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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

FASD and the Courts: A Reference for Legal Professionals

Fetal Alcohol Spectrum Disorder (FASD) is an invisible affliction thought to affect 2 to 5 percent of the general population—and a much higher proportion of criminal defendants. Learning to recognize and deal appropriately with it in the legal system points the way to better administration of justice and more efficient courts.

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Fetal Alcohol Spectrum Disorder (FASD) is a pervasive, permanent condition with widespread implications for the criminal justice system. Prevalence rates of FASD are believed to be as high as 2 to 5 percent of the general population,1 which equates to millions of individuals in the United States directly affected by the harmful effects of prenatal alcohol exposure. The total number of people living in America with FASD is believed to be underreported.2 FASD is considered a public health concern,3 and some scholars have characterized it as a hidden epidemic.

Prenatal exposure to alcohol impairs brain functioning in regions responsible for appropriate behavioral and social functioning,4 which can place these highly vulnerable individuals at a significant disadvantage during situations where they have contact with the police and the criminal justice system.

These cognitive impairments—which typically  include poor executive function, impulsivity, inability to link cause and effect, confabulation, memory deficits, and suggestibility—may also result in escalating adverse outcomes when individuals with FASD pass through the various stages of the system, such as booking, form completion, and other complicated government requirements.5

The impact of FASD on the legal system is believed to be massive; the impact of the legal system on people with FASD is simply unfathomable to most people. It is likely that a large percentage of individuals with FASD are in prison for basic crimes, including failure to report, failure to meet bail conditions, or failure to respond to warrants. Even though much is now known about the etiology of FASD and the stresses that worsen the condition, this information is rarely applied in criminal justice settings. The aim of this article is to provide legal professionals with a brief overview of the challenges, obstacles, and limitations that defendants with FASD face as they proceed through the criminal process.

FASD in Legal Settings

The total number of people living in America with FASD is believed to be underreported. Within the criminal justice system, the share of individuals with FASD is believed to be significantly higher than in the general population. Judges, prosecutors, and defense counsel should be particularly concerned with the challenges and complexities of FASD. The courts often lack awareness and understanding when an individual with FASD is required to navigate the trial process as a victim, witness, or defendant.6
Defendants with FASD face obstacles related to impaired comprehension of legal terminology and jargon, frustration over basic commands they cannot understand, and a lack of understanding of orders or conditions pertaining to release, incarceration, or other court-related sanctions.7  This lack of competency may result in not understanding Miranda rights; violation of pre-trial release terms, leading to longer confinement; and probation infractions, leading to an executed prison sentence.

An FASD-afflicted individual’s incomprehension of Miranda rights may in turn prove confusing to an untrained legal representative, since people with FASD often mimic an understanding of an instruction or concept due to a desire to cooperate or please authority figures. The inability to comprehend key legal concepts and terms places such individuals at a disadvantage in a system of justice that requires them to actively assert their constitutional rights. (Miranda requires that a defendant knowingly, voluntarily, and intelligently waive his or her rights.) The Minnesota case law pertaining to challenges of knowing and voluntary waivers of rights by defendants with FASD is very limited and gives little guidance on the issue.8 There is room to continue litigation of this issue with respect to Miranda on a case-by-case basis.

In order to avoid a miscarriage of justice when FASD-affected people are concerned as either witnesses, suspects, defendants, or victims, professional staff in the criminal justice system are urged to receive FASD-related education to help them identify, advise, and properly adjudicate these highly vulnerable
individuals through each phase of the criminal justice system. Such screening may circumvent future “revolving door” involvement with the system.

FASD is a largely invisible disorder, resulting in considerable frustration for legal professionals. Unfortunately, FASD frequently goes undetected in legal settings. A large percentage of people with FASD have no visibly discernible features, such as facial dysmorphia.9 Moreover, many individuals with FASD will be able, through mimicry, to disguise the true extent of their limitations for short periods.10 As such, it is imperative for legal professionals to learn to recognize the “red flags” associated with FASD. Table 1 lists the disabilities commonly associated with this condition.

