FASD rates among offenders
Rojas and Gretton (2007)
File review 230 youths (13–18)
Murphy and Chittenden ‘07
Survey 137 youth (14–19)
Fast et al. (1999)
Diagnostic 287 youth (12–18)
McPherson, Chudley and Grant
Diagnostic 91 adult (19–30)
In the absence of these powerful studies, some meta-analytic studies summarizing the findings in the existing literature are emerging and adding support for the relevance of PAE as a risk factor in the etiology of criminality. In a systematic review of studies on incarcerated youths, a systematic literature review concluded that youth with FASD are 19 times more likely to be incarcerated than youth without FASD (Popova et al. 2011). While these results are associations rather than causal findings, the correlation between FASD and subsequent offending is evident. Such correlations are bolstered by another research finding. In the Canadian context, FASD is present throughout and encountered in the Criminal Justice system. FASD is however overrepresented among Indigenous peoples (Rojas and Gretton 2007). This likely contributes to the disproportionate overrepresentation of indigenous people in the criminal justice system.
FASD and Type of Offences
Mentally disordered offenders and especially those with FASD are suspected as contributing a lot to the number of offences prosecuted. This stems from the repeated nature of the offences and other factors such as lack of identification, knowledge of how best to support them and the absence of the relevant support especially in the community. The repeated nature of the offences is gleaned from results of some studies. As well, certain types of offences thrive in the context of the specific impaired cognitive functions linked with FASD such as impulsivity, poor memory and executive function. The aforementioned are essentially the primary disabilities described among those with prenatal alcohol exposure and consequent dysfunctions in FASD (Chartrand 2003). Those affected with FASD contribute to that surge in offence statistics, as they often appear in the criminal justice system due to repeat offences, including breaches and failures commonly committed by ‘unsophisticated criminals’ (Roach and Bailey 2009).
The types of offences committed by those with FASD have been studied from the first follow up result of the FASD group that were monitored for 15–25 years (Streissguth et al. 1999). In that study, half of those described as being in trouble with the law committed theft, burglary, assault, murder, domestic violence, and child molestation; all of these were categorised as offences against the person (Streissguth et al. 1999). The most common first criminal behaviour was shoplifting. Additional evidence for more minor types of offending comes from the Correctional Service of Canada finding that, among offenders with FASD with an average of at least 15 convictions, theft and breaches of conditions were the most prominent offences (MacPherson and Chudley 2008). Mentally disordered offenders with FASD are frequent repeat offenders and continually revolve through the criminal justice system. It has been estimated that for each substantive offence, 0.7 system-generated offences such as breaches of conditions are prosecuted and adjudicated. Not only are the prosecutions expensive, the offences are largely preventable as they are caused by cognitive risk factors such as lack of attention to time and date, poor memory in remembering conditions, and poor executive functioning. Prosecutions not only increase criminal statistics, but can also force these offenders to face lamentable injustices.
Experiences Within in the Criminal Justice System and the Need for Alternative Approaches
The 1992 death sentence and execution of Robert Harris in California epitomizes a form of injustice associated with the criminalization of disability, such as FASD. Specifically, in spite of a clear diagnosis of FAS and accompanying cognitive deficits, the courts made no exemption, reasoning that excusing the crime would open the ‘flood gates’ for others to use FASD to avoid punishment (Cleary and Freeman 1992). Variations on this unfortunate ruling continue in courts around the world. Another experience of the criminal justice system with FASD is the frustration of those who deal with the offenders with FASD. When Justice Trueman in the province of British Columbia, Canada became frustrated in the case of a repeat offender diagnosed with FASD, she wrote in her judgement (Chartrand 2003):
The cognitively challenged are before our courts in unknown numbers. We prosecute them again and again and again. We sentence them again and again and again. We imprison them again and again and again. They commit crimes again and again and again. We wonder why they do not change. The wonder of it all is that we do not change.
