Is Fetal Alcohol Spectrum Disorders a Mitigating Factor in Criminal Litigation and Sentencing?
In October 2010, the State of Arizona executed Jeffrey Landrigan.
Posted Jun 25, 2011
On October 26, 2010, the State of Arizona executed Jeffrey Landrigan. This was after the United States Supreme Court lifted a lower court's stay of execution.1 Among the issues the Court considered in that case was whether Landrigan was entitled to a new sentencing hearing because his attorney failed to present any evidence in mitigation, despite the young man's diagnosis of Fetal Alcohol Syndrome. Justice Clarence Thomas, who wrote the majority opinion, stated that the mitigating evidence Landrigan sought to introduce, i.e. evidence of serious organic brain damage associated with Fetal Alcohol Syndrome, "would not have changed the result."2 This was in spite of the fact that Cheryl Hendrix, the retired Arizona judge who presided over Landrigan's trial, submitted a declaration on the defendant's behalf stating that "Mr. Landrigan would not have been sentenced to death,"2 if she had been given the medical evidence of the defendant's brain damage and other factors.
In my own practice, I currently am working on several cases of young people with Fetal Alcohol Spectrum Disorders (FASD) who face civil or criminal charges. One such case is Carlos, whom I describe in The Mystery of Risk; I will briefly relate his story here.
At 14 years of age, Carlos was charged with murder. Two years later he is still in juvenile lock-up, charged as an adult. A new defense attorney, recently assigned the case, has begun to find inconsistencies in the story. In meeting with Carlos's grandparents, he learned that his mother has been shunned by the rest of the family because of her relentless drinking and methamphetamine use, which had occurred uninterrupted throughout her many pregnancies. Carlos has bounced from one relative's home to another, but the child welfare system has never found cause to officially remove him from his birth home.
I met Carlos in an eight-by-eight-feet locked room painted a drab green. The linoleum floor was cracked and warped, and the round table that separated us wobbled on the uneven ground. The single source of light was a high window, allowing a small square of sunlight into the room.
Carlos met my gaze momentarily, but then averted his eyes as if any human connection were too much for him to tolerate. His round face showed no signs of prenatal alcohol exposure, and his shy smile, apparent as he warmed to me, communicated only feelings of loss.
Neurologically, Carlos was intact, consistent with his reported IQ in the mid-70s. He showed only mild deficits in fine motor skills. As we talked, he began to open up, but it was clear his thoughts didn't always connect, and his ability to express complex ideas was significantly limited. On simple tests of sequencing, he could complete no more than one-step commands at a time. Anything that required holding a series of thoughts in his head was lost in confusion. During these moments his frustration showed with increasing agitation, but he would then quickly collect himself and put up a show of bravado.
Carlos has yet to go to trial, and it remains to be seen what will happen to him. The facts against him are damning: his fingerprints were on the murder weapon and he confessed to the crime. Still, through our conversation a story emerged that, if true, jeopardizes the assertion of Carlos's having pulled the trigger. Carlos was present at the time of the shooting, a case of a drug deal gone bad. The shooter turned to Carlos after firing the fatal shot and handed the gun to Carlos. "Hold this for me, will ya'," he said. Carlos, eager to please, took the gun. As he told me in the interview, "I thought the cops wanted me to say yes when they asked me if I shot the guy, so I said, yes."
Carlos (a pseudonym) is being tried as an adult, even though my evaluation found that he meets criteria for a diagnosis of Alcohol-Related Neurodevelopmental Disorder (ARND) within the FASD spectrum. Due to significant deficits in executive functioning, he is unable to follow directions in a sequence, to associate cause and consequence, to make appropriate decisions, or to regulate his behavior or emotions in response to rules and social cues.
There are numerous such young men and women with FASD across the nation who currently are incarcerated on a wide variety of charges, including murder. Two issues repeatedly arise in these cases:
1. Should a juvenile with FASD who has committed a crime be tried as a juvenile or as an adult?
2. Should FASD be considered a mitigating factor in sentencing, especially in cases eligible for the death penalty?
To try to answer these questions, we have to examine what we know about prenatal alcohol exposure and its relationship to incarceration of youth and young adults.