Table 1

Invisible Disabilities often associated with FASD

Attention deficits

Confused social skills

Difficulty learning from consequences

Difficulty with abstract concepts (e.g., math, time, idiom and money)

Hyperactivity

Immature behavior 

Memory deficits

Poor impulse control

Poor judgment 

Poor problem-solving skill

Used by permission from the National Organization on Fetal Alcohol Syndrome-UK

Criminal defendants with FASD often lack appropriate judgment and decision-making abilities.11 In court appearances, they may present themselves to the uninformed legal professional as disorganized, impulsive, immature, lazy, non-compliant, and remorseless. They may laugh at inappropriate times during proceedings, thereby furthering the impression of indifference and callousness, when in fact they lack comprehension of their predicament and are incapable of modifying their behavior.12 Defense counsel should become familiar with the behaviors that may be exhibited by defendants with FASD. Table 2 presents behaviors that defense attorneys may observe while interviewing defendants suspected of, or confirmed to have, FASD.

Table 2

Possible Defense Interview Behaviors

Client seems oblivious to the severity of charges.

Client freely admits to, but cannot explain, offensive behavior.

Client seems overly compliant; they trust immediately. 

Affect is incongruent with gravity of situation.

Used with permission from Natalie Novick Brown, PhD. of FASD Experts (www.fasdexperts.com)

If FASD is not identified, these behaviors on the part of a defendant may present poorly to the judge, prosecutor or probation officers, and thereby damage any plea for mitigating circumstances to depart favorably from the sentencing guidelines. (Such departures are often based on the defendant’s age, prior record, remorse, cooperation, attitude while in court, and the support of friends and/or family.13)

Repercussions for the Judicial Process

Defense attorneys. When representing clients who exhibit any of the behaviors in Table 2, it is important to collect a full social and medical history to determine whether further investigation of FASD is necessary. Questions should be specific, such as, “Did your mother drink while pregnant with you?” Ask if there has been a diagnosis of FASD. Some clients may not be aware of past diagnoses, but they may remember past placements with child protection services, foster care, or hospitalization.

A complete social and medical history can help an attorney serve a client with FASD by framing questions appropriate to the developmental capacity of the client.14 Clients with a chronological age of 30 may be functioning at a developmental age of 14 or younger. It should also be noted that the use of metaphor with defendants affected by FASD is to be avoided, because these individuals typically cannot understand abstract concepts. Counsel should use concrete, clarifying examples to explain concepts to these individuals. Persons affected by FASD also may find it difficult to understand relational concepts such as cause and effect or action and consequence.

Trial rights deficits. The physical, cognitive, and behavioral deficits commonly seen in individuals with FASD are likely to impair their ability to successfully navigate the arrest, interrogation, and trial process. These individuals struggle to convert the words of their Miranda rights into informed responses and are unlikely to have the skillset needed in the adjudication process (such as the ability to effectively converse with and instruct an attorney about his/her case).15 Defendants with FASD may be unable to provide the court with reliable testimony and/or factual recounting of their situation,16 due to mental impairments associated with their disability.

Defense counsel may need to allow extra time for FASD-affected defendants to process questions and respond. Counsel may also need to re-teach “new” information throughout the trial process and should consider separating various legal tasks into clearly defined, separate segments in order to assure the defendant’s comprehension.17 The following modifications to trial preparation are recommended:

  • extra time to explain key case-specific concepts and court procedures;
  • use of simple language;
  • repetition of information;
  • efforts to assure attention is captured prior to communicating;
  • short interactions (30 minutes max);
  • frequent checks on comprehension;
  • presentation of information in multiple ways.

Judges. Courts are finding themselves increasingly pressed to address a wide variety of legal issues related to defendants with FASD. Judges in particular need to make themselves aware of FASD-associated characteristics, since defendants with FASD are likely to be incapable of comprehending the legal process, much less their constitutional rights.18 The overall pace of the hearing process may need to proceed at a slower than normal speed when the defendant has FASD. Individuals with FASD, particularly youths, have short attention spans. Mental fatigue may set in quickly, causing a deficit in their concentration. Noise and bright lights may also provoke distraction and frustration. The court should consider providing accommodations for these litigants, such as making available a quiet room during recess, more frequent recesses, and shortened length of court sessions without breaks. Assistance during breaks in the form of a mentor or social worker may help the defendant refocus. These modifications will enable the defendant to function in a more productive and meaningful way.

