FASD and the Criminal Justice System: Transnational Research

Patrick McGee spoke with Damien Carrick on the Law Report on RN, Radio Australia, ABC News Radio on November 10, 2015 about the treatment of offenders with FASD in the Australian court system. The episode, entitled “Indigenous Prisoners and FASD” is available from the ABC RN website and offers insight into the growing awareness about FASD in the criminal justice system in Australia. The conversation is partially based on a recent study headed by Dr. Eileen Baldry (University of New South Wales) in which she found that Indigenous Australians with disabilities are often caught in the criminal justice system due to a lack of appropriate support systems. McGee asserts that the criminal justice system is ill-prepared to handle offenders with disabilities. He acknowledges that there are more effective ways of managing this issue, but that they are at the levels of intervention and diversion programs, as well as finding ways to encourage jurisdictional cooperation between disability services and the justice system. McGee points out that this is an issue that has emerged in Canada and the United States as well, but he feels that Australia has fallen behind in terms of awareness and responses. Listen to the episode at http://www.abc.net.au/radionational/programs/lawreport/indigenous-prisoners/6923270#transcript.

This issue was also recently addressed within the Canadian context at a conference in Regina, Saskatchewan on November 17, 2015. A panel comprised of Saskatchewan-based professors including Michelle Stewart, Robert Henry, and Jason Demers discussed incarceration rates in Canada. Indigenous offenders and offenders with FASD were specifically discussed, as were community-based alternative options to incarceration. International awareness of the intersection of FASD and the criminal justice system is growing; however, strategies for alternative treatments and programs are broadly being developed in response. Check out the LeaderPost article “Aboriginal incarceration up 47 per cent at Canada’s federal prisons” and see for yourself (http://www.leaderpost.com/health/aboriginal+incarceration+cent+canada+federal+prisons/11384178/story.html).

Ali McCudden December 19, 2015

FASD & the Law: Free Workshop – March 2015

February Update:

This will be a pre-conference event prior to 6th International Conference on FASD called “Research: Results and Relevance 2015” that is being held March 4-7 in Vancouver B.C. The pre-conference session on FASD & the Law will feature upwards of 20 short presentations. We are currently finalizing the schedule of speakers but emerging themes currently include: justice and law, corrections and incarceration, research and training, as well as family and care providers’ perspectives on justice encounters. We will have a complete list of speakers and schedule available in late January so stay tuned. This event is free and is open to the public. We do ask that you register for the event by contacting: faslaw@uw.edu Please share this event with your contacts and we hope to see you in Vancouver in the Spring!  See the preliminary schedule below – and register today! Please share with contacts and check out the facebook page by clicking here.

FASD & The Law:

Continuing the Conversation about Current Research, Best Practices & Ethical Considerations

Welcome

Registration and Coffee—8:00am to 8:15am

Welcome and Opening Comments (Fia Jampolsky, Kathryn Kelly & Michelle Stewart)—8:15am to 8:30am

Session I

FASD, Mental Health & Wellness Courts—8:30am to 9:15am

·       Judge Toth (Canada), Just Do It: How to Start a FASD Court Without Resources and Actually Get Something Done

·       Suzie Kuerschner (Canada), Wellness Court & Sentencing Plans for Defendants Living with FASD

·       Kelly Rain Collins (USA), Juvenile Mental Health Court

 

FASD in the Courts—9:15am to 10:15am

·       Judge Jeffrey (USA), TBD

·       Judge Wartnik (USA), FASD: Perseveration and Being “Bored”

·       Frances Gordon (Canada), FASD and the Principles of Sentencing: A Turn in the Road since R v Charlie

·       Magistrate Crawford (Australia), TBD

BREAK—10:15am to 10:30am

Thinking with Families and Youth about FASD and the Law—10:30 to 11:15am

·       Dorothy Reid, Canada FASD Research Network (Canada), Don’t Forget About Us: A Family’s Perspective on FASD and the Law

·       Dr. Lori Cox (Canada), The Nogemag Healing Lodge: Working with Youth and Families with FASD

·       Kee Warner & Deb Evenson (Canada), Not The Same Old Kettle of Fish: Communicating for Comprehension

 

Discussion Session One: Ethical Considerations—11:15am to 12:00pm

Presentation:

Dr. Amy Salmon (Canada), Engaging the Criminal-Legal System in FASD Prevention: Current Debates and Implications for Reproductive Justice

Audience and Panelists Discussion Hosted by: Fia Jampolsky

·       Emerging & best practices regarding FASD in the legal system

·       Ethical issues raised in these practices and possible remedies

 

LUNCH—12:00pm to 1:00pm

SESSION II

 

Youth Interventions—1:00pm to 2:00pm

·       Dr. Christina Chambers (USA), Screening for FASD among Juvenile Detainees in San Diego

·       Dr. Maya Peled (Canada), Breaking Through the Barriers: Supporting Youth with FASD Who had Substance Abuse Challenges

·       Dr. Steven Youngentob (USA), Prenatal Alcohol Exposure: The Role of Chemosensory Fetal Programming in Adolescent Alcohol and Nicotine Acceptance.

