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Photo made and donated by Samuel Nothstine
Photo made and donated by Samuel Nothstine

Justice

Justice Professionals Need to Know About FASD

If a person who may have an FASD condition is involved with the justice system, any professional involved with the person must realize that 1) the person may well have an FASD and 2) may not show outward signs of the condition. Time is needed and time is in short supply.
The National Judicial College, a nationwide training organization, presented judicial training event titled “Advanced Bench Skills: Procedural Fairness” in Anchorage, Alaska (September 2018).

Justice professionals, whether they are police, defense counsel, Crown (prosecutors), judges, victim services workers, or corrections officers, only spend limited time with a client. The short period of time spent with each client often results in the professional not knowing much about the client, including if they have a disability. It often takes more time than professionals have to clearly communicate with individuals with FASD to ensure that they fully understand what is being said to them. Also, some behavioral characteristics associated with FASD are sometimes seen by justice professionals as behavior that suggests disobedience, noncompliance, or aggressiveness. If justice professionals are not aware how FASD may impact an individual, they may not want to get to know their client or work with them any more than the basic minimum to “get by.”
(Summary Report: Conference on the Path to Justice—Access to Justice for Individuals with Fetal Alcohol Spectrum Disorder, Sept. 2008)

This is REAL, folks.

There is ample support for taking that extra time. The Canadian Bar Association and American Bar Associations have passed resolutions supporting accommodations in the justice system for individuals with FASD. The National Judicial College, a nationwide training organization, presents an “Advanced Bench Skills: Procedural Fairness” course (including in Anchorage Alaska, September 2018). The trainers presented the research that estimated that perceptions of fairness by people involved in court hearings lead to greater acceptance of the results. The research shows that up to 70% of these perceptions of fairness are based on using of plain language, giving a chance to be heard, treating everyone with respect, and showing impartiality by explaining the basics of what is going on. A great discussion in less technical language is Nagle, L., Fetal Alcohol Spectrum Disorders, National Association of State Judicial Educators, Jan. 26, 2011. Attorneys representing affected persons in criminal, juvenile justice, or child welfare proceedings have an affirmative duty to do so. For example, Rule 1.4(a) of the Alaska Rules of Professional Conduct states that “[a] lawyer shall keep a client reasonably informed” about the matter, and “shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” An additional concern is that of ‘confabulation’ which is very real and very dangerous.

A lot of education is needed. Once the professional has the information, they will need to educate many others in the justice system. It is best to approach this task with the assumption those working in the justice system are basically good people whose jobs involve serving others, but who are faced with strong limits on the available time for each situation. Here are some ideas:

  1. Build a packet of any evaluations the justice-involved person has had over time. If there have not been any evaluations for FASD, try to obtain one. (For adults this is basically seeking a neuropsychology assessment).
  2. National Council of Juvenile and Family Court Judges, Fetal Alcohol Spectrum Disorders: Implications for Juvenile and Family Court Judges (2015). The publication is recent and from a very credible source for the justice system. Great information on FASD, how it plays out in the justice system, and the strong need to respond appropriately. A copy is recommended for the defense attorney and more copies for the opposing attorney/judge/probation officer/social worker, etc.
  3. A recent Amicus brief filed with the United States Supreme Court cites useful research and case law in a case involving FASD. (Note: many of the cases involve the death penalty, which would be of less usefulness in states like Alaska that do not have that form of punishment): Brief of National Organization on Fetal Alcohol Syndrome as Amicus Curiae in Support of Petitioner. Justin Anderson, Petitioner, v. Dexter Payne, Director, Arkansas Division of Corrections, US Supreme Court case No. 19-8105.
  4. Excellent source for information and referrals to experts and attorneys:
    Kathryn Kelly, B.A. FASD Legal Consultant. Faslaw@uw.edu.
    Fetal Alcohol Drug Unit, University of Washington
    1107 NE 45th St., Suite 1020
    206-543-7155
  5. FASD United is the national organization on FASD issues, providing both advocacy and information. NOFAS does not engage in counseling/advocacy for individuals but does have good resources on their site related to justice system involvement.
  6. There is an extremely detailed and practical Canadian site for FASD and justice system issues. The site has specific articles on many aspects of the way FASD affects the justice system, including specific tips. (Of course, there are differences between Canadian and USA law and also a difference in diagnostic criteria. Nevertheless, the site has wonderful information). One of their tips is that if you find out that a person involved in the justice system has an FASD condition, make sure the judge knows as soon as you do.
  7. The Fetal Alcohol Society of the Yukon (FASSY) in Whitehorse, Yukon only serves adults that may be affected by an FASD condition. Their booklet Trying Differently, A Guide for Daily Living and Working with FASD, 4th is full of tips from families that include adults with FASD for other families. It has a section on dealing with the justice system involvement.
  8. Wartnick A and Brown J. Fetal Alcohol Spectrum Disorders (FASD) and the Criminal Justice System: Causes, Consequences, and Suggested Communication Approaches This article in Forensic Scholars Today (April 5, 2016) includes a table with 10 Tips for Communicating with an Individual Who May Have an FASD.
  9. Recent American Bar Association site FASD summary article Burd, L and Edwards, W FASD Implications for Attorneys and the Court (Nov 2019)
  10. Finally, a local resource for FASD training of attorneys who are members of the Alaska Bar Association resides on the Alaska Bar website’s Videos on Demand tab (CLE training fees payable to Alaska Bar Association): 
    • Fetal Alcohol Spectrum Disorders: Medical, Developmental, Neurocognitive & Legal Issues. CLE # 2021-013 3.0 General CLE Credits
    • Practical Applications for Addressing FASD in the Justice System. CLE # 2016-008 3.5 General CLE credits and 1 Ethics CLE Credit.