Fetal alcohol spectrum disorder (FASD) and the criminal justice system: A guide for legal professionals

Fetal Alcohol Spectrum Disorder (FASD) is a lifelong disorder caused by prenatal alcohol exposure (PAE) and is one of the most common causes of brain damage and developmental disability. FASD has been characterized by an array of symptoms that negatively affects cognitive, social, and adaptive functioning. Individuals living with FASD, relative to the general population, are more likely to become entangled in the legal system due to challenges associated with the disorder. Moreover, symptomology of FASD often contributes to these individuals struggling in successfully navigating various stages of the legal system, including arrest, interrogation, working with their defense counsel, and courtroom appearances. The difficulties faced by defendants living with FASD are exacerbated by systemic failure from legal professionals in recognizing and accommodating for the extent and complexities of this disorder. Consequently, defendants living with FASD often do not receive effective due process of law in comparison to their neurotypical peers. Moreover, attempts at punishment and deterrence through probation and jail terms are often ineffective for individuals living with FASD because of the effects of their disorder. This article is intended to provide valuable information and best practices for professionals in the legal system, particularly judges, prosecutors, defense attorneys, social workers/mitigation specialists, and psychologists, who are likely to encounter individuals living with FASD or suspected FASD early in the judicial process.

The imperfect fit: Fetal alcohol spectrum disorder as the basis to commit individuals involuntarily as sexually violent predators/persons

Prenatal alcohol exposure produces a broad range of primary disabilities that lead to adverse life course outcomes in children raised in adverse environments. Inappropriate sexual behaviors are a commonly occurring secondary disability, with a large minority of individuals with fetal alcohol spectrum disorder (FASD) displaying sexual aggression. Adults with FASD who commit repeated criminal sexual acts may be subject to legal proceedings for indefinite involuntary civil confinement as sexually violent predators/persons (SVP) in certain jurisdictions in the United States. Studies about the diagnostic practices among psychologists and psychiatrists retained by states to evaluate individuals as SVP do not recognize FASD as a mental disorder, despite the likelihood that hundreds of individuals petitioned for involuntary commitment suffer from FASD. Establishing an FASD diagnosis may provide exculpatory evidence to refute a government petition that an individual suffers from a mental condition that affects emotional or volitional capacity by predisposing the person to committing criminal sexual behavior. This article provides a framework for identifying, assessing, and deciding whether individuals with the FASD diagnosis suffer from the legally defined mental disorder that is necessary to indefinitely confine individuals as SVP.

Fetal alcohol spectrum disorders (FASD) and youth firesetting: A call on criminal justice, emergency responder, and fire prevention specialists to become informed

Central nervous system damage resulting from prenatal exposure to alcohol, often referred to as fetal alcohol spectrum disorders (FASD), commonly manifests as lacking cognitive functioning, problem solving, impulsivity, memory, executive functioning, and social skill deficits. For individuals with FASD, these brain-based deficits translate into impulsive behaviors and poorly thought-out decision-making, coupled with an inability to anticipate and recognize the sometimes very severe consequences of their behaviors. Not unexpectedly, individuals with FASD frequently find themselves disproportionately involved in the criminal justice system and mental health services. For some individuals with FASD, these behaviors can also include firesetting. First responders, like other health and legal professionals, are often unable to recognize the behavioral indicators of FASD, primarily due to a lack of training. As a result, firesetting behaviors are often attributed to deliberate, willful acts of delinquency, a desire to damage property, thrill seeking, or as attempts for personal gain, rather than being viewed as maladaptive attempts to solve problems by individuals who lack the tools to do this in more appropriate ways. These same skill deficits also present when individuals with FASD are interviewed about their involvement in such behaviors, sometimes resulting in confabulation, suggestibility, and false confessions. Further education and training in FASD are vital for first responders if they are to better support individuals with FASD and minimize their chances of becoming involved in firesetting behaviors. Furthermore, this training and education will help ensure that first responders can intervene in more appropriately when crisis situations do occur. This article will outline key behavioral symptoms of FASD as well as provide first responders with suggestions as to how to best support individuals when FASD is suspected. The brief quote that follows highlights some of the key challenges facing individuals with FASD and how poor decision-making and impulsiveness can result in severe consequences for the individual and those around them.