·       Richard Willier (Canada), FASD and Youth Diversions

Education and Justice Outreach—2:00pm to 2:30pm
· ·       Heather Jones (Australia) Developing FASD Educational Interventions for Justice Professionals

·       Dr. Michelle Stewart (Canada) Managing Expectations: Frontline Police Perspectives and the Limits of FASD Training

 

BREAK—2:30pm to 2:45pm

 

Discussion Session Two: Prevalence—2:45pm to 3:30pm

Presentation:

Dr. Kaitlyn McLaughlin (Canada), TBD

Discussion Host: Kathryn Kelly

·       What is at stake in prevalence studies?

·       What are some of the practices being used to establish prevalence?

Assessment and Assistance—3:30pm to 4:00pm

·       Betty Lou Benson (Canada) TBD

·       Lisa Bunton, (Canada), Providing Services to Offenders with FASD: Challenges and Successes (pending approval)

Discussion Session Three: Looking to the Future—4:00pm to 4:30pm

Audience and Panelists Discussion Hosted by: Michelle Stewart

·       What is on the horizon in the fields of FASD & the Law?

·       What are the research needs in these fields?

*Note: this is a preliminary schedule and is subject to change. Registration required. Contact faslaw@uw.edu.

Lives and crimes: Kids who suffer foetal alcohol spectrum disorder

Lives and crimes: Kids who suffer foetal alcohol spectrum disorder

By: Patrick Begley, The Sydney Morning Herald, 16 Feb 2014

Accessed on: 20 Feb 2014

Commentary by: Krystal Glowatski

While this article is focused on FASD in the Australian context, the author does an excellent job of outlining some of the issues FASD presents for clients and professionals in the justice system.

Australian FASD experts have claimed their country is about 20 years behind Canada in the recognition of FASD.  Many justice professionals still are not aware of the disorder or how it impacts the justice system experience.  This is a timely piece, as we are soon hosting a workshop targeted toward helping front-line workers (i.e., justice professionals, social workers, and those who work in community-based organizations) strategize effective ways to work with clients who have FASD and available resources to proceed with this work.

Some of the issues associated with FASD, as outlined in this article are: lack of patience, impulsivity, issues with memory/event recall, and short attention span.  Consequently, this may result in repeatedly breaking the law, lack of understanding action and consequence, false confessions, and the possibility of easy manipulation.

The author of this article points out a number of times that FASD is indeed brain damage – something that doesn’t seem to be expounded on nearly enough in my opinion.  Let me say it again, FASD is a brain injury.  This means that while some people display the physical attributes associated to the disorder (such as small stature, small eyes, a thin top lip, etc.), many individuals with FASD do not present at all.  However, this doesn’t mean they don’t suffer in terms of mental abilities.  If someone is in an accident and suffers an ABI (acquired brain injury), you can see how they may be affected by the injury cognitively and behaviorally.  It is the same with individuals who have FASD – they essentially have a brain injury – it’s just that the brain was injured during prenatal development.

The author also refers to FASD as “the hidden harm.”  In other words, this disorder may often be mistaken for other disorders such as autism or ADD.  I know from speaking with professionals in the field that misdiagnosing FASD is perhaps one of the worst things that could happen to the individual with FASD.  The treatment and practices surrounding FASD are much different than those associated to autism or attention deficit disorders, and could actually be harmful to the individual who has been misdiagnosed.  Furthermore, a misdiagnosis may mean the individual never receives an accurate diagnosis.

Australia has set aside government funds to approach FASD, however, as this article discusses, it’s unclear how they are going to go about using the funds.  Some say there’s too much focus on prevention (something I believe I have stated in previous blog posts on this site), and not enough allocation or attention to those who already have FASD – we cannot forget about these individuals.

While this has been a lengthy post, I really encourage you to read the article itself.  The author, along with the subject matter experts, have done a wonderful job of summarizing the impacts of FASD on the justice system – both for justice professionals and for the clients who are affected by FASD.

