Fetal Alcohol Syndrome (FAS) is used to describe a wide range of developmental deficits that can occur due to prenatal exposure to alcohol. FAS has many effects on individuals who possess the disorder, including impairments in memory and attention as well as social, emotional, and behavioral functioning. A study by the name of Fetal Alcohol Spectrum Disorder and the Criminal Justice System: A Systematic Literature Review, discusses the disadvantages that individuals with FAS face during their development. The neurological damage caused by prenatal exposure to alcohol has many effects on the brain, and those with FAS are at a higher risk of behaviors that lead to criminal activity.[1] Because of the effects of FAS on their mental and behavioral development, individuals with the disorder  have been shown to be more likely to be overrepresented in the foster care system, to experience elevated rates of addiction, and to be involved in the criminal justice system.[2] In one study of individuals with FAS, 35% of participants that were 12 years and older had a history of criminal incarceration, a rate that is much higher than that of the general population.[3] Another Canadian study referenced in the report noted that youth with FAS are 19 times more likely to be incarcerated in a given year than youth without FAS.[4] Studies have hypothesized that youth with FAS may be more likely to associate with delinquent peers because of their poor social decisions, although there may be other factors that lead those with FAS to commit crimes, including childhood abuse, mistreatment, and parental substance abuse.[5] Due to the effects of FAS on the brain, those with FAS experience an earlier onset of problem behaviors, and one study found that individuals with FAS usually committed their first crime usually between 9 and 14 years of age, and the crime was often theft or shoplifting.[6]

            As has been determined through the studies referenced above, individuals with FAS are more likely to have entered the criminal justice system, but due to the impacts of FAS on the brain’s development, these individuals are at a striking disadvantage in terms of navigating the legal system and understanding their rights. As described in the report titled Fetal Alcohol Spectrum Disorders and the Criminal Justice System, youth with FAS “displayed substantially greater impairments than youth without FAS in their ability to appreciate and understand their rights related to arrest, interrogation, and court procedures, and significantly poorer ability to adequately communicate with counsel.”[7] Interestingly enough, however, despite these impairments, youth with FAS still had confidence about their knowledge of their rights on par with individuals without FAS.[8] The impairments of those with FAS present a number of challenges as to how cases are handled when individuals with FAS appear in court as complainants, witnesses or defendants. Individuals with FAS are at an increased risk of jeopardizing their legal position by waiving their legal rights, giving contradictory statements, participating in their own defense, and accidentally lying by explaining what happened as they understood it.[9]

            Not only are individuals with FAS more likely to misunderstand their rights, but they are also  “more suggestible and tend to acquiesce to statements and questions by police and lawyers.”[10] One study found that individuals with FAS were more likely to agree with leading questions, change their answers in response to negative feedback, and misunderstand basic legal terms like “guilty” and “not guilty.”[11] This makes individuals with FAS very vulnerable to making false confessions, thinking that if they agree to whatever is presented they can go home or confessing to a crime they did not commit while under intense interrogation. In one example, one young adult with FAS confessed to a double murder he could not have committed as he was incarcerated at the time, leading to him being imprisoned for 11 months.[12] He repeated the accounts that the police relayed to him about the event, but “his confession went wildly astray from the known facts” of the case.[13] Studies have shown that individuals with FAS are more likely to falsely confess to crimes for a number of reasons, including the desire to please people in authority, an inability to understand abstract concepts, confabulating, and taking blame or confessing too quickly believing that they will then be allowed to go home.[14]

            Some steps have been taken to account for individuals with FAS in the criminal justice system, but much more research and change within the legal system is needed to protect and help those with FAS. In 2012, the American Bar Association passed a resolution to support the “passage of laws, and adoption of policies at all levels of government” to better protect those with FAS.[15] While this a step in the right direction, access to FAS screening and diagnostic services are extremely limited, making it difficult to diagnose and help individuals with FAS. Both authors in the articles presented argued that further research with wider sample sizes was necessary to improve the diagnosis of those with FAS, and while they mention the development of the Fetal Alcohol Behavior Scale (FABS), it is currently still incredibly difficult to diagnose FAS.[16] The authors also asserted that there is a lack of adequate training and practice guidelines for judges, lawyers, and others involved with individuals with FAS. There is no consensus for how FAS should be considered in the courtroom, but there is a very apparent need for increased synergy between research, practice, and policy as it concerns justice professionals handling cases involving individuals with FAS.

            There are several proposed solutions to handle the cases of individuals with FAS. Researchers have emphasized the necessity of assessing and supporting the abilities in young offenders and the importance of treatment and rehabilitation to address issues of impulsivity, limited social skills, psychiatric concerns, and lack of education and occupational skills.[17] Another proposed solution is the use of specialized courts as a means of crafting treatment of offenders with FAS so that they may improve their lives, including sentences that aim to change their living or social situation rather than their behavior.[18] FAS undoubtedly increases the susceptibility of individuals to criminal behavior and victimization, and the ongoing education of professionals to develop skills in recognition and referrals for diagnosis is extremely important to helping those with FAS avoid criminal actions and unknowing mistakes in the courtroom.

 

 

[1] Fast, Diane K., and Julianne Conry. "Fetal Alcohol Spectrum Disorders And The Criminal Justice System." Developmental Disabilities, 2009.

[2] Flannigan, Katherine, Jacqueline Pei, Michelle Stewart, and Alexandra Johnson. "Fetal Alcohol Spectrum Disorder and the Criminal Justice System: A Systematic Literature Review." International Journal of Law and Psychiatry, December 12, 2017

[3] Ibid.

[4] Ibid.

[5] Flannigan, Katherine, Jacqueline Pei, Michelle Stewart, and Alexandra Johnson.

[6] Fast, Diane K., and Julianne Conry

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Fast, Diane K., and Julianne Conry

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Flannigan, Katherine, Jacqueline Pei, Michelle Stewart, and Alexandra Johnson.

[17] Fast, Diane K., and Julianne Conry

[18] Ibid.

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LAW 310

This undergraduate course considers how the linkage between science and law has become more pivotal with advancements in technology. Topics covered include science in the context of criminal law, public regulation and individual rights. The power of science to promote justice and expose injustice will be the overriding theme.

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