Any social worker employed ina court or a criminal justiceenvironment is almost certain toencounter individuals with fetalalcohol spectrum disorders(FASDs) regularly. This isespecially true of individualswho are repeatedly in mentalhealth court, family court, drugcourt, delinquent court, criminalcourt, and other justice settings.One of the most commondisabilities, FASD predisposessufferers to involvement in alltypes of courts becauseprenatal alcohol exposurealters brain function.

An article in the Journal of theAmerican Medical Associationestimates FASDs to affect 2 to 5percent of people in the UnitedStates, but less than 1 percentof actual cases have beendiagnosed. (May et al, 2018).FASD is an umbrella term usedto describe the range of effectsthat can occur in an individualwho was exposed to alcoholwhile in the womb. Diagnosesthat fall under that umbrellainclude fetal alcohol syndrome,partial fetal alcohol syndrome,alcohol-relatedneurodevelopmental disability,alcohol-related birth defects,and neurobehavioral disabilityassociated with prenatalalcohol exposure. Theseconditions can cause one of

several characteristics, such asintellectual disabilities, learningdisabilities, andneurodevelopmentaldisabilities. Individuals with anFASD may have difficultypredicting the consequences oftheir actions and controllingimpulses; they may be easilypersuaded to take improperactions and find it hard tounderstand rules. Some personswith an FASD also do notrecognize dangerous peopleand situations. Thesechallenges make certainindividuals with an FASD morelikely to be involved in juvenileor adult court processes.

Due to the brain damagecaused by prenatal alcoholexposure, some individualswith an FASD exhibit severalsocial and behavioraldeficits that can result inlegal concerns:

impulsivity, which can lead•to actions like shoplifting;social ineptness (trouble•recognizing andinterpreting verbal andnonverbal social cues anddifficulty learning socialconventions);no understanding of rules•and/or the concept ofownership, which can lead

to taking things that don’tbelong to them;poor judgment (inability to•reason and choose rightfrom wrong);overreacting to minor•incidents due to an over-release of cortisol(explosive behaviorepisodes);problems understanding the•consequences of behavior;vulnerability to negative•peer pressure and bullies;difficulty following verbal•instructions, resulting inappearing not to careabout what is being said;naïveté and gullibility,•which can lead tobecoming an accomplice; running from police out of•fear; and confessing to crimes that•they didn’t commit becausethey are saying what theythink is expected.

Often offenders withFASD typically commitunreasonable crimes—that is, those with a highrisk for little reward—engage inminor offenses with little to noescalation, repeat the samecrime multiple times and arealways surprised when they getin trouble, and commit crimeswith little to no planning. Theystruggle to follow probationand parole and may havetrouble linking unlawfulbehavior to the punishment; thismeans that the unlawfulbehavior generally continuesdespite imprisonment, fines, orother punishments.

Many families enter the childwelfare system through thedependency and delinquencycourts due to drug and alcoholabuse. Studies found that 16.9percent of children in the childwelfare system have FASDs

DAVID DEERE, MSW, MTH, LCSWWILLIAM J. EDWARDS, JDDAN DUBOVSKY, MSWLEIGH TENKKU LEPPER, PHD

INDIVIDUALS WITH FASD ANDTHE COURTS: What SocialWorkers Need to Know

(Lange, Shields, Rehm, &Popova, 2013) and that youthswith FASDs are 19 times morelikely to be incarcerated thanyouths without FASDs (Popova,Lange, Bekmuradov, Mihic, &Rehm, 2011). Childrenentering those systems shouldbe routinely screened forFASDs and evaluated whenindicated, even if concerns arenot easily apparent.

In 2012, the American BarAssociation passed a resolutionadvocating for “training toenhance awareness of FASDand its impact on individuals inthe child welfare, juvenilejustice, and adult criminaljustice systems and the value ofcollaboration with medical,mental health, and disabilityexperts.” The resolution furtherurges “the passage of laws andadoption of policies at all levelsof government thatacknowledge and treat the

effects of prenatal alcoholexposure and better assistindividuals with FASD” (ABA,2012, para 1). The resolutiondiscusses why people with anFASD should receive servicesfrom developmental disabilityorganizations. On September19, 2012, a state law went intoeffect in Alaska that providesfor the consideration of anFASD as a mitigating factor incriminal case sentencing.

