Fetal Alcohol and Felony

Article excerpt

"The child is father to the man" is apparently an adage with limited appeal to California's Governor Pete Wilson. On 16 April, in announcing his rejection of a murderer's petition for clemency, Governor Wilson made it clear that the damage the condemned man had suffered early in life was no grounds for a stay of execution. "As great as my compassion for Robert Harris the child, I cannot excuse or forgive the choice made by Robert Harris the man," the governor declared.

The Harris case has been the focus of intense debate between supporters and opponents of the death penalty, which was restored to use under certain circumstances after a Supreme Court decision in 1976 and which has slowly returned to the nation's penal system. With 329 people on Death Row, California's resumption of the ultimate punishment carries particular symbolic weight. Only Texas, which has executed 46 people in recent years, has more prisoners awaiting execution.

Maternal-Fetal Conflict

The facts of the Harris case dramatically bring into the legal arena a much discussed topic in bioethics--the so-called maternal-fetal conflict. Documents and testimony presented to Governor Wilson on Robert Harris's behalf linked his behavior to fetal alcohol syndrome, brought on by his alcoholic mother's excessive drinking.

Harris was born in 1953, fifteen years before the initial medical report on the unusual features of children of alcoholic parents was published in France and twenty years before Kenneth L. Jones, David W. Smith, and their colleagues first described fetal alcohol syndrome.(1) It is hardly surprising that Harris was not identified as a victim of the syndrome, as it was not widely recognized at the time of his 1978 trial for the murder of two teenagers, and studies then concentrated on young children. Indeed, only within the past year did one of the original researchers, Ann Pytkowicz Streissguth, publish the first systematic follow-up of adolescents and adults with this particular birth defect.(2)

As Dr. Jones explained to Governor Wilson in the clemency petition, Robert Harris's appearance, behavior, brain function, and developmental problems, when coupled with the history of prenatal exposure to alcohol, clearly point to a diagnosis of fetal alcohol syndrome. Harris was born premature and small (under four pounds) and had a small head circumference. Confirming the diagnosis were many characteristic physical signs: midface hypoplasia (flatness across the nasal bridge), long smooth philtrum (little grooving above the upper lip), and short palpebral fissures (small opening below the eyelid).

More significantly, Harris's medical records chronicle his developmental problems: delays in walking and talking, impaired speech, and hyperactivity. School records and the recollections of those who knew him paint the picture of a clumsy, uncoordinated child who had trouble interacting with peers and failed repeated grades. Most of the time young Robert was passive and easily led, but he could also be impulsive and seemed incapable of understanding the consequences of his acts.

In the context of the clemency plea, it is astonishing to think that the jury that sentenced Robert Harris to death did not have this information but instead heard from a prosecution psychiatrist that Harris had an antisocial personality. As Craig Haney, a psychology professor at the Santa Cruz campus of the University of California, wrote to Governor Wilson, the reams of information dating back to the mid-1960s that Harris's advocates recently received from the Federal Bureau of Prisons provide much evidence that correctional officials had for years seen him as "childish" and "unable to handle stress," characterizations that throw serious doubt on the claim that the killings were premeditated--a necessary condition for a charge of murder.

As important as it would have been for the attorney representing Harris at his murder trial to have presented such information to the jury, the underlying question is perhaps even more important and disturbing: what effect should such information have on the determination of criminal responsibility? …