of the Diagnosis of Fetal Alcohol Spectrum Disorder from DSM-IV-TR to DSM-5: The Justice System in the United States—Time for a Paradigm Shift!

© Springer International Publishing Switzerland 2016
Monty 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_10

Evolution of the Diagnosis of Fetal Alcohol Spectrum Disorder from DSM-IV-TR to DSM-5: The Justice System in the United States—Time for a Paradigm Shift!

Anthony P. Wartnik , Jerrod Brown  and Sarah Herrick 

Seattle, Washington, USA

St. Paul, Minnesota, USA



Anthony P. Wartnik (Corresponding author)


Jerrod Brown


Sarah Herrick

The development of FASD throughout the DSM-IV-TR era has had significant impact in criminal cases, especially regarding death penalty litigation. This chapter will focus on individual rights afforded to indigent defendants as it relates to ineffective assistance of counsel, competency, mitigation, and death penalty cases and explore the potential impacts of the DSM-5 on the legal process.

At the outset, it is important to recognize that some may take issue with case law that does not deal directly with FASD-related cases and basic concepts of due process. It needs to be pointed out that lawyers frequently cite case law that has precedence on basic constitutional and other legal concepts that do not deal with the specific issue at hand, yet the lawyer believes because of their similarities, they are applicable. As well, now that disabilities attributable to PAE have been recognized by the DSM-5 as mental or developmental/intellectual disabilities, the legal and mental health communities, in order to effectively serve criminal defendants afflicted with a FASD, as well as judges who are duty bound to enforce the individual rights of the accused, need to become better informed about FASD.

It should be recognized that to effectuate a paradigm shift, a change of culture within legal and mental health professional communities is necessary. This is a priority challenge and the remainder of this chapter will provide a basis to encourage this change. The American Bar Association (ABA) (2012) has embraced this challenge through its Resolution 112B on FASD.

Structure and Historical Underpinnings

It may prove beneficial to consider the historical development of FASD. The problems of combining pregnancy and alcohol were recognized in biblical times. According to the English Standard Bible (2009), specifically the book of Judges, verse 13:7 offers “behold, thou shalt conceive and bear a son: And now drink no wine or strong drink.”

In his Gin War writings, Henry Fielding (1751) pondered the fate of infants conceived in gin and nourished in the womb and by the breast. In 1973, four University of Washington doctors made the connection between alcohol consumption and pregnancy based on identifiable facial features unique to children born following prenatal alcohol exposure, referring to this condition as Fetal Alcohol Syndrome (FAS) (Jones et al. 1973).

Some 23 years later, links between prenatal alcohol exposure and the development of secondary disabilities were reported in a study commissioned by the Centers for Disease Control and Prevention (CDC) (Streissguth et al. 1996). Very few appellate cases involving FAS and Fetal Alcohol Effects were decided in the late 1980s. There has been an increase in these cases since 1996.

A recent survey using the ACHA-National College Health Assessment II was conducted on 1,035 University of Alaska college students (Brems et al. 2014). It included three questions to assess knowledge of FASD risk factors and two questions regarding general FASD knowledge. These responses were compared to those given by 2,292 professionals (e.g., corrections, educators, physicians, public health nurses, social workers and substance abuse counselors) in a similar survey. The results indicated the college students were adequately informed about FASD risk factors and general FASD knowledge compared to the physicians, who were the least knowledgeable about FASD risk factors. The physicians placed in the middle of all the professions surveyed on FASD general knowledge. It is conjectured those professionals involved with the legal system may be far less informed regarding FASD compared to college students and other professionals (Brems et al. 2014).

Female college students remain at higher risk for alcohol-exposed births due to higher rates of alcohol consumption and binge drinking compared to non-college peers. An increase in alcohol consumption among female college students has been noted, as well as a sharp rise in frequent binge drinking (Wechsler et al. 2000). Although most sexually active college women use contraceptives, alcohol consumption is associated with increasingly ineffectual use of contraception. Another study of 2,012 college women showed, 13 % of risk (at risk for alcohol-exposed pregnancies) drinkers used ineffective contraception and 31 % were risk drinkers who engaged in sexual activity without consistently using condoms (Brems et al. 2014; Ingersoll et al. 2008).