Children who are prenatallyexposed to alcohol are morelikely to experience anegative early environment,including:

developmental delays;•abuse and neglect;•exposure to trauma;•disrupted attachment;•parental loss; and•frequent hospitalizations,•suicide attempts, and fostercare placements.

Such children also showdeficits in communication,daily living skills, andsocialization. These deficits arenot necessarily attributable todeficits in IQ and can last alifetime; therefore, it is crucialthat these children have earlyidentification, diagnosis, andintervention, including servicesfrom the state department ofdevelopmental disabilities.

Without an understanding ofthe physically based cognitivechallenges faced by individualswith an FASD, behaviors canbe misinterpreted as willfulmisconduct, deliberatedisobedience, or maliciousintent—when they are often justthe opposite. Individuals withan FASD can be impulsive.They may have information-processing deficits that impairlearning, remembering, anddemonstrating skills. Individuals,regardless of age, may have

learning difficulties in some orall academic areas as well asbehavior challenges.

Unless they are diagnosed(preferably early in life) andreceive supportive servicesthrough special education,individuals with an FASD maynot succeed academically andmay be labeled as lazy, bad,or unmotivated. Oncediagnosed with an FASD,individuals should be referredfor disability services; however,many disability agencies do notrecognize FASDs, especially inpeople with an IQ higher than70, a trait commonly found inthose with an FASD. Attorneysrepresenting clients with anFASD should argue that theywere born with a developmentaldisability and have permanentbrain damage that often resultsin reduced adaptive behavioralskills. Without proper services,many people with an FASD will

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end up in the criminal justicesystem or in psychiatricinstitutions. Social workers withclients who have an FASDmight also apply forSupplemental Security Income,(SSI) to help clients with theirfinancial needs.

The socio-emotional andcommunication developmentof those with an FASD isoften delayed; therefore,when questioning andgiving instructions, it isimportant to adjustexpectations to match thoseof persons who are muchyounger. Individuals with anFASD often have expressivelanguage skills that are farmore developed than theirreceptive language, causingothers to assume theyunderstand more than theydo. Because of this unusualcommunication profile, itmay be useful to:

use simple, short sentences•and clear, literal terms;keep questions short and•calmly prompt for answers;provide one instruction •at a time;speak slowly and repeat•often;avoid legalese and•acronyms;use visual aids wherever•possible;confirm personally that •the individual understandskey concepts and his or her rights;be attentive to the fact that•individuals affected by anFASD have a desire toplease and fit in and maypretend to understandwhen they don’t; andbe attentive to nonverbal•cues as well as cues thatyou, as a social worker,may be giving, such asfrustration.

Some other activities that•can increase the likelihoodof success in working withpersons with an FASDinclude the following.Advocate for legislation•that includes FASD as adevelopmental disability sothat children and adults willqualify for state services.Collaborate with medical,•mental health, anddisability experts topromote appropriate legalrepresentation andadvocacy for individualswith an FASD.Convey to the judicial and•larger community the needfor screening, diagnosis,and treatment for FASDs.Educate families on how•best to support their lovedones with an FASD.Become informed on•existing resources andadvocate for resources tofill in the gaps within thecontext of judicial ethics. Identify those who have•interests and abilities tolead both in the courtroomand in the community onFASD issues.Advocate for legislation•like that in Alaska, whichrecognizes FASD as amitigating factor forjuveniles and adults duringsentencing.Docket for a one-family-•one-judge model acrosscase types, which willprovide consistency forpersons with an FASD.

David Deere, MSW, MTh, LCSW, is the director of Partners for InclusiveCommunities at the University ofArkansas. He can be contacted atdeere@uark.edu.