Confabulation. Research indicates that people with FASD have an increased propensity to confabulate.19 Confabulation occurs when a person mixes aspects of both false and accurate information without the intent to deceive. (This is not to say that individuals with FASD do not purposefully lie or malinger; however, lying and malingering require an ability to foresee consequences and appreciate the potential benefits of giving inaccurate information.) Most individuals with FASD have executive function impairments that preclude perspective; inaccurate reporting is more likely to stem from confabulation rather than deliberate deception.20 Criminal justice professionals commonly lack the necessary training to detect when an individual with FASD is confabulating.21

Testimony. Memory impairment and an inability to process contextual matters may prevent people with FASD from providing accurate testimony. Therefore, witness testimony given by a person with FASD is often unwittingly flawed, creating conditions fraught with complications, errors and inaccuracies.22 Persons with FASD who appear before the court may be at an increased risk of providing unreliable testimony.23 This has been found especially true for child witnesses with FASD.24 Such unintentionally inaccurate witness testimony may result in criminal sanctions.

Sentencing considerations. A multitude of complications surround the topic of sentencing a defendant with FASD. Increased awareness of FASD’s profound deficits now factor as relevant during sentencing, and traditional sentencing approaches may not be suitable for individuals with FASD. Minnesota sentencing guidelines allow courts to consider the role a defendant played in the crime and whether or not coercion was involved at any time. These guidelines spotlight issues pertaining to whether or not the defendant has a physical impairment; lacks capacity for judgment; or suffers from a serious and persistent mental illness.25

Failure to consider these factors can lead to the inappropriate sentencing of a person with FASD. In turn, the wrong sentence can lead the FASD defendant to become more entrenched in the criminal justice system. An example of this problem might be when a defendant is required to follow a schedule involving parole, needing to report to police or probation at specific dates or times. People with FASD may also be victimized when serving custodial sentences as well as be impaired in their ability to comprehend the agreements of a plea bargain.26

Addressing the Challenges

Screening. The legal system needs to increase its capacity to identify individuals suspected of having FASD.27 Early identification and appropriate interventions are key ingredients for diverting such defendants away from future legal difficulties.

When a defendant comes before the courts on a regular basis28 and repeatedly does not learn from mistakes or consequences, legal professionals need to consider the possibility of FASD. Formal diagnosis of FASD can only be completed by a medical professional trained to recognize the specific criteria endemic to the full spectrum of the disorder. If no recourse to formal diagnosis is available, legal professionals are advised to use the “red flag” screening process. Table 3 highlights intended benefits associated with screening for FASD in criminal justice settings.

Table 3

Intended Benefits of Routine Screening for FASD within Criminal Justice Settings

  • Legal counsel will be able to better guide individuals with FASD through complex legal proceedings.
  • Judges will be able to make informed sentencing decisions, including the use of diversion opportunities to promote treatment rather than incarceration.
  • Correctional and forensic mental health professionals will be better able to ethically obtain informed consent for both intra-institutional and community treatment.
  • Preventative measures (e.g., increased monitoring) can be put into place to reduce the likelihood of peer-victimization common with this population in correctional settings.
  • More effective reentry plans can be established by parole and probation boards to maximize the likelihood of individuals with FASD adhering to the conditions of their release by matching them with available social services, ultimately reducing rates of recidivism and unnecessary spending of state funds.
  • Early identification of FASD may help to minimize the detrimental effects of confabulation and false testimony during criminal investigations and court processes.
Adapted from Brown, J. (2014). The Importance of Screening for FASD in Criminal Justice Settings. Fetal Alcohol Forum, 12, 43-44.