Development of Law and Level of Understanding of FASD in the Legal System: Pre-DSM-5

Knowledge of the U.S. Criminal Justice System is necessary to appreciate the delays in recognizing the presence of FASD within forensic and legal settings. The U.S. Constitution provides American citizens with certain individual rights and protections. States establish criminal laws, provided such laws do not conflict with these rights and protections. Thus, criminal cases originating under state law must be tried and reviewed in state court before accessing federal court review of questions or concerns involving the Constitution. This is referred to as “Exhaustion of State Remedies” and the procedure for moving a State case to the Federal Court is known as Habeas Corpus. State cases cannot be removed to federal court until the exhaustion of state remedies. A Writ of Habeas Corpus derives from the English Common Law, meaning “bring the body before the court.”

The umbrella term “FASD” was unknown in 1999. More was known about FAS than other conditions caused by prenatal alcohol exposure (PAE). FAS, compared to other FASD’s, may not necessarily present as more serious or severe forms of brain damage compared to the other PAE related conditions that make up the umbrella. Misunderstandings about FASD have been noted by others:

While researchers have made significant progress in the identification and understanding of FASD, the legal system has been slow to grasp its impact on juvenile crime. Many juvenile justice system professionals are unable to deal appropriately with individuals with FASD because they lack critical knowledge and training about the disorders. The result is a failure to recognize individuals with FASD and to ensure that they receive appropriate services and support, from arrest through reentry into society. One must first become familiar with the nature and cause of FASD (Williams 2006, pp. 4–5).

Although court decisions reflect general recognition that FASD impacts behavior relevant to the justice system, they also reflect an imperfect understanding of the diagnostic process, symptoms, and behavioral implications. It is necessary to identify fundamental concepts to those responsible for such decisions within the justice system. As an example, our Anglo-Saxon common law suggests it is a fundamental condition upon which criminal responsibility reposes that individuals have the capacity to reason right from wrong, and thus choose between right and wrong. It is these capacities—reason and choice—which give the moral justification to imposing criminal responsibility and punishment onto offenders. If a person can reason right from wrong and has the ability to choose right from wrong, then attribution of responsibility and punishment is morally justified or deserved when that person consciously chooses wrong.

Furthermore, our common law assumes that criminal offenders must be treated as rational and autonomous with the ability to make choices. The problem is those afflicted with FASD are often not rational, autonomous, choosing agents, able to reason right from wrong, or able to choose right from wrong. To put these principles in perspective, one must consider:

Evidence concerning certain alcohol-related conditions has long been admissible during the guilt phase of a criminal proceeding to show lack of specific intent… Just as the harmful effect of alcohol on the mature brain of an adult imbiber is a matter within the common understanding, so too is the detrimental effect of this intoxicant on the delicate, evolving brain of a fetus held in utero… (Such) evidence should be admitted at the guilt phase of a trial if offered to show that defendant lacked the mental state (here premeditation) that is part of the crime (Dillbeck v. State of Florida 1994, pp. 1029–1030).

Dillbeck v. State of Florida (1994) also stands for appointing expert witnesses to assist defendants with a mental health defence “in order to level the playing field”.

Despite these clearly stated fundamental principles, FASD is still misunderstood within the legal system (McLachlan et al. 2014). There is general lack of appropriate education for those who work in or with our justice system (Cox et al. 2008). Furthermore, it is only 40 years post-discovery of FAS which is reflected in the current level of knowledge. Many mental health professionals continue to have difficulty diagnosing individuals with FASD, and available support/referral services for both the professional and client are minimal. Until 2013, with the development of DSM-5, FASDs were not viewed as developmental disorders.

Historically, justice system professionals have experienced difficulties when considering the nexus between the condition and criminal behavior outside of mental retardation or developmental disabilities as noted in the previous editions of the DSM. This is particularly true, when, unlike FAS, there are no physical features identifying the impact of prenatal alcohol exposure. It is easier to consider the intellectual disability as being causally related to a person’s behavior. It becomes difficult to relate invisible organically caused conditions to one’s subsequent behavior in the context of the widely variable behaviors that are associated with FASD. Those who are neurologically impacted by PAE, including those who lack the facial features related to FAS, often present with developmental delays and challenges; experience learning disabilities; engage in self-injurious behaviors; are impulsive; and demonstrate disturbances in emotional, as well as social adaptive life skills (Sampson et al. 1997).

