Answer: yes, you can go to jail if you have autism.
But an autism diagnosis might influence the ultimate decision to sentence a defendant to jail (or not).
In the article that follows, we’ll explain.
Can You Go To Jail If You Have Autism? (Explained)
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Introduction To Sentencing
While jail is a possibility in almost every misdemeanor and felony case, whether the defendant actually goes to jail is much more nuanced.
Offenders do not go to jail automatically for breaking the law every single time.
Instead, during sentencing process, many factors are considered, such as:
- how bad the crime was
- how badly anyone was hurt
- how much property was damaged
- whether self-defense was involved
- whether the offender is prepared to pay for damages
- whether this is a first offense
- the most recent previous criminal conviction, and how many previous convictions there are
- whether the offender is remorseful
- whether jail will cause the offender to lose his job or place in school
- whether the offender is prepared to enter substance abuse treatment
One of the factors that the court may consider is the mental and physical health of the defendant.
The judge will make the decision as to whether jail is appropriate in the circumstances, or whether the offender would be better suited to performing community service or other service under the eye of the jail, such as trash clean up/road crew.
The parties (prosecutor and defense) may even negotiate a sentence that seems appropriate and jointly recommend it to the court for consideration.
Reasons Autism Might Prevent a Jail Sentence
A existence of an autism diagnosis is not a get-out-of-jail-free card.
There are many, many different ways that autism (and Asperger’s) impact a individual’s life and behavior.
While an autism might explain why a particular defendant acted in a specific manner, the existence of the autism is generally not a defense except in limited circumstances.
If the autism impacts the defendant’s ability to see, hear, and understand the proceedings, as well as the defendant’s ability to voluntarily, knowingly, and intelligently make decisions in the case, the prosecution may not be able to proceed..
If a defendant suffered from an episode of incapacity due to his autism at the time of the conduct that gave rise to the crime (though he has returned to capacity during the criminal case), that may allow him to plead guilty or not guilty by reason of insanity.
But the impact of the autism must be significant in order to prevent a jail sentence altogether.
In some situations, the criminal case will be paused to allow the defendant an opportunity to seek treatment to try and “restore” the defendant’s capacity.
If the defendant if found to be incapable of understanding, and cannot be treated, the sentence might instead be a government mental hospital instead of prison (depending on the crime and the threat the defendant represents to the community).
In the end, if the defendant understands what happened, and understands what is happening during the case, the prosecution is likely to proceed.
Justice For The Community
If the impact of an individual’s autism is significant and is the cause/root of the criminal episode, the prosecution may not feel that pursing an extensive jail sentence is worth it for the community.
It costs a lot of money to prosecute someone, and that money comes from the community in the form of tax dollars.
For the overall benefit of the community, the prosecution might not pursue jail.
The resolution instead might be focused on getting the defendant into programs, treatment, or into a situation that could support the defendant.
Will an Individual With Autism Go To Jail?
It is certainly possible that a defendant with autism will be sentenced to jail.
However, the autism diagnosis is just one piece of a much larger puzzle that also includes the crime committed, the damage caused to the victim or the community, the criminal history of the defendant, and more.
There’s no way to so for sure one way or another whether the diagnosis will be relevant at sentencing without the rest of the relevant facts.
If you have been charged with crimes, or you are worried that you will be, conferring with an attorney early on is recommended.
Even if you don’t think you’ll need a lawyer or be able to afford a retained lawyer in your case, early consultation with an experienced criminal defense lawyer in your state could prevent you from making your case worse and give you guidance about what to do next.
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