Justice Trueman’s intention was clearly to communicate that a different approach to offenders and mentally disordered offenders (MDOs) with FASD was advisable and should be separate from traditional sentencing practices. Such an attempt to change the system and think outside the box clearly depends on thoughtful alternatives to sentencing. The record of adopting rehabilitative principles and practices instead of sentencing offenders with FASD is regrettably dismal. In a review of 40 FASD offenders sentenced by Canadian courts, researchers described many instances of misunderstanding, a lack of alternatives and the disadvantages of incarceration (Chartrand 2003). This examination led to the recommendation that alternative approaches should be used. For example, one alternative that was invoked by a judge in the province of Saskatchewan, Canada was to order the province to provide an accused with FASD with the necessary community resources and services to meet his needs. Unfortunately, the appeal court in Saskatchewan disagreed with the judge and the status quo of applying traditional sentencing principles to FASD offenders was maintained (Roach and Bailey 2009). Thus, when offenders with FASD repeatedly present before the courts, incarceration becomes the default system, which is problematic because there is evidence that offenders with FASD do not do well in penal institutions (Luther and Mela 2006; Fast and Conry 2009). However, there are viable alternatives. For instance, one potential approach would be to create a mental health court and utilize different verdicts of diminished responsibility to divert offenders to the services they need to promote law-abiding behaviour (Mela and Luther 2013). Of course, this type of approach is contingent upon legislative action.
Alternative approaches that accommodate an offender with FASD should focus on various points of contact with the criminal justice system. Therapeutic jurisprudence is a set of principles using the law to provide alternatives for those with disabilities. These principles are based on promoting the psychological and physical wellbeing of persons subject to legal proceedings. At various junctions of the system, the offender with FASD should be considered and handled based on the disabilities present. There are variations of how this can be practicalized. An offender may be considered a high risk to offend on account of pre-crime factors such as poor education, impulsivity and poor socioeconomic status (see Fig. 1). The disadvantages of poor education, childhood adversity and lower socioeconomic factors are well recognised factors that increase criminality in many offenders. Preventative measures of educational upgrading, employability and trauma related intervention assume significance at this stage. In this chapter, many of the stages and junctions will be discussed in greater detail to point out how the law can be used to intervene.
Relevant points in the criminal justice system that create both aggravating and mediating interface with FASD accused
Issues Impacting Interventions with Offenders with FASD
Based on available evidence, it is safe to conclude that a strong link exists between PAE and increased rates of disability, mental disorder, and criminality (Fast et al. 1999; Popova et al. 2011; Streissguth and O’Malley 2000). This fact should inform strategies for better identification of FASD and mental disorders among offenders. Those strategies in turn should provide effective and relevant interventions. As a result, a better standard of care could be achieved and would provide highly necessary evidence for effective treatment. Establishing effective interventions is especially challenging due to the multiplicity of comorbid presentations of those with FASD and related conditions.
There is substantial variation and multiplicity in the compositions and comorbid presentations of those with FASD and other related conditions (Streissguth and O’Malley 2000). In fact, with such a high rate of comorbid mental conditions and the co-occurrence of other disabilities, having FASD with no additional conditions is the exception and not the norm. That is, many affected by FASD will have additional mental disorders as well as a history of offending. The term ‘triply troubled’ has been coined to describe pregnant adolescents who used opiates and engaged in criminal behaviour (Crome and Kumar 2007). This term can also easily be applied to the complex linkages between FASD, mental disorders, and engagement in criminal activity. The result of the apparent complexity of issues surrounding the comorbidity of FASD and mental disorders is that individuals with these conditions crisscross various stages of the criminal justice system. The exact mechanism by which the offenders with FASD and additional conditions that perpetuate offending are not clearly studied yet. To adequately intervene conceptually and practically, research should focus on better understanding of these mechanisms.
Pre-crime Risk Factors and Initial Encounters with the Criminal Justice System
There are a number of relevant pre-crime factors that can be indicators of later criminality, such as low educational achievement, poor self-esteem, and a lack of self-identity commonly reported in those with FASD. Combined with other risk factors such as family stresses and substance use problems, the risk for encountering the criminal justice becomes elevated (Streissguth et al. 2004). Furthermore, primary disabilities such as a lack of risk awareness and a tendency toward impulsivity are likely to inflame any interactions a person with FASD has with and during encounters with law enforcement agents. It has been suggested, though not formally studied, that such interactions may contribute to the increased rate of criminal activity among those with FASD. Specifically, poor social skills and sensory sensitivity, and intolerance to touch can play a role in resisting arrest or a propensity for violent behaviours during arrest (Fig. 1). The resulting struggle could lead to a range of outcomes that shift outcomes from simple arrest to charges of resisting arrest, assault on a peace officer, or even fatal results.
