The Criminalisation of Individuals with FASD: Is it Necessary or Effective?
by Dr Valerie McGinn, Neuropsychologist & Clinical Advisor, FASD-CAN
Why is it that folks with FASD tend to break the rules as children and then as adults offend in society?
92% of caregivers in a study responded that their loved one with FASD was vulnerable to manipulation. Sometimes they are being easily led or responding to social pressures but they also get into trouble of their own. It is known that individuals with FASD are more likely to be the victim than the perpetrator of crime. Their trusting nature leaves them open to victimisation with a poor recognition of risks posed by others.
However, it is every parents’ fear that their delightful, trusting and gullible child with FASD who lacks common sense will end up on a trajectory towards prison. Unfortunately, this fear is often well founded, and it seems prison is the place where most funding is allocated to individuals with FASD in Aotearoa.
Sadly, many end up in the revolving door of the Criminal Justice System, especially when they have few protective factors. The late Mr Thomas Morrison spent 20 years of his life in prison for minor crimes, mostly shoplifting followed by other charges accruing due to his agitation towards the police, at great cost to him, his family and society. At least two million dollars of taxpayer's money was spent on incarcerating Thomas. Judge Hastings, in his decision in 2019, agreed that had even a quarter of that amount been spent on disability care everyone would have been better off.
Criminal conduct has been found to be 30 times higher in individuals with FASD than the general population. It is estimated that 30% of prisoners in Canada have FASD when they only make up 3-4% of the general population. Once released they are at increased risk of reoffending and not following release conditions so sanctions increase. This is largely due to resources not being provided to ensure their well-being in the community.
An online survey of 425 teenagers and adults with FASD conducted by the Changemakers in Canada found 90% of adults with FASD responded that help with things they found hard would make life easier for them. The top services they wanted were mental health professionals and GPs who knew about FASD, and a person who could help them when things went wrong. Although 82% reported that life was hard for them, 82% also reported that they had hopes and dreams with goals they wanted to achieve. This potential and willingness remained untapped while trying to focus on the basic necessities of life such as shelter, nutrition and healthcare.
FASD largely unrecognised by justice workforce
There is increasing recognition of FASD in the New Zealand judiciary – but not in the justice workforce. This includes police, probation, corrections officers, health assessors or treatment providers. It is on all these fronts that individuals with FASD clash with the pre-exisiting training and practices of the professionals who are employed to help them and through this help make the community safer.
The legal process, as well as restorative and rehabilitation programmes, are based on offenders taking personal responsibility for their actions. Offenders must admit what they have done wrong, show remorse for the harm they have caused, accept their deserved punishment, make amends and make personal changes to ensure that they will never do the harm again.
But all of these tasks are either entirely or in part out of reach for those with FASD, who are often punished more harshly due to an apparent lack of remorse. The theory of mind required to step outside one’s own perspective to appreciate how one’s actions impact on others is almost always disrupted in individuals with FASD. An entirely different approach is needed. It requires justice professionals to understand how brain impairment impacts on behaviour. The same paradigm shift that families have to make when caring for their loved one with FASD is needed across all systems interacting with them, including in the legal process.
Impaired executive brain function is a major factor
It has long been presumed that criminal behaviour is intentional and that by holding the person to account for it, they will not repeat it. These premises do not hold true for FASD when there are Executive Function (EF) impairments that will likely reduce capacity to form an intention and think through to consequences. EF is the only brain process that involves conscious thought to activate appropriate actions and inhibit the inappropriate. It is necessary to think rationally and control impulses.
In any situation where there is the potential to do the wrong thing, abstract multi-tasking is involved. One needs to perceive the multiple factors in the current situation, retrieve relevant memories (about what has been learned and what worked previously), trouble-shooting potential actions by foreseeing possible consequences, linking cause and effect and making a go vs no-go decision – all while controlling inappropriate emotions and urges.
All of these aspects of decision making work smoothly in an intact brain so that these thinking processes have concluded before taking action with intent. ‘While those with FASD may have the ability to plan, form intentions and make choices in simple familiar situations, in complex and fraught social situations their planning, intentionality and choosing is likely to reflect impaired executive control due directly to brain damage’. There are so many brain processes involved in such decision-making situations where things can go wrong for those with FASD. When the individual may be in a stressed or in an elevated emotional state, ability to override an impulse with rational thought may not be possible.
Quoting again Natalie Novick Brown and Stephen Greenspan from their recent paper on diminished culpability:
“FASD does not mean persons cannot formulate plans and intentions. Rather the executive multi-tasking required to generate appropriate plans and intentions is intrinsically flawed by brain damage that can compromise ability to foresee consequences, weigh costs and benefits, appreciate cause and effect and shift course while at the same time inhibiting strong unconscious urges from the limbic system. Although brain damage does not exculpate those with FASD who have offended, it does explain how biological factors over which the individual has no control influenced their behaviour.”
The above factors do not only influence rationality and impulse control at the time of a target offence but also within the entire legal process. In the beforementioned Changemakers survey, 38% of respondents had been arrested while 55% had been the victim of crime. Of the 87 who had been charged with an offence, 30% said they did not commit it. 47% of them admitted guilt without understanding the consequences. 65% involved in the CJS as a defendant or victim responded that they did not understand the legal process.
Many with FASD admit a charge to avoid continuing with a legal process that is confusing and stressful... when a brain-damaged individual lacks the higher thought processes to make logical decisions there are real risks of a miscarriage of justice occurring.
