologist, psychiatrist, neuropsychologist, or neurologist. But there are some common traits that you or a family member may notice which might lead you to get evaluated for autism:

• Difficulty identifying social cues (g., reading body language, tone, facial expressions, sarcasm)
• Difficulty understanding what others are thinking or feeling
• Social anxiety and isolation
• Difficulty making friends
• Difficulty making eye contact
• Taking things literally or responding in a blunt manner
• Intense and specific interests
• Strong need for routine
• Stimming/repetitive behaviors
• Sensory sensitivity (over and under reaction to sounds, smells, lights, textures, etc.)
• Intense emotional responses
• Masking (hiding your autism traits to “fit in”)

If you are charged with a crime and think that you might have autism, there are a number of steps you can take to ensure that you are treated fairly:

1. Hire an experienced lawyer. The first step in any criminal case is to hire an experienced criminal defense lawyer. If you have autism or think you might have autism, you should also look for a lawyer who is well-versed in defending autism cases. This means that the lawyer has a strong track record of using psychological experts in court to obtain favorable outcomes.

Your lawyer should be able to explain how he plans to defend your case based on your autism diagnosis. Your lawyer should also be able to discuss why you think you might have autism and your options for getting a diagnosis.

2. Get an evaluation for autism. The next step is to arrange and undergo an evaluation for autism. It is critically important that your lawyer has a good working relationship with respected psychologists, psychiatrists, and neuropsychologists.

Keep in mind that it is not simply enough to get a diagnosis. You need to get a diagnosis from a provider who is respected by prosecutors and judges, can work with your legal defense team, and provide compelling testimony in court. There are very few psychological experts that can meet all of these requirements.

3. Treatment or counseling. In many cases, it is a good idea to begin treatment or counseling as early as possible. While there is no “cure” for autism, it is important for people diagnosed with autism to learn skills and techniques on how to manage their autism traits. Such counseling can help tremendously with prosecutors and judges, because it shows that an individual is much less likely to reoffend in the future.

By showing the our clients have undergone treatment, we have been able to convince prosecutors to dismiss charges, bring lesser or reduced charges, agree to a non-custodial sentence, and help our clients avoid sex offender registration.

If you are charged with a crime and have autism (or suspect you have autism), a good criminal defense lawyer will take the following steps:

1. Arrange for an autism evaluation. Even if you have a prior diagnosis for autism, it is important to see a qualified psychologist or psychiatrist who is a leading expert in autism and who is willing and able to defend their opinions in court. Your lawyer should be able to connect you with these experts to undergo an autism evaluation.
2. Obtain a detailed expert report. While a diagnosis by itself can be beneficial, very few prosecutors and judges fully understand autism, and more importantly, how autism likely led to the charged offense. Your lawyer will work with experts to develop a written report which explains the following:

• The expert’s background and credentials
• What autism is and is not
• The testing used to diagnose you
• Your test results and what the results mean
• Whether your autism caused the criminal conduct
• Why your culpability is reduced when compared to non-neurodivergent individuals
• Why your autism would make a prison sentence inappropriate
• Treatment options that would work for you

3. Negotiate with the prosecutor. Your lawyer can use an autism diagnosis to negotiate with prosecutors at every stage of a criminal case. For instance, your lawyer may be able to negotiate the following:

• Whether charges are filed
• Whether a defendant can self-surrender if charges are filed
• The amount of bond and the bond conditions
• Charging a misdemeanor instead of a felony
• Allowing a defendant to plea to an offense with no mandatory minimum sentence
• Avoiding sex offender registration requirements
• Agreeing to the dismissal of charges
• Agreeing that a prison sentence would inappropriate

4. File a motion with the court requesting a dismissal. Some states, including Virginia, allow the defense to ask the court to dismiss charges due to autism. This involves a complex evidentiary hearing where the defense must prove certain elements (see below). In federal court, there is no law or statute which allows the court to dismiss criminal charges due to an autism diagnosis.

Ask for a lenient sentence. In federal court and state court, an autism diagnosis is almost always a crucial factor at sentencing. As explained above, autism has a direct impact on a defendant’s culpability. If your lawyer can show that your culpability was significantly reduced due to autism, you will likely receive a lower sentence. It is important to stress, however, that many judges do not understand autism. It is therefore critical that your attorney be able to educate the judge on what autism is and why it matters in a criminal case.

Yes, an autism diagnosis can lead to the dismissal of all charges in Virginia. (You can read more about the process for getting a dismissal here.) In short, your lawyer must be able to prove that you have ASD and that there is “clear and convincing evidence” that the criminal conduct was caused by or had a direct and substantial relationship to your autism.

In federal court, there is no law that allows the judge to dismiss criminal charges due to autism. Federal prosecutors, however, are often receptive to autism related arguments. Depending on the case, federal prosecutors may agree to not file charges, allow the state to bring charges instead (which can lead to a better outcome), or reduce the charge to a less severe offense.

No, autism is typically not a complete legal defense to criminal charges. But an autism diagnosis can be used to show that the defendant’s level of culpability is much lower than a typical defendant’s.

The chronological age of a person with ASD does not fully reflect their social and emotional development. An adult with autism may function at a much younger level in areas such as social judgment, impulse control, and boundaries. For example, a man with autism might be 40 years old but his social and emotional abilities might more closely reflect those of a ten-year-old. Our legal system recognizes that children are generally less culpable than adults, and similar principles apply when autism significantly affects developmental functioning.

Many individuals with autism also experience challenges with perspective-taking and interpreting how their actions will affect others. In a typical criminal case, a defendant is presumed to understand the likely emotional or practical harm to a victim. For someone with autism, however, recognizing those impacts in advance is more difficult. It can be very difficult for someone with autism to put themselves in someone else’s shoes. As a result, the conduct may have occurred without the same level of awareness or intent that the law often assumes. Put another way, a defendant with autism may be deserving of more lenient treatment.