Another key issue is that, among individuals with FASD, cognitive disorders are frequently concealed by seemingly normal or even the appearance of superior communication skills (that are accompanied by a lack of understanding). Unfortunately, this is a substantial disadvantage to offenders who are judged as competent, even though they face tremendous challenges with the criminal justice system based on the true lack of cognitive abilities. Once arrested, assessments should be requested in order to determine the accused triablility (competence) and culpability (criminal responsibility). Evidence is accumulating that highlights the need for assessment as part of criminal justice proceedings. For instance, a major financial settlement was provided to an individual who falsely confessed to six sexual offences. In 1997 Mr. Simon Marshall was arrested in connection with sex crimes. Those sexual assaults were said to have occurred in the Sainte-Foy area of Quebec, Canada. Suggestibility, vulnerability and poor consequential thinking are suspected to have played a great role in confessing to those crimes. He was later acquitted by DNA evidence and compensated by the government. These psychological abnormalities suspected as the mechanism for such confession are equally recognised as potential crime aggravating factors in FASD. However, many individuals with FASD continue to pass through the criminal justice system without a diagnostic and functional assessment.
An assessment is usually requested so that the clinical picture can, when possible, provide an explanation for both the cause of offending and the preventative intervention in the accused with FASD. Some jurisdictions have defences and verdicts that accommodate the functional disability suspected in a person with FASD when it is associated with the offence in question. When such options are missing or are inadequate in taking account of FASD disability, traditional punishment is invoked to the disadvantage of the person. In fact, only one of 82 court cases involving individuals with FASD has produced a discussion about the Not Criminally Responsible (NCR) designation and there have, to date, been no cases where this designation has been applied (Mela and Luther 2013). As the finding of not criminally responsible is essential a threshold one separating those culpable and responsible and those not, a ‘grey zone’ approach with diminished capacity as an alternative verdict should be a positive outcome.
Why Incarceration Is not an Appropriate Intervention
Some have justified incarceration of individuals with FASD, based on the assumption that it will provide much needed structure for the offender. However, victimization and involvement as pawns for the more sophisticated gang members in prison are a few of the negative impact of incarceration. Thus, once in jail, primary disabilities such as unawareness of risk, desire to fit in, and willingness to be used make them vulnerable as prey for the more experienced and antisocial offenders (Fig. 1). For example, they are often young and naïve enough to be physically and/or sexually assaulted. Moreover, they frequently end up serving as ‘errand boys’ for prison trade in contrabands, bearing the brunt of the consequences alone due to the ‘con code’ that is established in these environments. The result is an increased number of disciplinary actions taken against them and consequently elongation of their sentence.
If an offender with FASD is able to return to the community, it is likely that he or she will be accompanied by a significant list of disadvantages including: a lack of social and survival skills, being more criminalized and institutionalized, and a wider range of criminal associates and peers (Boland et al. 1998). This more ‘streetwise’ individual is then more likely to engage in more criminal activity and lack a sense of connectedness with society due to prior removal from mainstream society for a significant amount of time. The consequence of these factors is a propensity toward recidivism and the facilitation of a more versatile offending pattern. This leads to a cycle of crime and is a primary source of increased crime statistics among this group. Furthermore, cognitive deficits related to FASD often lead to a cumulative default behaviour pattern of offending mediated through the failure to attend appointments because of a criminalized and oppositional approach to life. There are however times when the offender may manifest genuine amnestic consequences of FASD. Research suggests that those with FASD have difficulty learning and remembering. As a result, these individuals will often commit more offences, breaches of court orders, and then become reincarcerated. In addition, the situation is not improved by FASD-related deficits such as poor planning and challenges with consequential thinking, which make compliance to conditions even more unlikely. As a whole, apart from increasing criminal statistics, the cost of crime is increased substantially in offences perpetuated by individuals with FASD.