These findings are concerning. Making false confessions, waiving rights to silence or legal representation, acquiescing to authority figures, falling for police ploys, confabulating, miscommunicating with and poorly instructing Counsel and misunderstanding legal process are all risks to the integrity of the legal process. All impact on capacity to adequately participate and defend a charge in Court. The process of entering a plea requires the individual to know what they are accused of, the evidence against them and any defences that may be available to them.
It involves a complex weighing up of the costs and benefits of two different courses of action. Many with FASD admit a charge to avoid continuing with a legal process that is confusing and stressful. It is embedded in law that a defendant does not need to act in their own best interest but when a brain damaged individual does not understand the options and processes and lacks the higher thought processes to make logical decisions there are real risks of a miscarriage of justice occurring.
There is nothing inherent in those with FASD to enter the CJS if they are diagnosed, understood and well supported. Missed diagnosis and misdiagnosis means that many in the CJS don’t know themselves that they have FASD and nor do their family or legal representatives. They are covered by a blanket approach of sanctions and rehabilitation efforts that focus on taking responsibility, enhancing self-control, improving interpersonal problem solving and building pro social attitudes that may work for others but will not be sufficiently effective for individuals with FASD. They are perceived as non co-operative or they are psychopathologised as having personality disorders or defects rather than a prenatally acquired brain injury when these efforts fail.
A move away from criminalising towards health
Professor of Psychiatry Mansfield Mela believes the focus needs to move away from what to do to reduce recidivism towards what to do to provide support to improve quality of life and mental health. There needs to be a move away from the criminal route to a health route for those with FASD. The opinions of individuals with FASD themselves, their caregivers and supporters need to be included when crafting what will be effective in keeping people in the community without offending.
A large part would be in reducing the adversities they face by providing supported housing, meaningful occupation, improving family cohesion, providing leisure activities and enhancing skills and interests, all in a culturally appropriate way. Dr Mela sees that skilled mentors/navigators hold the key to these supports. There needs to be a move away from silos to communication and collaboration between justice, mental health and disability professionals putting the individual and their whānau at the centre.
Essential care principles Professor Mela identifies are RRRR:
Recognition of neurocognitive deficits and strengths
Realistic expectations and
Realisation of trauma.
The more challenging issues an individual has, the more support they need.
The typically adopted goal of increasing independence leads to supports being reduced which correlated directly with reoffending in a group studied 3-4 years post release from prison. If there is a mismatch of services, then the person won’t feel supported and these services will not be effective and time and money is lost. Services need to be evidence based for FASD or things can be made worse. Kaitlyn McLachlan when recently presenting the FASD Inreach services working across 10 prisons in Alberta, concluded that any correctional facility without FASD services is ineffective and unjust. By her standard all New Zealand prisons and youth justice facilities are ineffective and unjust.
In Canada FASD evidence is commonly introduced in Courtrooms to meaningfully enhance outcomes with 655 cases from 2012 to 2020 that had a defendant identified with FASD. Most were for sentencing and FASD was always accepted as a mitigating factor and never as aggravating. In NZ FASD has also been widely considered a mitigating factor in sentencing, as a reason for not applying a 3rd strike and as a reason for police statements to be excluded as unreliable.
Even simple questions like, “Do you have FASD or has anyone ever said you might have FASD?” or, “Was alcohol a problem in your home when growing up?” are not asked by most health assessors providing assessments to inform the Courts.
A lack of FASD evidence can lead to a miscarriage of justice, as for Teina Pora. He is not the only innocent man with FASD wrongly imprisoned. Another Māori man Mauha Fawcett has also had a murder conviction quashed by the Court of Appeal for the exact same reasons. No doubt there will be others who are innocent imprisoned under similar circumstances whose FASD has yet to be recognised. Even simple questions like, “Do you have FASD or has anyone ever said you might have FASD?” or “Was alcohol a problem in your home when growing up?” are not asked by most health assessors providing assessments to inform the Courts.
There is a huge lack of FASD expertise amongst the forensic workforce in New Zealand. This leaves FASD mostly undetected and therefore the correct advice and recommendations unprovided. The revolving door is always open to men with FASD like Thomas Morrison who the Ministry of Health failed to provide any Disability Support Services to two years after my referral was made, up until he died on 21/09/21, aged 43 years.
Partnering with individuals and whānau for support: what works?
Even in Canada there is a lack of good information about trajectories, protective factors and identifying risks and what best supports those at risk. However, it is clear that those with the highest risk need to be provided with the highest level of supports. How can service providers reach a level of competence to be able to engage with folks with FASD? Their buy-in is needed for success and most have an understandable suspicion about health professionals from prior experience. A partnership approach is needed with the individual with FASD and their family and supporters to make sure it works, moving away from risk focused to a strengths-focused collaborative approach. It is critical to recognise FASD at whatever stage of life it presents and to identify strengths and challenges to inform an effective response.
Mr Mauha Fawcett was released from prison without a cent and only with one set of clothes. How can a man with FASD who was wrongfully imprisoned for ten years be expected to navigate the complexities of life without any support services? He has a dedicated lawyer who has managed everything for him for years, but this is not the role of a lawyer. Fundamental changes are needed for individuals like Mauha, Thomas and the many others I know with FASD currently incarcerated.
Screening and diagnosis in prisons will always be cost effective so that suitable support services can be put in place there and when reintegrating to the community. In Alberta, services are put into the prisons in the form of healing circles and sweat lodges are available on release which are very successful. Such culturally appropriate FASD services in our prisons and transitioning seamlessly into community support will go a long way towards preventing the revolving door that we currently have.
Thanks to the Changemakers and the Lakeland FASD Conference 2021