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Journal of Psychiatry & Law 39/Spring 2011
A judicial perspective on issues impacting the trial courts related to Fetal Alcohol Spectrum Disorders BY HON. ANTHONY P. WARTNIK, J.D. AND HON. SUSAN SHEPARD CARLSON, J.D.
This article explores issues that judges, prosecutors, defense counsel, treatment providers, and defendants face when a person who has, or may have, Fetal Alcohol Spectrum Disorders (FASD) is charged with a crime. The article is divided into three sections: the first section discusses basic legal concepts and how they relate to those in the criminal justice system who suffer from FASD; the second section examines case studies and lessons learned from the therapeutic drug court, a program of the King County Superior Court in Seattle, Washington; the final section presents case studies of serious felonies, and explores constitutional issues. KEY WORDS: FASD, criminal justice system, therapeutic drug court, competency, mitigation. AUTHORS’ NOTE: For additional information about this article contact: The
Honorable Anthony Wartnik, 8811 SE 55th Pl., Mercer Island, WA 98040. Email:
[email protected]. The authors wish to acknowledge a colleague who contributed to this article. Judge Barbara Mack is a member of the Superior Court of the State of Washington, County of King, in Seattle. Judge Mack came to the court after a long and highly successful career as a Senior Deputy King County Prosecutor. Prior to joining the bench, Judge Mack served as the lead prosecutor in Drug Court where she had substantial experience in handling cases involving people with FASD. As a judge she has also experienced defendants with FASD. Her insights have been invaluable to us. Judge Mack provided the authors with case studies from her experiences as a prosecutor and judge and served as our tireless editor. © 2011 by Federal Legal Publications, Inc
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This article explores issues that judges, prosecutors, defense counsel, treatment providers, and defendants face when a person who has, or may have, Fetal Alcohol Spectrum Disorders (FASD) is charged with a crime. The article is divided into three sections:
I.
1.
The first section discusses basic legal concepts and how they relate to those in the criminal justice system who suffer from FASD. This includes the myths and facts about FASD, why assessments are necessary and how to determine whether they should be conducted, the right to diagnosis, identification of the various means of diagnosis, including a discussion of the most effective approach, the necessity of obtaining a timely diagnosis, the importance of hands on forensic examination of the client by experts, the relationship between FASD and other mental-health issues, and trouble with the law. It also discusses issues related to effective assistance of counsel, and identifies effective sentencing and supervision considerations and alternatives.
2.
The second section examines case studies and lessons learned from the therapeutic drug court, a program of the King County Superior Court in Seattle, Washington, one of several therapeutic specialty courts that exist in the King County and City of Seattle court systems. These case studies illustrate the difficulties presented by FASD defendants in the criminal justice system, and the rewards when existing programs work.
3.
The final section presents case studies of serious felonies, and explores constitutional issues such as competency to stand trial, pleas of guilty, and not guilty by reason of insanity, consent to search, knowing and intelligent waiver of Miranda Rights, diminished capacity, how mental retardation and adaptive behavioral deficits relate to death penalty considerations in capital cases, and mitigation in capital and non-capital cases. The discussion of death penalty considerations includes major United States Supreme Court decisions dealing with age, mental retardation, and sentencing of juveniles charged with crimes other than murder.
The basics of the relationship of the criminal justice system and FASD The fundamental principles of our Anglo-Saxon common law provide the framework for our adult and juvenile criminal justice systems. The application of these principles in
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juvenile cases is subject to expanded considerations. The juvenile justice organizing principles include a recognition that children are less responsible than adults and that the best interest of the child is a paramount consideration in all juvenile proceedings. The first principle is that: The treatment of criminal offenders as rational, autonomous and choosing agents is a fundamental organizing principle of our criminal law ( R. v. Ruzik, 2001, at p. 694). The second principle is: This is a fundamental condition upon which criminal responsibility reposes. Individuals have the capacity to reason right from wrong, and thus choose between right and wrong. It is these dual capacities—reason and choice—which give the moral justification to imposing criminal responsibility and punishment on offenders. If a person can reason right from wrong and has the ability to choose right from wrong, then attribution of responsibility and punishment is morally justified or deserved when that person consciously chooses wrong. (R. v. Ruzic, 2001, p. 894; citing, Ferguson, G. 1989, pp. 135,140)
The third principle is succinctly stated in the context of an FASD case by the Supreme Court of Florida: Evidence concerning certain alcohol-related conditions has long been admissible during the guilt (and mitigation) phase(s) of criminal proceedings to show lack of specific intent (and diminished capacity) . . . (I)f evidence of a self-induced condition such as voluntary intoxication is admissible, then so too should be evidence of other commonly understood conditions that are beyond one’s control, such as epilepsy. . . . Just as the harmful effect of alcohol on the mature brain of an adult imbiber is a matter within the common understanding, so too is the detrimental effect of this intoxicant on the delicate, evolving brain of a fetus held in utero. As with epilepsy, infancy or senility . . . we can envision few things more certainly beyond one’s control than the drinking habits of a parent prior to one’s birth. We perceive no significant legal distinction between the condition of epilepsy . . . and that of alcohol-related brain damage in issue here—both are specific, commonly recognized conditions that are beyond one’s control. (Dillbeck v. State, 1994, p.217)
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With the above principles in mind, the next step is to recognize the myths that surround FASD compared to the facts. The most commonly stated myths are: 1.
FASD is a temporary condition.
2.
FASD is a diagnosis or condition lacking in objective findings.
3.
FASD is a condition lacking scientific support.
4.
FASD is a diagnosis conceived of by lawyers and mental health providers to excuse criminal behavior.
5.
FASD cannot be diagnosed without direct evidence that the mother drank during pregnancy.
6.
Because alcohol exposure in utero results in permanent brain damage, individuals so afflicted cannot be helped and, thus, need to be incarcerated in order to protect the public.
The actual facts are: 1.
FASD is a condition involving behavioral problems rooted in permanent organic brain damage.
2.
The reality of the FASD condition is supported by over 30 years of scientific study and research with indisputable objective findings.
3.
FASD is a condition, which, if not diagnosed and treated at the earliest possible stages of child development, can lead to costly and often devastating secondary disabilities.
4.
Some offenders with FASD are not be held responsible for their criminal actions due to incompetency or insanity.
5.
Some offenders with FASD are held responsible for their criminal actions but will receive consideration due to diminished capacity.
6.
Some offenders with FASD are held responsible for their criminal actions and will receive lengthy incarceration due to the need for community safety (due to violence and recidivism) and the inability to successfully treat the offender in the community.
7.
Modern diagnostic standards do not require confirmed prenatal exposure to alcohol in all cases to make a diagnosis of FAS. Circumstantial evidence to support a finding of FASD may include:
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8.
a.
mother’s abuse of alcohol prior to conception
b
other biological children who died either shortly before or shortly after birth of the the subject child
c.
a brain abnormality that is consistent with the subject having suffered from alcohol exposure in utero
Many people with FASD are treatable and improve their behaviors if provided the right therapeutic techniques, and if appropriate structure and support systems are put in place.
Understanding the fundamental principles underlying the justice systems and the myths and facts about FASD, we can put the problem that FASD presents in proper perspective. The most basic issue is that many people afflicted with FASD often are not: 1.
Rational
2.
Autonomous
3.
Choosing agents.
4.
Able to reason right from wrong
5.
Able to choose right from wrong
Because many of those persons with FASD have organic brain damage that renders them incapable of controlling certain behaviors and unable to learn from their mistakes and from the mistakes of others, society and our justice systems need to adjust their expectations of how people afflicted with FASD should conduct themselves in society. They must adjust penal consequences in appropriate cases so they are consistent and compatible with the reasonable expectations of behavior for this population and the realization that normal sanctions are not likely to deter inappropriate behavior, while recognizing that they must also be consistent with community protection. This represents a paradigm shift in societal and judicial response to criminal behavior for people with FASD. We should treat people severely affected by FASD as we now treat the criminally insane and others, who are otherwise incompetent to stand trial or to be executed due to mental retardation or being under age 18. • P+L //\\ Spring 2011 art. by: Wartnik et al.
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Appellate criminal justice decisions grappling with FASD
TRIAL COURTS AND FASD
A number of informative and relevant appellate decisions recognize FASD as a condition that carries with it the right to the same fundamental common law and constitutional rights available to those who are insane or suffer from diminished capacity, mental retardation and other conditions. The cases consider whether criminal conviction and punishment, and the degree of punishment, are appropriate, and the steps necessary to ensure the rights of persons afflicted with or suspected of being afflicted with FASD. In Dillbeck, the Florida Supreme Court addresses the underlying issue presented by this complex condition: of a person with FASD, because of alcohol exposure in utero. The court held that a person with FASD is not responsible for his or her brain damage and may not be responsible or fully responsible for the behaviors caused by the FASD. The Dillbeck court held that “evidence of FAE (Fetal Alcohol Effects, which comes under the FASD umbrella) should be admitted at the guilt phase of a trial if offered to show that the defendant lacked the mental state (here premeditation) that is part of the crime” (Dillbeck v. State, 1994, p. 1029, 30). The Federal 10th Circuit case of Castro v. Oklahoma (1995) followed Dillbeck by a year and held that the defendant was entitled to a court appointed and funded expert to help develop evidence regarding five different problems, including FAS and FAE. The Castro court ruled that: When a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. If sanity or mental capacity defenses (are) to be defense issues they must be established by a clear showing by the indigent defendant as genuine, real issues in the case. In order for a defendant’s mental state to become a substantial threshold issue, the showing must be clear and genuine, one that constitutes a close question which may well be decided one way or the other. It must be one that is fairly debatable or in doubt (Castro v. Oklahoma, 1995, p. 1512). However, the Castro court noted that the indigent defendant must estab-
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lish “the likelihood his mental condition could be a significant mitigating factor.” (Ibid., p. 1515, [internal citations omitted])
In Silva v. Woodford (2002), the Ninth Circuit held that the defendant was convicted and sentenced to death while the codefendants received 11 years and life with the possibility of parole. Silva told his trial attorney that he did not want his parents called as witnesses. As a result, the attorney did not investigate Silva’s background, which might have alerted him to Silva’s mental health history, incarceration record, history of drug usage, and family background. Counsel hired a psychiatrist to evaluate his client, but provided no information or direction on the type of evaluation to be performed. At Silva’s habeas corpus hearing, where the evidence admitted was limited (Corpus is a reference to a habeas corpus proceeding, initiated by bringing a writ and is derived from our English Common Law, meaning “bring the body before the court.” It is used in an effort to obtain release from unlawful imprisonment.), counsel submitted post-conviction evidence from a psychiatric expert and social worker that Silva had been severely abused and neglected as a child by alcoholic and impoverished parents; that he may suffer from organic brain disorders resulting from Fetal Alcohol Syndrome (FAS); that he likely suffers from Post Traumatic Stress Disorder (PTSD); that he suffered from Attention Deficit Hyperactive Disorder (ADHD), which led to repeated failures in school and eventual self-medication through illicit drug use; and that at the time of the crime, he was probably suffering from amphetamine-induced organic mental disorders and withdrawal symptoms (Silva v. Woodford, 2002, p. 846, fn. 17). The same psychiatrist also indicated he would need to do further analysis and review in order to form opinions as to whether Mr. Silva had the capacity to form the requisite mental states for the crimes, and whether there was compelling evidence of mental impairment at the time of Silva’s post-crime adoptive admissions that would affect their admissibility at trial (Ibid., p. 849, fn. 24). The court concluded
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that counsel’s failure to investigate the possibility of FAS and the other possibly mitigating conditions at the penalty phase of the trial, and the lack of justification for that failure, constituted ineffective assistance of counsel. On the other hand, the court found no ineffective assistance regarding the evidence of Silva’s mental state and ability to make knowing and intelligent admissions at the guilt phase of the trial (See, also, Hurst v. Florida, 2009). But the same standard does not necessarily apply in noncapital cases. Contrast Silva with the case of Lambert v. Blodgett (2004). In Lambert, the State of Washington charged a juvenile with murder and the case was transferred to adult court where he pled guilty and was sentenced to life in prison without the possibility of parole. The defendant filed a habeas corpus petition alleging ineffective assistance of counsel for, among other things, failure to investigate Mr. Lambert’s background, including his alcohol exposure in utero. Although defense counsel apparently hired an investigator, the allegation was that he failed to provide sufficient information about his client’s background for a meaningful investigation. In upholding the trial court and reversing the federal district court, the Ninth Circuit Court of Appeals said that the courts have never imposed a duty to investigate in a non-capital case. The Lambert court also noted that there was no evidence of prejudice, which would require the court “to conclude that the discovery of FAS evidence would have led Romero to change his recommendation as to the plea, which, in turn, depends on the likelihood that a defense premised on FAS would have succeeded at trial” (Lambert v. Blodgett (2004), p. 983). In a Washington case, State v. Brett (1995), following the defendant’s conviction for aggravated murder in the 1st degree, counsel requested a 1 month delay of the penalty phase of the trial in order to obtain a diagnosis regarding FAS/FAE. The trial court denied the motion. The Washington Supreme Court held that the denial of the motion to continue was not improper and affirmed the death penalty sentence. • P+L //\\ Spring 2011 art. by: Wartnik et al.
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The court said the defense did present testimony from a chemical dependency and mental health counselor about the symptoms exhibited by persons suffering from FAS and FAE, and about what causes those conditions. In addition, witnesses testified about Brett’s upbringing and behavior which allowed the defense to argue and the jury to infer that Brett suffered from FAS or FAE. The court also noted that a defense expert testified that a diagnosis of FAS/FAE would place nothing more than a label on Brett’s lower intelligence and behavior problems, evidence which was already before the jury. Therefore the court concluded that the defense had a sufficient basis to argue for mitigation. Brett’s conviction was later overturned based on ineffective assistance of counsel (In re Brett, 2001). In the New Jersey case of State v. Cooper (2009), defense counsel did not follow up on evidence that suggested the possibility of FAS or FAE but presented evidence at trial that defendant’s parents both consumed alcohol when defendant was in the mother ’s womb. The jury, in response to interrogatories regarding mitigating circumstances, unanimously found that Cooper was born to drug- and alcoholaddicted parents. This was the only unanimously found mitigating factor of 18 submitted to the jury, which ultimately found that aggravating factors outweighed mitigating factors. Only two jurors found that his mother’s consumption of alcohol during pregnancy resulted in defendant’s physical and developmental disabilities. The court rejected the claim of ineffective assistance of counsel for not further developing a fetal alcohol theory because the jury already had evidence before it of the mother’s drinking during pregnancy and its effect on the fetus (defendant), as well as other evidence of his childhood abuse and neglect. Had counsel presented the evidence, psychologists who had testified at the ineffective assistance of counsel hearing after the conviction, would likely have testified at the earlier penalty phase. They would have explained the nexus between Cooper ’s physical and developmental disabilities and his behavior. • P+L //\\ Spring 2011 art. by: Wartnik et al.
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TRIAL COURTS AND FASD
The cases cited above underscore the heavy burden on defense counsel to identify and investigate as early as possible any potential defenses related to FASD. Early identification and investigation will (a) preserve any such defenses and (b) prevent later claims of ineffective assistance of counsel. This is particularly true because the law of many states is that once the court imposes sentence it may not modify or alter the sentence. As a result, if the court receives an expert report after sentencing, it cannot reduce or alter the original sentence. However, some states such as Alaska allow reduction of a sentence within 180 days of the original sentence. The Michigan case of People v. Wybrecht (1997) exemplifies this trend; but, it is notable for its detailed dissent that discusses this defendant’s diagnosis with FASD at the age of three, and his subsequent successful involvement in structured FAS programs. He had no criminal convictions prior to this case, where he was convicted of molesting a 5-year-old nephew. Defense counsel has other challenges when dealing with clients with FASD. The U.S. Supreme Court case of Schriro v. Landrigan (2007) upheld the District Court’s denial of an evidentiary hearing concerning the effects of FAS on the defendant. Landrigan was sentenced to death in Arizona on a murder charge and executed on Tuesday, October 26, 2010 while this article was being written. On a federal habeas corpus petition, counsel had sought an evidentiary hearing on defendant’s claim of ineffective assistance of counsel, based on failure to investigate and offer mitigating evidence at the penalty stage. The Supreme Court of the United States noted that it had never imposed a requirement that a defendant’s decision not to present mitigating evidence must be informed and intelligent. This case raises an important question, not explored in this article, about whether and how defense counsel can work with experts to prepare a defendant with FAS for various phases of a case. The five-to-four United States Supreme Court decision in Rompilla v. Beard (2005) provides a different result. • P+L //\\ Spring 2011 art. by: Wartnik et al.
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Rompilla was convicted of murder and sentenced to death. He claimed that had counsel looked at the records from his similar prior conviction, they would have obtained school, medical, court, and prison records that would have revealed significant mitigating evidence about his childhood, mental capacity, health, and alcoholism. Psychologists examined him after sentencing and reviewed records that the attorney had failed to obtain, and concluded that Rompilla’s problems related back to his childhood and were likely caused by FAS. They also found that his capacity to appreciate the criminality of his conduct or conform his conduct to the law was substantially impaired at the time of the offense. This split decision held that these facts constituted ineffective assistance of counsel since counsel knew that the prosecution would be relying on the very same records as evidence of aggravation, and because review of the records would have uncovered “a range of mitigation leads that no other source had opened up” (Rompilla v. Beard, 2005, pp. 383-84). Effective use of experts in presenting evidence of FASD
Case law has established the right to the appointment of experts to evaluate the accused for the presence of FASD, and the right to public funding thereof in indigent cases (Castro v. Oklahoma, 1995). What, then, constitutes the most effective means of diagnosis and presentation of forensic testimony? There are several approaches. Some attorneys have clients evaluated by a single evaluator, some by nonmedical health care provider evaluators, and some use a team of evaluators with both medical and nonmedical providers. Some lawyers approach the problem like personal injury lawyers, and an expert renders opinions based solely upon record review, while others will have their experts conduct hands-on examinations of the client along with the record review. Where attorneys rely on record review, use of a team of experts can be invaluable. There is no place for cherry picking or cutting corners in order to save a buck. A successful outcome is more likely where the evaluators work together.
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There must be complete, open and straightforward sharing of information and ideas to flesh out inconsistencies in the conclusions and testimony of the experts, and to avoid inconsistencies wherever possible. Additional experts may have to be retained as new issues develop, but they need to collaborate with the basic team to minimize the risk of one expert being pitted against the other on cross-examination. However, honest disagreements among experts should be addressed and seriously considered, not glossed over or hidden for the purpose of obtaining a particular outcome. The team approach is most likely to succeed because FASD assessment is complex and requires a medical diagnosis that relies on specialized physical and psychological evaluations. At least two experts, and preferably three (including a neuropsychologist), are needed for a full assessment. Medical diagnosis may yield an answer as to whether the client has FASD, but not the client’s mental state at the time the crime was committed. The psychologist or psychiatrist and neuropsychologist can provide important information regarding the client’s volitional control and cognitive functioning and comorbidities. In addition, the team’s forensic experts can provide information on issues of competency to consent to search and stand trial, to plead guilty, or not guilty by reason of insanity, to waive Miranda Rights, and to raise mental defenses. For purposes of mitigation, evidence of “the nexus” will make the crucial connection between FASD and the past and subject criminal behaviors of the defendant. Combined forensic team testimony should leave very few important questions unanswered and it is the best vehicle to identify and refine the tools or protocols to be used in the assessment process. A hands-on examination, combined with a record review, provides the best use of forensic experts in the courtroom, and maximizes the potential for a successful result. The courts have not yet reached a consensus on whether record review of a defendant’s medical records and social history • P+L //\\ Spring 2011 art. by: Wartnik et al.