Intervention Approaches. FASD-based interventions are essential in legal settings to ensure due process, although such efforts may be hampered by difficulties associated with competency remediation as well as limited resources.

Legal professionals who encounter defendants suspected of having FASD should bear in mind their special communication needs. One set of strategies has come to be known by the acronym DEAR29:

  • Direct language: Use simple and direct language. This population has difficulty using and understanding abstract concepts. Explain things slowly to allow more time to process the information. Ask the interviewee for their understanding of what has been said to ensure they understand the direction or question.
  • Engage support system: Be sure to ask whether they carry with them the card of a mentor, advocate, or case worker who can offer support and/or act as interpreter. Given that this population frequently does not understand the consequences of providing police with incriminating statements, avoid leading questions and, if possible, do not begin instruction or inquisition until a member of their support system is present.
  • Accommodate needs: Conduct the interview in a quiet place without distractions. Give the individual space and avoid physical confrontation. Remember that some individuals with FASD also have a Sensory Integration Disorder and may experience a light touch on the shoulder as a hit and react accordingly. Avoid touch unless necessary.
  • Remain calm: Do not rush, as this will cause stress and may result in the individual becoming overwhelmed. This population is characterized by an inability to manage their emotions; situations may escalate quickly. It is necessary to maintain a calm and collected demeanor.

Training and Education. FASD is not well understood in legal settings. By increasing awareness and training, justice professionals will be better equipped to appropriately approach, communicate with, and assist individuals with FASD throughout the trial process.30 This identification will reduce the amount of money spent on incarcerating people for missed reporting or failure to abide by bail requirements, and has the potential to reduce the number of crimes typically committed by people with FASD in the early stages of their criminal justice history, such as failure to report, joyriding, or opportunistic property crimes. The ability of professionals in the criminal justice system to identify an individual as potentially having FASD may prevent that individual from returning to court for crimes that are more significant.

Conclusion

FASD is a complex disorder that warrants the attention of criminal justice professionals. Training these professionals to understand the impact of prenatal alcohol exposure on an individual’s cognitive ability will facilitate those who must navigate the trial process.31 Unfortunately, FASD frequently goes unnoticed or unrecognized in the courtroom. Creating training opportunities for judges, attorneys, and other courtroom professionals who regularly come in contact with defendants with suspected or confirmed FASD could place these professionals in a better position to establish appropriate and reasonable accommodations for these highly vulnerable defendants.32


 

Jerrod Brown, MA, MS, MS, MS, is the Treatment Director for Pathways Counseling Center, Inc. as well as the founder and CEO of the American Institute for the Advancement of Forensic Studies (AIAFS) and the lead developer and program director of an online graduate degree program in Forensic Mental Health from Concordia University, St. Paul, Minnesota.  Correspondence regarding this article can be sent to Jerrod Brown.

Maria Mitchell, JD is a defense attorney for the State of Minnesota, Office of the Hennepin County Public Defender. Prior to serving as a public defender, Ms. Mitchell was a law clerk to the Hon. Tanya M. Bransford in the Hennepin County District Court Juvenile Division. Ms. Mitchell has also served as a volunteer Guardian ad Litem and an Adjunct Legal Writing Professor at the William Mitchell College of Law. She is a graduate of the University of Minnesota Law School.

Judge Anthony (Tony) Wartnik, BA, JD, was a trial judge for 34 years in King County, Washington and chaired the Washington State Governor’s Advisory Panel on FAS/FAE. Judge Wartnik is recognized nationally and internationally as an expert on issues involving FASD and the justice system.

Anne Russell is the mother of two adult children with Fetal Alcohol Spectrum Disorder [FASD]. In 2000, both her children were diagnosed and both are now adults. Anne has worked for the last 15 years to help raise awareness of the condition and to help families living with FASD. Currently she is a member of the Parent Advisory Group and the Collaboration for Alcohol Related Developmental Disorders at the University of Queensland.


 

Notes

1 May, et al., Prevalence and epidemiologic characteristics of FASD from various research methods with an emphasis on recent in-school studies. Developmental disabilities research reviews, 15(3), 2009.

