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

• Author: William E. Sumner,Holly R. Stevens,Anne S. Douds
• Published date: 01 July 2013
• Date: 01 July 2013
• DOI: http://doi.org/10.1177/0887403412447809
• Subject Matter: Articles

Criminal Justice Policy Review

24(4) 492 –509

© 2012 SAGE Publications

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DOI: 10.1177/0887403412447809

cjp.sagepub.com

447809CJP24410.1177/0887403412447809

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

Abstract

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.

Keywords

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

Article

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

defendants.

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