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alone constitute a sufficient basis for an expert’s opinion without the conduct of a physical examination of the client. In Hicks v. Schofield (2004), the defendant was convicted of murder and sentenced to death. His application for a certificate of probable cause to appeal and stay his execution was denied by the state Supreme Court. The state Supreme Court’s Chief Justice, in dissent, contended that the majority ignored a substantial and credible claim of mental retardation based in part on Hicks’ FAS diagnosis. The defense retained a doctor who reviewed Hicks’ records but the state denied him access to Hicks in the jail. As a result, the doctor was unable to give a definitive diagnosis of mental retardation. The dissent found such denial to be a constitutional violation. However, the United States Supreme Court denied a petition for certiorari letting the conviction and sentence stand. Where an expert has based the opinion on both a physical examination and review of school, medical, prison records, and other records, the courts appear likely to give significant weight to the opinion. In the Louisiana Federal District Court case of U.S. v. Nelson (2006), for example, the federal district court judge held a pre-trial evidentiary hearing and found that Nelson was ineligible for the death penalty due to his mental retardation. The court relied upon the definition of mental retardation in the United States Supreme Court case of Atkins v. Virginia (2002), which combined the American Psychiatric Association standard and the standard contained in the DSM IV and the standard of the AAMR. The court held that the execution of mentally retarded persons violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The combined definition includes, from DSM IV, (a) having an IQ of approximately 70 or below or two standard deviations below the mean (b) concurrent deficits of impairments in adaptive functioning in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, selfdirection, functional academic skills, work, leisure, health and safety; and (c) the onset of such symptoms before age 18. • P+L //\\ Spring 2011 art. by: Wartnik et al.
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Three psychiatrists administered tests to Nelson and concluded that he met each of the criteria. One doctor testified that her diagnosis was “partly attributable to the fetal alcohol exposure that Nelson suffered, as children exposed to alcohol in utero have a higher instance of mental retardation and learning disabilities.” She also noted that this case presented “one of the worst deprived environments that there could possibly be,” including severe physical abuse (p. 897). Nelson and the Federal Ninth Circuit decision of Stankewitz v. Woodford (2004), also support the proposition that the team approach to forensic testimony best advances the cause of the defendant with FASD. In Stankewitz, the defendant was convicted of murder and sentenced to death. Three experts agreed that he had brain damage and would have testified had his lawyer so requested. One expert testified that Stankewitz did not seem to be “fully able to appreciate the flow of events or full implications of his actions.” Another medical expert opined that he “is borderline retarded, with an IQ of 79, and suffers from significant brain dysfunction, perhaps attributable to FAS and childhood abuse.” The third expert stated that his brain damage “would produce problems with emotional control, tendencies to be impulsive and unpredictable, and to be unable to exercise adequate judgment or to understand the consequences of his behavior.” The court found that the mitigating facts alleged by Stankewitz, which included organic brain damage, “perhaps attributable to FAS and childhood abuse” constitute “the kind of troubled history [the Supreme Court has] declared relevant to assessing a defendant’s moral culpability” (pp.718, 723 [internal citations omitted]). Judges and attorneys in the criminal justice system can only respond appropriately to those who suffer from FASD and commit crimes if they understand FASD and how it affects behavior. The organic brain deficits and secondary disabilities caused by fetal alcohol exposure, and lack of early childhood detection, result in difficulty associating • P+L //\\ Spring 2011 art. by: Wartnik et al.
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cause and effect, difficulty learning from experience, and difficulty adapting to change. These characteristics result in inconsistent and erratic behavior, and can affect an attorney’s ability to explain and justify his or her client’s behavior. Other mental health problems frequently accompany a diagnosis of FASD. Ninety-four percent may have at least one comorbid diagnosis in adulthood (52% depression, 43% suicide threats, 33% panic attacks, 29% psychosis, 23% suicide attempts, and 40% ADHD) (Streissguth, Barr, Kogan, & Bookstein, 1996). More pertinent to our discussion, and cause for community concern, is the fact that approximately 60% of all individuals with FASD get in trouble with the law and about 40% end up incarcerated and/or hospitalized (Streissguth et al., 1996). Because FASD impairs the ability of people to function in society, the impact of contact with the criminal justice system can aggravate, ameliorate, or mitigate their impairments. As a result of organic brain damage and secondary disabilities, some people commit crimes they don’t understand; some people are accused of crimes they didn’t commit and confess to them; some people have been convicted of crimes that never happened and confess to them. Some people have committed crimes and are doomed to get caught in the justice system’s revolving door unless we in the justice system and society do things differently. We can help prevent this from happening if those with FASD are identified early in life and provided the treatment and structure that will allow them to function in society. Professionals need to be trained to provide understanding of the behaviors of people with FASD in order to improve their behaviors, the success of which has been shown in the training of prison guards (Streissguth, 1998). If they do exhibit criminal behavior, whether or not identified as FASD, the legal system should identify them as potentially FASD if their behaviors so indicate, determine whether they have FASD, whether they are safe to be in the community, and if so, how best to help them lead productive lives. • P+L //\\ Spring 2011 art. by: Wartnik et al.
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The attorney must determine whether the facts justify an FASD assessment for a criminal defendant. The following steps will provide guidance: 1.
Ask questions to determine mom’s alcohol use during pregnancy and determine whether the defendant comes from a family that abuses alcohol or other drugs.
2.
Identify the defendant’s behaviors from birth to the present.
3.
Identify the criminal history and type(s) of crime(s) committed (e.g., frequent contact with the justice system, especially with similar kinds of cases, nonsensical criminal behaviors, especially with little or no expectation or likelihood of gain).
4.
Identify the defendant’s cognitive and functional abilities and limitations.
5.
Identify the presence of red flags such as problems in school, disrupted education and the existence of an IEP, adoption, multiple foster-home placements, prior mental-health treatment/hospitalization(s), and/or other mental-health diagnoses (FASD may be the most basic one that has been missed), short physical stature, the presence of facial abnormalities. Seek pictures of the defendant as a toddler and young person as abnormalities are likely to disappear as the defendant ages through the teens.
6.
Inquire about the existence of siblings and extended family who have been diagnosed with FASD.
When appropriate, a judicial order should be obtained for an evaluation by experts who are skilled in the diagnosis of FASD, ADHD, ADD (Attention Deficit Disorder), Bipolar Disorder, Reactive Attachment Disorder (RAD), PTSD, and other prevalent mental conditions and disorders. The appendix is an easy-to-use screening questionnaire which includes many of the red flags listed above and was designed by a forensic FASD diagnostic team composed of a psychiatrist, a psychologist, a neuropsychologist, and one of the co-authors as the legal director. Beyond diagnosis, the fact that a person has FASD could affect or be affected by prosecution and sentencing in the following ways: • P+L //\\ Spring 2011 art. by: Wartnik et al.
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1.
It may result in a finding of incompetency to commit the crime or incompetency to consent to a search, or to knowingly and intelligently waive Miranda rights.
2.
It may reduce culpability of the criminal conduct.
3.
It may require different measures to reduce the chances of recidivism and future criminal behavior.
4.
A sentencing may aggravate or alleviate the preexisting difficulties of functioning in society.
5.
The diagnostic team should consist of skilled forensic clinicians to make a difference in the outcome.
What is needed to implement a sentence and post-sentencing supervision approach that will maximize the likelihood of a successful outcome? The attorneys, probation presentence investigators, judge and probation officers should consider 10 principles of sentencing. A full discussion of these principles can be found in an article by co-author Anthony P. Wartnik (2007). The 10 principles are: 1.
Consider whether the disability involves reduced culpability and thus warrants the imposition of less severe sanctions.
2.
Advocate for less lengthy incarceration (or none) when reasonably possible and when consistent with community protection.
3.
Seek/impose milder but targeted sanctions.
4.
Seek/impose a longer term of supervision.
5.
Use the judge’s position of authority (stature) with the offender (most offenders with FASD want to please and respond well to judicial authority).
6.
Get a sponsor or advocate for guidance, monitoring and assistance.
7.
Create structure in the offender’s life. Offenders with FASD respond well to a clear structure, simply stated direction and concrete language, and a predictable and consistent routine and set of expectations, using a support system composed of family, volunteers and probation services.
8.
Write out, simplify and repeat rules and conditions of supervision.
9.
Make sure that the probation officer understands FASD.
10.
Don’t overreact to probation violations—particularly status offenses—seek/impose sanctions for violations that the probationer can understand and relate to.
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We note that all of the legal decisions cited in the first section above involved extraordinarily violent crimes, and most were death penalty cases. We do not mean to suggest that all of these principles are equally applicable to defendants with FASD who commit violent crimes and the substantially larger population of defendants with FASD who commit less serious crimes. While these principles are worthy goals, the current tough economic times are forcing legislators to make difficult decisions aimed at balancing state budgets, and so the resources may not be available to implement all of them in all jurisdictions. As discussed later in this article, longer supervision, support systems, and the like, are rapidly diminishing for nonviolent offenders. A concerted effort is necessary to secure the resources to implement these goals because the costs for failing to do so will only be greater due to increased recidivism, school and job failure, etc. II.
Therapeutic drug court—lessons learned Many addicts are charged with crimes that are eligible for therapeutic courts like drug court, mental health court, veterans’ court, and DUI court. They may be accepted, enter, sometimes give up substantial constitutional rights, and then are diagnosed with FASD. Some may suffer from FASD but are not diagnosed. How do these people fare? A project at the University of Washington School of Medicine, determined that many clients of the therapeutic drug and mental health courts qualify for FASD screening and assessment for a diagnosis of FASD. Following are some hypothetical cases based on a combination of real drug court experiences: Sam was in his twenties, and already had a long criminal history. During his drug court stay he was identified as having FASD, put on short returns for court appearances, and linked with appropriate services for both his physical and mental issues. He was functionally impaired and qualified for Developmental Disabilities services.
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Yet, no matter how much structure or how many services he was provided, he could not comply with drug court’s requirements, could not follow directions, and frequently disappeared for long periods of time. He failed to complete the program, twice, although he was in a program that was specially designed to meet the needs of people with FASD. Annette, in her thirties, single mother of three, was in drug court for almost 4 years before being terminated and sent to prison for failure to comply. She consistently defied the program, would not follow directions, and wanted to write her own program. She was assessed and identified as having FASD, but was too functional to get benefits, so did not have access to a full range of services. Interestingly, she got her act together in prison and after release. She went to school, reclaimed her children, and visited drug court a few years after being terminated to show what she had accomplished. She credited drug court with giving her the tools to stay sober. She demonstrated that graduation from drug court is not the only measure of success. Joan was identified as having FASD from the beginning. Early diagnosis of FASD resulted in drug court recalibrating its expectations. Like many drug court clients with FASD she was a follower who wanted to please those in authority. Being on the street makes victims with FASD vulnerable, and frequently they take the fall for others. When in drug court, the same tendency can make FASD clients want to please the authority figure, the judge. Yet, even with structure, following directions is a challenge. Joan disappeared, and was gone for 2 years, on bench warrant status. While gone she found internal motivation as a result of reconnecting with her kids. She turned herself in and was permitted to stay in drug court, against protocol, because she had been identified with FASD. A success story, she graduated. This case and Annette’s case demonstrate that people with FASD are capable of learning and of making necessary changes in their lifestyles and behaviors, sometimes in spite of the shortcomings of available services. From these two examples, we can conclude that properly constructed services can be effective in helping defendants with FASD succeed in society without presenting a threat to community safety.
In King County, everyone who is admitted to drug court tries it out for a couple of months before opting in (which includes giving up constitutional rights) to see whether it’s a good fit. Of those who try it and are identified as having FASD, most are identified as “needs exceed.” That means their needs • P+L //\\ Spring 2011 art. by: Wartnik et al.
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exceed drug court’s ability to provide services, and admission to drug court would set them up for failure. Even if the criminal justice system in a particular area has the advantages of therapeutic courts and some sentencing schemes that provide the flexibility to deal with defendants diagnosed with FASD, the criminal justice system is not a social service agency. While in some areas our legal ability to deal with addicts and with the mentally impaired is growing (using therapeutic courts and drug offender sentencing alternatives, for example), our resources are dwindling due to the current difficult economic times. In Sonya’s case, a nondrug court gross misdemeanor case (reduced from a felony, as discussed below), the court ordered supervision for 24 months and treatment. However, in Washington, the Department of Corrections no longer supervises most nonviolent felonies (except for drug crimes), and supervises only some misdemeanors for some offenders (high risk and/or violent). Thus, if the court orders a misdemeanant to drug treatment, mental health treatment, or community service, the court has to set review hearings for the defendant to return to court and provide documentation of compliance with the court’s sentence, unless s/he is being supervised by the Department of Corrections. There will be no follow up on his/her progress unless the court does it. It has been proposed (Streissguth, 1998) that people in the community can serve as volunteer monitors, assist defendants with FASD in their day-to-day activities, and help them keep track of and attend meetings with probation officers and court review hearings. Perhaps retired police officers and firefighters, teachers, counselors and others could serve as monitors. But who will recruit and organize them? The courts do not have the resources to do it. Although this activity is not a judicial function, the court is able to provide invaluable leadership to engage the community in such efforts. In the case of nonviolent felonies where the court finds a chemical dependency contributed to the commission of the • P+L //\\ Spring 2011 art. by: Wartnik et al.
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offense, the court may order related treatment only if there is community custody. If there is no community custody, the court is left with no options. It cannot order treatment or follow up. The offender is simply on his or her own after release from custody. Washington courts can order defendants to a Drug Offender Sentencing Alternative if they are eligible. A prison-based program and a residential program are each available depending on the sentencing range for the offender’s crime and the kind of crime committed. However, under either program, it is not clear that the programs, whether prisonbased or residential, have the ability to diagnose and properly treat clients with FASD, particularly given the current condition of our economy at both the state and federal level. Because persons with FASD think in very concrete terms, the many traditional drug programs that require some abstract thinking will not be effective. Therefore, teaching techniques, verbal communications, and written materials need to be constructed or rewritten for this special population. III. Felonies, significant issues, including issues of constitutional magnitude In this section we examine significant current case law involving the effect of FASD as to mitigation of capital sentences that should provoke discussion of theories that may drive trial and appellate court decision making in the future. FASD, under the case law cited in the previous sections, is clearly a condition that can constitute a mitigating factor. FASD as a mitigating factor should not be limited to death penalty cases. It is inconsistent to treat it as a mitigating factor in death penalty cases but not in non-death penalty cases. FASD should also be considered at every other phase of prosecution, in addition to mitigation. With this in mind, we discuss several case studies, identifying and analyzing issues.
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First, as previously stated, Sonya was not a drug court client. She was not an addict, was 23 years old, had no prior criminal convictions, and was charged with a serious misdemeanor sex offense. She was diagnosed at an early age with FASD, Bipolar Disorder, and PTSD. Along with Bipolar Disorder, PTSD is common in defendants who have FASD, defendants whose childhoods were marked by abuse and neglect from addicted parents, relatives, friends, and strangers. One of the common behaviors of defendants with FASD is that they tend to get involved in inappropriate sexual situations (Streissguth et al., 1996). Prosecutors frequently recommend incarceration consistent with their duty to emphasize the need for community safety. When incarceration becomes an overriding consideration, it is easy for judges to choose incarceration over community-based treatment because FASD often presents an aggravating, rather than a mitigating factor. When this happens, the response is likely to be long-term incarceration because there are not any effective programs available in the community for people with FASD necessary for adequate protection of the public. This reaction is of particular concern when the sentence involves sex offender registration, as in the case of Kerry, discussed below. Sex offender registration may doom the offender to failure and to further and more serious criminal behavior upon release from prison. The use of family and other volunteer monitors as discussed below to provide assistance and supervision, combined with treatment in the community by providers who understand FASD and effective learning approaches, may be the best response. This would be consistent with the recognition that FASD should be considered a mitigating factor for determination of an appropriate sentence. The case law cited earlier on in this article shows that the presence of FASD can constitute mitigation for sentencing purposes. Case study #1
Johnny is age 14, a Caucasian male. Collateral information indicates that his biological mother engaged in chronic alcohol use and likely consumed alcohol while pregnant with
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Johnny. It is suspected that Johnny’s biological mother was also significantly exposed prenatally to alcohol. The paternal family history is significant for chemical dependency and for the death of Johnny’s sibling as a result of “shaken baby syndrome.” Johnny was reportedly subjected to physical abuse and neglect while in the care of his biological mother. When Johnny was in kindergarten or first grade, the state removed him from her care. He had two foster home placements prior to his placement in the care of his adoptive father 4 years ago. His adoptive father is a single parent with adult children. Johnny is the only child in the home. Johnny’s adoptive father is a substitute teacher for special education classes in the school district. Johnny had a history of “rages” in his previous foster homes. About three weeks after Johnny was placed in his adoptive father’s home, he knocked over a bookshelf after he became frustrated with school. The adoptive father says Johnny has considerable difficulty with processing information, understanding multistep instructions, and remembering information. Johnny’s memory is variable. He has had difficulty remembering how to spell his last name. At times, he appears to miss words in communication, contributing to his comprehension difficulties. He needs reminders, as he often forgets steps on instructions. As a result of these cognitive difficulties, Johnny frequently becomes frustrated. His adoptive father reports that Johnny requires an explanation when he is told “no,” to ensure that he understands the reasoning behind it, and that the explanation needs to be stated in the simplest and most concrete terms possible due to his inability to process complex information and abstract concepts. Johnny was previously assaulted by a male peer in school and by a classmate on a bus. Since preschool, Johnny has been placed in special education programs. He is now in the eighth grade. Intellectual and achievement testing indicate low intellectual functioning and • P+L //\\ Spring 2011 art. by: Wartnik et al.
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learning disabilities. His cognitive ability on the Woodcock Johnson III is in the Low range with an overall score of 78, which falls within the fifth percentile compared to his peers. There is a large discrepancy between his verbal (equal to 73) and non-verbal (equal to 84) problem solving abilities. Under the Woodcock Neuropsychological Battery, Johnny demonstrated neurological functioning from the normal to mildly impaired range (Broad Reading = 63; Broad Math = 62; Broad Written Language = 58). He performed in the mildly impaired range on the Romberg testing, clock construction, finger tapping, expressive speech, and coordination. While his sensory functions are normal, his performance on fine motor coordination tasks is impaired and he has difficulty with speech patterns. His scores on the Comprehensive Receptive and Expressive Vocabulary Test and the Test of Language Development (TOLD) were in the low average range. Tests of sensory processing show that Johnny is highly sensitive to sound and touch, and that he reacts in a negative fashion to sensory input through these channels. On executive functioning tests, Johnny performs within the Impaired range on tests of abstract problem solving. He cannot adapt his responses to the demands of the task and cannot utilize examiner feedback to learn from his mistakes. On the Behavior Rating Inventory of Executive Function (BRIEF), Johnny exhibits impaired scores in the areas of Inhibition, Shifting, Emotional Control, Working Memory, and Self-Monitoring. On tests of language reasoning and judgment, Johnny evidences significant difficulty, requiring him to decipher the figurative meaning of a sentence. He provides literal and concrete interpretations of sentences. On tests of Adaptive Functioning, Johnny is functioning within the Impaired range with his weakest areas in social • P+L //\\ Spring 2011 art. by: Wartnik et al.
