Evan Ulman

Professor Kuszler

LAW 310

22 February 2019

Paper 2

At least one percent of all people are born with fetal alcohol syndrome (FAS), a condition

in which children born to women who consumed alcohol while pregnant suffer from impaired

cognition and development.1 Fetal alcohol syndrome affects individuals differently, and so there

is a scale of fetal alcohol spectrum disorders (FASDs). FASDs are characterized by mental and

behavioral disabilities which stay with the individual for life.2 It is believed that because of these

disabilities, individuals with FASDs are overrepresented in the criminal justice system.3 The

issue with this fact is that individuals with FASDs may not fully understand the consequences of

their actions, and may therefore not be held culpable for the crimes they are accused of

committing. As they may have a difficult time understanding the nuances of the legal system,

people with FASDs are more likely than nonaffected people to waive their rights, make false

confessions, and give false testimony.4 Because people with FASDs are more susceptible to

injustices in the legal system, it is imperative that they be diagnosed and that courts and other

legal professionals adopt measures to better protect them.

Symptoms of FASDs can be both unapparent, such as growth deficiencies and

neurodevelopmental impairment, and visible and identifiable to a layperson, such as facial

1
CDC
2
FAS Diagnostic and Prevention Network
3
Flannigan et al. 43
4
Fast and Conry 254
dysmorphologies, or an irregular appearance.5 However, not all people with FASDs are

immediately recognizable and may not have received a diagnosis.6 Therefore, any diagnoses of

FASDs need to be made by a medical professional, with a multidisciplinary team of doctors

being most qualified to make an accurate diagnosis.7 Researchers have begun to systematize

FASDs diagnoses, but there is currently no perfect system for non-doctors to positively identify

evidence of FASDs.8 In summary, FASDs are diagnosable by a medical diagnosable, but

sometimes lack distinct physical hallmarks, meaning that an individual’s FASDs may go

undetected by judges, juries, and other officers of the court.

While courts are sometimes more lenient when handling the cases of defendants with

FASDs, there needs to be more institutional protections in place to help ensure that people with

those conditions receive a fair trial, including acceptance of FAS as a mitigating factor, general

education and awareness of FASDs, alternative sentencing options for people with FASDs, and

better representation on the part of attorneys. In some cases, judges have considered FASDs to

be a mitigating factor in determining culpability for crimes, but in others, it has been used as an

aggravating factor under the assumption that people with FASDs will be less receptive to

rehabilitation.9 This is despite the fact that FASDs are not within the control of the individual

and are untreatable. Indeed, individuals with FASDs do not meet the traditional burden of

proving mens rea because their cognitive disability may have inhibited them from knowing they

committed a crime.10 As such, one solution would be for defense attorneys to argue insanity or

diminished capacity on behalf of their clients. However, this approach has not proven to be very

5
Flannigan et al. 47
6
Mela and Luther 49
7
Fast and Conry 250
8
Flannigan, et al. 47
9
Fast and Conry 254
10
Mela and Luther 49
successful in trial because the claims aren’t accepted by judges.11 Therefore, a general education

campaign could raise the awareness of judges and attorneys alike of the challenges individuals

with FASDs face in court. Judges might be more likely to view FASDs as a mitigating factor if

they better understood how it affected defendants’ lives. Especially important is recognition of

FASDs in appellate courts, whose decisions would be instructive to how trial courts deal with

defendants with FASDs. More education could also increase the number of diagnoses of FASDs

that are made. The American Bar Association has issued a report on FASDs, and if more legal

professionals are aware of the condition and its symptoms, they might be more likely to help

defendants receive diagnoses. Expert testimony may also help courts understand the issue.

Additionally, since people with FASDs may not be receptive to rehabilitation in a prison

environment, courts should consider alternative sentencing arrangements.12 Sentences which

focus on rehabilitation could reduce recidivism among people with FASDs, including mandatory

counseling, community reconciliation, and probation.13 Lastly, attorneys who are aware that they

are representing people with FASDs will probably do a better job in guiding them through the

criminal justice system. Because people with FASDs are more likely to incriminate themselves,

make false confessions and statements, and waive their rights, having counsel that has

experience working with cases involving FASDs defendants could improve their chances of

being granted leniency. Experienced lawyers who are aware of their clients’ disabilities and who

are trained to work with disabled people would be able to help their clients avoid pitfalls where

they are likely to incriminate themselves, such as during police investigations, by explaining to

law enforcement officials that their clients are unfit and unwilling to answer questions. But not

11
Ibid 50
12
Fast and Conry 255
13
Ibid
everyone has access to a competent and compassionate attorney, especially people with FASDs,

who, because of their condition, are more likely to face difficulty finding employment and

therefore have the income to afford an attorney.14 Therefore, fully funding public defender

offices may be one of the best ways of ensuring that people with FASDs receive fair trials. A

nationwide crisis in funding for indigent defense has resulted in an increase in plea deals as

public defenders do not have the time and resources to argue cases.15 Because people with

FASDs are already susceptible to false confessions, public defenders may be unprepared to

adequately to defend them. Better funded public defenders would benefit all indigent defendants

but would be especially beneficial to indigent defendants with FASDs.

In conclusion, FASDs are diagnosable by medical experts and in some cases have been

used as mitigating factors in criminal trials. However, there is much work to be done to ensure

that people with FASDs have their due process rights protected in court. Necessary reforms

include the acceptance of FASDs as a mitigating factor by courts, general education and

education of FASDs directed at legal professionals, alternative sentencing options for guilty

persons with FASDs, and better representation for people with FASDs, including better funding

of public defenders.

14
Ibid 250
15
Stein
 Works Cited

Centers for Disease Control and Prevention. "Fetal Alcohol Spectrum Disorders: Data &

Statistics." 1 June 2018, www.cdc.gov/ncbddd/fasd/data.html. Accessed 21 Feb. 2019.

FAS Diagnostic and Prevention Network. "What is FASD?" UW Departments Web Server,

University of Washington, depts.washington.edu/fasdpn/htmls/fasd-fas.htm. Accessed

21 Feb. 2019.

Fast, Diane K., and Julianne Conry. "Fetal alcohol spectrum disorders and the criminal justice

system." Developmental Disabilities Research Reviews, vol. 15, no. 3, 2009, pp. 250-

257.

Flannigan, Katherine, et al. "Fetal Alcohol Spectrum Disorder and the criminal justice system:

A systematic literature review." International Journal of Law and Psychiatry,

vol. 57, 2018, pp. 42-52.

Mela, Mansfield, and Glen Luther. "Fetal alcohol spectrum disorder: Can diminished

responsibility diminish criminal behaviour?" International Journal of Law and

Psychiatry, vol. 36, no. 1, 2013, pp. 46-54.

Stein, Jeffery D. "How to make an innocent client plead guilty." The Washington Post,

12 Jan. 2018, www.washingtonpost.com/opinions/why-innocent-people-plead-

guilty/2018/01/12/e05d262c-b805-11e7-a908-

a3470754bbb9_story.html?utm_term=.69ddf11794d0. Accessed 21 Feb. 2019.