William J. Edwards, JD, is deputypublic defender III in the Office of the Public Defender, Los AngelesCounty Mental Health Court. He can be contacted atWEdwards@pubdef.lacounty.gov.

Dan Dubovsky, MSW, is a privateconsultant on FASDs. For 14 years, hewas the FASD Specialist for theSubstance Abuse and Mental HealthServices Administration FASD Centerfor Excellence. He can be contacted atddubovksy@verizon.net.

Leigh Tenkku Lepper, PhD, is anassociate research professor in theMaster in Public Health program atthe University of Missouri. She can becontacted at tenkkul@missouri.edu.

REFERENCESAmerican Bar Association.(2012). ABA resolution112B. [Online]. Retrievedfrom www.americanbar.org/content/dam/aba/administrative/mental_physical_disability/Resolution_112B.authcheckdam.pdf.

Lange, S., Shields, K., Rehm,J., & Popova, S. (2013).Prevalence of fetal alcoholspectrum disorders in childcare settings. Pediatrics,132, e980-e995.

May, P., Chambers, C.,Kalbert, W., Zellner, J.,Haruna, F., Buckley, D.,,…Hoyme, H. E. (2018).Prevalence of fetal alcoholspectrum disorders in 4 US

communities. Journalof the AmericanMedical Association,319(5), 474-482.doi:10.1001/jama.2017.21896

Popova, S., Lange, S.,Bekmuradov, D., Mihic, A., & Rehm, J. (2011). Fetalalcohol spectrum disordersprevalence estimates incorrectional systems: Asystemic literature review.Canadian Journal of PublicHealth, 102(5), 336-340.

RESOURCESAlaska Statues Title 12. Codeof Criminal Procedures §12.55.155. Factors inaggravation and mitigation

Resources for social workersin court settings

• Substance Abuse and MentalHealth Services Administrationtreatment locator Web site:https://findtreatment.samhsa.gov/

• National Organization forFetal Alcohol SyndromeWeb site: www.nofas.org

• Fetal Alcohol SpectrumDisorders: Implications forJuvenile and Family CourtJudges. Technical assistancebrief. National Council ofJuvenile and Family CourtJudges, Reno, Nevada,2015: www.ncjfcj.org/FASD-Guide

• FAS/FAE Legal IssuesResource Center: Sentencingand Supervising OffendersWith an FASD:www.americanbar.org/content/dam/aba/administrative/child_law/sentencing.authcheckdam.pdf

• FASD Legal Experts, ForensicExperts: This site is intendedto educate legal and medicalprofessionals about FASD

standards of care. The site’screators also adviseprosecutors and defenseattorneys in cases involvingFASDs:www.fasdexperts.com/

• FASD and the Justice System,Canada-focus: This site walksyou through all steps of thelegal system, frominvestigation to trial tosentencing, to give you abetter understanding of howFASDs and criminal justiceinteract in Canada:www.fasdjustice.ca/

• A Judge’s Perspective on aHidden Challenge of FASD inthe Justice System:https://ici.umn.edu/products/impact/301/FASD-Courts/#FASD-Courts

• Fact sheet from The Arc:FASD: Pathways to Justice:www.thearc.org/file/documents_initiatives_nccjd/NCCJDFactSheet_FASD-Copyright--BJA.pdf

• Competency of IndividualsWith Intellectual andDevelopmental Disability inthe Criminal Justice System:A Call to Action for theCriminal Justice Community:www.thearc.org/what-we-do/programs-and-services/national-initiatives/nccjd/NCCJD-White-Paper-Competency-of-Individuals-with-IDD-in-the-Criminal-Justice-System?erid=9023505&trid=b5d49e72-ea09-4a0a-9e39-f96f5820d1e7

• Policing Persons WithDisabilities in the 21stCentury: A Call for CrisisPrevention and ProceduralJustice – Page 38:www.policechiefmagazine.org/wpcontent/uploads/PoliceChief_March_2017_WEB.pdf

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