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

Fetal alcohol spectrum disorder (FASD) is an increasingly important issue in the New Zealand (NZ) Criminal Justice System (CJS). FASD may impact an offender's ability to participate meaningfully in the trial process, giving rise to the issue of unfitness to stand trial. Capacity to apprehend, comprehend, participate in, make decisions about and communicate within legal process intersect with the complexity and severity of charges. Courts are required to make a nuanced analysis of multiple and complex factors, merging medical and legal expertise into decisions made. We explore the nature of FASD and its implications for criminal justice in NZ. The legal and clinical issues in relation to fitness and FASD will be discussed.

Diminished culpability in fetal alcohol spectrum disorders (FASD)

There is a biological basis for diminished criminal responsibility in offenders with fetal alcohol spectrum disorders (FASD) just as there is in those with intellectual disability. Functional limitations affecting cognition in both neurodevelopmental conditions stem directly from structural brain damage at a gross and molecular level, which usually impairs executive functioning among other cognitive skills. Executive functioning, which includes reasoning and impulse control, is the only neural system in the brain that involves conscious thought. With respect to the law, impaired reasoning or rationality is an aspect of mens rea ("guilty mind"). When rationality is impaired by prenatal alcohol exposure, acts driven by strong emotion and urges can occur, which has obvious implications regarding criminal responsibility. The Atkins decision by the U.S. Supreme Court reflects the rationale that organically based brain dysfunction in executive skills reduces criminal culpability. We argue that people with FASD who have similar brain dysfunction likewise have reduced criminal responsibility.

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

Fetal alcohol spectrum disorders (FASD) are neurodevelopmental/neurobehavioral conditions caused by prenatal alcohol exposure (PAE). Impairments caused by PAE contribute to the over-representation of individuals with FASD in the United States juvenile and adult criminal justice systems. These same impairments can equally impact on individuals with FASD who are witnesses to or victims of crime who also have to navigate the complexities of the criminal justice system. Difficulties include increased susceptibility to confabulation throughout the legal process that, in turn, can contribute to increased rates of poor outcomes including false confessions and wrongful convictions. Individuals with FASD are particularity at risk of confabulation when they are subjected to tactics, such as stressful and anxiety-provoking situations, threats, and leading, suggestive, or coercive questioning. Many professionals in the forensic context are unfamiliar with FASD or related confabulation risk and may unintentionally utilize tactics that intensify impacts of pre-existing impairment. This article serves as a beginner's guide for professionals working in criminal justice settings by (a) providing research-based overviews of FASD and confabulation, (b) describing how FASD may lead to confabulation, and (c) suggesting ways that professionals can modify protocols when interacting with individuals with FASD. Suggestions in this article hold the potential to decrease the risk of confabulation in the criminal justice system and decrease problematic outcomes, such as false confessions and wrongful convictions among individuals with FASD.

Suggestibility and confabulation among individuals with Fetal Alcohol Spectrum Disorder: A review for criminal justice, forensic mental health, and legal interviewers

Fetal Alcohol Spectrum Disorders (FASD) are conditions arising from prenatal alcohol exposure which results in a range of neurodevelopmental deficits in areas including cognition, memory, language, executive functioning, emotional regulation, and adaptive functioning. Deficits in various neurodevelopmental areas can range from mild to severe, depending on many factors including the quantity and timing of alcohol exposure during the prenatal development period. During interviews in criminal justice, forensic mental health, and legal contexts (e.g., criminal investigations, cross examination, victim interviews, interviews for lawsuits, forensic evaluations, pre-sentence investigations), deficits associated with FASD may elevate the risk of suggestibility and confabulation. These issues can result in negative jurisprudence-related outcomes, including impulsive Miranda rights waivers, incorrect assumptions of competency, inaccurate or incomplete information gathering, misinterpretation of intent, witness reliability issues, court ordered treatment completion problems, probation and parole violations, false confessions, and false accusations. The aim of the present article is to explain the context in which these issues can arise and provide criminal justice, forensic mental health, and legal professionals with key guidelines that can assist in minimizing suggestibility and confabulation when interviewing persons with FASD. We hope that the suggestions and strategies presented in this article will reduce potential obstructions of justice and enhance the quality of information obtained from individuals impacted by FASD. A brief discussion is also provided to identify additional research and training opportunities needed to clarify "best practices" for professionals tasked with evaluating the challenges facing this unique population.

