Legal Professionals
FASD & 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.
When a Defendant has FASD
1) Competency to stand trial may be an issue. The person with FASD may have difficulty contributing to his/her defense due to memory problems. The affected individual may not recall the events that led to an arrest. Due to poor recall, he/she may fill in the blanks, adding information that did not happen. The above phenomenon is called confabulation and is a common occurrence in FASD and other types of brain damage. This is not lying.
2) The ability to form criminal intent may be compromised.
3) The language of the court may be confusing to the person with FASD due to poor language comprehension and slow processing speed. Many people with FASD are very verbal making them "look good" when they do not understand what is said to them or the situation. They can be easily manipulated by misleading questions.
4) False confessions are common in FASD due to increased susceptibility in this population and an eagerness to please without understanding the consequences of what is said.
5) While Fetal Alcohol Spectrum Disorder can look like mental illness it is brain damage. Even court mental health programs might not fit a person with FASD. The program must be open to modifying treatment protocols and procedures to meet recommendations for treatment with a person who has an FASD (SAMHSA).
6) The legal system is built on the premise that punishment decreases undesirable behavior. This premise may not be true for FASD, as affected people often cannot learn from consequences and they make the same mistakes, again and again, no matter what consequence is applied.
What Attorneys and Judges Need to Consider
Real Life Scenarios Highlight Common Problems
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Not understanding that an action is against the law: A man drove a car that was stolen. When stopped the affected person said, “but I didn’t do anything wrong. I didn’t steal the car”.
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Immaturity: Robbing a bank with a get-away vehicle that was a bicycle
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Stealing but not understanding the abstract concept of ownership
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Poor impulse control: A woman sees a necklace at her friend’s house and takes it.
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Poor Judgment: She wears that same necklace to a party at the same friend’s house.
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Repeatedly making the same mistake: Being jailed four times for not paying parking tickets, the solution was to stop the individual from driving.
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Autonomic nervous system dysregulation and rage reactions leading to assault
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Remand due to not understanding the terms of probation or not remembering them
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Violating a no-contact order, when an affected person thinks that he cannot have contact with a protected person only if he sees this person in their house.
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Inappropriate sexual behavior common due to poor impulse control and social deficits
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Easily used by others and told to engage in criminal activity
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Emailing a judge explaining they could not appear in court because they had to work, a bench warrant was issued for nonappearance.
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Posting a picture on Facebook of a person in Los Angeles when they are not allowed to leave the county of Santa Cruz by conditions of parole. He was jailed by his parole officer upon return.