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interaction and language communication (3-year age level) and community living (6-year age level). On the Behavior Assessment System for Children, Johnny’s adoptive father and teacher agree that he has problems in areas of social skills, hyperactivity, attention, withdrawal, and conduct problems. Johnny was diagnosed with Oppositional Defiant Disorder (ODD), anxiety, depression, and ADHD in addition to FAE. Over the years, Johnny has been on a variety of psychotropic medications. Currently, he is prescribed the psychostimulant medication Dexedrine to address his ADHD behaviors. Johnny is charged with two counts of Disorderly Conduct (Misdemeanor), one count of Assault in the Fifth Degree (Misdemeanor), and one count of Aggravated Murder in the First Degree. Police reports indicate that the initial charges (one count of Disorderly Conduct and Fifth Degree Assault) stem from an incident where he and a peer threw sharpened pencils at a teacher and then Johnny charged at the teacher with such force he almost knocked her down. After swearing at the teacher and running around the classroom, he allegedly again threw pencils at the teacher. The murder charge is based on Johnny killing a neighbor with a bow and arrow, which his adoptive father had taught him to use. The arrow penetrated the victim’s skull. Johnny also stole the victim’s money and credit card and used it to purchase a computer that he then tried to sell for more than he had paid for it. When reminded of the incidents that occurred at school, Johnny becomes defensive about his behavior and is not able to engage in a reasonable or rational discussion of the allegations against him. He maintains that there is no evidence against him (i.e., he specifically noted that there were no pictures or videotapes of his alleged criminal
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conduct). Those examining him report that he seems to have difficulty understanding that witnesses (i.e. his teacher, social worker, the police officer) could testify regarding their observations of the alleged criminal conduct. They also report that he “seems to have difficulty understanding the adversarial process of criminal court proceedings and is unable to identify possible outcomes for his legal situation.” With regard to the murder charge, Johnny explained that he needed money to pay for his 16-year-old developmentally disabled girlfriend’s abortion but decided, after the homicide, to spend it on a computer instead. Case study #2
Kerry is 29 years old. He was adopted at birth and raised as an only child. His criminal history includes: a 2001 retail theft (stealing electronics from Target, selling them, and giving the money to his 18-year-old heroin-addicted girlfriend) and a 2002 burglary in which he was convinced by an acquaintance to take him to a tow truck yard where the acquaintance took $30,000 worth of parts and both got arrested trying to sell them. The parents report that he has also stolen from them (writing bad checks and using their credit cards), as well as from family friends and a co-resident in a group residential home. In addition, he was reported to have hit his mother, injured his father, put his fist through a wall in the house, and kicked the door. He is currently convicted of two counts of sexual contact, involving two 16year-old female friends, JMC and KMF, having pled guilty against the advice of his parents. Both victims are believed to be developmentally disabled. JMC’s mother reported that JMC has been diagnosed with ADHD, RAD. and symptoms of depression and anxiety. At age 6 Kerry tested as having an IQ of 87 and was described as impulsive and distractive. At age 20 he was evaluated as having borderline intellectual functioning on the Wechsler Adult Intelligence Scale, and with an IQ of 83 at age 28. IQs of 87 and 83 are both considered to be in the low average range. He was diagnosed in 2001 at age 20 as having
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FAS, ADHD, ADD, being impulsive, and exhibiting behaviors consistent with Bipolar Disorder, including periods of grandiosity, overvalued ideas, and numerous chaotic, out-of-control behaviors. At that time he was on a number of psychotropic drugs for ADD and mood swings, including Haldol, Paxil, and Tegretol. Test results indicated impairment of adaptive skills based on brain functioning, frontal-lobe impairment, difficulty with verbal comprehension, impulsivity, and deficient social skills in choosing friends and managing finances. He has had both psychological and sexual deviancy evaluations during the pendency of this case. The Vineland Adaptive Behavior Scale indicated that his daily performance of self-care and getting along with others is seriously diminished. Organic brain damage was confirmed, manifested by deficits in short-term memory, concentration, and ability to learn new information. His sexual deviancy evaluator observed him as being highly distractible and suffering notable attention deficits, with circumstantial thought processes including flighty ideas at times, and speaking with childlike enthusiasm. He showed a marked incongruence between mood and demeanor, and presented with a severe lack of awareness and insight. His presentation was described as reflective of rigid repression, and as naive, indicating a lack of judgment. He tends to react to situations based on feelings rather than rational analysis. Kerry’s cognitive style was described as contributing to his difficulty learning from experience with the consequence of continually making the same mistakes. He suffers from chronic emotional problems and, overall, his balance of mental health is poor. His MMPI did not indicate a propensity toward violent behavior. He and his parents reported that he had experienced a number of age-appropriate heterosexual relationships from high school to the present time. However, he was also reported to lack the ability to manage his finances, as indicated by spending inappropriately on girlfriends, failing to pay the rent when he was living alone, • P+L //\\ Spring 2011 art. by: Wartnik et al.
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and failing to make car payments he had assumed when he bought a used car. He is easily discouraged, has poor coping skills, and little awareness of his own motives. His recollections of the past tend to be idealized and romanticized, blotting out memory of things he would rather not like to remember. Kerry is impressed with things that are vivid and is likely to be influenced by people who are dramatic or who have a strong presence. He is highly susceptible to passing influences and easily led into actions without stopping to consider the consequences. His emotional functioning prevents having empathy for others. This personality trait tends to provoke resentment and hostility in others, making relationships stormy. He is extremely immature, selfcentered, and is prone to making poor choices and blaming others for his problems. His thinking is concrete and unelaborated. He suffers from poor self-esteem, which he compensates for with grandiosity. His immediate recall of information and short-term memory are weak. He is inclined to experience anxiety in new situations and in meeting new females. Although as a preteen and teenager he consumed significant quantities of beer and smoked marijuana, there is no current indication of substance abuse-related problems. He has been described by his psychiatrist as suffering from long term effects of FAS, as not being able to function independently and as unable to make personal and financial decisions. He describes Kerry as needing supervision. Kerry’s sexuality test results indicate a lower than expected level of knowledge about sexual anatomy and physiology. Test results confirm that he does not exhibit deviant sexual interest patterns or fetishes. Other testing demonstrates a lack of sexual interest in prepubescent girls. Although he does not think that he needs treatment, he is open to it. Upon testing, his sexual deviancy evaluator found that he is a moderate risk for sexually reoffending and is a higher risk of general, nonsexual offense, recidivism. Kerry has been reported as not • P+L //\\ Spring 2011 art. by: Wartnik et al.
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endorsing major cognitive distortions associated or commonly endorsed by men with known histories of rape or sexual offenses toward children. However, his sexual offending in this case was not impulsive. He had sexual conversations with the girls over a number of days leading up to the offense date. He continued to spend time with the girls and took them to his hotel room. Kerry admits having intercourse with JMC in the presence of KMF who was lying on the bed nude, covered only by a towel, watching; however, he states that the victims insisted on having sex with him and no force was used. He minimizes the amount of arousal and planning in the pre-sexual phase of his cycle and claims that he did not manipulate the victims or take advantage of them. He views himself as the victim of manipulation by the girls. Kerry claims that he told JMC, “You can’t have sex with 20-year-olds” and that he couldn’t have sex with her because she is underaged. He said that he was driving the girls to the mall and got stuck in the snow close to where he lived, that they said they needed to use his bathroom and that when he walked into the bedroom, JMC was laying on the bed nude and threatened to call her mother and tell her that Kerry was raping her if he did not have sex with her. KMF acknowledges that JMC was the one who came up with the idea that they engage in sex with Kerry and that she kept on insisting on having sex until Kerry agreed. Both the sexual deviancy and the psychological evaluators recommended community-based services. With regard to probation, Kerry will need significant external controls (commonly referred to in FASD cases as “needing an external brain”), he will need to overcome longstanding patterns of behavior and his treatment needs to be geared to his learning problems. They propose use of a supportive therapist, praise and positive reinforcement, and that he needs to be held responsible and accountable for his future actions. The sexual deviancy evaluator recommends eight conditions of probation, including intensive probation, a prohibition against use of • P+L //\\ Spring 2011 art. by: Wartnik et al.
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technology such as the Internet and text messaging, community-based treatment, individual counseling, a curfew, tightly monitored involvement in the community, psychiatric monitoring, psychotropic medication management and monitoring, sexual education, involvement of his parents in his treatment, and that Kerry not be allowed to have contact with minors due to his poor boundaries and severe problems with judgment. The psychological evaluator concluded that Kerry manifests multiple symptoms characteristic of FASD including hyperactivity, distractibility, talkativeness, superficial fluency, marked deficits in adaptive functioning, poor judgment, poor social skills, and generally poor impulse control. He also indicates that Kerry has difficulty with problematic romantic and sexual relationships and anger control. The report noted no evidence of continuing propensity toward abusive or predatory sexuality and that Kerry appears to have consistently chosen emotionally and/or intellectually impaired persons as objects of romantic and sexual relationships. But the report also noted that his choices had been persons his age whose level of functioning was similar to his with whom he could feel competent and comfortable until the instant events. The evaluator also felt that Kerry does not present with a criminal or psychopathic profile. The report recommends that Kerry to be treated as a person who needs additional help, not a person who needs to be chastised or punished for the wrongs he has committed, and it adopts the recommendations made by the sexual deviancy evaluator. The prosecutor (the adoptive parent of an adult child with FASD who has been falsely accused of criminal activity) recommended imprisonment and a sexual deviancy registration requirement. The court sentenced Kerry in accordance with the state’s recommendation. Kerry is qualified to be released on parole from prison in the near future but cannot live with his parents due to the fact that they live within 500 yards of a residential facility for juveniles. • P+L //\\ Spring 2011 art. by: Wartnik et al.
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The parents have tried to convince the prosecutor and Kerry’s parole officer to let Kerry live with them, relying on the fact that the evaluators have found that Kerry does not show any sexual propensity toward children. The parole officer says, “We need to protect the children and unless an appropriate placement can be found in the community for Kerry, he will have to remain in prison until his parole expires.” The operators of the nearby group home know Kerry and have no concern for his being in the neighborhood. The parents have filed a petition for clemency asking that the sexual offender registration requirement be nullified or vacated. The cases of Johnny and Kerry contain sufficient facts to support a mitigation claim. There is reasonably strong evidence to establish the nexus between the disabilities each suffers from and their criminal behavior. Johnny presents a good factual basis to explore mental retardation and resulting issues of competency. Kerry’s facts, though not as strong as Johnny’s, are sufficient to raise the question of competency. There is a factual basis in Kerry’s case to justify a targeted sentence rather than a “throw the rascal in prison and toss the key away” response. These include the facts of the crime, the alleged sexual aggressiveness of one of the victims, Kerry’s lack of a criminal or psychopathic profile, reported lack of sexual deviancy patterns, lack of interest in prepubescent girls or violence, apparent openness to treatment, the fact that the victims and defendant are very similar in emotional and intellectual age, the moderate risk of future sexually criminal behavior that may be reduced or possibly negated by a structured probation and supervision, and that he appears capable of learning about sexual boundaries. Basic realities of FASD affecting the issue of a defendant’s competency
There are certain realities of FASD that those who work in the criminal justice system must understand. First, the case law reflects an imperfect understanding of the diagnostic process, symptoms, and behavioral consequences of FASD. Second, the brain damage caused by alcohol exposure in utero that results in impaired cognitive functioning may
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affect a defendant’s behavior in the legal system, including his/her ability to make rational decisions and to control impulses in the courtroom. Third, there is a world of difference between evidence of past behavioral problems and evidence that a defendant has organic brain damage from FASD that caused such behavior. That means that absent a link between brain damage and the criminal conduct (“the nexus”), the defendant’s history of behavior problems may only convince the judge or jury that the defendant is a bad actor. On the other hand, when the nexus between the brain damage and the criminal conduct is established, FASD can become a potential and potent factor at all stages of the proceedings. FASD is organic in nature rather than the result of a bad disposition, and arises from circumstances entirely beyond the individual’s control (unlike alcohol or drug abuse), and it affects the defendant’s ability to understand society’s norms and/or conform his behavior to those norms. Fourth, if the brain damage caused by exposure to alcohol in utero is severe enough, competency to stand trial, to consent to search, to knowingly and intelligently waive Miranda rights, to waive the right to plead not guilty by reason of insanity, or to plead guilty, diminished capacity, and/or to seek constitutional protection from execution due to mental retardation, may all come into play. In addition, suggestibility to giving a false confession may become relevant and testimonial capacity may become an issue. Fifth, as discussed above, FASD involves a complex diagnosis, requiring both physical and psychological examinations, which require at least two experts and involves complex diagnostic criteria, addressed in two separate government documents but not addressed in the DSM–IV–TR (Stratton, Howe, & Battaglia, 1996; Bertrand et al., 2004). These realities place a heavy burden on defense counsel to provide their clients with effective assistance of counsel. In Sonya’s case, very few facts were disclosed. There was enough information, however, to warrant further inquiry by • P+L //\\ Spring 2011 art. by: Wartnik et al.
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her lawyer if for no other reason than to bolster the evidence that already supports a mitigation argument. That evidence includes the nexus between FASD-related brain damage and inappropriate sexual behaviors (Streissguth et al., 1996). Hypersexuality and risky sexual behavior have also been identified as common with the manic stage of Bipolar Disorder (DSM-IV-TR). FASD, Bipolar Disorder and alcohol and/or other drug use are a dangerously potent recipe for acting out sexually. In Sonya’s case, the attorney was aware of her diagnosis and the facts set forth above. The attorney used those facts to negotiate a reduction in sentence with the prosecutor, and got an agreed recommendation from the prosecutor for enhanced supervision by the court. Defense counsel informed the judge about Sonya’s diagnoses, and the agreed recommendation was imposed. In similar cases where there is less information, counsel may need to determine whether the client might be mentally retarded. If counsel suspects mental retardation, s/he should obtain school records, medical records, prior psychological and/or psychiatric reports, and the report that resulted in the FASD diagnosis. Counsel should interview the client’s family and friends about behaviors and day-to-day executive and cognitive functioning while growing up. If enough information is available to support the appointment of experts, then a motion should be filed for funding and appointment of a competency evaluator. Johnny’s known facts are sufficient to warrant a competency evaluation. Whether we are talking about competency to stand trial, to voluntarily consent to a search, to waive Miranda rights, or to enter a plea of guilty or not guilty by reason of insanity, the basic test is the same. There is no distinction between competence to enter a guilty plea and competence to stand trial (Godinez v. Moran, 1993). In the United States Supreme Court case of U.S. v. Dusky (1960) the Court stated the test as follows: • P+L //\\ Spring 2011 art. by: Wartnik et al.
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The test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him.” (Ibid, p.403)(A criminal defendant may not be tried unless he is competent (Pate v. Robinson, 1996). The United States Supreme Court held that the criminal trial of an incompetent person violates the right to substantive due process (Ibid., p. 378). Justice Kennedy emphasized: Competence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the right to summon, to confront, and to cross-examine witnesses, and the right to testify on one’s own behalf or to remain silent without penalty for doing so. (Cooper v. Oklahoma, at p.349, 1996; citing Drope v. Missouri, at pp. 171–172)
In Washington, the court has held that incompetence cannot be waived because an incompetent person cannot enter into any plea agreement (State v. Ortiz, 2001). In Drope v. Missouri (1975) the United States Supreme Court separated the third prong of the Dusky test into two parts when it stated: A defendant must be able to assist in preparing the defense, thus, to be competent, a defendant must be able to (1) consult with the lawyer with a reasonable degree of rational understanding, (2) otherwise assist in the defense, (3) have a rational understanding of the criminal proceeding, and (4) have a factual understanding of the proceedings. (Drope v. Missouri, (1975), pp. 171-172)
In Lafferty v. Cook (1991) the 10th Circuit interpreted the meaning of Dusky and Drope standard: It is not enough for the district judge to find the defendant [is] oriented to time and place and [has] some recollection of events. But the test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding —and whether he has a rational as well as factual understanding of the proceedings against him. (Lafferty v. Cook (1991) at p. 1548)
In U.S. v. Duhon (2005), pp. 669-670. a U.S. District Court in Louisiana recognized the difference between incompetency due to mental illness and incompetency due to mental retarda• P+L //\\ Spring 2011 art. by: Wartnik et al.
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tion, and the need to utilize different criteria for making those competency determinations. The court wrestled with the fact that an erroneous determination of competence “threatens a ‘fundamental component of our criminal justice system’—the basic fairness of the trial itself.” The Duhon court relied on Cooper v. Oklahoma (1996) in which the United States Supreme Court said: After making the “profound” choice whether to plead guilty, the defendant who proceeds to trial will ordinarily have to decide whether to waive his “privilege against compulsory self-incrimination” (Boykin v. Alabama, 395 U.S. 238,243, 89 S. Ct. 1709. 1712. 23 L.Ed.2d. 274 (1969) by taking the witness stand; if the option is available, he may have to decide whether to waive his “right to trial by jury” (Ibid.); and, in consultation with counsel, he may have to decide whether to waive his “right to confront (his) accusers” (Ibid.), by declining to crossexamine witnesses for the prosecution. (Ibid.) With the assistance of counsel, the defendant is also called upon to make myriad smaller decisions concerning the course of his defense. The importance of the rights and decisions demonstrates that an erroneous determination of competence threatens a ‘fundamental component of our criminal justice system’—the basic fairness of the trial itself. (Cooper v. Oklahoma, 1996, at p. 352; citing Godinez v. Moran, 1993 at p.398)
In evaluating competence, the court should consider the key differences between mentally ill and mentally retarded criminal defendants, in particular, the fact that mental illness may be reversible with treatment and mental retardation may be static and untreatable, and may make a person more susceptible to suggestion. (ABA Commission on Mental and Physical Disability Law, 1998). Courts and defense attorneys should be wary of the arbitrary use of general competency assessment techniques and standards in assessing a mentally retarded defendant’s competency: The existence of specialized competency scale for assessing persons with mental retardation does not mean that there are no other customary and accepted methods of assessment. There is general recognition that competence is based on a specific set of cognitive abilities and the functional capacity to exercise those abilities. Thus, competency
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scales or structured interviews can be used with persons who have mental retardation. However, because persons with mental retardation are cognitively impaired, not mentally ill, the strongly cognitive elements of a competency evaluation need to be given special attention. In addition, defendants with mental retardation may be limited as to their functional behavior. Thus, a defendant with mental retardation might be seemingly “restored” to competency by instructing that individual about trial elements, but he or she may not be able to make intelligent legal decisions. (ABA Commission on Mental and Physical Disability Law, 1998, p. 169 [emphasis added]).
