A Proposed Model Standard for Forensic Assessment of Fetal Alcohol Spectrum Disorders

Article excerpt

A model protocol is proposed for multidisciplinary assessment of Fetal Alcohol Spectrum Disorders (FASD) in the forensic context. Used effectively on both sides of the courtroom in the United States in criminal and post-conviction matters in state and federal courts, the model relies on the FASD literature and best-practice standards of care in terms of clinical as well as forensic evaluation. It is suggested that FASD diagnostic criteria for older adolescents and adults in the criminal system may need different emphasis if facial features have diminished with age and confirmation of prenatal exposure is impossible.

KEY WORDS: FASD, multidisiplinary assessment.

It has been known for many years that persons with Fetal Alcohol Spectrum Disorders (FASD) are at high risk of criminal behavior. According to criminal offender statistics maintained by the Department of Justice (Criminal Records Nationwide Criminal Search, 2008), the lifetime risk of going to state or federal prison in the United States is 3.4% (18.6% for blacks and 10% for Hispanics). While comparable statistics have never been compiled for individuals with FASD, a large government-sponsored study at the University of Washington in the mid-1990s found that approximately 60% of children, adolescents, and adults in this population had histories involving arrest, conviction and/or incarceration (Streissguth, Barr, Kogan, & Bookstein, 1996). Approximately 45% of these crimes involved crimes against persons, including assaults (17%) and domestic violence (15%). Since that historic study, only one comparative analysis has ever examined the prevalence of FASD within a discrete criminal justice population. In that analysis, all 287 youth remanded during a one-year period to a psychiatric facility in British Columbia were evaluated, and researchers (Fast, Conry, & Loock, 1999) found that 23.3% had FASD. Only 1% of those with FASD received a diagnosis of Fetal Alcohol Syndrome (FAS), and the rest were diagnosed with Alcohol Related Neurodevelopmental Disorder (ARND). Both conditions are included under the FASD umbrella and involve brain damage and associated neurocognitive dysfunction due to prenatal alcohol exposure.

Combined, the implications of the British Columbia study and the earlier University of Washington study are alarming. If, according to the Department of Justice, over 2 million adults are now incarcerated in U.S. prisons and jails (Leary, 2009), plus approximately 100,000 youth held in juvenile facilities (Sickmund, 2010), what is the significance of these rates with respect to juvenile and adult offenders who may be brain damaged due to FASD? Most importantly, what do these figures mean with respect to the 3261 men and women now on death row in the United States (Fins, 2010)? Acknowledging the extensive Central Nervous System (CNS) damage in this population that produces a constellation of neurocognitive deficits in memory, attention, language, motor skills, social skills, academic achievement, cognition, and "executive control" difficulties in planning, organizing, learning from past mistakes, linking cause and effect, anticipating consequences, and taking the perspective of others, Moore and Green (2004) note:

This constellation of deficits poses significant obstacles to the fair treatment of FASD persons in the criminal justice system. Persons with FASD, as a group, challenge the underlying premise that defendants understand the relationship between actions, outcomes, intentions, and punishment. The treatment of FASD defendants raises fundamental questions about how we assess individual responsibility, both at the guilt-determining and sentencing stages of the adjudicative process, (p. 3)

The Substance Abuse and Mental Health Services Administration Fetal Alcohol Spectrum Disorders Center for Excellence (SAMHSA; 2007, para. 6) agrees that FASD merits special legal consideration: "Individuals with FASD typically are impulsive and have trouble foreseeing the consequences of their actions. …