2 May et al., Prevalence and characteristics of fetal alcohol spectrum disorders. Pediatrics134(5), 2014.

3 Shankar, I., The Making of a Medical Disorder: Tracing the Emergence of Fetal Alcohol Spectrum Disorder in Alberta. Social work in public health, 30(1), 2015.

4 Ware et al., An fMRI study of behavioral response inhibition in adolescents with and without histories of heavy prenatal alcohol exposure. Behavioural Brain Research, 278, 2015.

5 Mela, et al., Fetal alcohol spectrum disorder: Can diminished responsibility diminish criminal behaviour? International Journal of Law and Psychiatry, 36, 2013.

6 Chartrand, et al., The Sentencing of offenders with fetal alcohol syndrome. Health Law Journal, 11, 2003; Cox, et al, Knowledge and attitudes of criminal justice professionals in relation to fetal alcohol spectrum disorder. Canadian Journal of Clinical Pharmacology, 15(2), 2008.

7 Cox, et al., Knowledge and attitudes of criminal justice professionals in relation to fetal alcohol spectrum disorder. Canadian Journal of Clinical Pharmacology, 15(2), 2008.

8 State v. Fardan, 773 N.W.2d 303 (2009) (finding that this particular defendant was not impaired enough to invalidate defendant’s waiver); In re Welfare of S.J.D., 617 N.W.2d 614, 618 (Minn. Ct. App. 2000)(holding the district court did not abuse its discretion in concluding that S.J.D.’s waiver of his right to a certification hearing was knowing, voluntary, and intelligent).

9 Wilton, et al., The family empowerment network: A service model to address the needs of children and families affected by fetal alcohol spectrum disorders. Pediatric Nursing, 32(4), 2006.

10 Gagnier, et al, A need for closer examination of FASD by the criminal justice system: Has the call been answered? Journal of Population Therapeutics and Clinical Pharmacology, 18, 2011.

11 Kodituwakku, Defining the behavioral phenotype in children with fetal alcohol spectrum disorders: A review. Neurosci Biobehav Rev, 31, 2007; Streissguth, Offspring effects of prenatal alcohol exposure from birth to 25 years: The Seattle prospective longitudinal study. J Clin Psychol Med Settings, 14, 2007.

12 Aragon et al., Neuropsychological study of FASD in a sample of American Indian Children: Processing simpleversus complex information. Alcoholism: Clinical and Experimental Research, 32(12) 2008; Boland, et al, Fetal alcohol syndrome: Implications for correctionalservice. Ottawa: Correctional Services of Canada, Research Branch Corporate Development 1998; Nash et al., Identifying the behavioural phenotype in fetal alcohol spectrum disorder: sensitivity, specificity and screening potential. Arch Wom Ment Health, 9, 2006; Streissguth, et al, Alcoholism in Four Patients with Fetal Alcohol Syndrome: Recommendations for Treatment. Alcoholism Treatment Quarterly, 13(2), 1995.

13 State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982)

14 Douglas, The sentencing response to defendants with foetal alcohol spectrum disorder. Crim LJ, 34, 2010.

15 McLachlan, et al, Evaluating the Psycholegal Abilities of Young Offenders With Fetal Alcohol Spectrum Disorder. Law and Human Behavior, 38, 2014.

16 Gagnier, et al., A need for closer examination of FASD by the criminal justice system: Has the call been answered? Journal of Population Therapeutics and Clinical Pharmacology, 18, 2011.

17 Douglas, The sentencing response to defendants with foetal alcohol spectrum disorder. Crim LJ, 34, 2010; McLachlan, et al, Evaluating the Psycholegal Abilities of Young Offenders With Fetal Alcohol Spectrum Disorder. Law and Human Behavior, 38, 2014.

18 Roach, et al, The relevance of fetal alcohol spectrum disorder in Canadian criminal law from investigation to sentencing. University of British Columbia Law Review, 41(1) 2009.

