Recent high-profile trials have pushed the fetal alcohol syndrome defense to the forefront.
This approach may appear to some to be a “way out” for people convicted of murder.
But the criminal justice system does play an important role in helping people with this condition get the treatment and services they need.
Fetal alcohol syndrome is the most serious of several conditions grouped under the umbrella term fetal alcohol spectrum disorders (FASDs). These cover the range of conditions that can occur in people whose mother drank alcohol during pregnancy.
These effects include both physical and behavioral problems, including facial anomalies, memory problems, and difficulty controlling emotions or following directions.
FASDs may be best known as a factor in capital punishment cases. But people with these conditions are involved with all levels of the criminal justice system.
According to the advocacy group Minnesota Organization on Fetal Alcohol Syndrome, 60 percent of people with FASDs have been in trouble with the law. In addition, half have spent time behind bars.
Some of the most contentious cases that involve FASDs as a defense are those where the death penalty is on the line.
One example is the 2012 trial of Mark Anthony Soliz, who was found guilty of killing a 61-year-old woman during a robbery in her home. At the sentencing portion of the trial, Dr. Richard Adler, a Seattle psychiatrist, testified that Soliz suffered from fetal alcohol syndrome.
Adler said Soliz displayed several behavioral changes as a result of his condition, including problems with his attention, memory, judgment and ability to control his impulses. In light of this testimony, his defense attorneys asked that the jury consider life in prison without parole instead of the death penalty.
They argued that Soliz’s condition was a form of brain damage due to his mother’s heavy drinking during pregnancy. In fact, she admitted to downing up to 32 drinks per weekend and sniffing paint daily.
Experts said that giving Soliz the death penalty could be seen as a form of “cruel and unusual punishment,” which is prohibited by the Eighth Amendment. This argument is based on a 2002 Supreme Court ruling against executing criminals with mental retardation.
These cases are also challenging because the severity of FASDs effects vary greatly. That leaves juries and courts to consider this condition along with the other trial evidence.
In Soliz’s case, this approach didn’t work. He was sentenced to die by lethal injection. He recently lost his first appeal of his conviction and is still awaiting execution.
But in another case, a New Zealand court threw out the convictions against Teina Pora, a man who had spent 21 years in prison for murder. Experts testified that he had made false confessions as a result of FASDs.
Victims’ rights advocates may be reluctant to accept this type of defense, especially when it spares a defendant from the death penalty or other sentence.
But these types of cases have raised public awareness about a group of conditions that may affect up to 5 percent of the population,
At the same time, advocacy groups have been pushing lawyers and the courts to acknowledge the extent of the problem. They are also calling for more focus on the needs of defendants with the condition.
“Understanding and responding appropriately when a defendant has FASD can result in better outcomes for everyone,” said Kay Kelly, project director of the FASD Legal Issues Resource Center at the University of Washington, in a 2011 address to the National Press Club in Washington, D.C.
This means identifying defendants with FASDs — when they first enter the criminal justice system. This is also the best time to deal with their condition appropriately by connecting them with social and mental health services, and accommodating their disability.
In 2012 the American Bar Association approved a resolution that called for better training for lawyers on how to identify and help children and adults with FASDs.
This approach may also help convicted criminals with FASDs improve their lives after they are released from prison.
Kelly said that some defense attorneys have argued effectively that a “sentence that takes this disability into consideration is likely to reduce the rate of recidivism.”