The United States Magistrate Judge who wrote the opinion in Duhon, without mentioning FASD, seems to reflect a pretty clear understanding of the diagnostic process, symptoms, and behavioral consequences of being afflicted with cognitive and functional deficits that are primary markers of FASD. The reality, however, is that he appears to represent a small minority in the judicial branch and that the overriding majority have a limited understanding of the problem. The Montana Supreme Court case In the Matter of S.M.S., a Youth (2010) seems to demonstrate this point. S.M.S. was charged with a sexual offense involving his 6year-old sister. S.M.S. filed a motion to suppress his confession. He argued that his “severe cognitive delay” rendered involuntary both his waiver of Miranda rights and his confession. Four separate psychological evaluations revealed that S.M.S. possessed a very low level of intellectual functioning, that he needed special education classes, and that he suffered from fetal alcohol syndrome in addition to PTSD and ADHD. S.M.S. also had likely been sexually abused as a child. The court weighed the conflicting testimony of two doctors and compliance with state law to determine that S.M.S. understood his Miranda rights and made a knowing and intelligent waiver of these rights. The court said: S.M.S. met the age requirements of (the statute) for providing a valid waiver without his parents or counsel present. S.M.S.’s educational level and cognitive abilities raise questions as to whether S.M.S. understood the gravity of the circumstances and his confession. Dr. Butz and Dr. Zook provided conflicting testimony regarding S.M.S.’s cognitive abilities. The youth court sat in the best position to evaluate the competing testimony along with the videotape of the interview to determine whether S.M.S. had confessed voluntarily. (In the Matter of S.M.S., a Youth, (2010) at p. 104)] • P+L //\\ Spring 2011 art. by: Wartnik et al.
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One wonders whether or not the doctors understood the problem and whether this circumstance may have led the trial court and the appellate court to not understand the problem. The trial court and appellate court apparently put a lot of weight on the literal pronunciations of the statute they were applying and the care taken by the investigating police officer. It may not have looked carefully at the fact that S.M.S.’s cognitive and functional deficits may have led to an unknowing, unintelligent, and involuntary (and thus invalid) admission. Keep in mind, with regard to the videotape of the interrogation of the defendant in which he made the admission, that it is not uncommon for people with FASD to indicate understanding verbally when in fact they lack true understanding. It is not clear whether the court had this information when viewing and evaluating the videotape. Cases discussing relationship of FASD and the 8th Amendment in capital cases
Finally we address the Eighth Amendment to the United States Constitution, which prohibits “cruel and unusual punishment,” the body of law addressing it, and we discuss what the future may hold for defendants with FASD. The United States Supreme Court has applied the Eighth Amendment in death penalty cases to those with mental retardation, and those who are under the age of 18. The United States Supreme Court has recognized that the Constitution requires constant reevaluation of what constitutes “cruel and unusual punishment” based on the evolving standards of decency that mark the progress of a maturing society. Until 1989 children could be executed for capital crimes in some states. This practice dated back to 1642 under the American Common Law. In 1989 the United States Supreme Court ruled that juveniles under the age of 16 could not be executed (Thompson v. Oklahoma). In 1998 the court extended the prohibition to 16-year-olds (Stanford v. Kentucky). In 2005 in the landmark case of Roper v. Simmons the United States Supreme Court barred juveniles under age 18 from being executed. The case law dealing with mental retardation followed a similar route. At common law, idiots and imbeciles could not be executed. In 1989, the same day it decided the Stanford case the United States Supreme Court ruled that execution is not automatically forbidden for persons with mental retardation (Penry v. Lynaugh).
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(As discussed below, the United States Supreme Court later abrogated this decision in Atkins v. Virginia, [2002]). Thirteen years later the Atkins court ruled that mentally retarded persons cannot be executed. Unfortunately, rather than constructing a definition of mental retardation to be uniformly applied throughout the United States, the court left it to each state to establish how it would enforce compliance with its ruling. The court’s holding that Atkins was mentally retarded is based on his full scale IQ testing at 59 and his adaptive behavioral deficits (Atkins v. Virginia, [2002], at p. 305, fn. 5). The definition of mental retardation varies significantly from state to state so that a person who would be subject to the death penalty in one state would not be subject to execution in another state. This situation is inconsistent with the requirements of Atkins. The full scale IQ qualification for a finding of mental retardation ranges from state to state from below 65 to 75. One state presumes mental retardation if it is 70 or below, one follows the American Association for the Mentally Retarded (AAMR) definition, and 16 do not have a full scale IQ requirement. The states that do not have a full scale IQ requirement rely on overall functioning, which may be more in sync with Atkins and, in fact, some of these states enacted their current statutes following Atkins. Some states have an onset of the condition limit of age 18, one state uses age 22, four do not define a cutoff for the developmental period, four appear to be open ended as to this element, some states do not define mental retardation, and about half of the states do not have a statute on mental retardation. The Illinois statute provides that an IQ of 75 or below is presumptive evidence of mental retardation (Death Penalty Information Center, 1997). Finally, the United States Supreme Court decided in 2010 that juveniles convicted as adults for nondeath penalty crimes cannot be sentenced to life in prison without the possibility of parole (Graham v. Florida, 2010). Roper, Atkins, and Graham recognize that juveniles and mentally retarded persons should not be held to the same level • P+L //\\ Spring 2011 art. by: Wartnik et al.
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of responsibility for their actions as other people. The two agebased decisions recognize that juveniles have not reached full maturity, that their brains are still developing, and that they are still capable of learning from their experiences and living lawabiding lives. These cases leave unresolved questions as to whether and how the court will clarify the application of Atkins when there are mental retardation claims, and whether the bright line age tests need to be revisited, particularly in light of emerging knowledge about FASD and increasingly successful jury verdicts based on the presence of severe FASD as compelling mitigation. Justice O’Connor’s dissent in Roper may shed some light on the question when she opined that: Adolescents as a class are undoubtedly less mature, and therefore less culpable for their misconduct than adults. But the court has adduced no evidence impeaching the seemingly reasonable conclusion reached by many state legislatures: that at least some 17 year old murderers are sufficiently mature to deserve the death penalty in an appropriate case. (Roper v. Simmons, 2005, at p. 588)
The corollary to Justice O’Connor’s argument is that some people age 18 and older still lack the requisite maturity and intellectual capacity required to justify being subject to execution. Also, some people have full scale IQ scores that are above the cut-off line under state standards defining mental retardation, but, due to the disabilities caused by FASD, function intellectually, emotionally and behaviorally well below the cutoff score for mental retardation. What does the future hold for these populations? The need to apply standards used for mentally retarded defendants or childdefendants to defendants with FASD
There are legal tools for determining who else should be spared execution for their crimes. For example, we have propagated laws in this country that presume or assess the capacity of a child to commit a crime. At Common Law children younger than 7 years old were thought to be incapable or lacking the capacity to commit crimes, and children between ages 7 and 13 were presumed to lack capacity to commit crimes. Washington, like most states, has memorialized this concept in statutory form (Wash. Rev. Code Sec. 9A.04.050, 1995). Consider that many people with FASD who are older than 18 function at a level comparable
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to children, who by law are incapable of committing a crime. Taken together with recent United States Supreme Court case law, for purposes of capacity, this implies that those with FASD can be compared with those who are mentally retarded or are juveniles. Washington’s statute provides that children under the age of 8 years are incapable of committing crime, that children 8 and under 12 years of age are presumed to be incapable of committing crime (a rebuttable presumption), and, by implication, due to statutory silence, children age 12 and over are capable of committing crime. Some states set the age at 14 and older at the upper limit of the statutory scale. Two questions are raised by the structure of this statutes (a) under a statutory scheme where the statute is silent regarding capacity of children age 12 and older (it might be a different age range in another state), is capacity to commit crimes absolute or can capacity be presumed, under a reasonable construction, subject to proof of incapacity, and (b) isn’t incompetency due to mental retardation, mental illness, or other mental conditions such as FASD just another way of saying that the person lacks the legal capacity to commit crime, and if so, can we use the rules for determining capacity as a means of determining whether a person is mentally retarded? The United States Supreme Court could respond to the differing state definitions and lack of state definitions to either, in conjunction with looking at child-capacity standards, or independent of those standards, look at whether the application of the traditional approach to determining the existence of mental retardation should be limited to the purpose for which it was originally conceived, which was to make it easy for government agencies to determine who should and who should not qualify for publicly funded services and public entitlements. (Dr. Stephen Greenspan’s declaration for a Federal Rule 59 (e) proceeding in the U.S. District Court in Texas (Hearn v. Quarterman, 2008). Dr. Greenspan is a renowned psychologist and expert on mental • P+L //\\ Spring 2011 art. by: Wartnik et al.
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retardation. His publications are reputed to be read by more psychologists and others involved in the field of mental retardation than any other author on the subject. Based on Dr. Greenspan’s declaration, the District Court judge determined that a person could be found to be mentally retarded when the full scale IQ exceeds the cutoff line but the executive functioning caused by FASD results in an overall performance below that line, due to the constellation of the neuropsychological deficits and the impact of FAS on a defendant’s (Hearn’s) functional ability. The judge stayed and ordered abatement of the judgment and remanded the case back to the Texas court to conduct a hearing on the Atkins claim. The Court of Criminal Appeals of Texas subsequently rejected the argument presented by Dr. Greenspan, concluding that the Texas statute on mental retardation precluded a finding of mental retardation where the full scale IQ was above the statutory cutoff line (Ex parte Hearn, 2010). It is appropriate to discuss Dr. Greenspan’s opinion as expressed in his declaration in detail because Hearn could wind up before the United States Supreme Court. Before doing so, it is appropriate to set the stage by referencing a part of his slide presentation at the National H.A.T. (Federal Public Defenders) Annual Death Penalty Mitigation Conference held in Seattle this last April (2010). Dr. Greenspan asserted that judges have trouble with the fact that mental retardation is ruled in by incompetence, not ruled out by achievement. He argued people at the upper range of mental retardation (where most Atkins applications are found) is that they can do many things in routine situations, but can mess up badly when things are not routine, and therefore emphasis on isolated “accomplishments” are specious. Dr. Greenspan presented examples of this kind of response. A Colorado judge ruled against an Atkins petition because the defendant was captured on video playing chess when, at a basic level, chess is well within the mental age of children and most adults with mental retardation. In an Indiana case, it was argued that a homeless defendant had normal adaptive behavior • P+L //\\ Spring 2011 art. by: Wartnik et al.
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because he subsisted on food scavenged from dumpsters when, in fact, dogs do that all the time. Dr. Greenspan frames the issue as “how do people adapt in the real world rather than how they do in a structured test situation.” He bases this approach on the fact that FASD is associated with adaptive behavior deficits that mimic mental retardation even though IQ may be well above 70, what he refers to as Adaptive Quotient (AQ). Dr. Greenspan opined as follows: The basic question . . . is it appropriate to change the operational criteria one uses to diagnose mental retardation in order to meet the spirit of the constitutive definition. My answer is that under certain circumstances, such as when an individual has a mixed pattern of intellectual deficits owing to a diagnosed developmental brain syndrome such as FASD, it is appropriate and necessary to change the operational criteria. . . . use of IQ scores are an attempt to create an illusion of scientific certainty in identifying a disorder whose causes and manifestation(s) are often hidden and subtle. . . The problem is that when the artificial number fails to fit with the disability as it is experienced and documented by others, which criterion should be used? Typically, clinicians and governmental entities find it easier to go ‘by the book’ but there are times when that results in a wrong and, possibly, unjust decision. (Greenspan, 2010).
Dr. Greenspan emphasized that his responsibility as a psychologist is to exercise judgment, which cannot be done if required to apply artificially created numbers. In articulating his reasons for his conclusions, Dr. Greenspan referred to the fact that the behaviors seen in people with FASD are the same behaviors that the United States Supreme Court discussed in Atkins. (Greenspan, 2010). The court in Atkins described the behavioral deficits of mentally retarded persons—deficits that also characterize those with FASD, who have IQs significantly higher than 70. The court described the special risks faced by mentally retarded defendants as follows: . . . some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards.
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As discussed above, clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations to adaptive skills such as communication, selfcare, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others . . . they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. Their deficiencies don’t warrant an exemption from criminal sanctions, but they do diminish their personal culpability. . . . it is the same cognitive and behavioral impairments that make these defendants less morally culpable. For example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses that also make it less likely that they can process information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information. The reduced capacity of mentally retarded offenders provides a second justification for a categorical rule making such offenders ineligible for the death penalty. The risk “that the death penalty will be imposed in spite of factors which may call for a less severe penalty,” Lockett v. Ohio, 438 U.S. 586, 605 (1978), is enhanced, not only by the possibility of false confessions, but also by the lesser ability of mentally retarded defendants to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes. As Penry demonstrated, moreover, reliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury (492 U.S., at 323 to 325). Mentally retarded defendants in the aggregate face a special risk of wrongful execution. (Atkins v. Virginia, 2002, at p.308-09)
Certainly the profiles that Johnny and Kerry present can be identified with most, if not all, of the factors identified by the Atkins court. • P+L //\\ Spring 2011 art. by: Wartnik et al.
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In conclusion, there is another approach that may be viable and it is found in the context of the Atkins analysis. Given the court’s strong emphasis on the executive and cognitive deficits that justify exclusion of the death penalty and its expressed reasons therefore, those deficits being viewed as a necessary part of the court’s definition of mental retardation, it may be easier to get the court to carve out a new population as exempt from execution, without having to get muddled up with the various and inconsistent definitions of mental retardation. Ultimately, however, it seems appropriate for the court to come to grips with the fact that many states have not followed the United States Supreme Court’s directive to come up with a rule that will give life and substance to the Atkins ruling and that is consistent with the court’s dictates. This means the court may have to establish a bright line rule for what constitutes mental retardation. The alternative is that defendants with the same profile will live or die depending on where they committed their crime(s). References
ABA Commission on Mental and Physical Disability Law (1998), National Benchbook on Psychiatric and Psychological Evidence and Testimony. American Psychiatric Association. (2000). Diagnostic and statistical manual of mental disorders, (4th ed.), Retrieved February 1, 2011, from http://allpsych.com/disorders/mood/bipolar.html and http://en.wikipedia.org/wiki/Sexual_addiction Atkins v. Virginia, 536 U.S. 304, 305 (fn.5), 308-09 (2002). Bertrand, J., Floyd, R.L., Weber, M.K., O’Connor, M., Riley, E.O., Johnson, K.A., et al. (2004). National Task Force on FAS/FAE, Fetal Alcohol Syndrome: Guidelines for Referral and Diagnosis. Atlanta, GA: Centers for Disease Control and Prevention. Boykin v. Alabama, 395 U.S. 238 (1969). Castro v. Oklahoma, 71 F.3d 1502, 1512, 1515 (10th Cir. 1995). Cooper v. Oklahoma, 517 U.S. 348, 349, 364 (1996).
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Death Penalty Information Center. (1997). Mental retardation and the death penalty: Status of exemption legislation. Mental & Physical Disabilities Law Reporter, 687, Sept.–Oct. Dillbeck v. State, 643 So.2d 1027, at 1029-30 (Fla. 1994). Drope v. Missouri, 420 U.S. 162, 171-72 (1975). Ferguson, G. (1989). A critique of proposals to reform the insanity defense. Queen’s L.J. 14, 135, 140. Godinez v. Moran, 509 U.S. 389, 398 (1993). Graham v. Florida, 130 S.Ct. 176 (May 17, 2010). Greenspan, S. (2010, April). Paper presented at the National H.A.T. (Federal Public Defenders) Annual Death Penalty Mitigation Conference, Seattle, WA. Ex parte Hearn, 310 S.W.3d 424 (Tex.App. 2010). Hearn v. Quarterman, 2009 WL 3362041 (N.D.Tex. Aug. 12, 2008) (No. CIV.A.3:04-CV-0450-D). Hicks v. Schofield, 278 Ga. 159, 599 S.E.2d 156 (Ga. 2004), cert denied by Hicks v. Schofield, 542 U.S. 953 (2004). Hurst v. Florida, 18 So.3d 975 (Fla. 2009). In the Matter of S.M.S., a Youth, 355 Mont. 102, 104, 225 P.3rd 781 (2010). In re Brett, 142 Wash.2d 868, 16 P.3d 601 (2001). Lafferty v. Cook, 949 F.2d 1546, 1548 (10th Cir. 1991). Lambert v. Blodgett, 393 F.3d 943 (9th Cir. 2004). Pate v. Robinson, 383 U.S. 375, 378 (1966). Penry v. Lynaugh, 492 U.S. 302 (1989), abrogated by Atkins v. Virginia, 536 U.S. 304 (2002). People v. Wybrecht, 222 Mich.App.160, 564 N.W.2d 903 (Mich.App. 1997). R. v. Ruzic, [2001]1 S.C.R. 687, 694 (Supreme Court of Canada). Rompilla v. Beard, 545 U.S. 374, 383-84 (2005). Roper v. Simmons, 543 U.S. 551, 588 (2005). Schriro v. Landrigan, 550 U.S. 465 (2007).
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Silva v. Woodford, 279 F.3d 825 (9th Cir. 2002). Stanford v. Kentucky, 492 U.S. 361 (1998), abrogated by Roper v. Simmons, 543 U.S. 551 (2005). Stankewitz v. Woodford, 365 F.3d 706 (9th Cir. 2004). State v. Brett, 126 Wash.2d 868, 892 P.2d 29 (1995). State v. Cooper, 410 N.J.Super. 43, 979 A.2d 792 (2009). State v. Oritz, 104 Wash.2d 479 (2001). Stratton, K., Howe, C., & Battaglia, F. (Eds.). (1996). Fetal Alcohol Syndrome: Diagnosis, epidemiology, prevention, and treatment. Washington, DC: National Academy Press. Streissguth, A. (1998). Attaining human rights, civil rights, and criminal justice for people with fetal alcohol syndrome. TASH Newsletter, Sept. 18-20. Streissguth, A. P., Barr, H. M., Kogan, J., & Bookstein, F. L. (1996) Understanding the Occurrence of Secondary Disabilities in Clients with Fetal Alcohol Syndrome (FAS) and Fetal Alcohol Effects (FAE). Final Report. Seattle, WA: University of Washington Publication Services. Thompson v. Oklahoma, 487 U.S. 815 (1989). U.S. v. Duhon, 104 F.Supp. 2d. 663 (W.D.La. 2000). U.S. v. Dusky, 362 U.S. 402, 403 (1960). U.S. v. Nelson, 419 F..Supp. 2d. 891, 897 (E.D. La. 2006). Wartnik, A. W. (2007). Stopping the Revolving Doors of the Justice Systems. Retrieved February 1, 2011, from http://www.uwcita.org /CITAv1008/trainingmaterials /fasd.html. Wash. Rev. Code, Sec. 9A.04.050 (1975)
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Appendix: Forensic Assessment of Fetal Alcohol Spectrum Disorders
FASD EXPERTS SCREENING QUESTIONNAIRE
✔
OFFENSE CONDUCT Illogical actions with high detection risk “Simple” plan (focus is only on the objective) No real exit strategy Impulsive and aggressive over-reaction to unforeseen events (“fight or flight”) More sophisticated/experienced co-defendants ARREST CONDUCT Immediately or easily waives rights Over-confesses (suggestible) Brags about prowess or takes full responsibility if co-defendants Emotionally detached from crime (shows little remorse or guilt) Behavioral regression (breaks down in tears, infantile behavior) INTERVIEW WITH CLIENT Short stature (not always) Unstable lifestyle Immature and naïve Eager to please or stubbornly resists the obvious Can't provide coherent, detailed narrative Can't concentrate Doesn't add much Doesn't seem to remember what you tell him/her from appointment to appointment PRIOR LEGAL HISTORY Easily led by more sophisticated peers Multiple low-grade offenses in teen years, often with co-defendants Lots of stealing Illogical offenses (e.g., stealing something with little value) Oblivious to risk Impulsive, opportunistic crimes Probation violations LIFE HISTORY Mom abuses alcohol/drugs Involvement with child welfare Adoption/foster or relative placements/juvenile commitment Special Education / learning disabilities in school Multiple diagnoses in childhood (especially ADD/ADHD) Rule-breaking behaviors (lies, cheats, steals, fights) Disrupted education Substance abuse Unstable adult lifestyle (improves with structure)
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Journal of Psychiatry & Law 39/Spring 2011
A judicial perspective on issues impacting the trial courts related to Fetal Alcohol Spectrum Disorders BY HON. ANTHONY P. WARTNIK, J.D. AND HON. SUSAN SHEPARD CARLSON, J.D.
