Individuals with FASD have been shown to have a higher rate of incarceration and arrest, with approximately half of all people with FASD facing legal trouble at some point. Those in prison have much higher rates of FASD than the general population. After incarceration or arrest, individuals with FASD may forget rules for probation. They may also struggle to understand the rules as the courts usually use advanced language or give directions that may be confusing to a person with FASD. Most crimes committed by someone with FASD are related to the brain damage caused by alcohol. Lying can occur when a person with FASD has poor memory and creates a story to fill in the gaps. A person may steal when he has trouble understanding the concept of ownership, for if the real owner is not there, then the object has no owner. For better insight into how FASD changes a person’s ability to deal with the legal system, read Mistakes I Have Made With FAS Clients. NOFAS also has a series of videos on criminal justice available here. Fetal Alcohol Syndrome Disorder and the Justice System provides information about criminal justice from arrest to corrections, although it is written about the Canadian Justice System.
NOFAS has this Fact Sheet in PDF format: FASD: What the Justice System Should Know About Affected Individuals
Resources on FASD and the law and FASD in the criminal justice system:
- American Bar Association: FASD Resources: This page provides information on the role of FASD in court cases, especially those involving children and adolescents.
- FASD Legal Experts, Forensic Experts: This site is intended to educate legal and medical professionals about FASD standards of care. The site’s creators also advise prosecutors and defense attorneys in cases involving FASD.
- FASD and the Justice System, Canada-focus: FASD and the Justice System walks you through all of the different steps of the legal system from investigation to trial to sentencing, in order to give you a better understanding of how FASD and criminal justice interact in Canada.
- A Judge’s Perspective on a Hidden Challenge of FASD in the Justice System
- Fact sheet from The Arc: FASD: Pathways to Justice
- Competency of Individuals with Intellectual and Developmental Disability in the Criminal Justice System: A Call to Action for the Criminal Justice Community
- Policing Persons with Disabilities in the 21st Century: A Call for Crisis Prevention and Procedural Justice – Page 38
Other legal resources for people affected with disabilities include:
- American Civil Liberties Union: The ACLU works to defend all Americans’ individual rights protected in the Constitution. They offer legal assistance to members of the population who may not always receive the equal rights they deserve, including people with disabilities.
- State Disability Law Centers: There is no national site for this organization, but every state is designated a Protection and Advocacy agency through the National Disability Rights Network that provide legal services to people who are disabled as well as people who suffer from mental illness or have severe brain injuries.
- National Disability Rights Network (NDRN): This organization “works to improve the lives of people with disabilities by guarding against abuse; advocating for basic rights; and ensuring accountability in health care, education, employment, housing, transportation, and within the juvenile and criminal justice systems.”
- Violence, Abuse, and Bullying: NCCJD White Paper
NOFAS produced this video of legal experts:
The offender patterns for FASD typically fall under one of the following areas:
- Impulsivity, like in the form of shoplifting
- Stealing due to a lack of understanding of personal ownership
- Fighting as a result of an overreaction
- Behavior motivated by fear, such as running from police or responding violently when overwhelmed
- Becoming an accomplice when a primary criminal manipulates an individual with FASD into committing a crime
Offenders with FASD typically commit unreasonable crimes with a high risk for little reward, engage in minor offenses with little to no escalation, and commit crimes with little to no planning. They struggle to follow parole and may have trouble linking unlawful behavior to the punishment. This means that the unlawful behavior generally continues despite imprisonment, fines, or other punishments.
More information on the typical offender with FASD is available at the American Bar Association
Those with FASD benefit from education and therapy rather than the punishment provided by imprisonment. These alternative methods are particularly important because reasons for incarceration may be confusing to a person with FASD. A diagnosis of FASD can lead to a reduced sentence, but it can be difficult to make a diagnosis without the physical features or evidence of alcohol use during pregnancy. A reduced sentence is more likely if the caregiver shows that action is being taken by the family to prevent criminal behavior in the offender.
Parents should also talk to their children and prepare them for what to say or do in case they get in legal trouble. The parents should explain their child’s rights in the event that they are arrested, such as the right to remain silent. Once arrested, the individual should have an advocate at all times who can explain the situation and prevent a false confession. Frequent breaks may be necessary as lengthy interrogation can be stressful and confusing, leading to outbursts or false confessions. The offender may not understand his charges and may need his advocate or lawyer to explain them. The police, lawyers, judges and any other relevant legal system authorities should all be made aware of FASD. If the offender is still a minor, he or she may be retained or declined from a juvenile court. A diagnosis of an FASD does not necessarily protect someone from prosecution in either the juvenile or adult courts. Advice on how to find a criminal lawyer is available at Fetal Alcohol: You and Your Child’s Lawyer. This Fact Sheet for Personnel in Law Enforcement as well as FASD in the Court System can give additional information to those in the legal system who may come across FASD. SAMHSA – Juvenile Justice and For more information, go to SAMHSA – Criminal Justice provide useful information for individuals with FASD that encounter legal difficulties.
Some parents provide their children with an ID card for people with FASD which can be given to the police. This card explains what FASD is and how it may impact the individual’s ability to understand his/her rights and provides contact information. It is important for people with FASD to always have an advocate when dealing with the legal system as they may not understand their rights and may falsely incriminate themselves due to confusion or forgetfulness.
Risk factors for legal trouble include:
- Having an IQ over 70, perhaps because those with higher IQ’s are less likely to get appropriate diagnoses and services
- Exposure to violence or abuse, which increases the risk of inappropriate sexual behavior significantly
However, protective factors include:
- Early diagnosis, which means earlier intervention
- Eligibility for services from the state, providing financial assistance
- Stable home life
- Protection from violence
Individuals with FASD have an increased risk of victimization with around 60% being sexually victimized and even more facing abuse of some kind. This issue is often complicated by an individual’s inability to recognize the crime and communicate what happened. Alcohol and drugs should be avoided as they further impair their ability to defend themselves or recognize and report crimes.
More information on victimization is available from the American Bar Association.
Courts are taking more steps to help those who may be struggling with FASD. Some courts are even adopting court documents with simpler language that can help individuals without an official diagnosis. Some programs are being established to screen inmates for FASD in an attempt to give them more specialized treatment. A more knowledgeable legal system can enable better treatment for people with FASD.