© Springer International Publishing Switzerland 2016Monty Nelson and Marguerite Trussler (eds.)Fetal Alcohol Spectrum Disorders in Adults: Ethical and Legal PerspectivesInternational Library of Ethics, Law, and the New Medicine6310.1007/978-3-319-20866-4_11
Smart Justice and FASD in Alaska: From Prevention to Sentence Mitigation
Juneau, Alaska, USA
Barrow, Alaska, USA
“Smart Justice” means weighing—in every criminal case—the likely effectiveness of the actions we take.
-Then-Alaska Chief Justice Walter L. Carpeneti (2012).
A lot of people with FASD just need a constant reminder. If we can do that instead of putting them in jail, society is a lot better off and certainly the people with FASD are.
-Alaska Senator Kevin Meyer (2014).
On September 19, 2012 Alaska became the first state in the United States to pass a statute that explicitly allows its judges to reduce a felony sentence for an offender diagnosed with a fetal alcohol spectrum disorder (FASD) condition. The statute promised more humane treatment of such offenders and significant cost savings to the state, but this promise has not yet been realized. This chapter explores the developing acceptance of “Smart Justice” in Alaska, some best practices for providing effective services to lower the risk of criminal behavior by persons affected by an FASD condition, and, for those individuals who do get involved in the criminal justice system, analyzes Alaska’s FASD mitigating factor statute, including an outline of reasons for its slow implementation. It is hoped that implementation of positive supports for people affected by FASD will reduce the need to even consider application of a statutory mitigating factor for them.
Alaska’s Move Toward Smart Justice
In 2012, the Honorable Walter L. Carpeneti, Chief Justice of the Alaska Supreme Court at the time, advocated for implementation of Smart Justice in Alaska. He first explained the concept:
‘Smart justice’ means weighing—in every criminal case—the likely effectiveness of the actions we take. Further, it means considering the costs of these actions—to our resources, to public safety, and to the collective human potential of our citizens. In practice, it means making criminal justice decisions that reserve our most costly response to crime—prison time—for those cases where other less-costly alternatives will not effectively protect the public or rehabilitate the perpetrator (Carpeneti 2012).
With this encouragement, and after experiencing the financial drain of building an expensive new prison for approximately 250 million dollars (US) between 2004 and 2012, with annual maintenance and staffing costs of approximately 50 million dollars (US) per year, Alaskan lawmakers began looking at ways the state could be “smarter” in the area of criminal justice spending (Alaska Department of Corrections 2011).
A 2009 study by the Institute of Social and Economic Research (ISER) at the University of Alaska Anchorage suggested that for certain non-violent offenders, offering specialized treatment programs inside correctional facilities, combined with adequate transition and case management services on the outside, results in lower state costs, less recidivism, and a safer general public (Institute of Social and Economic Research (ISER) 2009). These conclusions mirror national research on the value of alternatives to incarceration that present “a considerable potential in cost savings, improved outcomes for offenders, and improved public safety” (Office of National Drug Control Policy 2011).
The ISER study indicated that the State of Alaska could both reduce the number of Alaskans in prison or jail and save considerable money over the next twenty years by “spending more” up front and “strategically expanding” certain programs, including prison-based programs (such as education/vocational programs, and treatment for substance abuse and for sex offenders), transition programs for inmates with mental health disorders, alternatives to incarceration (such as mental health courts, drug and alcohol courts, electronic monitoring, and residential substance abuse treatment), programs for juvenile offenders (such as aggression replacement training, family therapy, and residential treatment), and prevention programs (such as Head Start for low-income families). “Education and substance abuse treatment programs—in prison, after prison, and instead of prison—save the state two to five times what they cost and reach the most people” (ISER 2009).
According to the Alaska Department of Corrections (DOC), the costs of incarceration and various forms of supervision in Alaska for the 2014 Fiscal Year (i.e. FY 2014) per day, per person were:
Jails (hard beds) $158.67
Community residential centers (soft beds) $85.67
Electronic monitoring $21.02
Probation and parole supervision $7.32 (Gutierrez 2015)
Supervising offenders in the community is far less costly than jail beds and can provide a supportive reentry that fosters rehabilitation and prevents recidivism. Daily cost data for promising methods for community supervision of persons with mental health issues including cognitive impairments is not available, yet programs such as “Forensic Assertive Community Treatment Teams” or “Forensic Intensive Case Managers” have been identified in an Alaska study to be effective with this type of probationer (Hornby Zeller Associates 2014).