This article explores issues that judges, prosecutors, defense counsel, treatment providers, and defendants face when a person who has, or may have, Fetal Alcohol Spectrum Disorders (FASD) is charged with a crime. The article is divided into three sections: the first section discusses basic legal concepts and how they relate to those in the criminal justice system who suffer from FASD; the second section examines case studies and lessons learned from the therapeutic drug court, a program of the King County Superior Court in Seattle, Washington; the final section presents case studies of serious felonies, and explores constitutional issues. KEY WORDS: FASD, criminal justice system, therapeutic drug court, competency, mitigation. AUTHORS’ NOTE: For additional information about this article contact: The
Honorable Anthony Wartnik, 8811 SE 55th Pl., Mercer Island, WA 98040. Email:
[email protected]. The authors wish to acknowledge a colleague who contributed to this article. Judge Barbara Mack is a member of the Superior Court of the State of Washington, County of King, in Seattle. Judge Mack came to the court after a long and highly successful career as a Senior Deputy King County Prosecutor. Prior to joining the bench, Judge Mack served as the lead prosecutor in Drug Court where she had substantial experience in handling cases involving people with FASD. As a judge she has also experienced defendants with FASD. Her insights have been invaluable to us. Judge Mack provided the authors with case studies from her experiences as a prosecutor and judge and served as our tireless editor. © 2011 by Federal Legal Publications, Inc
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This article explores issues that judges, prosecutors, defense counsel, treatment providers, and defendants face when a person who has, or may have, Fetal Alcohol Spectrum Disorders (FASD) is charged with a crime. The article is divided into three sections:
I.
1.
The first section discusses basic legal concepts and how they relate to those in the criminal justice system who suffer from FASD. This includes the myths and facts about FASD, why assessments are necessary and how to determine whether they should be conducted, the right to diagnosis, identification of the various means of diagnosis, including a discussion of the most effective approach, the necessity of obtaining a timely diagnosis, the importance of hands on forensic examination of the client by experts, the relationship between FASD and other mental-health issues, and trouble with the law. It also discusses issues related to effective assistance of counsel, and identifies effective sentencing and supervision considerations and alternatives.
2.
The second section examines case studies and lessons learned from the therapeutic drug court, a program of the King County Superior Court in Seattle, Washington, one of several therapeutic specialty courts that exist in the King County and City of Seattle court systems. These case studies illustrate the difficulties presented by FASD defendants in the criminal justice system, and the rewards when existing programs work.
3.
The final section presents case studies of serious felonies, and explores constitutional issues such as competency to stand trial, pleas of guilty, and not guilty by reason of insanity, consent to search, knowing and intelligent waiver of Miranda Rights, diminished capacity, how mental retardation and adaptive behavioral deficits relate to death penalty considerations in capital cases, and mitigation in capital and non-capital cases. The discussion of death penalty considerations includes major United States Supreme Court decisions dealing with age, mental retardation, and sentencing of juveniles charged with crimes other than murder.
The basics of the relationship of the criminal justice system and FASD The fundamental principles of our Anglo-Saxon common law provide the framework for our adult and juvenile criminal justice systems. The application of these principles in
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juvenile cases is subject to expanded considerations. The juvenile justice organizing principles include a recognition that children are less responsible than adults and that the best interest of the child is a paramount consideration in all juvenile proceedings. The first principle is that: The treatment of criminal offenders as rational, autonomous and choosing agents is a fundamental organizing principle of our criminal law ( R. v. Ruzik, 2001, at p. 694). The second principle is: This is a fundamental condition upon which criminal responsibility reposes. Individuals have the capacity to reason right from wrong, and thus choose between right and wrong. It is these dual capacities—reason and choice—which give the moral justification to imposing criminal responsibility and punishment on offenders. If a person can reason right from wrong and has the ability to choose right from wrong, then attribution of responsibility and punishment is morally justified or deserved when that person consciously chooses wrong. (R. v. Ruzic, 2001, p. 894; citing, Ferguson, G. 1989, pp. 135,140)
The third principle is succinctly stated in the context of an FASD case by the Supreme Court of Florida: Evidence concerning certain alcohol-related conditions has long been admissible during the guilt (and mitigation) phase(s) of criminal proceedings to show lack of specific intent (and diminished capacity) . . . (I)f evidence of a self-induced condition such as voluntary intoxication is admissible, then so too should be evidence of other commonly understood conditions that are beyond one’s control, such as epilepsy. . . . Just as the harmful effect of alcohol on the mature brain of an adult imbiber is a matter within the common understanding, so too is the detrimental effect of this intoxicant on the delicate, evolving brain of a fetus held in utero. As with epilepsy, infancy or senility . . . we can envision few things more certainly beyond one’s control than the drinking habits of a parent prior to one’s birth. We perceive no significant legal distinction between the condition of epilepsy . . . and that of alcohol-related brain damage in issue here—both are specific, commonly recognized conditions that are beyond one’s control. (Dillbeck v. State, 1994, p.217)
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With the above principles in mind, the next step is to recognize the myths that surround FASD compared to the facts. The most commonly stated myths are: 1.
FASD is a temporary condition.
2.
FASD is a diagnosis or condition lacking in objective findings.
3.
FASD is a condition lacking scientific support.
4.
FASD is a diagnosis conceived of by lawyers and mental health providers to excuse criminal behavior.
5.
FASD cannot be diagnosed without direct evidence that the mother drank during pregnancy.
6.
Because alcohol exposure in utero results in permanent brain damage, individuals so afflicted cannot be helped and, thus, need to be incarcerated in order to protect the public.
The actual facts are: 1.
FASD is a condition involving behavioral problems rooted in permanent organic brain damage.
2.
The reality of the FASD condition is supported by over 30 years of scientific study and research with indisputable objective findings.
3.
FASD is a condition, which, if not diagnosed and treated at the earliest possible stages of child development, can lead to costly and often devastating secondary disabilities.
4.
Some offenders with FASD are not be held responsible for their criminal actions due to incompetency or insanity.
5.
Some offenders with FASD are held responsible for their criminal actions but will receive consideration due to diminished capacity.
6.
Some offenders with FASD are held responsible for their criminal actions and will receive lengthy incarceration due to the need for community safety (due to violence and recidivism) and the inability to successfully treat the offender in the community.
7.
Modern diagnostic standards do not require confirmed prenatal exposure to alcohol in all cases to make a diagnosis of FAS. Circumstantial evidence to support a finding of FASD may include:
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8.
a.
mother’s abuse of alcohol prior to conception
b
other biological children who died either shortly before or shortly after birth of the the subject child
c.
a brain abnormality that is consistent with the subject having suffered from alcohol exposure in utero
Many people with FASD are treatable and improve their behaviors if provided the right therapeutic techniques, and if appropriate structure and support systems are put in place.
Understanding the fundamental principles underlying the justice systems and the myths and facts about FASD, we can put the problem that FASD presents in proper perspective. The most basic issue is that many people afflicted with FASD often are not: 1.
Rational
2.
Autonomous
3.
Choosing agents.
4.
Able to reason right from wrong
5.
Able to choose right from wrong
Because many of those persons with FASD have organic brain damage that renders them incapable of controlling certain behaviors and unable to learn from their mistakes and from the mistakes of others, society and our justice systems need to adjust their expectations of how people afflicted with FASD should conduct themselves in society. They must adjust penal consequences in appropriate cases so they are consistent and compatible with the reasonable expectations of behavior for this population and the realization that normal sanctions are not likely to deter inappropriate behavior, while recognizing that they must also be consistent with community protection. This represents a paradigm shift in societal and judicial response to criminal behavior for people with FASD. We should treat people severely affected by FASD as we now treat the criminally insane and others, who are otherwise incompetent to stand trial or to be executed due to mental retardation or being under age 18. • P+L //\\ Spring 2011 art. by: Wartnik et al.
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Appellate criminal justice decisions grappling with FASD
TRIAL COURTS AND FASD
A number of informative and relevant appellate decisions recognize FASD as a condition that carries with it the right to the same fundamental common law and constitutional rights available to those who are insane or suffer from diminished capacity, mental retardation and other conditions. The cases consider whether criminal conviction and punishment, and the degree of punishment, are appropriate, and the steps necessary to ensure the rights of persons afflicted with or suspected of being afflicted with FASD. In Dillbeck, the Florida Supreme Court addresses the underlying issue presented by this complex condition: of a person with FASD, because of alcohol exposure in utero. The court held that a person with FASD is not responsible for his or her brain damage and may not be responsible or fully responsible for the behaviors caused by the FASD. The Dillbeck court held that “evidence of FAE (Fetal Alcohol Effects, which comes under the FASD umbrella) should be admitted at the guilt phase of a trial if offered to show that the defendant lacked the mental state (here premeditation) that is part of the crime” (Dillbeck v. State, 1994, p. 1029, 30). The Federal 10th Circuit case of Castro v. Oklahoma (1995) followed Dillbeck by a year and held that the defendant was entitled to a court appointed and funded expert to help develop evidence regarding five different problems, including FAS and FAE. The Castro court ruled that: When a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. If sanity or mental capacity defenses (are) to be defense issues they must be established by a clear showing by the indigent defendant as genuine, real issues in the case. In order for a defendant’s mental state to become a substantial threshold issue, the showing must be clear and genuine, one that constitutes a close question which may well be decided one way or the other. It must be one that is fairly debatable or in doubt (Castro v. Oklahoma, 1995, p. 1512). However, the Castro court noted that the indigent defendant must estab-
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lish “the likelihood his mental condition could be a significant mitigating factor.” (Ibid., p. 1515, [internal citations omitted])
In Silva v. Woodford (2002), the Ninth Circuit held that the defendant was convicted and sentenced to death while the codefendants received 11 years and life with the possibility of parole. Silva told his trial attorney that he did not want his parents called as witnesses. As a result, the attorney did not investigate Silva’s background, which might have alerted him to Silva’s mental health history, incarceration record, history of drug usage, and family background. Counsel hired a psychiatrist to evaluate his client, but provided no information or direction on the type of evaluation to be performed. At Silva’s habeas corpus hearing, where the evidence admitted was limited (Corpus is a reference to a habeas corpus proceeding, initiated by bringing a writ and is derived from our English Common Law, meaning “bring the body before the court.” It is used in an effort to obtain release from unlawful imprisonment.), counsel submitted post-conviction evidence from a psychiatric expert and social worker that Silva had been severely abused and neglected as a child by alcoholic and impoverished parents; that he may suffer from organic brain disorders resulting from Fetal Alcohol Syndrome (FAS); that he likely suffers from Post Traumatic Stress Disorder (PTSD); that he suffered from Attention Deficit Hyperactive Disorder (ADHD), which led to repeated failures in school and eventual self-medication through illicit drug use; and that at the time of the crime, he was probably suffering from amphetamine-induced organic mental disorders and withdrawal symptoms (Silva v. Woodford, 2002, p. 846, fn. 17). The same psychiatrist also indicated he would need to do further analysis and review in order to form opinions as to whether Mr. Silva had the capacity to form the requisite mental states for the crimes, and whether there was compelling evidence of mental impairment at the time of Silva’s post-crime adoptive admissions that would affect their admissibility at trial (Ibid., p. 849, fn. 24). The court concluded
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that counsel’s failure to investigate the possibility of FAS and the other possibly mitigating conditions at the penalty phase of the trial, and the lack of justification for that failure, constituted ineffective assistance of counsel. On the other hand, the court found no ineffective assistance regarding the evidence of Silva’s mental state and ability to make knowing and intelligent admissions at the guilt phase of the trial (See, also, Hurst v. Florida, 2009). But the same standard does not necessarily apply in noncapital cases. Contrast Silva with the case of Lambert v. Blodgett (2004). In Lambert, the State of Washington charged a juvenile with murder and the case was transferred to adult court where he pled guilty and was sentenced to life in prison without the possibility of parole. The defendant filed a habeas corpus petition alleging ineffective assistance of counsel for, among other things, failure to investigate Mr. Lambert’s background, including his alcohol exposure in utero. Although defense counsel apparently hired an investigator, the allegation was that he failed to provide sufficient information about his client’s background for a meaningful investigation. In upholding the trial court and reversing the federal district court, the Ninth Circuit Court of Appeals said that the courts have never imposed a duty to investigate in a non-capital case. The Lambert court also noted that there was no evidence of prejudice, which would require the court “to conclude that the discovery of FAS evidence would have led Romero to change his recommendation as to the plea, which, in turn, depends on the likelihood that a defense premised on FAS would have succeeded at trial” (Lambert v. Blodgett (2004), p. 983). In a Washington case, State v. Brett (1995), following the defendant’s conviction for aggravated murder in the 1st degree, counsel requested a 1 month delay of the penalty phase of the trial in order to obtain a diagnosis regarding FAS/FAE. The trial court denied the motion. The Washington Supreme Court held that the denial of the motion to continue was not improper and affirmed the death penalty sentence. • P+L //\\ Spring 2011 art. by: Wartnik et al.
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The court said the defense did present testimony from a chemical dependency and mental health counselor about the symptoms exhibited by persons suffering from FAS and FAE, and about what causes those conditions. In addition, witnesses testified about Brett’s upbringing and behavior which allowed the defense to argue and the jury to infer that Brett suffered from FAS or FAE. The court also noted that a defense expert testified that a diagnosis of FAS/FAE would place nothing more than a label on Brett’s lower intelligence and behavior problems, evidence which was already before the jury. Therefore the court concluded that the defense had a sufficient basis to argue for mitigation. Brett’s conviction was later overturned based on ineffective assistance of counsel (In re Brett, 2001). In the New Jersey case of State v. Cooper (2009), defense counsel did not follow up on evidence that suggested the possibility of FAS or FAE but presented evidence at trial that defendant’s parents both consumed alcohol when defendant was in the mother ’s womb. The jury, in response to interrogatories regarding mitigating circumstances, unanimously found that Cooper was born to drug- and alcoholaddicted parents. This was the only unanimously found mitigating factor of 18 submitted to the jury, which ultimately found that aggravating factors outweighed mitigating factors. Only two jurors found that his mother’s consumption of alcohol during pregnancy resulted in defendant’s physical and developmental disabilities. The court rejected the claim of ineffective assistance of counsel for not further developing a fetal alcohol theory because the jury already had evidence before it of the mother’s drinking during pregnancy and its effect on the fetus (defendant), as well as other evidence of his childhood abuse and neglect. Had counsel presented the evidence, psychologists who had testified at the ineffective assistance of counsel hearing after the conviction, would likely have testified at the earlier penalty phase. They would have explained the nexus between Cooper ’s physical and developmental disabilities and his behavior. • P+L //\\ Spring 2011 art. by: Wartnik et al.
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The cases cited above underscore the heavy burden on defense counsel to identify and investigate as early as possible any potential defenses related to FASD. Early identification and investigation will (a) preserve any such defenses and (b) prevent later claims of ineffective assistance of counsel. This is particularly true because the law of many states is that once the court imposes sentence it may not modify or alter the sentence. As a result, if the court receives an expert report after sentencing, it cannot reduce or alter the original sentence. However, some states such as Alaska allow reduction of a sentence within 180 days of the original sentence. The Michigan case of People v. Wybrecht (1997) exemplifies this trend; but, it is notable for its detailed dissent that discusses this defendant’s diagnosis with FASD at the age of three, and his subsequent successful involvement in structured FAS programs. He had no criminal convictions prior to this case, where he was convicted of molesting a 5-year-old nephew. Defense counsel has other challenges when dealing with clients with FASD. The U.S. Supreme Court case of Schriro v. Landrigan (2007) upheld the District Court’s denial of an evidentiary hearing concerning the effects of FAS on the defendant. Landrigan was sentenced to death in Arizona on a murder charge and executed on Tuesday, October 26, 2010 while this article was being written. On a federal habeas corpus petition, counsel had sought an evidentiary hearing on defendant’s claim of ineffective assistance of counsel, based on failure to investigate and offer mitigating evidence at the penalty stage. The Supreme Court of the United States noted that it had never imposed a requirement that a defendant’s decision not to present mitigating evidence must be informed and intelligent. This case raises an important question, not explored in this article, about whether and how defense counsel can work with experts to prepare a defendant with FAS for various phases of a case. The five-to-four United States Supreme Court decision in Rompilla v. Beard (2005) provides a different result. • P+L //\\ Spring 2011 art. by: Wartnik et al.
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Rompilla was convicted of murder and sentenced to death. He claimed that had counsel looked at the records from his similar prior conviction, they would have obtained school, medical, court, and prison records that would have revealed significant mitigating evidence about his childhood, mental capacity, health, and alcoholism. Psychologists examined him after sentencing and reviewed records that the attorney had failed to obtain, and concluded that Rompilla’s problems related back to his childhood and were likely caused by FAS. They also found that his capacity to appreciate the criminality of his conduct or conform his conduct to the law was substantially impaired at the time of the offense. This split decision held that these facts constituted ineffective assistance of counsel since counsel knew that the prosecution would be relying on the very same records as evidence of aggravation, and because review of the records would have uncovered “a range of mitigation leads that no other source had opened up” (Rompilla v. Beard, 2005, pp. 383-84). Effective use of experts in presenting evidence of FASD
Case law has established the right to the appointment of experts to evaluate the accused for the presence of FASD, and the right to public funding thereof in indigent cases (Castro v. Oklahoma, 1995). What, then, constitutes the most effective means of diagnosis and presentation of forensic testimony? There are several approaches. Some attorneys have clients evaluated by a single evaluator, some by nonmedical health care provider evaluators, and some use a team of evaluators with both medical and nonmedical providers. Some lawyers approach the problem like personal injury lawyers, and an expert renders opinions based solely upon record review, while others will have their experts conduct hands-on examinations of the client along with the record review. Where attorneys rely on record review, use of a team of experts can be invaluable. There is no place for cherry picking or cutting corners in order to save a buck. A successful outcome is more likely where the evaluators work together.
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There must be complete, open and straightforward sharing of information and ideas to flesh out inconsistencies in the conclusions and testimony of the experts, and to avoid inconsistencies wherever possible. Additional experts may have to be retained as new issues develop, but they need to collaborate with the basic team to minimize the risk of one expert being pitted against the other on cross-examination. However, honest disagreements among experts should be addressed and seriously considered, not glossed over or hidden for the purpose of obtaining a particular outcome. The team approach is most likely to succeed because FASD assessment is complex and requires a medical diagnosis that relies on specialized physical and psychological evaluations. At least two experts, and preferably three (including a neuropsychologist), are needed for a full assessment. Medical diagnosis may yield an answer as to whether the client has FASD, but not the client’s mental state at the time the crime was committed. The psychologist or psychiatrist and neuropsychologist can provide important information regarding the client’s volitional control and cognitive functioning and comorbidities. In addition, the team’s forensic experts can provide information on issues of competency to consent to search and stand trial, to plead guilty, or not guilty by reason of insanity, to waive Miranda Rights, and to raise mental defenses. For purposes of mitigation, evidence of “the nexus” will make the crucial connection between FASD and the past and subject criminal behaviors of the defendant. Combined forensic team testimony should leave very few important questions unanswered and it is the best vehicle to identify and refine the tools or protocols to be used in the assessment process. A hands-on examination, combined with a record review, provides the best use of forensic experts in the courtroom, and maximizes the potential for a successful result. The courts have not yet reached a consensus on whether record review of a defendant’s medical records and social history • P+L //\\ Spring 2011 art. by: Wartnik et al.
