Fetal Alcohol Spectrum Disorders and the Law
In 2012, the ABA House of Delegates addressed the issue of Fetal Alcohol Spectrum Disorder (FASD) and its effect on the criminal justice system. The result was a resolution on FASD that recognized it's import to the legal system. It also urged attorneys and judges to obtain training on the disability.
FASD is a complex neurodevelopmental disorder caused by the toxicity of alcohol inutero. The result is brain damage and a whole-body disorder. FASD is common but often not recognized. 5% of every 1st-grade child has this serious condition, which often goes undiagnosed or misdiagnosed.
Individuals with FASD have unique cognitive, social and behavioral deficits that place them at far greater risk for involvement with the criminal justice system and for failing in that system. The average age for affected persons for involvement with the law is 12. 8 years with 60% having involvement with the criminal justice system during the lifespan. All levels of the judicial system are impacted, including law enforcement, criminal defense, prosecution, the court, corrections, probation and the ever-present problem of recidivism in this population. Research has pointed to a prevalence of FASD in juvenile justice from 17 to 33%. Yet, due to a high rate of failure to diagnose, you as a legal professional may have a client or defendant who has this disability undiagnosed, with serious implications for potential diminished capacity, the formation of criminal intent, false confessions, sentencing mitigation, victimization while incarcerated, inability to follow probation without needed accommodation and recidivism.
Overview
Brown, J. Fetal alcohol spectrum disorders in adults; Ethical and legal perspectives: An overview on FASD for professionals. M. Nelson and M. Trussler (eds.), Fetal Alcohol Spectrum Disorders in Adults: Ethical and Legal Perspectives, International Library of Ethics, Law, and the New Medicine, 2016 (pp.241-266)
Cook JL, Green CR, Lilley CM, et al. Fetal alcohol spectrum disorder: a guideline for diagnosis across the lifespan. Can Med Assoc J, 2016;188(3):191-97.
FASD Resolution - American Bar Association (20120). https://www.americanbar.org/groups/public_interest/child_law/.../fasd-resolution/
Jeffery M. An Arctic judge’s journey with FASD. J Psychiatry Law. 2010;38:585-618.
Kathryn A. Kelly, Fetal Alcohol Spectrum Disorders and the Law. Adubato, SA and Cohen, DE, eds. Prenatal Alcohol Use and FASD: Diagnosis, Assessment and New Directions in Research and Multimodal Treatment. Betham Books. 2011; 148-160.
Wartnik A. Stopping the revolving door of the justice system: Ten principles for sentencing of people with FASD. Williamsburg, VA: National Association of State Judicial Educators. 2011.
Competency to stand trial.
Brown, JM et al. Fetal Alcohol Spectrum Disorders (FASD) and competency to stand trial (CST): Suggestions for a 'best practices' approach to forensic evaluation. Int J Law Psychiatry. 2017 May - Jun; 52:19-27. doi: 10.1016/j.ijlp.2017.04.002. Epub 2017 May 11.
Suggestibility and false confession
Novick Brown, N et al. Suggestibility and Fetal Alcohol Spectrum Disorders: I'll Tell You Anything You Want to Hear. Int. J Psychiatry and Law. 2011; 29 (1); 39-71
Memory deficits and confabulation: Competency to stand trial
Brown J. Fetal alcohol spectrum disorder and confabulation: A clinical, forensic, and judicial dilemma. The J Special Populations. 2017;1(2):1-11.
Diminished Capacity
Edwards W, Greenspan S. Adaptive behavior and Fetal Alcohol Spectrum Disorders. J Psychiatry Law. 2010; 38:419-47.
Greenspan, S., Edwards, W, and Novick Brown, N. FASD and the FASD and the Concept of “Intellectual Disability” Equivalence, Chapter, Greenspan, S., Edwards, W, Novick-Brown, N. M. Nelson and M. Trussler (eds.), Fetal Alcohol Spectrum Disorders in Adults: Ethical and Legal Perspectives, International Library of Ethics, Law. 2016, 241-246