Alaska’s Criminal Justice Working Group (CJWG)1 has had an important role in the development of Smart Justice practices in Alaska. In 2010, the Alaska Prisoner Reentry Task Force, a committee within the CJWG, issued a Five–year Prisoner Reentry Strategic Plan, 2011–2016 (Alaska Department of Corrections 2011). The plan offers a comprehensive vision and includes practical recommendations for improving successful reentry for Alaska’s returning citizens. Some of the recommendations include substance abuse treatment programs, expanded electronic monitoring, improved access to housing and employment, and improved responses to inmates’ behavioral health needs.
Chief Justice Walter L. Carpeneti advocated for even more action to support Smart Justice in his State of the Judiciary address to the Alaska State Legislature in 2012, when he asked legislators to support collaborative efforts to reduce recidivism across the three branches of government (legislative, judicial, and executive), and state and local agencies. He called for Smart Justice practices like an expansion of therapeutic courts “and other problem-solving courts for misdemeanor offenders” for “individuals who pose no substantial risk” to public safety:
Such courts address the problems at the root of criminal behavior, have solid track records across the state, and often succeed at reducing or eliminating prison terms. Expanding therapeutic courts for misdemeanor offenders would not only reserve prison beds and the prison budget for more serious felony offenders, but might well ensure that misdemeanor offenders do not become more serious felony offenders themselves (Carpeneti 2012).
The Chief Justice expressed the importance of considering the cost of judicial actions to the state’s resources and on public safety, and asked legislators to include the judiciary in tailoring prison or treatment sentences to offenders:
If we are ever to turn the tide of prison recidivism, we must make room in the sentencing process for ‘smart justice’ principles to take hold. Chief Justice Ray Price of the Missouri Supreme Court perhaps said it best in his own 2010 State of the Judiciary address: ‘There is a better way. We need to move from anger-based sentencing that ignores cost and effectiveness to evidence-based sentencing that focuses on results …’ (Carpeneti 2012).
Since the 2009 ISER report, Alaskan lawmakers have also been looking at what other states have done and have invited experts from those states to present their ideas for reducing recidivism and redirecting criminal justice dollars in Alaska.
Alaska has also introduced innovations of its own. As described in a separate section below, in 2012, the Alaska State Legislature unanimously passed Senate Bill 151, a statute making FASD a mitigating factor in Alaska, introduced by Senator Kevin Meyer.
In 2014, the Alaska Legislature passed an omnibus crime bill that addressed many elements of Smart Justice reforms. Some of the provisions of the bill included substance use assessments for all offenders incarcerated for 30-days or longer, a broadening of the existing authority for credit for time served in residential treatment, adding Post Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) as mitigating factors for sentencing, and establishing a “24/7” sobriety monitoring program. Additionally, Senator Meyer worked with the bill’s sponsor to add language that would require DOC to provide screening for FASD and other brain-based disorders in corrections facilities, effective January 1, 2016. Governor Sean Parnell signed this bill into law on July 16, 2014.2
Also in 2014, Alaska Senator Pete Kelly established a workgroup to address FASD in Alaska. The workgroup, named Empowering Hope, made recommendations that include: supporting a public awareness campaign, expanding residential substance abuse treatment for pregnant women who experience alcoholism or drug addiction, implementing screening for FASD in prisons, developing a community network of “Natural Helpers” (persons within a community who support pro-social values), and promoting programs that reduce the time between conception and knowledge of the pregnancy (Kelly 2014).
Senator Kelly also introduced and saw pass two resolutions in 2014 addressing FASD. Senate Concurrent Resolution 13 asked the Governor to establish and support programs that address FASD, including rapid screening of sentenced offenders by the Department of Corrections, expanding residential substance abuse treatment for pregnant women, and supporting a public relations campaign. Senate Concurrent Resolution 14 encouraged the development of citizen networks to create positive community and social norms for prevention of FASD. It also encouraged the Governor to support the use of regional best practices models to address health and social services challenges with effective and cost-efficient methods.
