FASD and the Justice System

The Over-Incarceration of People with FASD

The late Hon. Harold Johnson, observed in his time served as a Crown Prosecutor:

  • “…[O]ver-reliance upon incarceration is especially apparent when we sentence people suffering from FASD or other mental health problems. We in the administration of law have not found a humane way of dealing with people who have mental health issues. When we sentence them, we don’t take into account their special needs.”[1] 

 

The Saskatchewan FASD Network reported:

  • “In Saskatchewan, it is believed that 1 in 100 people may be affected by FASD. However, it is difficult to know just how many families are affected by FASD as a lot of individuals go undiagnosed their entire lifetime. The signs and symptoms of FASD often go unnoticed and are masked by other factors in the individual’s life or are attributed to other causes. This is why FASD is often called an invisible disability. Individuals with invisible disabilities in many cases do not receive the support and accommodation they need to succeed in life. Many people with FASD have an IQ in the normal range, but the various cognitive processes have been altered. With appropriate supports and changes to their environment, individuals can be productive and successful members of society.”[2]

 

Dr. Michelle Stewart and Dr. Jane Dickson state:

  • “FASD is a complex disability. Much like autism, it is experienced on a ‘spectrum’ which means each individual who has FASD will experience the disability in different ways (Clarren, 2018). FASD is often described as a disability that is 100% preventable and a result of prenatal exposure to alcohol. What is left unresolved in this description is that FASD is a deeply stigmatized disability that places blame on mothers (Drabble et al., 2011) which drives a narrative of FASD as infliction. For some, this means that the diagnosis identifies the individual and the mother for interventions and supports—often dubbed a ‘diagnosis for two’ (Andrew, 2011; Badry et al., 2014). In an ideal world this would mean that both would be provided effective supports and services that are culturally responsive and trauma-informed (Rutman, 2016; Salmon & Clarren, 2011). However, what is more often the case is that the diagnostic and support experiences of the parent and individual are deeply challenging and traumatic (Stewart et al., 2018). FASD is understood to be a disability that follows a ‘racialized script’ that frequently targets Indigenous individuals and families (Oldani, 2009) and one that carries with it built in systems of shame and guilt for mothers, families and those with FASD.”[3]

 

  • “While all disabilities carry different forms of stigma grounded in latent and pervasive ableism, FASD carries a particular type of stigma in that the disability is racialized in Canada as an ‘Indigenous problem’. A ‘disproportionate focus on FASD research in Indigenous groups in Canada—and a corresponding lack of research in the general population’ has contributed to ‘exaggerated beliefs and assumptions about which groups are most affected by FASD’ (Aspler et al., 2019, p. 30). These ‘beliefs and assumptions’ can perhaps best be summarized in what has been referred to by the Royal Commission on Aboriginal Peoples (Erasmus & Dussault, 1996) and the Aboriginal Healing Foundation as ‘the “Drunken Indian” Stereotype’—a racist caricature that flies directly in the face of ample scientific literature that not only demonstrates the absence of a link between biological race and alcoholism (Tait, 2003), but also confirms that Indigenous people consume less alcohol than their settler counterparts (Groves & Cowan, 2002; Khan, 2008). Thus while anyone exposed to alcohol while in utero could have FASD, there has been a connection between Indigeneity and the disability that is a clear expression of structural racism and that is entangled with the [...]

'totality of ways in which societies foster racial discrimination through mutually reinforcing systems of housing, education, employment, earnings, benefits, credit, media, health care, and criminal justice. These patterns and practices in turn reinforce discriminatory beliefs, values, and distribution of resources' (Bailey et al., 2017).“[4]

 

  • “We link the lived experience of being Indigenous and having FASD to structural racism and settler colonialism because the ‘mutually reinforcing’ systems effectively collude as exclusion or challenges in one area produces compounding impacts in another. Discrimination and stigma surrounding the disability are further exacerbated by the challenges one faces in securing access to the very intensive and specialized diagnostic process (Winsor, 2020). Research indicates that diagnosis can impact education and effective interventions (May et  al., 2009) which means, by extension, that a lack of diagnosis can have adverse outcomes in these same areas. Barriers to diagnosis can also be understood within the broader experiences of discrimination in the health care industry historically and in the current moment, which include Residential School histories marked by biomedical experimentation on Indigenous children (MacDonald et al., 2014; Mosby, 2013) and recent histories of experiences of medical maltreatment in Canadian hospitals (Berg et al., 2019), respectively. Concurrently, diagnosis for some Indigenous mothers comes with the real-world fear that if they admit to drinking whilst pregnant they might face sanction by social services. Here too a longer history of having children taken and removed into Residential Schools and more recently, loss of children to the Sixties Scoop and Millennial Scoop, adds considerable perception of risk for Indigenous mothers. Seen this way, the diagnosis of FASD is complex and demands attention to the ongoing and intergenerational impacts of settler colonialisms when the individual or family is Indigenous. The role of race is not secondary it must be seen as central.”[5]