Sex offender treatment professional perceptions of Fetal Alcohol Spectrum Disorder (FASD) in the Midwest

Fetal Alcohol Spectrum Disorder (FASD) is a neurodevelopmental condition that is precipitated by prenatal alcohol exposure. Typified by cognitive, social, and adaptive functioning impairments, FASD places impacted individuals at an elevated risk for involvement in the criminal justice system. In particular, it has been reported that some individuals diagnosed with FASD engage in inappropriate sexual behaviors. Because professionals working in the field of sexual offender treatment have the potential to strongly influence their clients, this study surveys professionals that provide treatment services to sexual offenders. Topics queried include knowledge of FASD, the role of FASD in criminal behavior, and training opportunities. The key findings from this study include that the respondents readily recognized symptoms, deficits, and consequences of FASD, but had very few opportunities to receive advanced training on FASD in the context of inappropriate sexual behavior. Findings suggest there is a strong need to develop educational and training programs that better equip professionals with the skills to assist clients with FASD in treatment settings for inappropriate sexual behavior.

Perceptions of Fetal Alcohol Spectrum Disorder (FASD) at a Mental Health Outpatient Treatment Provider in Minnesota

Resulting from prenatal exposure to alcohol, Fetal Alcohol Spectrum Disorder (FASD) is characterized by deficits in adaptive and cognitive functioning. This disorder is typically accompanied by co-occurring disorders and conditions (e.g., mood, anxiety, psychosis, and substance use disorders). This complicated presentation of diverse symptoms makes the process of screening, assessing, and diagnosing FASD very difficult, limiting the likelihood that clients receive the treatment and services that they need. Although mental health care providers have an opportunity to intervene on behalf of clients with FASD, professionals may not be very familiar or comfortable with this complicated and life-altering disorder. The present study explores the familiarity of 79 mental health outpatient treatment professionals’ personal knowledge and training about FASD. Findings suggest that the majority of respondents had received at least some FASD training, understood the basic symptoms of FASD, and were realistic about FASD’s impact on treatment.

Fetal Alcohol Spectrum Disorders (FASD) and competency to stand trial (CST): Suggestions for a 'best practices' approach to forensic evaluation

Fetal Alcohol Spectrum Disorders (FASD), an umbrella term for neurodevelopmental conditions caused by prenatal alcohol exposure, is overrepresented in the U.S. juvenile and adult criminal justice systems. The brain damage in FASD manifests in a combination of cognitive and adaptive impairments that potentially reduce ability to function adequately during the criminal justice process, including capacity to stand trial (CST). Despite the high risk of arrest and conviction in this population, relatively little research guides CST assessment for defendants who have or may have FASD. Therefore, the purpose of this article is to describe how FASD may affect CST and suggest ways forensic professionals might modify assessment protocols to address possible effects of FASD-associated impairments on adjudicative capacity.

Prenatal alcohol exposure: An assessment strategy for the legal context

Studies over the last two decades have shown that people with fetal alcohol spectrum disorders (FASD) have the kind of brain damage that increases risk of criminal behavior. Thus, it is generally accepted that FASD is likely to affect a sizable minority of individuals involved in the justice system. Most of these defendants have never been diagnosed because they lack the facial abnormalities and severe intellectual deficiency that would have improved identification and diagnosis in childhood. Despite the fact that an FASD diagnosis and associated cognitive deficits may be directly relevant to offense conduct and post-arrest capacities, screening for prenatal alcohol exposure (PAE) by legal teams remains relatively rare. This article addresses the relatively straightforward screening process with strategies that may be used singly or in combination to produce information that can establish PAE and provide a foundation for diagnostic assessment by medical and mental health experts.