Yukon MP plans private member bill on FASD

Yukon MP plans private member bill on FASD

CBC News (November 19th, 2013) (Accessed November 24th, 2013)

Commentary by Krystal Glowatski

Ryan Leef, a Yukon MP, is in the process of writing a private members bill that recognizes FASD as a unique issue within the justice system.  The bill recognizes that although the Conservative government embraces a “tough on crime” mandate, those with FASD require innovative responses in order to address the needs they bring with them into the CJS.  Leef says, “…jail is[n’t] always the best solution…treatment, not jail, might be a better option.”

Leef also recognizes that diagnosis of FASD is complicated.  While FASD is not an excuse from responsibility for one’s actions, such as criminal offences, it is important to find creative and effective ways of addressing the issue of FASD.  This is a big step for practitioners and advocates.  Out of the Consensus Development Conference on FASD and Legal Issues in Edmonton, AB, there was an amazing array of recommendations put forth by the Jury.  After the closing ceremonies where the draft of recommendations was reviewed, there were mixed opinions flowing through the crowd.  While some viewed the consensus statement as the breakthrough they’d been waiting for, others felt this would remain a document of recommendations, not to be re-visited and given the opportunity to instate real change.  Leef’s bill has been called just the opening part of a discussion on FASD and the criminal justice system.  In fact, FASD was a topic of interest “during a recent meeting of federal, territorial, and provincial justice ministers.”

Even if the all of the recommendations from the Consensus Development Conference aren’t implemented, I think it’s safe to say the discussions are happening.  We are moving in the direction of change, and into an environment of fostering proper supports for those offenders who have FASD.

Northern News Services: Judge laments lack of help for offenders with FASD: Suggests defence lawyers become advocates for clients who are struggling with conditions

Judge laments lack of help for offenders with FASD: Suggests defence lawyers become advocates for clients who are struggling with conditions

By: Miranda Scotland, Northern News Services (September 7, 2013) (Accessed: September 25, 2013)

Commentary by: Krystal Glowatski

The article outlines the first case in Nunavut to address sentencing issues surrounding FASD.  In the case of 23-year-old Peter Joamie, charged and found guilty of sexual assault, the offender was handed a sentence of one year to 13 months, as requested by the Crown.  The judge outlines the lack of services available to individuals with FASD in Nunavut; alternatively, FASD is being addressed through prevention and community awareness.  Although prevention and awareness are beneficial, there is a serious need for services available to people already affected by FASD.  The judge explained that “The Baffin Correctional Centre’s 18-bed Katak Unit is fast becoming a warehouse for the mentally ill, for those suffering from FASD, and for those who are otherwise vulnerable and needing protection.”  The phenomenon of warehousing FASD individuals in prisons is not unique to Nunavut; however, the situation is expounded in a community that is so drastically depleted in available services.  While the Crown requested what the judge refered to as a “generous” sentence, the defence neglected to provide evidence of Joamie’s condition.  As the title of this article suggests, defence lawyers need to disclose such information where it may be considered in sentencing an offender.  As was recently discussed at the Consensus Development Conference on FASD and Legal Issues in Edmonton, AB, issues surrounding FASD need to be taken into account during the legal process.  Many recommendations came out of the recent Consensus Development, and perhaps with time, disclosing such information will be common practice and less people with FASD will be severely impacted by the criminal justice system.  As it is now, the criminal justice system inadvertently sets these individuals up for failure.  Responsibility has to be shared among all justice professionals to begin acknowledging FASD as a serious consideration in the criminal justice process.

FASD and Legal Issues Conference – Sept 18-20 (Edmonton)

Consensus Development Conference on Legal Issues of FASD

This conference is a three-day juried hearing of evidence and scientific findings that allows for the engagement and collaboration of citizens and decision makers in government and the justice system in addressing a specific set of key questions on legal issues related to FASD. Jury Chair: The Honorable Ian Binnie, Former Justice of the Supreme Court of Canada. See website for full details.

Questions to be addressed at this conference:

1. What are the implications of FASD for the legal system?

2. Is there a need for enhanced efforts to identify people with FASD, and how can these efforts be achieved?

3. How can the criminal justice system respond more effectively to those with FASD?

4. How can family courts and the family/child welfare legal system address the specific needs of people with FASD?

5. What are the best practices for guardianship, trusteeship and social support in a legal context?

6. What legal measures are there in different jurisdictions to contribute to the prevention of FASD, and what are the ethical and economic implications of these measures?