Those impacted by PAE are at increased risk to engage in criminal behavior because of poor impulse control; deficits with processing information; problems understanding behavioral cause and effects; a lack of understanding of societal norms; impairment with short-term memory; compromised personal boundaries; poor stress tolerance resulting in confusion; challenges in understanding abstract concepts; emotional regulation difficulties; and/or poor judgment (McCreight 1997).

Also, individuals impacted by FASD can be easily influenced by others and may be viewed as naïve (Williams 2006). Given this prior profile of a “non-developmental” condition, it is understandable why many in the criminal justice system often perceive defendants with FASD as willful and disobedient “bad actors.” However, these individuals are often unable to control their behaviors and/or understand what motivates their actions.

On the other hand, if this same defendant suffers from a developmental disorder, it is much easier to see the relationship between the disorder and the criminal behavior, though the complexity of the neurodevelopment disorder can still make it difficult for the uneducated to comprehend. In summary:

When the defendant enters into the court arena, he/she must deal with a complex system of order, processes, and fact finding or trial. The defendant is also expected to comprehend the gravity of the situation and the consequences of his or her alleged actions. The defendant with FASD is ill equipped to navigate the court system. Officers of the court are equally unprepared. They approach the situation as if dealing with just another youth or adult in trouble, rather than with one whose actions result from damage inflicted before birth. The defendant is placed in juvenile detention or jail, an environment that he or she again is ill equipped to navigate. For an individual with FASD, the objective of general deterrence cannot be achieved beyond the period of detention because (1) the actions probably were not taken with the intent to commit a crime, (2) the underlying cause of the dysfunctional behavior has not been addressed, and (3) appropriate treatment geared to the special needs of a person with an FASD has not been provided (Williams 2006, pp. 8–9).

The Issues and Case Law: The DSM-IV/DSM-IV-TR Era

Competency, mitigation and death penalty issues are often encountered in FASD cases, underscored by rights to: diagnosis, expert witnesses on guilt-innocence, mitigation of sentence, and judicial preference for hands-on examination of defendants by the experts. This may include issues of diminished capacity, competency to stand trial, entry of a plea, and waiving constitutional rights. Confessions made by those with FASD, testimony by victims/witnesses with FASD, vulnerable victims with FASD, ineffective assistance of counsel, and presence of intellectual disability to disqualify imposition of the death penalty are also legal process considerations. The law is settled regarding many of these issues, but there is still confusion and misunderstanding regarding judicial application to FASD.


Right to Diagnosis


Indigent defendants are entitled to have experts diagnose and present applicable evidence at public expense. The leading case involving FASD is Castro v. Oklahoma (1995) which established the right to appointed experts for diagnosis and testimony. It requires a threshold showing that the issue being pursued is clear, genuine, fairly debatable or in doubt, and it is likely that, if established, the defendant’s mental condition could be a significant mitigating factor (Castro v. Oklahoma 1995). Castro v. Oklahoma (1995) did not discuss diagnosis relating to issues of competency to stand trial, entering a plea and waiver of constitutional rights, guilt and innocence, effective assistance of counsel, and assessment of intellectual disability as protection against the death penalty, but clearly these rights follow from the appointment of diagnostic experts.

Ten years earlier, Ake v. Oklahoma (1985) decided that when a defendant makes a preliminary showing that his sanity at the time of the offence is likely to be a significant factor at trial, due process requires states to provide a psychiatrist’s assessment. Lambert v. Blodgett (2003) involved evidence of alcohol exposure in utero, and highlighted ineffective assistance of counsel and the duty to provide experts with meaningful information, such as a thorough psychiatric assessment. It should be noted Lambert v. Blodgett (2003), was later reversed on procedural grounds based on Habeas Corpus (Lambert v. Blodgett 2004). Silva v. Woodford (2007) explored the duty to investigate and consider FAS for possible mitigation. Rompilla v. Beard (2005), involved a defendant with a third grade level of cognition despite nine years of school. This case provided evidence the birth mother consumed alcohol during the pregnancy and included expert testimony of organic brain damage and an extreme mental disturbance significantly impairing several of his cognitive functions.