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alone constitute a sufficient basis for an expert’s opinion without the conduct of a physical examination of the client. In Hicks v. Schofield (2004), the defendant was convicted of murder and sentenced to death. His application for a certificate of probable cause to appeal and stay his execution was denied by the state Supreme Court. The state Supreme Court’s Chief Justice, in dissent, contended that the majority ignored a substantial and credible claim of mental retardation based in part on Hicks’ FAS diagnosis. The defense retained a doctor who reviewed Hicks’ records but the state denied him access to Hicks in the jail. As a result, the doctor was unable to give a definitive diagnosis of mental retardation. The dissent found such denial to be a constitutional violation. However, the United States Supreme Court denied a petition for certiorari letting the conviction and sentence stand. Where an expert has based the opinion on both a physical examination and review of school, medical, prison records, and other records, the courts appear likely to give significant weight to the opinion. In the Louisiana Federal District Court case of U.S. v. Nelson (2006), for example, the federal district court judge held a pre-trial evidentiary hearing and found that Nelson was ineligible for the death penalty due to his mental retardation. The court relied upon the definition of mental retardation in the United States Supreme Court case of Atkins v. Virginia (2002), which combined the American Psychiatric Association standard and the standard contained in the DSM IV and the standard of the AAMR. The court held that the execution of mentally retarded persons violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The combined definition includes, from DSM IV, (a) having an IQ of approximately 70 or below or two standard deviations below the mean (b) concurrent deficits of impairments in adaptive functioning in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, selfdirection, functional academic skills, work, leisure, health and safety; and (c) the onset of such symptoms before age 18. • P+L //\\ Spring 2011 art. by: Wartnik et al.
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Three psychiatrists administered tests to Nelson and concluded that he met each of the criteria. One doctor testified that her diagnosis was “partly attributable to the fetal alcohol exposure that Nelson suffered, as children exposed to alcohol in utero have a higher instance of mental retardation and learning disabilities.” She also noted that this case presented “one of the worst deprived environments that there could possibly be,” including severe physical abuse (p. 897). Nelson and the Federal Ninth Circuit decision of Stankewitz v. Woodford (2004), also support the proposition that the team approach to forensic testimony best advances the cause of the defendant with FASD. In Stankewitz, the defendant was convicted of murder and sentenced to death. Three experts agreed that he had brain damage and would have testified had his lawyer so requested. One expert testified that Stankewitz did not seem to be “fully able to appreciate the flow of events or full implications of his actions.” Another medical expert opined that he “is borderline retarded, with an IQ of 79, and suffers from significant brain dysfunction, perhaps attributable to FAS and childhood abuse.” The third expert stated that his brain damage “would produce problems with emotional control, tendencies to be impulsive and unpredictable, and to be unable to exercise adequate judgment or to understand the consequences of his behavior.” The court found that the mitigating facts alleged by Stankewitz, which included organic brain damage, “perhaps attributable to FAS and childhood abuse” constitute “the kind of troubled history [the Supreme Court has] declared relevant to assessing a defendant’s moral culpability” (pp.718, 723 [internal citations omitted]). Judges and attorneys in the criminal justice system can only respond appropriately to those who suffer from FASD and commit crimes if they understand FASD and how it affects behavior. The organic brain deficits and secondary disabilities caused by fetal alcohol exposure, and lack of early childhood detection, result in difficulty associating • P+L //\\ Spring 2011 art. by: Wartnik et al.
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cause and effect, difficulty learning from experience, and difficulty adapting to change. These characteristics result in inconsistent and erratic behavior, and can affect an attorney’s ability to explain and justify his or her client’s behavior. Other mental health problems frequently accompany a diagnosis of FASD. Ninety-four percent may have at least one comorbid diagnosis in adulthood (52% depression, 43% suicide threats, 33% panic attacks, 29% psychosis, 23% suicide attempts, and 40% ADHD) (Streissguth, Barr, Kogan, & Bookstein, 1996). More pertinent to our discussion, and cause for community concern, is the fact that approximately 60% of all individuals with FASD get in trouble with the law and about 40% end up incarcerated and/or hospitalized (Streissguth et al., 1996). Because FASD impairs the ability of people to function in society, the impact of contact with the criminal justice system can aggravate, ameliorate, or mitigate their impairments. As a result of organic brain damage and secondary disabilities, some people commit crimes they don’t understand; some people are accused of crimes they didn’t commit and confess to them; some people have been convicted of crimes that never happened and confess to them. Some people have committed crimes and are doomed to get caught in the justice system’s revolving door unless we in the justice system and society do things differently. We can help prevent this from happening if those with FASD are identified early in life and provided the treatment and structure that will allow them to function in society. Professionals need to be trained to provide understanding of the behaviors of people with FASD in order to improve their behaviors, the success of which has been shown in the training of prison guards (Streissguth, 1998). If they do exhibit criminal behavior, whether or not identified as FASD, the legal system should identify them as potentially FASD if their behaviors so indicate, determine whether they have FASD, whether they are safe to be in the community, and if so, how best to help them lead productive lives. • P+L //\\ Spring 2011 art. by: Wartnik et al.
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The attorney must determine whether the facts justify an FASD assessment for a criminal defendant. The following steps will provide guidance: 1.
Ask questions to determine mom’s alcohol use during pregnancy and determine whether the defendant comes from a family that abuses alcohol or other drugs.
2.
Identify the defendant’s behaviors from birth to the present.
3.
Identify the criminal history and type(s) of crime(s) committed (e.g., frequent contact with the justice system, especially with similar kinds of cases, nonsensical criminal behaviors, especially with little or no expectation or likelihood of gain).
4.
Identify the defendant’s cognitive and functional abilities and limitations.
5.
Identify the presence of red flags such as problems in school, disrupted education and the existence of an IEP, adoption, multiple foster-home placements, prior mental-health treatment/hospitalization(s), and/or other mental-health diagnoses (FASD may be the most basic one that has been missed), short physical stature, the presence of facial abnormalities. Seek pictures of the defendant as a toddler and young person as abnormalities are likely to disappear as the defendant ages through the teens.
6.
Inquire about the existence of siblings and extended family who have been diagnosed with FASD.
When appropriate, a judicial order should be obtained for an evaluation by experts who are skilled in the diagnosis of FASD, ADHD, ADD (Attention Deficit Disorder), Bipolar Disorder, Reactive Attachment Disorder (RAD), PTSD, and other prevalent mental conditions and disorders. The appendix is an easy-to-use screening questionnaire which includes many of the red flags listed above and was designed by a forensic FASD diagnostic team composed of a psychiatrist, a psychologist, a neuropsychologist, and one of the co-authors as the legal director. Beyond diagnosis, the fact that a person has FASD could affect or be affected by prosecution and sentencing in the following ways: • P+L //\\ Spring 2011 art. by: Wartnik et al.
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1.
It may result in a finding of incompetency to commit the crime or incompetency to consent to a search, or to knowingly and intelligently waive Miranda rights.
2.
It may reduce culpability of the criminal conduct.
3.
It may require different measures to reduce the chances of recidivism and future criminal behavior.
4.
A sentencing may aggravate or alleviate the preexisting difficulties of functioning in society.
5.
The diagnostic team should consist of skilled forensic clinicians to make a difference in the outcome.
What is needed to implement a sentence and post-sentencing supervision approach that will maximize the likelihood of a successful outcome? The attorneys, probation presentence investigators, judge and probation officers should consider 10 principles of sentencing. A full discussion of these principles can be found in an article by co-author Anthony P. Wartnik (2007). The 10 principles are: 1.
Consider whether the disability involves reduced culpability and thus warrants the imposition of less severe sanctions.
2.
Advocate for less lengthy incarceration (or none) when reasonably possible and when consistent with community protection.
3.
Seek/impose milder but targeted sanctions.
4.
Seek/impose a longer term of supervision.
5.
Use the judge’s position of authority (stature) with the offender (most offenders with FASD want to please and respond well to judicial authority).
6.
Get a sponsor or advocate for guidance, monitoring and assistance.
7.
Create structure in the offender’s life. Offenders with FASD respond well to a clear structure, simply stated direction and concrete language, and a predictable and consistent routine and set of expectations, using a support system composed of family, volunteers and probation services.
8.
Write out, simplify and repeat rules and conditions of supervision.
9.
Make sure that the probation officer understands FASD.
10.
Don’t overreact to probation violations—particularly status offenses—seek/impose sanctions for violations that the probationer can understand and relate to.
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We note that all of the legal decisions cited in the first section above involved extraordinarily violent crimes, and most were death penalty cases. We do not mean to suggest that all of these principles are equally applicable to defendants with FASD who commit violent crimes and the substantially larger population of defendants with FASD who commit less serious crimes. While these principles are worthy goals, the current tough economic times are forcing legislators to make difficult decisions aimed at balancing state budgets, and so the resources may not be available to implement all of them in all jurisdictions. As discussed later in this article, longer supervision, support systems, and the like, are rapidly diminishing for nonviolent offenders. A concerted effort is necessary to secure the resources to implement these goals because the costs for failing to do so will only be greater due to increased recidivism, school and job failure, etc. II.
Therapeutic drug court—lessons learned Many addicts are charged with crimes that are eligible for therapeutic courts like drug court, mental health court, veterans’ court, and DUI court. They may be accepted, enter, sometimes give up substantial constitutional rights, and then are diagnosed with FASD. Some may suffer from FASD but are not diagnosed. How do these people fare? A project at the University of Washington School of Medicine, determined that many clients of the therapeutic drug and mental health courts qualify for FASD screening and assessment for a diagnosis of FASD. Following are some hypothetical cases based on a combination of real drug court experiences: Sam was in his twenties, and already had a long criminal history. During his drug court stay he was identified as having FASD, put on short returns for court appearances, and linked with appropriate services for both his physical and mental issues. He was functionally impaired and qualified for Developmental Disabilities services.
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Yet, no matter how much structure or how many services he was provided, he could not comply with drug court’s requirements, could not follow directions, and frequently disappeared for long periods of time. He failed to complete the program, twice, although he was in a program that was specially designed to meet the needs of people with FASD. Annette, in her thirties, single mother of three, was in drug court for almost 4 years before being terminated and sent to prison for failure to comply. She consistently defied the program, would not follow directions, and wanted to write her own program. She was assessed and identified as having FASD, but was too functional to get benefits, so did not have access to a full range of services. Interestingly, she got her act together in prison and after release. She went to school, reclaimed her children, and visited drug court a few years after being terminated to show what she had accomplished. She credited drug court with giving her the tools to stay sober. She demonstrated that graduation from drug court is not the only measure of success. Joan was identified as having FASD from the beginning. Early diagnosis of FASD resulted in drug court recalibrating its expectations. Like many drug court clients with FASD she was a follower who wanted to please those in authority. Being on the street makes victims with FASD vulnerable, and frequently they take the fall for others. When in drug court, the same tendency can make FASD clients want to please the authority figure, the judge. Yet, even with structure, following directions is a challenge. Joan disappeared, and was gone for 2 years, on bench warrant status. While gone she found internal motivation as a result of reconnecting with her kids. She turned herself in and was permitted to stay in drug court, against protocol, because she had been identified with FASD. A success story, she graduated. This case and Annette’s case demonstrate that people with FASD are capable of learning and of making necessary changes in their lifestyles and behaviors, sometimes in spite of the shortcomings of available services. From these two examples, we can conclude that properly constructed services can be effective in helping defendants with FASD succeed in society without presenting a threat to community safety.
In King County, everyone who is admitted to drug court tries it out for a couple of months before opting in (which includes giving up constitutional rights) to see whether it’s a good fit. Of those who try it and are identified as having FASD, most are identified as “needs exceed.” That means their needs • P+L //\\ Spring 2011 art. by: Wartnik et al.
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exceed drug court’s ability to provide services, and admission to drug court would set them up for failure. Even if the criminal justice system in a particular area has the advantages of therapeutic courts and some sentencing schemes that provide the flexibility to deal with defendants diagnosed with FASD, the criminal justice system is not a social service agency. While in some areas our legal ability to deal with addicts and with the mentally impaired is growing (using therapeutic courts and drug offender sentencing alternatives, for example), our resources are dwindling due to the current difficult economic times. In Sonya’s case, a nondrug court gross misdemeanor case (reduced from a felony, as discussed below), the court ordered supervision for 24 months and treatment. However, in Washington, the Department of Corrections no longer supervises most nonviolent felonies (except for drug crimes), and supervises only some misdemeanors for some offenders (high risk and/or violent). Thus, if the court orders a misdemeanant to drug treatment, mental health treatment, or community service, the court has to set review hearings for the defendant to return to court and provide documentation of compliance with the court’s sentence, unless s/he is being supervised by the Department of Corrections. There will be no follow up on his/her progress unless the court does it. It has been proposed (Streissguth, 1998) that people in the community can serve as volunteer monitors, assist defendants with FASD in their day-to-day activities, and help them keep track of and attend meetings with probation officers and court review hearings. Perhaps retired police officers and firefighters, teachers, counselors and others could serve as monitors. But who will recruit and organize them? The courts do not have the resources to do it. Although this activity is not a judicial function, the court is able to provide invaluable leadership to engage the community in such efforts. In the case of nonviolent felonies where the court finds a chemical dependency contributed to the commission of the • P+L //\\ Spring 2011 art. by: Wartnik et al.
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offense, the court may order related treatment only if there is community custody. If there is no community custody, the court is left with no options. It cannot order treatment or follow up. The offender is simply on his or her own after release from custody. Washington courts can order defendants to a Drug Offender Sentencing Alternative if they are eligible. A prison-based program and a residential program are each available depending on the sentencing range for the offender’s crime and the kind of crime committed. However, under either program, it is not clear that the programs, whether prisonbased or residential, have the ability to diagnose and properly treat clients with FASD, particularly given the current condition of our economy at both the state and federal level. Because persons with FASD think in very concrete terms, the many traditional drug programs that require some abstract thinking will not be effective. Therefore, teaching techniques, verbal communications, and written materials need to be constructed or rewritten for this special population. III. Felonies, significant issues, including issues of constitutional magnitude In this section we examine significant current case law involving the effect of FASD as to mitigation of capital sentences that should provoke discussion of theories that may drive trial and appellate court decision making in the future. FASD, under the case law cited in the previous sections, is clearly a condition that can constitute a mitigating factor. FASD as a mitigating factor should not be limited to death penalty cases. It is inconsistent to treat it as a mitigating factor in death penalty cases but not in non-death penalty cases. FASD should also be considered at every other phase of prosecution, in addition to mitigation. With this in mind, we discuss several case studies, identifying and analyzing issues.
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First, as previously stated, Sonya was not a drug court client. She was not an addict, was 23 years old, had no prior criminal convictions, and was charged with a serious misdemeanor sex offense. She was diagnosed at an early age with FASD, Bipolar Disorder, and PTSD. Along with Bipolar Disorder, PTSD is common in defendants who have FASD, defendants whose childhoods were marked by abuse and neglect from addicted parents, relatives, friends, and strangers. One of the common behaviors of defendants with FASD is that they tend to get involved in inappropriate sexual situations (Streissguth et al., 1996). Prosecutors frequently recommend incarceration consistent with their duty to emphasize the need for community safety. When incarceration becomes an overriding consideration, it is easy for judges to choose incarceration over community-based treatment because FASD often presents an aggravating, rather than a mitigating factor. When this happens, the response is likely to be long-term incarceration because there are not any effective programs available in the community for people with FASD necessary for adequate protection of the public. This reaction is of particular concern when the sentence involves sex offender registration, as in the case of Kerry, discussed below. Sex offender registration may doom the offender to failure and to further and more serious criminal behavior upon release from prison. The use of family and other volunteer monitors as discussed below to provide assistance and supervision, combined with treatment in the community by providers who understand FASD and effective learning approaches, may be the best response. This would be consistent with the recognition that FASD should be considered a mitigating factor for determination of an appropriate sentence. The case law cited earlier on in this article shows that the presence of FASD can constitute mitigation for sentencing purposes. Case study #1
Johnny is age 14, a Caucasian male. Collateral information indicates that his biological mother engaged in chronic alcohol use and likely consumed alcohol while pregnant with
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Johnny. It is suspected that Johnny’s biological mother was also significantly exposed prenatally to alcohol. The paternal family history is significant for chemical dependency and for the death of Johnny’s sibling as a result of “shaken baby syndrome.” Johnny was reportedly subjected to physical abuse and neglect while in the care of his biological mother. When Johnny was in kindergarten or first grade, the state removed him from her care. He had two foster home placements prior to his placement in the care of his adoptive father 4 years ago. His adoptive father is a single parent with adult children. Johnny is the only child in the home. Johnny’s adoptive father is a substitute teacher for special education classes in the school district. Johnny had a history of “rages” in his previous foster homes. About three weeks after Johnny was placed in his adoptive father’s home, he knocked over a bookshelf after he became frustrated with school. The adoptive father says Johnny has considerable difficulty with processing information, understanding multistep instructions, and remembering information. Johnny’s memory is variable. He has had difficulty remembering how to spell his last name. At times, he appears to miss words in communication, contributing to his comprehension difficulties. He needs reminders, as he often forgets steps on instructions. As a result of these cognitive difficulties, Johnny frequently becomes frustrated. His adoptive father reports that Johnny requires an explanation when he is told “no,” to ensure that he understands the reasoning behind it, and that the explanation needs to be stated in the simplest and most concrete terms possible due to his inability to process complex information and abstract concepts. Johnny was previously assaulted by a male peer in school and by a classmate on a bus. Since preschool, Johnny has been placed in special education programs. He is now in the eighth grade. Intellectual and achievement testing indicate low intellectual functioning and • P+L //\\ Spring 2011 art. by: Wartnik et al.
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learning disabilities. His cognitive ability on the Woodcock Johnson III is in the Low range with an overall score of 78, which falls within the fifth percentile compared to his peers. There is a large discrepancy between his verbal (equal to 73) and non-verbal (equal to 84) problem solving abilities. Under the Woodcock Neuropsychological Battery, Johnny demonstrated neurological functioning from the normal to mildly impaired range (Broad Reading = 63; Broad Math = 62; Broad Written Language = 58). He performed in the mildly impaired range on the Romberg testing, clock construction, finger tapping, expressive speech, and coordination. While his sensory functions are normal, his performance on fine motor coordination tasks is impaired and he has difficulty with speech patterns. His scores on the Comprehensive Receptive and Expressive Vocabulary Test and the Test of Language Development (TOLD) were in the low average range. Tests of sensory processing show that Johnny is highly sensitive to sound and touch, and that he reacts in a negative fashion to sensory input through these channels. On executive functioning tests, Johnny performs within the Impaired range on tests of abstract problem solving. He cannot adapt his responses to the demands of the task and cannot utilize examiner feedback to learn from his mistakes. On the Behavior Rating Inventory of Executive Function (BRIEF), Johnny exhibits impaired scores in the areas of Inhibition, Shifting, Emotional Control, Working Memory, and Self-Monitoring. On tests of language reasoning and judgment, Johnny evidences significant difficulty, requiring him to decipher the figurative meaning of a sentence. He provides literal and concrete interpretations of sentences. On tests of Adaptive Functioning, Johnny is functioning within the Impaired range with his weakest areas in social • P+L //\\ Spring 2011 art. by: Wartnik et al.