 

  • “Consider for example the oft-cited but dated literature indicating that individuals with FASD are 50%–60% more likely to have justice involvement and detention and present increased risk for inappropriate sexual activities as well as drug/alcohol abuse (Streissguth et al., 2004). This research, and other similar pieces (see e.g., Streissguth & O'Malley, 2000; Streissguth et al., 1996), laid the foundation for additional research on FASD that focused on justice outcomes (Fast & Conry, 2009; Fast et al., 1999; Longstaffe et al., 2018; Wyper & Pei, 2016) in which FASD was taken up in current risk regimes (McLachlan et al., 2018; Pei & Burke, 2018) including burden/cost considerations (Popova et al., 2015; Thanh & Jonsson, 2015). Research in the field of FASD and justice does raise important questions about a range of issues including diminished responsibility (Mela & Luther, 2013), risk for victimization (Thiel et al., 2011) or manipulation (Greenspan & Driscoll, 2016). However, the research on FASD and justice focuses primarily on risk and deficit. When considering the role of justice involvement, ableism and race become intersecting variables. If we return to the RNR model [Risk-Need-Responsivity model], the lived experience of being Indigenous with FASD is that much more challenging. For example, individuals with FASD are often understood to be impulsive, or to live in the moment. This is a characteristic of the disability. In the RNR model, this characteristic is reduced to a static variable that is understood to be something that can be taught out of the individual through anger management and self-control. Seen this way, a characteristic of the disability is transformed into something to be corrected; this is an unacceptable framework and yet it persists. As such, the normative understanding of a rational actor who can be trained to not be risky and who will not face systemic racism obfuscates the lived experience of many Indigenous peoples in the justice system who have a disability. Where there should be accommodation, there is instead further sanction.”[6]

 

  • “Returning to the Streissguth et al. (2004) findings, research indicates that persons living with FASD are less likely to be raised by their biological parents than those without FASD. Research also tells us that racialized minorities are overrepresented in the child welfare system (Fluke et al., 2010; Ma et al., 2018). In Canada, the rates of involvement of Indigenous children in the child welfare system are the highest in the country: According to the most recent figures, Indigenous children, who comprise 7.7% of Canadian children, make up 52% of children in care (Indigenous Services Canada, n.d.). Concurrently, research also tells us that being taken into care is a point of trauma (Trivedi, 2019). Taken together, racialized experiences of trauma are potential key variables that contribute to challenging life outcomes. However, these issues around race and trauma are not frequently accounted for as variables. In other words, the role of structural inequality and settler colonialism is often ‘bracketed out’ of the discussion or research on FASD; the very complexity that should be centred is strategically avoided because it demands a much fuller analysis—and reckoning (Stewart, 2020). From a Gladue perspective, these would be potentially central concerns (being taken into care and experiences of trauma). The question is whether these variables are taken up in a PSR that is quite commonly conducted by a non-Indigenous worker who, like the researchers we just discussed, might not recognize these significant life events but instead focus on FASD which is understood to be a risky, lifelong disability.”[7]

 

  • “Individuals with FASD are understood to present a particular challenge to the courts given in that these individuals are understood to be prone to risky or impulsive behaviour, have challenges in keeping appointments, struggle with employment and trouble making prosocial friends, and people with FASD are also at greater risk for homelessness (Gagnier et al., 2011). Each of these factors can impact bail conditions on primary (showing up for court dates) and secondary (risk to reoffend) grounds (Criminal Code, s. 515, s. 525). Similarly, if the courts understand that the disability presents a static or ongoing risk, this can impact how FASD is understood in sentencing. Indeed, FASD has been seen by the courts as an exacerbating rather than mitigating factor in both youth and adult sentencing because the individual ‘who has FASD has untreatable deficits and lacks ordinary restraint, and that consequently he/she represents an ongoing risk to the public’ (Verbrugge, 2003, p. 22).”[8]

 

Sentencing Considerations

 

This summary on Sentencing people with FASD was originally published by FASD Justice Canada, in their Summary of Legal Literature on FASD: 

