A Judicial Perspective on Issues Impacting the Trial Courts Related to Fetal Alcohol Spectrum Disorders

Abstract

This article explores issues that judges, prosecutors, defense counsel, treatment providers, and defendants face when a person who has, or may have, Fetal Alcohol Spectrum Disorders (FASD) is charged with a crime. The article is divided into three sections: the first section discusses basic legal concepts and how they relate to those in the criminal justice system who suffer from FASD; the second section examines case studies and lessons learned from the therapeutic drug court, a program of the King County Superior Court in Seattle, Washington; the final section presents case studies of serious felonies, and explores constitutional issues.

Fetal alcohol spectrum disorder and confabulation in psycholegal settings: A beginner’s guide for criminal justice, forensic mental health, and legal interviewers

“…The impact of their brain‐based impairments will be experienced whether they are defendants, victims, or witness to a crime. Once entangled in the criminal justice system, individuals with FASD are at a disadvantage at each stage of the legal process (Fast et al., 1999; Streissguth et al., 1996; Wartnik & Carlson, 2011). For instance, individuals with FASD are at risk of falsely incriminating themselves due to commonly used techniques in police interrogations.…”

“…These diverse presentations of FASD, comorbid conditions, and frequent lack of physical markers make it very difficult to accurately identify those with the disorder without a specialized evaluation (J. Brown, 2017; N. N. Brown et al., 2010; Chudley et al., 2005; Wartnik & Carlson, 2011). As a result, individuals with FASD commonly go undiagnosed or are even misidentified, resulting in inadequate care and support (Knuiman et al., 2015; Murawski et al., 2015; Olson et al., 2009; Weyrauch et al., 2017).…”

“…Once involved in the criminal justice system, individuals with FASD are disadvantaged at all stages of the legal process (J. Brown & Harr, 2018; Fast et al., 1999; Hughes et al., 2016; Mutch, 2013; Stewart, 2016; Wartnik & Carlson, 2011).…”

Unfitness to stand trial and fetal alcohol spectrum disorder: Understanding and responding to FASD within the criminal justice system in New Zealand

“…An understanding of FASD as a disability moves away from the predominant view that rule breaking behaviour is the result of an inherent personality defect of the individual that needs to be rectified (Wyper & Pei, 2016). Wartnik and Carlson have put that ‘we should treat people severely affected by FASD as we now treat the criminally insane and others who are otherwise incompetent to stand trial or to be executed due to mental retardation or being under the age 18’ (Wartnik & Carlson, 2011). The option of treating and supporting offenders with FASD rather than criminalising them would be more cost effective and lead to increased public safety (Brookbanks, 2020; Mela et al., 2019).…”

Perceptions of FASD by Minnesota public defenders

“…Deficits in understanding cause-and-effect lead to a lack of appreciation of the long-term consequences of behavior until law enforcement becomes involved (Brown et al , 2013). Individuals with FASD are also more likely to have a history of substance abuse and having been involved with the foster care system or child protective services, which are risk factors for criminal behavior (Mela, 2015; Wartnick and Carlson, 2011). In addition, FASD may contribute to a lack of empathy and remorse which, when coupled with heightened suggestibility, make it easier for antisocial peers to take advantage of them (Rogers et al , 2013).…”