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interaction and language communication (3-year age level) and community living (6-year age level). On the Behavior Assessment System for Children, Johnny’s adoptive father and teacher agree that he has problems in areas of social skills, hyperactivity, attention, withdrawal, and conduct problems. Johnny was diagnosed with Oppositional Defiant Disorder (ODD), anxiety, depression, and ADHD in addition to FAE. Over the years, Johnny has been on a variety of psychotropic medications. Currently, he is prescribed the psychostimulant medication Dexedrine to address his ADHD behaviors. Johnny is charged with two counts of Disorderly Conduct (Misdemeanor), one count of Assault in the Fifth Degree (Misdemeanor), and one count of Aggravated Murder in the First Degree. Police reports indicate that the initial charges (one count of Disorderly Conduct and Fifth Degree Assault) stem from an incident where he and a peer threw sharpened pencils at a teacher and then Johnny charged at the teacher with such force he almost knocked her down. After swearing at the teacher and running around the classroom, he allegedly again threw pencils at the teacher. The murder charge is based on Johnny killing a neighbor with a bow and arrow, which his adoptive father had taught him to use. The arrow penetrated the victim’s skull. Johnny also stole the victim’s money and credit card and used it to purchase a computer that he then tried to sell for more than he had paid for it. When reminded of the incidents that occurred at school, Johnny becomes defensive about his behavior and is not able to engage in a reasonable or rational discussion of the allegations against him. He maintains that there is no evidence against him (i.e., he specifically noted that there were no pictures or videotapes of his alleged criminal
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conduct). Those examining him report that he seems to have difficulty understanding that witnesses (i.e. his teacher, social worker, the police officer) could testify regarding their observations of the alleged criminal conduct. They also report that he “seems to have difficulty understanding the adversarial process of criminal court proceedings and is unable to identify possible outcomes for his legal situation.” With regard to the murder charge, Johnny explained that he needed money to pay for his 16-year-old developmentally disabled girlfriend’s abortion but decided, after the homicide, to spend it on a computer instead. Case study #2
Kerry is 29 years old. He was adopted at birth and raised as an only child. His criminal history includes: a 2001 retail theft (stealing electronics from Target, selling them, and giving the money to his 18-year-old heroin-addicted girlfriend) and a 2002 burglary in which he was convinced by an acquaintance to take him to a tow truck yard where the acquaintance took $30,000 worth of parts and both got arrested trying to sell them. The parents report that he has also stolen from them (writing bad checks and using their credit cards), as well as from family friends and a co-resident in a group residential home. In addition, he was reported to have hit his mother, injured his father, put his fist through a wall in the house, and kicked the door. He is currently convicted of two counts of sexual contact, involving two 16year-old female friends, JMC and KMF, having pled guilty against the advice of his parents. Both victims are believed to be developmentally disabled. JMC’s mother reported that JMC has been diagnosed with ADHD, RAD. and symptoms of depression and anxiety. At age 6 Kerry tested as having an IQ of 87 and was described as impulsive and distractive. At age 20 he was evaluated as having borderline intellectual functioning on the Wechsler Adult Intelligence Scale, and with an IQ of 83 at age 28. IQs of 87 and 83 are both considered to be in the low average range. He was diagnosed in 2001 at age 20 as having
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FAS, ADHD, ADD, being impulsive, and exhibiting behaviors consistent with Bipolar Disorder, including periods of grandiosity, overvalued ideas, and numerous chaotic, out-of-control behaviors. At that time he was on a number of psychotropic drugs for ADD and mood swings, including Haldol, Paxil, and Tegretol. Test results indicated impairment of adaptive skills based on brain functioning, frontal-lobe impairment, difficulty with verbal comprehension, impulsivity, and deficient social skills in choosing friends and managing finances. He has had both psychological and sexual deviancy evaluations during the pendency of this case. The Vineland Adaptive Behavior Scale indicated that his daily performance of self-care and getting along with others is seriously diminished. Organic brain damage was confirmed, manifested by deficits in short-term memory, concentration, and ability to learn new information. His sexual deviancy evaluator observed him as being highly distractible and suffering notable attention deficits, with circumstantial thought processes including flighty ideas at times, and speaking with childlike enthusiasm. He showed a marked incongruence between mood and demeanor, and presented with a severe lack of awareness and insight. His presentation was described as reflective of rigid repression, and as naive, indicating a lack of judgment. He tends to react to situations based on feelings rather than rational analysis. Kerry’s cognitive style was described as contributing to his difficulty learning from experience with the consequence of continually making the same mistakes. He suffers from chronic emotional problems and, overall, his balance of mental health is poor. His MMPI did not indicate a propensity toward violent behavior. He and his parents reported that he had experienced a number of age-appropriate heterosexual relationships from high school to the present time. However, he was also reported to lack the ability to manage his finances, as indicated by spending inappropriately on girlfriends, failing to pay the rent when he was living alone, • P+L //\\ Spring 2011 art. by: Wartnik et al.
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and failing to make car payments he had assumed when he bought a used car. He is easily discouraged, has poor coping skills, and little awareness of his own motives. His recollections of the past tend to be idealized and romanticized, blotting out memory of things he would rather not like to remember. Kerry is impressed with things that are vivid and is likely to be influenced by people who are dramatic or who have a strong presence. He is highly susceptible to passing influences and easily led into actions without stopping to consider the consequences. His emotional functioning prevents having empathy for others. This personality trait tends to provoke resentment and hostility in others, making relationships stormy. He is extremely immature, selfcentered, and is prone to making poor choices and blaming others for his problems. His thinking is concrete and unelaborated. He suffers from poor self-esteem, which he compensates for with grandiosity. His immediate recall of information and short-term memory are weak. He is inclined to experience anxiety in new situations and in meeting new females. Although as a preteen and teenager he consumed significant quantities of beer and smoked marijuana, there is no current indication of substance abuse-related problems. He has been described by his psychiatrist as suffering from long term effects of FAS, as not being able to function independently and as unable to make personal and financial decisions. He describes Kerry as needing supervision. Kerry’s sexuality test results indicate a lower than expected level of knowledge about sexual anatomy and physiology. Test results confirm that he does not exhibit deviant sexual interest patterns or fetishes. Other testing demonstrates a lack of sexual interest in prepubescent girls. Although he does not think that he needs treatment, he is open to it. Upon testing, his sexual deviancy evaluator found that he is a moderate risk for sexually reoffending and is a higher risk of general, nonsexual offense, recidivism. Kerry has been reported as not • P+L //\\ Spring 2011 art. by: Wartnik et al.
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endorsing major cognitive distortions associated or commonly endorsed by men with known histories of rape or sexual offenses toward children. However, his sexual offending in this case was not impulsive. He had sexual conversations with the girls over a number of days leading up to the offense date. He continued to spend time with the girls and took them to his hotel room. Kerry admits having intercourse with JMC in the presence of KMF who was lying on the bed nude, covered only by a towel, watching; however, he states that the victims insisted on having sex with him and no force was used. He minimizes the amount of arousal and planning in the pre-sexual phase of his cycle and claims that he did not manipulate the victims or take advantage of them. He views himself as the victim of manipulation by the girls. Kerry claims that he told JMC, “You can’t have sex with 20-year-olds” and that he couldn’t have sex with her because she is underaged. He said that he was driving the girls to the mall and got stuck in the snow close to where he lived, that they said they needed to use his bathroom and that when he walked into the bedroom, JMC was laying on the bed nude and threatened to call her mother and tell her that Kerry was raping her if he did not have sex with her. KMF acknowledges that JMC was the one who came up with the idea that they engage in sex with Kerry and that she kept on insisting on having sex until Kerry agreed. Both the sexual deviancy and the psychological evaluators recommended community-based services. With regard to probation, Kerry will need significant external controls (commonly referred to in FASD cases as “needing an external brain”), he will need to overcome longstanding patterns of behavior and his treatment needs to be geared to his learning problems. They propose use of a supportive therapist, praise and positive reinforcement, and that he needs to be held responsible and accountable for his future actions. The sexual deviancy evaluator recommends eight conditions of probation, including intensive probation, a prohibition against use of • P+L //\\ Spring 2011 art. by: Wartnik et al.
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technology such as the Internet and text messaging, community-based treatment, individual counseling, a curfew, tightly monitored involvement in the community, psychiatric monitoring, psychotropic medication management and monitoring, sexual education, involvement of his parents in his treatment, and that Kerry not be allowed to have contact with minors due to his poor boundaries and severe problems with judgment. The psychological evaluator concluded that Kerry manifests multiple symptoms characteristic of FASD including hyperactivity, distractibility, talkativeness, superficial fluency, marked deficits in adaptive functioning, poor judgment, poor social skills, and generally poor impulse control. He also indicates that Kerry has difficulty with problematic romantic and sexual relationships and anger control. The report noted no evidence of continuing propensity toward abusive or predatory sexuality and that Kerry appears to have consistently chosen emotionally and/or intellectually impaired persons as objects of romantic and sexual relationships. But the report also noted that his choices had been persons his age whose level of functioning was similar to his with whom he could feel competent and comfortable until the instant events. The evaluator also felt that Kerry does not present with a criminal or psychopathic profile. The report recommends that Kerry to be treated as a person who needs additional help, not a person who needs to be chastised or punished for the wrongs he has committed, and it adopts the recommendations made by the sexual deviancy evaluator. The prosecutor (the adoptive parent of an adult child with FASD who has been falsely accused of criminal activity) recommended imprisonment and a sexual deviancy registration requirement. The court sentenced Kerry in accordance with the state’s recommendation. Kerry is qualified to be released on parole from prison in the near future but cannot live with his parents due to the fact that they live within 500 yards of a residential facility for juveniles. • P+L //\\ Spring 2011 art. by: Wartnik et al.
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The parents have tried to convince the prosecutor and Kerry’s parole officer to let Kerry live with them, relying on the fact that the evaluators have found that Kerry does not show any sexual propensity toward children. The parole officer says, “We need to protect the children and unless an appropriate placement can be found in the community for Kerry, he will have to remain in prison until his parole expires.” The operators of the nearby group home know Kerry and have no concern for his being in the neighborhood. The parents have filed a petition for clemency asking that the sexual offender registration requirement be nullified or vacated. The cases of Johnny and Kerry contain sufficient facts to support a mitigation claim. There is reasonably strong evidence to establish the nexus between the disabilities each suffers from and their criminal behavior. Johnny presents a good factual basis to explore mental retardation and resulting issues of competency. Kerry’s facts, though not as strong as Johnny’s, are sufficient to raise the question of competency. There is a factual basis in Kerry’s case to justify a targeted sentence rather than a “throw the rascal in prison and toss the key away” response. These include the facts of the crime, the alleged sexual aggressiveness of one of the victims, Kerry’s lack of a criminal or psychopathic profile, reported lack of sexual deviancy patterns, lack of interest in prepubescent girls or violence, apparent openness to treatment, the fact that the victims and defendant are very similar in emotional and intellectual age, the moderate risk of future sexually criminal behavior that may be reduced or possibly negated by a structured probation and supervision, and that he appears capable of learning about sexual boundaries. Basic realities of FASD affecting the issue of a defendant’s competency
There are certain realities of FASD that those who work in the criminal justice system must understand. First, the case law reflects an imperfect understanding of the diagnostic process, symptoms, and behavioral consequences of FASD. Second, the brain damage caused by alcohol exposure in utero that results in impaired cognitive functioning may
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affect a defendant’s behavior in the legal system, including his/her ability to make rational decisions and to control impulses in the courtroom. Third, there is a world of difference between evidence of past behavioral problems and evidence that a defendant has organic brain damage from FASD that caused such behavior. That means that absent a link between brain damage and the criminal conduct (“the nexus”), the defendant’s history of behavior problems may only convince the judge or jury that the defendant is a bad actor. On the other hand, when the nexus between the brain damage and the criminal conduct is established, FASD can become a potential and potent factor at all stages of the proceedings. FASD is organic in nature rather than the result of a bad disposition, and arises from circumstances entirely beyond the individual’s control (unlike alcohol or drug abuse), and it affects the defendant’s ability to understand society’s norms and/or conform his behavior to those norms. Fourth, if the brain damage caused by exposure to alcohol in utero is severe enough, competency to stand trial, to consent to search, to knowingly and intelligently waive Miranda rights, to waive the right to plead not guilty by reason of insanity, or to plead guilty, diminished capacity, and/or to seek constitutional protection from execution due to mental retardation, may all come into play. In addition, suggestibility to giving a false confession may become relevant and testimonial capacity may become an issue. Fifth, as discussed above, FASD involves a complex diagnosis, requiring both physical and psychological examinations, which require at least two experts and involves complex diagnostic criteria, addressed in two separate government documents but not addressed in the DSM–IV–TR (Stratton, Howe, & Battaglia, 1996; Bertrand et al., 2004). These realities place a heavy burden on defense counsel to provide their clients with effective assistance of counsel. In Sonya’s case, very few facts were disclosed. There was enough information, however, to warrant further inquiry by • P+L //\\ Spring 2011 art. by: Wartnik et al.
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her lawyer if for no other reason than to bolster the evidence that already supports a mitigation argument. That evidence includes the nexus between FASD-related brain damage and inappropriate sexual behaviors (Streissguth et al., 1996). Hypersexuality and risky sexual behavior have also been identified as common with the manic stage of Bipolar Disorder (DSM-IV-TR). FASD, Bipolar Disorder and alcohol and/or other drug use are a dangerously potent recipe for acting out sexually. In Sonya’s case, the attorney was aware of her diagnosis and the facts set forth above. The attorney used those facts to negotiate a reduction in sentence with the prosecutor, and got an agreed recommendation from the prosecutor for enhanced supervision by the court. Defense counsel informed the judge about Sonya’s diagnoses, and the agreed recommendation was imposed. In similar cases where there is less information, counsel may need to determine whether the client might be mentally retarded. If counsel suspects mental retardation, s/he should obtain school records, medical records, prior psychological and/or psychiatric reports, and the report that resulted in the FASD diagnosis. Counsel should interview the client’s family and friends about behaviors and day-to-day executive and cognitive functioning while growing up. If enough information is available to support the appointment of experts, then a motion should be filed for funding and appointment of a competency evaluator. Johnny’s known facts are sufficient to warrant a competency evaluation. Whether we are talking about competency to stand trial, to voluntarily consent to a search, to waive Miranda rights, or to enter a plea of guilty or not guilty by reason of insanity, the basic test is the same. There is no distinction between competence to enter a guilty plea and competence to stand trial (Godinez v. Moran, 1993). In the United States Supreme Court case of U.S. v. Dusky (1960) the Court stated the test as follows: • P+L //\\ Spring 2011 art. by: Wartnik et al.
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The test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him.” (Ibid, p.403)(A criminal defendant may not be tried unless he is competent (Pate v. Robinson, 1996). The United States Supreme Court held that the criminal trial of an incompetent person violates the right to substantive due process (Ibid., p. 378). Justice Kennedy emphasized: Competence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the right to summon, to confront, and to cross-examine witnesses, and the right to testify on one’s own behalf or to remain silent without penalty for doing so. (Cooper v. Oklahoma, at p.349, 1996; citing Drope v. Missouri, at pp. 171–172)
In Washington, the court has held that incompetence cannot be waived because an incompetent person cannot enter into any plea agreement (State v. Ortiz, 2001). In Drope v. Missouri (1975) the United States Supreme Court separated the third prong of the Dusky test into two parts when it stated: A defendant must be able to assist in preparing the defense, thus, to be competent, a defendant must be able to (1) consult with the lawyer with a reasonable degree of rational understanding, (2) otherwise assist in the defense, (3) have a rational understanding of the criminal proceeding, and (4) have a factual understanding of the proceedings. (Drope v. Missouri, (1975), pp. 171-172)
In Lafferty v. Cook (1991) the 10th Circuit interpreted the meaning of Dusky and Drope standard: It is not enough for the district judge to find the defendant [is] oriented to time and place and [has] some recollection of events. But the test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding —and whether he has a rational as well as factual understanding of the proceedings against him. (Lafferty v. Cook (1991) at p. 1548)
In U.S. v. Duhon (2005), pp. 669-670. a U.S. District Court in Louisiana recognized the difference between incompetency due to mental illness and incompetency due to mental retarda• P+L //\\ Spring 2011 art. by: Wartnik et al.
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tion, and the need to utilize different criteria for making those competency determinations. The court wrestled with the fact that an erroneous determination of competence “threatens a ‘fundamental component of our criminal justice system’—the basic fairness of the trial itself.” The Duhon court relied on Cooper v. Oklahoma (1996) in which the United States Supreme Court said: After making the “profound” choice whether to plead guilty, the defendant who proceeds to trial will ordinarily have to decide whether to waive his “privilege against compulsory self-incrimination” (Boykin v. Alabama, 395 U.S. 238,243, 89 S. Ct. 1709. 1712. 23 L.Ed.2d. 274 (1969) by taking the witness stand; if the option is available, he may have to decide whether to waive his “right to trial by jury” (Ibid.); and, in consultation with counsel, he may have to decide whether to waive his “right to confront (his) accusers” (Ibid.), by declining to crossexamine witnesses for the prosecution. (Ibid.) With the assistance of counsel, the defendant is also called upon to make myriad smaller decisions concerning the course of his defense. The importance of the rights and decisions demonstrates that an erroneous determination of competence threatens a ‘fundamental component of our criminal justice system’—the basic fairness of the trial itself. (Cooper v. Oklahoma, 1996, at p. 352; citing Godinez v. Moran, 1993 at p.398)
In evaluating competence, the court should consider the key differences between mentally ill and mentally retarded criminal defendants, in particular, the fact that mental illness may be reversible with treatment and mental retardation may be static and untreatable, and may make a person more susceptible to suggestion. (ABA Commission on Mental and Physical Disability Law, 1998). Courts and defense attorneys should be wary of the arbitrary use of general competency assessment techniques and standards in assessing a mentally retarded defendant’s competency: The existence of specialized competency scale for assessing persons with mental retardation does not mean that there are no other customary and accepted methods of assessment. There is general recognition that competence is based on a specific set of cognitive abilities and the functional capacity to exercise those abilities. Thus, competency
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scales or structured interviews can be used with persons who have mental retardation. However, because persons with mental retardation are cognitively impaired, not mentally ill, the strongly cognitive elements of a competency evaluation need to be given special attention. In addition, defendants with mental retardation may be limited as to their functional behavior. Thus, a defendant with mental retardation might be seemingly “restored” to competency by instructing that individual about trial elements, but he or she may not be able to make intelligent legal decisions. (ABA Commission on Mental and Physical Disability Law, 1998, p. 169 [emphasis added]).
The United States Magistrate Judge who wrote the opinion in Duhon, without mentioning FASD, seems to reflect a pretty clear understanding of the diagnostic process, symptoms, and behavioral consequences of being afflicted with cognitive and functional deficits that are primary markers of FASD. The reality, however, is that he appears to represent a small minority in the judicial branch and that the overriding majority have a limited understanding of the problem. The Montana Supreme Court case In the Matter of S.M.S., a Youth (2010) seems to demonstrate this point. S.M.S. was charged with a sexual offense involving his 6year-old sister. S.M.S. filed a motion to suppress his confession. He argued that his “severe cognitive delay” rendered involuntary both his waiver of Miranda rights and his confession. Four separate psychological evaluations revealed that S.M.S. possessed a very low level of intellectual functioning, that he needed special education classes, and that he suffered from fetal alcohol syndrome in addition to PTSD and ADHD. S.M.S. also had likely been sexually abused as a child. The court weighed the conflicting testimony of two doctors and compliance with state law to determine that S.M.S. understood his Miranda rights and made a knowing and intelligent waiver of these rights. The court said: S.M.S. met the age requirements of (the statute) for providing a valid waiver without his parents or counsel present. S.M.S.’s educational level and cognitive abilities raise questions as to whether S.M.S. understood the gravity of the circumstances and his confession. Dr. Butz and Dr. Zook provided conflicting testimony regarding S.M.S.’s cognitive abilities. The youth court sat in the best position to evaluate the competing testimony along with the videotape of the interview to determine whether S.M.S. had confessed voluntarily. (In the Matter of S.M.S., a Youth, (2010) at p. 104)] • P+L //\\ Spring 2011 art. by: Wartnik et al.