19 Burd, et al, Fetal Alcohol Spectrum Disorder as a Marker for Increased Risk of Involvement with Correction Systems. Journal of Psychiatry & Law, 38, 2010; Fotopoulou, False Selves in Neuropsychological Rehabilitation: The Challenge of Confabulation. Institute of Psychiatry, King’s College London, UK. P. 2008; Fraser, Victims and Fetal Alcohol Spectrum Disorder (FASD): A Review of the Issues. Victims of Crime Research Digest, 1, 2008; Gibbard, et al, The Neuropsychological Implications of Prenatal Alcohol Exposure. Can Child Adolescence Psychiatric Review, 12, 2003; Kapur, et al, Confabulation and frontal lobe dysfunction. J Neurol Neurosurg Psychiatry, 43, 1980; Kully-Martens, et al.,Source monitoring in children with and without Fetal Alcohol Spectrum Disorders. Journal of Pediatric Psychology, 37, 2012; Moscovitch, et al, Strategic retrieval and the frontal lobes: evidence from confabulation and amnesia. Neuropsychologist, 351997; Rutman, et al, Parenting with Fetal Alcohol Spectrum Disorder. Int J Mental Health Addiction, 8, 2010. Executive functioning deficits may also contribute to confabulatory responses; Schnider, et al, The mechanisms of spontaneous and provoked confabulations. Brain, 119, 1996; Stuss, et al., Neuropsychological studies of the frontal lobes. Psychol Bull, 95, 31984; Schnider, et al., Spontaneous confabulators fail to suppress currently irrelevant memory traces. Nat Neurosci, 2, 1999.

20 Kully-Martens, et al, Source monitoring in children with and without Fetal Alcohol Spectrum Disorders. Journal of Pediatric Psychology, 37, 2012.

21 Brown et al., Fetal Alcohol Spectrum Disorders (FASD) and Confabulation: A Review for Criminal Justice. Fetal Alcohol Forum, 11, 2014.

22 Fast, et al., Fetal alcohol spectrum disorders and the criminal justice system. Developmental Disabilities Research Reviews, 15(3), 2009; Moore, et al., Fetal alcohol spectrum disorder (FASD): A need for closer examination by the criminal justice system. Criminal Reports, 19, 2004.

23 Gagnier, et al., A need for closer examination of FASD by the criminal justice system: Has the call been answered? Journal of Population Therapeutics and Clinical Pharmacology, 18, 2011.

24 Moore, et al., Fetal alcohol spectrum disorder (FASD): A need for closer examination by the criminal justice system. Criminal Reports, 19, 2004.

25 Minnesota Sentencing Guidelines, Section 2.D. Departures from the Guidelines.

26 Douds, et al., Sword or shield? A systematic review of the roles FASD evidence plays in judicial proceedings. Criminal Justice Policy Review, 24(4), 2012.

27 Fraser, The path to justice: Access to justice for individuals with fetal alcohol spectrum disorder. Summary of a national conference hosted by the Steering Committee on Access to Justice for Individuals with FASD, 160 Whitehorse, Yukon: Yukon Department of Justice. 2008.

28 Malbin, Fetal alcohol spectrum disorder and the role of family court judges in improving outcomes for children and families. Juvenile and Family Court, Journal, 55(2), 2004.

29 Adapted from Brown, J., et al. Fetal Alcohol Spectrum Disorders and Offender Reentry: A Review for Criminal Justice and Mental Health Professionals. Behavioral Health, 1(1), 2014.

30 Brown, et al, Fetal Alcohol Spectrum Disorder (FASD): Screening Needed in North American Criminal Justice Settings. [E-letter], Pediatrics, http://pediatrics.aappublications.org/content/135/1/e52/reply#pediatrics_el_691472015; Cox, et al, Knowledge and attitudes of criminal justice professionals in relation to fetal alcohol spectrum disorder. Canadian Journal of Clinical Pharmacology, 15(2),2008.

31 (Chartrand, et al., The Sentencing of offenders with fetal alcohol syndrome. Health Law Journal, 11, 2003.

32 Douglas, The sentencing response to defendants with foetal alcohol spectrum disorder. Crim LJ, 34, 2010.

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