Alaskan lawmakers are recognizing that with appropriate supports, people with FASD can live successfully in the community as contributing citizens, and that support services provide jobs for Alaskan caseworkers, clinicians, assisted living providers, mental health and substance abuse counselors, psychologists and psychiatrists, and others. There is a clear desire to see additional support for FASD-related issues as part of Alaska’s Smart Justice effort.
Services that Can Effectively Keep Adults with FASD Out of the Justice System
Support services reduce the likelihood that a person with FASD will come in contact with the correctional system. Housing assistance, employment and training support, education, counseling and case management, all contribute to an individual’s ability to maintain a stable and productive life (ISER 2009).
Rick Allen, Director of the Alaska Office of Public Advocacy, said that the number one need for people with FASD is housing:
Somebody has to have basic stability in their lives, and that means a dry, warm place to sleep, first, and then they have to have food in their belly. And then, if their time can be occupied with positive things, you can keep people out of trouble … That’s the whole principal behind mental health court … People who have housing first and some sort of productive thing to do, whether its low-level employment or volunteerism, or whatever, that’s a huge factor in reducing recidivism and keeping people moving in a positive direction.
He said that with such support people living “with pages of misdemeanant convictions” suddenly stopped getting in trouble and started reestablishing relationships with family members. “I’ve seen really positive changes, so I know that it’s possible,” he said (Allen 2014).
Julia Erickson, former case manager and probation officer for the Juneau Alaska mental health court, named the Coordinated Resources Project, worked with individuals experiencing mental health and substance abuse disorders, including people with FASD. She assisted clients in obtaining housing, food, mental health care, employment, and other supports that help them remain stable in the community.
Erickson, a Master’s level mental health clinician and Chemical Dependency Counselor I, noted that people with FASD were regularly represented in her caseload of about thirty individuals. While some had an FASD diagnosis, others showed indications of prenatal alcohol exposure, including difficult behaviors, impulsivity, difficulty concentrating, memory deficits, susceptibility to victimization, and difficulty understanding the connection between actions and the consequences.
She believes that too few Juneau agencies provide FASD-informed services, or are able to take a person with FASD into their caseload. Erickson noted that not many case workers are trained in interventions for people with extreme behaviors, who have difficulty complying with program expectations, such as keeping appointments, taking medications, or complying with the conditions of their probation/parole.
Echoing Mr. Allen, Erickson said housing was the primary need for her clients with FASD. Erickson recommended an FASD-informed assisted living environment with caregivers who understand and can work with difficult behaviors.
Second, she recommended access to diagnostic services from a qualified multi-disciplinary team that offers support after the diagnosis, so that individuals and their families can receive appropriate follow-up, case management, and other supports.
Third, she recognized specialized caseworkers are needed to assist individuals in maintaining stability to reduce the occurrence of crises. For example, her experience shows that a crisis about a pet can be just as debilitating for her clients as more traditional problems. Caseworkers help clients fill out applications/paperwork, make and keep appointments, manage money, give reminders about hygiene and appropriate social behavior.
She said that help qualifying for benefits is needed because an FASD diagnosis often fails to translate to accessible services. In Alaska, criteria for eligibility for Intellectual/Developmental Disability (IDD) services usually require that a person have an IQ below 70. Not all people with FASD experience low intellectual functioning, requiring a more nuanced application for disability benefits.
Finally, Erickson cited the need to look at delivery of behavioral health services for people with FASD:
We need resources, but we also need flexibility … The problems associated with mental illness have been around for a long time. Social workers have known how to work with the extreme behaviors, as far as medication management, social structuring, and counseling, etc. An individual with a mental illness can be expected to recover in some ways. But we haven’t really focused on people with FASD in the same way. We have this thinking that ‘this diagnosis gets this treatment,’ but with FASD, providers don’t always know what to do with the individuals they are working with. We need a variety of resources and opportunities, as well as a lot of flexibility for individuals with FASD (Erickson 2014).