1. Individuals with prenatal alcohol exposure can present with a wide range of physical and neurocognitive deficits that persist over a lifetime. Although Fetal Alcohol Syndrome, the full expression of the effects of prenatal alcohol exposure, is documented as the leading diagnosable cause of intellectual disabilities in the United States, the great majority of children affected by prenatal alcohol exposure have normal IQs and normal physical features. But although the children "look" normal, they have varying expressions of neurocognitive damage that inhibits executive functioning, decision making, emotional and behavioral regulation, learning, memory, sensory processing, and adaptive behavior.5
2. There are structural and functional changes that occur in the developing fetal brain when a woman drinks alcohol during pregnancy.6 The structural damage from alcohol exposure affects frontal lobe as well as limbic system growth and development.
3. There is a high rate of secondary mental illness in children and youth who meet criteria that place them within the fetal alcohol spectrum.7 In our own studies, 94% of children with FASD have a secondary mental health disorder.8
4. In one national prospective study, 60% of children with FASD eventually were incarcerated.9
In spite of these facts, which would appear to have significant bearing both on whether FASD should be considered a mitigating circumstance in sentencing and whether minors who committed a crime should be tried as juveniles, very few lawyers and judges have any knowledge of FASD. Following Mr. Landrigan's case, I contacted several judges, defense lawyers, and prosecutors to ask about their fund of knowledge regarding FASD. Only two of the ten professionals I contacted had any knowledge at all, and none gave any indication that FASD might be a mitigating factor in sentencing or in deciding whether a juvenile should be tried as an adult or as a juvenile. In fact, two defense lawyers stated they might be reluctant to present a defendant's diagnosis of FASD, fearing that doing so might make the sentence even harsher. In a brief review, we found 65 cases that discuss FASD in the context of mitigation. Some courts say FASD deserves to be considered as a mitigating factor, other courts say it does not, making it a tricky but interesting legal issue.
We are in an ethical conundrum. Children, youth, and young adults with FASD are more likely than not to end up before the court on criminal or civil charges, but the legal system has not come close to resolving how their cases should be treated. Most individuals with FASD have normal IQs, and most can relate a story as to how they ended up before the judge. Most can even state they understand the charges against them. But the truth is that neurocognitive damage that inhibits executive functioning, decision making, and emotional and behavioral regulation has tremendous bearing on the capacity of these individuals to understand the ramifications of their actions. These young people look normal, they speak normally, but they often have only a superficial understanding of the charges against them. Until the legal community recognizes and understands the neurocognitive difficulties faced by youth and young adults with FASD, we will continue to see young people charged as adults, incarcerated for life, or, as in the case of Mr. Landrigan, executed in the name of justice.
1. The New York Times. http://www.nytimes.com/2010/10/29/opinion/29fri1.html, accessed November 17, 2010.
2. Schriro v. Landrigan, 550 U.S. 465, 481 (2007).
3. Chasnoff IJ. The Mystery of Risk: Drugs, Alcohol, Pregnancy, and the Vulnerable Child. NTI Publishing: Chicago, Illinois, 2010.
4. Chasnoff IJ, Landress, HJ, Barrett,, ME. The Prevalence of Illicit-Drug or Alcohol Use During Pregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida. N. Engl. J. Med. 322: 1202-1206, 1990.
5. Chasnoff IJ, Wells AM, Telford E, Schmidt C, Messer G. Neurodevelopmental functioning in children with FAS, pFAS, and ARND. Journal of Developmental and Behavioral Pediatrics. 2010:192-201.
6. Astley SJ, Aylward EH, Olson HC, et al. Magnetic resonance imaging outcomes from a comprehensive magnetic resonance study of children with fetal alcohol spectrum disorders. Alcoholism: Clinical and Experimental Research. 2009; 33:1671-1689.
7. O'Connor, M. J., Shah, B., Whaley, S., Cronin, P., Gunderson, B., & Graham, J. Psychiatric illness in a clinical sample of children with prenatal alcohol exposure. The American Journal of Drug and Alcohol Abuse 2002; 28: 743-754.
8. Wells AM, Chasnoff IJ, Bailey GW, Telford E, Schmidt C. Mental health disorders among foster and adopted children with FAS and ARND. Illinois Child Welfare Journal. In press: 2011.
9. Streissguth, A. P., Barr, H.M., Kogan, J., & Bookstein, F.L. Understanding the occurrence of secondary disabilities in clients with fetal alcohol syndrome (FAS) and fetal alcohol effects (FAE): Final report to the Centers for Disease Control and Prevention on Grant No. RO4/CCR008515 (Tech Report No. 96-06). Seattle: University of Washington, Fetal Alcohol and Drug Unit, 1996.