“It has been acknowledged that denunciation and deterrence are not the best approaches to sentencing people affected by FASD. Three examples include R. v. Mitchell, R. v. E.L.J, and R. v. Sinclair (Dissent). The most effective approach is one that focuses on rehabilitation and prevention. FASD, despite that; this is the most effective way to prevent further criminal behaviour. The safety of the public would be greater served if high risk offenders with FASD were offered treatment and support as opposed to simply keeping the public "safe" for the length of the sentence. Often, FASD may be considered a mitigating factor, but it does not steer the underlying approach of the sentence. R. v. J. and R. v. J.H. are 2 unusual cases FASD was actually considered to be an aggravating factor. As the case in R. v. Suarak and R. v. McLeod, some courts may acknowledge FASD, but they do not place any weight on the disability in the decision. Since this disability is often invisible, courts are often unaware of the issues related to FASD. With growing knowledge and awareness of FASD, the judiciary is in the beginning stages of altering their approach to sentencing people with FASD. There is very minimal specialized programming available for people with FASD.

Although there is a new wave of aware and concerned judges, often they are constrained by the lack of programming for FASD. In R. v. L.E.K., a judge's order for specialized rehabilitation was set aside as it was outside the jurisdiction of the court. R. v. Gray, R. v. C.J.M, and R .v. Williams are other illustrations of the lack of resources available for offenders with FASD.

There is an obvious need for change in the judicial system. Where there are high rates of recidivism, alternative approaches to sentencing become increasingly important to ensure the health of society in general. Some courts have moved toward a more treatment-oriented approach to sentencing. Initial evaluations illustrate that this approach is effective.”[9]

 

FASD and the Justice System: Resource Guide

 

Resources and Information on FASD, the FASD Network, and Literature

 

 

 

 

 

 

 

 

 

 

 

  • Dickson, Jane, and Stewart, Michelle. “Risk, rights and deservedness: Navigating the tensions of Gladue, Fetal Alcohol Spectrum Disorder and settler colonialism in Canadian courts.” Behavioral Sciences & the Law, 40(1): 14-30. https://doi.org/10.1002/bsl.2536

 

Footnotes

 

[1] Harold Johnson, Peace and Good Order: The Case for Indigenous Justice in Canada, 102.

[2] FASD Network, “Fetal Alcohol Spectrum Disorder: A Guide to Awareness and Understanding,” Saskatchewan FASD Network, 2017, 4. https://www.saskfasdnetwork.ca/_files/ugd/6eb9fe_65ba32ef098d4ae485ce2ed595b66e09.pdf

[3] Jane Dickson, and Michelle Stewart, “Risk, rights and deservedness: Navigating the tensions of Gladue, Fetal Alcohol Spectrum Disorder and settler colonialism in Canadian courts,” Behavioral Sciences & the Law, 40(1), (2022): 21. https://doi.org/10.1002/bsl.2536

[4] Jane Dickson, and Michelle Stewart, “Risk, rights and deservedness: Navigating the tensions of Gladue, Fetal Alcohol Spectrum Disorder and settler colonialism in Canadian courts,” Behavioral Sciences & the Law, 40(1), (2022): 21. https://doi.org/10.1002/bsl.2536

[5] Jane Dickson, and Michelle Stewart, “Risk, rights and deservedness: Navigating the tensions of Gladue, Fetal Alcohol Spectrum Disorder and settler colonialism in Canadian courts,” Behavioral Sciences & the Law, 40(1), (2022): 21. https://doi.org/10.1002/bsl.2536

[6] Jane Dickson, and Michelle Stewart, “Risk, rights and deservedness: Navigating the tensions of Gladue, Fetal Alcohol Spectrum Disorder and settler colonialism in Canadian courts,” Behavioral Sciences & the Law, 40(1), (2022): 22. https://doi.org/10.1002/bsl.2536

[7] Jane Dickson, and Michelle Stewart, “Risk, rights and deservedness: Navigating the tensions of Gladue, Fetal Alcohol Spectrum Disorder and settler colonialism in Canadian courts,” Behavioral Sciences & the Law, 40(1), (2022): 22. https://doi.org/10.1002/bsl.2536

[8] Jane Dickson, and Michelle Stewart, “Risk, rights and deservedness: Navigating the tensions of Gladue, Fetal Alcohol Spectrum Disorder and settler colonialism in Canadian courts,” Behavioral Sciences & the Law, 40(1), (2022): 22. https://doi.org/10.1002/bsl.2536

[9] FASD Justice Canada. "Summary of Legal Literature." Accessed January, 2023. http://fasdjustice.ca/en-ca/case-law/summary-of-legal-literature.html [footnotes omitted]