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One wonders whether or not the doctors understood the problem and whether this circumstance may have led the trial court and the appellate court to not understand the problem. The trial court and appellate court apparently put a lot of weight on the literal pronunciations of the statute they were applying and the care taken by the investigating police officer. It may not have looked carefully at the fact that S.M.S.’s cognitive and functional deficits may have led to an unknowing, unintelligent, and involuntary (and thus invalid) admission. Keep in mind, with regard to the videotape of the interrogation of the defendant in which he made the admission, that it is not uncommon for people with FASD to indicate understanding verbally when in fact they lack true understanding. It is not clear whether the court had this information when viewing and evaluating the videotape. Cases discussing relationship of FASD and the 8th Amendment in capital cases
Finally we address the Eighth Amendment to the United States Constitution, which prohibits “cruel and unusual punishment,” the body of law addressing it, and we discuss what the future may hold for defendants with FASD. The United States Supreme Court has applied the Eighth Amendment in death penalty cases to those with mental retardation, and those who are under the age of 18. The United States Supreme Court has recognized that the Constitution requires constant reevaluation of what constitutes “cruel and unusual punishment” based on the evolving standards of decency that mark the progress of a maturing society. Until 1989 children could be executed for capital crimes in some states. This practice dated back to 1642 under the American Common Law. In 1989 the United States Supreme Court ruled that juveniles under the age of 16 could not be executed (Thompson v. Oklahoma). In 1998 the court extended the prohibition to 16-year-olds (Stanford v. Kentucky). In 2005 in the landmark case of Roper v. Simmons the United States Supreme Court barred juveniles under age 18 from being executed. The case law dealing with mental retardation followed a similar route. At common law, idiots and imbeciles could not be executed. In 1989, the same day it decided the Stanford case the United States Supreme Court ruled that execution is not automatically forbidden for persons with mental retardation (Penry v. Lynaugh).
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(As discussed below, the United States Supreme Court later abrogated this decision in Atkins v. Virginia, [2002]). Thirteen years later the Atkins court ruled that mentally retarded persons cannot be executed. Unfortunately, rather than constructing a definition of mental retardation to be uniformly applied throughout the United States, the court left it to each state to establish how it would enforce compliance with its ruling. The court’s holding that Atkins was mentally retarded is based on his full scale IQ testing at 59 and his adaptive behavioral deficits (Atkins v. Virginia, [2002], at p. 305, fn. 5). The definition of mental retardation varies significantly from state to state so that a person who would be subject to the death penalty in one state would not be subject to execution in another state. This situation is inconsistent with the requirements of Atkins. The full scale IQ qualification for a finding of mental retardation ranges from state to state from below 65 to 75. One state presumes mental retardation if it is 70 or below, one follows the American Association for the Mentally Retarded (AAMR) definition, and 16 do not have a full scale IQ requirement. The states that do not have a full scale IQ requirement rely on overall functioning, which may be more in sync with Atkins and, in fact, some of these states enacted their current statutes following Atkins. Some states have an onset of the condition limit of age 18, one state uses age 22, four do not define a cutoff for the developmental period, four appear to be open ended as to this element, some states do not define mental retardation, and about half of the states do not have a statute on mental retardation. The Illinois statute provides that an IQ of 75 or below is presumptive evidence of mental retardation (Death Penalty Information Center, 1997). Finally, the United States Supreme Court decided in 2010 that juveniles convicted as adults for nondeath penalty crimes cannot be sentenced to life in prison without the possibility of parole (Graham v. Florida, 2010). Roper, Atkins, and Graham recognize that juveniles and mentally retarded persons should not be held to the same level • P+L //\\ Spring 2011 art. by: Wartnik et al.
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of responsibility for their actions as other people. The two agebased decisions recognize that juveniles have not reached full maturity, that their brains are still developing, and that they are still capable of learning from their experiences and living lawabiding lives. These cases leave unresolved questions as to whether and how the court will clarify the application of Atkins when there are mental retardation claims, and whether the bright line age tests need to be revisited, particularly in light of emerging knowledge about FASD and increasingly successful jury verdicts based on the presence of severe FASD as compelling mitigation. Justice O’Connor’s dissent in Roper may shed some light on the question when she opined that: Adolescents as a class are undoubtedly less mature, and therefore less culpable for their misconduct than adults. But the court has adduced no evidence impeaching the seemingly reasonable conclusion reached by many state legislatures: that at least some 17 year old murderers are sufficiently mature to deserve the death penalty in an appropriate case. (Roper v. Simmons, 2005, at p. 588)
The corollary to Justice O’Connor’s argument is that some people age 18 and older still lack the requisite maturity and intellectual capacity required to justify being subject to execution. Also, some people have full scale IQ scores that are above the cut-off line under state standards defining mental retardation, but, due to the disabilities caused by FASD, function intellectually, emotionally and behaviorally well below the cutoff score for mental retardation. What does the future hold for these populations? The need to apply standards used for mentally retarded defendants or childdefendants to defendants with FASD
There are legal tools for determining who else should be spared execution for their crimes. For example, we have propagated laws in this country that presume or assess the capacity of a child to commit a crime. At Common Law children younger than 7 years old were thought to be incapable or lacking the capacity to commit crimes, and children between ages 7 and 13 were presumed to lack capacity to commit crimes. Washington, like most states, has memorialized this concept in statutory form (Wash. Rev. Code Sec. 9A.04.050, 1995). Consider that many people with FASD who are older than 18 function at a level comparable
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to children, who by law are incapable of committing a crime. Taken together with recent United States Supreme Court case law, for purposes of capacity, this implies that those with FASD can be compared with those who are mentally retarded or are juveniles. Washington’s statute provides that children under the age of 8 years are incapable of committing crime, that children 8 and under 12 years of age are presumed to be incapable of committing crime (a rebuttable presumption), and, by implication, due to statutory silence, children age 12 and over are capable of committing crime. Some states set the age at 14 and older at the upper limit of the statutory scale. Two questions are raised by the structure of this statutes (a) under a statutory scheme where the statute is silent regarding capacity of children age 12 and older (it might be a different age range in another state), is capacity to commit crimes absolute or can capacity be presumed, under a reasonable construction, subject to proof of incapacity, and (b) isn’t incompetency due to mental retardation, mental illness, or other mental conditions such as FASD just another way of saying that the person lacks the legal capacity to commit crime, and if so, can we use the rules for determining capacity as a means of determining whether a person is mentally retarded? The United States Supreme Court could respond to the differing state definitions and lack of state definitions to either, in conjunction with looking at child-capacity standards, or independent of those standards, look at whether the application of the traditional approach to determining the existence of mental retardation should be limited to the purpose for which it was originally conceived, which was to make it easy for government agencies to determine who should and who should not qualify for publicly funded services and public entitlements. (Dr. Stephen Greenspan’s declaration for a Federal Rule 59 (e) proceeding in the U.S. District Court in Texas (Hearn v. Quarterman, 2008). Dr. Greenspan is a renowned psychologist and expert on mental • P+L //\\ Spring 2011 art. by: Wartnik et al.
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retardation. His publications are reputed to be read by more psychologists and others involved in the field of mental retardation than any other author on the subject. Based on Dr. Greenspan’s declaration, the District Court judge determined that a person could be found to be mentally retarded when the full scale IQ exceeds the cutoff line but the executive functioning caused by FASD results in an overall performance below that line, due to the constellation of the neuropsychological deficits and the impact of FAS on a defendant’s (Hearn’s) functional ability. The judge stayed and ordered abatement of the judgment and remanded the case back to the Texas court to conduct a hearing on the Atkins claim. The Court of Criminal Appeals of Texas subsequently rejected the argument presented by Dr. Greenspan, concluding that the Texas statute on mental retardation precluded a finding of mental retardation where the full scale IQ was above the statutory cutoff line (Ex parte Hearn, 2010). It is appropriate to discuss Dr. Greenspan’s opinion as expressed in his declaration in detail because Hearn could wind up before the United States Supreme Court. Before doing so, it is appropriate to set the stage by referencing a part of his slide presentation at the National H.A.T. (Federal Public Defenders) Annual Death Penalty Mitigation Conference held in Seattle this last April (2010). Dr. Greenspan asserted that judges have trouble with the fact that mental retardation is ruled in by incompetence, not ruled out by achievement. He argued people at the upper range of mental retardation (where most Atkins applications are found) is that they can do many things in routine situations, but can mess up badly when things are not routine, and therefore emphasis on isolated “accomplishments” are specious. Dr. Greenspan presented examples of this kind of response. A Colorado judge ruled against an Atkins petition because the defendant was captured on video playing chess when, at a basic level, chess is well within the mental age of children and most adults with mental retardation. In an Indiana case, it was argued that a homeless defendant had normal adaptive behavior • P+L //\\ Spring 2011 art. by: Wartnik et al.
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because he subsisted on food scavenged from dumpsters when, in fact, dogs do that all the time. Dr. Greenspan frames the issue as “how do people adapt in the real world rather than how they do in a structured test situation.” He bases this approach on the fact that FASD is associated with adaptive behavior deficits that mimic mental retardation even though IQ may be well above 70, what he refers to as Adaptive Quotient (AQ). Dr. Greenspan opined as follows: The basic question . . . is it appropriate to change the operational criteria one uses to diagnose mental retardation in order to meet the spirit of the constitutive definition. My answer is that under certain circumstances, such as when an individual has a mixed pattern of intellectual deficits owing to a diagnosed developmental brain syndrome such as FASD, it is appropriate and necessary to change the operational criteria. . . . use of IQ scores are an attempt to create an illusion of scientific certainty in identifying a disorder whose causes and manifestation(s) are often hidden and subtle. . . The problem is that when the artificial number fails to fit with the disability as it is experienced and documented by others, which criterion should be used? Typically, clinicians and governmental entities find it easier to go ‘by the book’ but there are times when that results in a wrong and, possibly, unjust decision. (Greenspan, 2010).
Dr. Greenspan emphasized that his responsibility as a psychologist is to exercise judgment, which cannot be done if required to apply artificially created numbers. In articulating his reasons for his conclusions, Dr. Greenspan referred to the fact that the behaviors seen in people with FASD are the same behaviors that the United States Supreme Court discussed in Atkins. (Greenspan, 2010). The court in Atkins described the behavioral deficits of mentally retarded persons—deficits that also characterize those with FASD, who have IQs significantly higher than 70. The court described the special risks faced by mentally retarded defendants as follows: . . . some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards.
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As discussed above, clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations to adaptive skills such as communication, selfcare, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others . . . they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. Their deficiencies don’t warrant an exemption from criminal sanctions, but they do diminish their personal culpability. . . . it is the same cognitive and behavioral impairments that make these defendants less morally culpable. For example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses that also make it less likely that they can process information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information. The reduced capacity of mentally retarded offenders provides a second justification for a categorical rule making such offenders ineligible for the death penalty. The risk “that the death penalty will be imposed in spite of factors which may call for a less severe penalty,” Lockett v. Ohio, 438 U.S. 586, 605 (1978), is enhanced, not only by the possibility of false confessions, but also by the lesser ability of mentally retarded defendants to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes. As Penry demonstrated, moreover, reliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury (492 U.S., at 323 to 325). Mentally retarded defendants in the aggregate face a special risk of wrongful execution. (Atkins v. Virginia, 2002, at p.308-09)
Certainly the profiles that Johnny and Kerry present can be identified with most, if not all, of the factors identified by the Atkins court. • P+L //\\ Spring 2011 art. by: Wartnik et al.
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In conclusion, there is another approach that may be viable and it is found in the context of the Atkins analysis. Given the court’s strong emphasis on the executive and cognitive deficits that justify exclusion of the death penalty and its expressed reasons therefore, those deficits being viewed as a necessary part of the court’s definition of mental retardation, it may be easier to get the court to carve out a new population as exempt from execution, without having to get muddled up with the various and inconsistent definitions of mental retardation. Ultimately, however, it seems appropriate for the court to come to grips with the fact that many states have not followed the United States Supreme Court’s directive to come up with a rule that will give life and substance to the Atkins ruling and that is consistent with the court’s dictates. This means the court may have to establish a bright line rule for what constitutes mental retardation. The alternative is that defendants with the same profile will live or die depending on where they committed their crime(s). References
ABA Commission on Mental and Physical Disability Law (1998), National Benchbook on Psychiatric and Psychological Evidence and Testimony. American Psychiatric Association. (2000). Diagnostic and statistical manual of mental disorders, (4th ed.), Retrieved February 1, 2011, from http://allpsych.com/disorders/mood/bipolar.html and http://en.wikipedia.org/wiki/Sexual_addiction Atkins v. Virginia, 536 U.S. 304, 305 (fn.5), 308-09 (2002). Bertrand, J., Floyd, R.L., Weber, M.K., O’Connor, M., Riley, E.O., Johnson, K.A., et al. (2004). National Task Force on FAS/FAE, Fetal Alcohol Syndrome: Guidelines for Referral and Diagnosis. Atlanta, GA: Centers for Disease Control and Prevention. Boykin v. Alabama, 395 U.S. 238 (1969). Castro v. Oklahoma, 71 F.3d 1502, 1512, 1515 (10th Cir. 1995). Cooper v. Oklahoma, 517 U.S. 348, 349, 364 (1996).
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Death Penalty Information Center. (1997). Mental retardation and the death penalty: Status of exemption legislation. Mental & Physical Disabilities Law Reporter, 687, Sept.–Oct. Dillbeck v. State, 643 So.2d 1027, at 1029-30 (Fla. 1994). Drope v. Missouri, 420 U.S. 162, 171-72 (1975). Ferguson, G. (1989). A critique of proposals to reform the insanity defense. Queen’s L.J. 14, 135, 140. Godinez v. Moran, 509 U.S. 389, 398 (1993). Graham v. Florida, 130 S.Ct. 176 (May 17, 2010). Greenspan, S. (2010, April). Paper presented at the National H.A.T. (Federal Public Defenders) Annual Death Penalty Mitigation Conference, Seattle, WA. Ex parte Hearn, 310 S.W.3d 424 (Tex.App. 2010). Hearn v. Quarterman, 2009 WL 3362041 (N.D.Tex. Aug. 12, 2008) (No. CIV.A.3:04-CV-0450-D). Hicks v. Schofield, 278 Ga. 159, 599 S.E.2d 156 (Ga. 2004), cert denied by Hicks v. Schofield, 542 U.S. 953 (2004). Hurst v. Florida, 18 So.3d 975 (Fla. 2009). In the Matter of S.M.S., a Youth, 355 Mont. 102, 104, 225 P.3rd 781 (2010). In re Brett, 142 Wash.2d 868, 16 P.3d 601 (2001). Lafferty v. Cook, 949 F.2d 1546, 1548 (10th Cir. 1991). Lambert v. Blodgett, 393 F.3d 943 (9th Cir. 2004). Pate v. Robinson, 383 U.S. 375, 378 (1966). Penry v. Lynaugh, 492 U.S. 302 (1989), abrogated by Atkins v. Virginia, 536 U.S. 304 (2002). People v. Wybrecht, 222 Mich.App.160, 564 N.W.2d 903 (Mich.App. 1997). R. v. Ruzic, [2001]1 S.C.R. 687, 694 (Supreme Court of Canada). Rompilla v. Beard, 545 U.S. 374, 383-84 (2005). Roper v. Simmons, 543 U.S. 551, 588 (2005). Schriro v. Landrigan, 550 U.S. 465 (2007).
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Silva v. Woodford, 279 F.3d 825 (9th Cir. 2002). Stanford v. Kentucky, 492 U.S. 361 (1998), abrogated by Roper v. Simmons, 543 U.S. 551 (2005). Stankewitz v. Woodford, 365 F.3d 706 (9th Cir. 2004). State v. Brett, 126 Wash.2d 868, 892 P.2d 29 (1995). State v. Cooper, 410 N.J.Super. 43, 979 A.2d 792 (2009). State v. Oritz, 104 Wash.2d 479 (2001). Stratton, K., Howe, C., & Battaglia, F. (Eds.). (1996). Fetal Alcohol Syndrome: Diagnosis, epidemiology, prevention, and treatment. Washington, DC: National Academy Press. Streissguth, A. (1998). Attaining human rights, civil rights, and criminal justice for people with fetal alcohol syndrome. TASH Newsletter, Sept. 18-20. Streissguth, A. P., Barr, H. M., Kogan, J., & Bookstein, F. L. (1996) Understanding the Occurrence of Secondary Disabilities in Clients with Fetal Alcohol Syndrome (FAS) and Fetal Alcohol Effects (FAE). Final Report. Seattle, WA: University of Washington Publication Services. Thompson v. Oklahoma, 487 U.S. 815 (1989). U.S. v. Duhon, 104 F.Supp. 2d. 663 (W.D.La. 2000). U.S. v. Dusky, 362 U.S. 402, 403 (1960). U.S. v. Nelson, 419 F..Supp. 2d. 891, 897 (E.D. La. 2006). Wartnik, A. W. (2007). Stopping the Revolving Doors of the Justice Systems. Retrieved February 1, 2011, from http://www.uwcita.org /CITAv1008/trainingmaterials /fasd.html. Wash. Rev. Code, Sec. 9A.04.050 (1975)
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Appendix: Forensic Assessment of Fetal Alcohol Spectrum Disorders
FASD EXPERTS SCREENING QUESTIONNAIRE
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OFFENSE CONDUCT Illogical actions with high detection risk “Simple” plan (focus is only on the objective) No real exit strategy Impulsive and aggressive over-reaction to unforeseen events (“fight or flight”) More sophisticated/experienced co-defendants ARREST CONDUCT Immediately or easily waives rights Over-confesses (suggestible) Brags about prowess or takes full responsibility if co-defendants Emotionally detached from crime (shows little remorse or guilt) Behavioral regression (breaks down in tears, infantile behavior) INTERVIEW WITH CLIENT Short stature (not always) Unstable lifestyle Immature and naïve Eager to please or stubbornly resists the obvious Can't provide coherent, detailed narrative Can't concentrate Doesn't add much Doesn't seem to remember what you tell him/her from appointment to appointment PRIOR LEGAL HISTORY Easily led by more sophisticated peers Multiple low-grade offenses in teen years, often with co-defendants Lots of stealing Illogical offenses (e.g., stealing something with little value) Oblivious to risk Impulsive, opportunistic crimes Probation violations LIFE HISTORY Mom abuses alcohol/drugs Involvement with child welfare Adoption/foster or relative placements/juvenile commitment Special Education / learning disabilities in school Multiple diagnoses in childhood (especially ADD/ADHD) Rule-breaking behaviors (lies, cheats, steals, fights) Disrupted education Substance abuse Unstable adult lifestyle (improves with structure)
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