In addition, Rompilla v. Beard (2005), considered the duty to obtain prison, school, medical and other records that might reveal significant mitigating evidence and/or which would likely be relied on by the prosecutor for purposes of proving aggravating factors. In Lambert v. Blodgett (2003), the Court ruled since the U.S. Supreme Court had only addressed the right to the appointment of expert witnesses in a death penalty case (Ake v. Oklahoma 1985), an attorney cannot be found ineffective for not developing a mitigating factor in a non-death penalty case. This outcome lacked common sense.

FASD is a mitigating factor, just as insanity (Ake v. Oklahoma 1985) is a defence regardless of the nature of the crime. It is senseless for FASD to serve as mitigation in only death penalty cases. In addition, if the Lambert v. Blodgett (2003) rationale is to be considered reasonable, then the right to appointed experts in non-death penalty cases could be subject to challenge which has not happened in the 30 years since Ake v. Oklahoma (1985). Regardless, absent a nexus between brain damage and criminal conduct, behavioral problems are likely to be viewed by the jury as an aggravating circumstance.


Habeas Corpus, Mitigation and Ineffective Assistance of Counsel


FASD typically surfaces when newly appointed Habeas counsel learns from the client or family that the person may have FASD, which was not pursued by prior counsel, and brings in experts who then make the diagnosis. The Supreme Court revisited this issue also in Martinez v. Ryan (2012) and Trevino v. Thaler (2013). Martinez v. Ryan (2012) did not involve FASD but involved ineffective trial and appellate counsel in a State proceeding. The Court granted an exception to the Cullen v. Pinholster (2011) rule.

In Trevino v. Thaler (2013), the structure and design of the Texas system made it virtually impossible for an ineffective assistance claim to be presented on direct review by the appellate court. On petition for Habeas Corpus, the federal district court appointed new counsel who, for the first time, raised the issue of ineffective trial and appellate counsel for failing to investigate and present FASD as mitigating evidence in State Court. The Supreme Court ruled in both cases that defendants had a right to proceed in federal court.


Competency, Juvenile Capacity and Diminished Capacity


Competency to stand trial is the ability to assist counsel in one’s defence. Subsumed issues include: defendant’s competency to enter a plea, to waive the right against self-incrimination (i.e., the Miranda rights to remain silent, to have an attorney present during questioning), and the right to oppose warrantless searches of property. Absent a finding of incompetency, juvenile defendants may claim incapacity to commit a crime in many jurisdictions, which is typically based on age and maturity and whether the child understands the nature and effects of his or her actions. The age factor is usually established legislatively ranging from a non-rebuttal presumption of lack of the necessary capability, to a rebuttable incapacity range, to a non-rebuttal that has the necessary capacity range.

No cases have addressed the question of capacity of a defendant whose chronological age is at the “capable” level, but whose intellectual/developmental age is in either the “incapable” or “presumed incapable” range. However, an argument should be made that incapacity should apply to defendants with this FASD profile. This argument is also useful for educating the Court as to the client’s disabilities.

An accused person, either a juvenile or an adult, may claim diminished capacity. Diminished capacity renders a defendant incapable of forming the specific intent to commit the “mens rea” element of the crime. Diminished capacity reduces the accused’s liability or culpability. Absent “mens rea,” a defendant cannot be found guilty of that crime. However, a finding of guilt is still available for lesser offences that do not require specific intent. Diminished capacity is an affirmative defence. The defendant has the burden of proving it “beyond a reasonable doubt.” This defence should be considered early in the proceeding. When diminished capacity is alleged, especially when involving suspected FASD-impacted individuals, FASD experts should be obtained to assess both conditions. However, some states do not permit a diminished capacity defence.

The competency rule lacks uniform application. Many lawyers resist bringing competency motions because they feel judges and juries do not take the issue seriously, or misapply the law, making a successful ruling highly unlikely. They do not view contested competence adjudications as a useful challenge (Philipsborn 2008). Judges have been known to find defendants competent for inappropriate reasons. Examples include, the defendant is competent because of ability to identify the colors of the American flag, sit at a chessboard and play chess (even though very young and immature children can learn basic moves) or forages for food (even though dogs learn to prowl garbage cans for food which is a survival instinct).

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Feb 18, 2017 | Posted by in PSYCHOLOGY | Comments Off on of the Diagnosis of Fetal Alcohol Spectrum Disorder from DSM-IV-TR to DSM-5: The Justice System in the United States—Time for a Paradigm Shift!
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