Sword or Shield? A Systematic Review of the Roles FASD Evidence Plays in Judicial Proceedings

Published date01 July 2013
Date01 July 2013
Subject MatterArticles
Criminal Justice Policy Review
24(4) 492 –509
© 2012 SAGE Publications
Reprints and permissions:
DOI: 10.1177/0887403412447809
Douds et al.Criminal Justice Policy Review
1Penn State- Harrisburg, Harrisburg, PA, USA
2Children’s Law Center, Washington, DC
3Redemption After Prison, Atlanta, GA, USA
Corresponding Author:
Anne S. Douds, 160 Olmstead Building, Department of Public Affairs, PSU, Harrisburg, 777 West
Harrisburg Pike, Middletown, PA 17057, USA.
Email: anne@federalhasson.com
Sword or Shield? A
Systematic Review of the
Roles FASD Evidence Plays in
Judicial Proceedings
Anne S. Douds1, Holly R. Stevens2,
and William E. Sumner3
In this first-ever systematic review of fetal alcohol spectrum disorders in all federal
court cases arising prior to 2011, the authors identified 1713 cases, with 131 cases
substantively relevant to mental capacity, criminal intent, sentencing, and attorney
malpractice. The majority of cases arose after Atkins v. Virginia, the pivotal Supreme
Court case that prohibits the death penalty for mentally disabled persons. Among
other things, this study reveals that FASD evidence usually defeats a death penalty
sentence, but the lower courts reflect inconsistencies in how courts receive and
handle mental health evidence.
crimal justice policy, criminal trial, justice, juvenile justice, sentencing
“Fetal alcohol spectrum disorders” (FASDs) arise when mothers consume alcohol
during pregnancy, causing the developing fetus to be neuro-developmentally impaired
(Burd, 2007; Kodituwakku, 2007; Weinberg et al., 2008; Riley et al., 2004). Although
it is not clear what levels of prenatal alcohol exposure cause disabilities (Abel, 2006),
it has been established that both chronic alcohol use and intermittent binge drinking
Douds et al. 493
during pregnancy can cause profound disabilities along a spectrum of disorders, col-
lectively known as FASDs (Burd et al., 2010; Abel, 2006; Adams et al., 2002;
Streiss guth et al., 2004; Mattson et al., 2007). According to the Centers for Disease
Control and Prevention, FASDs are the leading cause of preventable birth defects and
developmental disabilities (CDC, 2011).
Moreover, FASDs are significantly correlated with criminal justice involvement
(Koren et al., 2004; Streissguth et al., 2004; Boland et al., 2002; Fast & Conry, 2004;
but see Lynch et al., 2003). The effects of FASDs plague people throughout their lives,
causing them to be at increased risk for delinquent and criminal behavior and for con-
tact with criminal justice systems (Sayal, 2009; Boland et al., 2002; Burd et al., 2004;
Conry & Lane, 2009; Ishikawa et al., 2003). Persons with FASDs are at increased risk
for antisocial behavior from birth by virtue of their in utero exposure to alcohol
(Roebuck et al., 1999; Bailey et al., 2004; Coles et al., 1991), and they frequently suf-
fer from a broad constellation of secondary disabilities (Howell et al., 2006;
Goldschmidt et al., 1996; Nanson & Hiscock, 1990; Charmichael Olson et al., 1997).1
In severe cases, FASD sufferers exhibit profound antisocial, delinquent, or aggressive
behaviors, and they lack the ability to foresee the consequences of their actions
(Streissguth et al., 2004). In a recent publication, Fast and Conry provide a useful
mnemonic device “ALARM” to summarize the myriad disorders frequently arising
from FASDs (2009): Poor Adaptive functioning; Language deficits; Attention prob-
lems; deficiencies in Reasoning skills; and poor Memory. Each of these five disabili-
ties has profound implications for criminal justice practitioners and criminal
Advocates and researchers maintain that FASD diagnoses are critical at every stage
of the criminal justice process (Streissguth et al., 2004; Steinhausen et al. 1993).
However, there is almost no empirical data that explores how FASD diagnoses operate
within actual legal systems. In order to explore these issues, this study systematically
reviews all relevant United States federal case law to determine how federal courts
receive FASD evidence and what role that evidence plays in the disposition of claims
for mental incapacity, competency, sentence mitigation, and ineffective assistance of
counsel. This article provides the first comprehensive analysis of the roles that FASD
evidence plays in federal criminal justice proceedings and explores emerging judicial
trends in relation to FASDs.
Background Literature
FASD is an umbrella term used to describe a constellation of disabilities that may
result from prenatal exposure to alcohol (Chudley et al., 2005). There is no consensus
within the clinical community on the precise diagnostic criteria for FASDs. The more
narrowly defined disorder known as “Fetal Alcohol Syndrome” (FAS) is recognized
in the latest Diagnostics and Statistical Manual of Mental Health Disorders (DSM IV;
Astley et al., 2004), but the broader spectrum of related disorders, encompassed by
the term FASD, are subject to interpretations, depending upon which of several

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