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.

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.

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.