Deb Evensen, MA, and director of Fetal Alcohol Consultation and Training Services (FACTS) in Alaska, works with adults and children with FASD and the school districts serving them, as well as conducting training events in and outside of Alaska. She believes that people living with FASD are “not hopeless” and can live stable and productive lives when given the appropriate supports:
With FASD, we can’t change the brain, but we can change the outcome for the person. It’s not true that people living with FASD are hopeless, or that they can’t learn, because they can learn, when the right supports are put in place. What’s been the problem is that we’ve been using strategies that were developed for people who don’t have FASD—people with mental illness or more typical brains. We use those techniques and they don’t work with the kinds of brain differences caused by prenatal alcohol exposure. It can’t be a weekly counseling session or consequences or insight therapy. That’s where we lose them. That’s why these people fall through the cracks—because we’re not using the right strategies. We need to listen to them, figure out where they’re stuck, and then provide support to those parts. It’s always based on what, instead of why (Evensen 2014).
Support and structure in daily life are key for helping people with FASD live successfully in the community and stay out of trouble. Teaching what to do instead of what not to do, or why not to do it is what is important, Evensen said.
“We don’t teach them to ‘get it,’ we teach them what to do in their lives and we provide structured support, and always a number that they can call and someone who checks in on them who doesn’t always wait for them to make the call. We would do the same thing if it was a person with another kind of disability” (Evensen 2014).
Efforts to Build Supports for Individuals Affected by an FASD Condition
The movement to address fetal alcohol spectrum disorders is growing across communities, states, provinces, and national borders. A growing body of evidence-based practices is showing promise for effectively addressing FASD prevention and intervention in the criminal justice system.
The Substance Abuse and Mental Health Services Administration’s FASD Center for Excellence and the National Organization On Fetal Alcohol Syndrome offer research, toolkits, webinars and other resources for supporting people with FASD who are involved in the justice system.3
In Alaska, many stakeholders are identifying and making steps toward addressing FASD in a variety of settings. With funding allocated in the 2015 Fiscal Year (FY15) from the Alaska State Legislature, the Alaska Mental Health Trust Authority launched a media campaign designed to raise awareness about not drinking alcohol during pregnancy. The Alaska Legislature allocated FY15 funding to the Institute of Circumpolar Health to study the efficacy of pregnancy tests in bars to raise awareness about the risks involved with drinking alcohol during pregnancy.
Also, as discussed above, the Legislature passed legislation in 2014 that directed the Alaska Department of Corrections (DOC) to establish by January 1, 2016 a mechanism for screening for FASD and other brain-based disabilities within their facilities. The Legislature also directed the department to establish a culturally-appropriate program that serves people with FASD.
A report produced for DOC in 2014 by Hornby Zeller Associates, Inc., Trust Beneficiaries in Alaska’s Department of Corrections, recommends Modified Therapeutic Communities (MTCs) as an appropriate setting for people with FASD while incarcerated. MTCs are specialized units that keep people with mental illness apart from the general population, using interventions that may include psycho-education, cognitive behavioral treatment, conflict resolution, medication management, etc.
Within correctional facilities, many researchers recommend the use of integrated treatment models to meet both the mental health and substance abuse needs in a consistent and comprehensive manner. MTCs are an example of a treatment model that can provide integrated treatment, in addition to aligning with recommendations that mentally ill offenders be housed in therapeutic environments while incarcerated.
The report also suggests that participants in reentry MTCs experienced “significantly less recidivism” than participants who received traditional supervision, and lists people with FASD and traumatic brain injuries (TBI) as groups that may benefit from these specialized units.
These populations require both intensive and structured supervision, and Anthony Wartnik, a retired judge, provides three suggestions to best serve those with FASD who are being released into their community: (1) live in a group home or facility with a structured regiment such as when to get up, when to eat, and so forth; (2) get a very structured job. Part-time is okay. Employment provides people with FASD something regularized that they need to do every day; (3) create a daily schedule with the individual that will be overseen by a parent, advocate or sponsor.
Other recommendations for people with FASD listed in the same report include: “Working out an agreement for money management; securing safe, affordable housing or a subsidized residential placement; providing in-home support to help the individual live as independently as possible; teaching and modeling parenting skills if the individual has children; referring the individual for specialized vocational training and/or job placements; ensuring medical care; arranging for a case manager to help individuals with FASD and their families access necessary services; organizing drug and alcohol treatment for the individual, if needed; serving as an advocate to ensure recommendations are implemented; acknowledging the individual’s limitations, strengths and skills; accepting the FASD-impacted individual’s world” (Hornby Zeller Associates 2014).