FETAL ALCOHOL SPECTRUM DISORDERS 

AND THE CRIMINAL JUSTICE SYSTEM 

REASONS PEOPLE WITH AN FASD GET IN 

TROUBLE WITH THE LAW 

Studies show that people with an FASD have specific types 

of brain damage that may cause them to get involved in 

criminal activity. These individuals show: 

• Lack of impulse control and trouble thinking of future 

consequences of current behavior 

• Difficulty planning, connecting cause and effect, 

empathizing, taking responsibility, delaying gratification, 

or making good judgments 

• Tendency toward explosive episodes 

• Vulnerability to peer pressure (e.g., may commit a crime 

to please their friends). 

Persons with an FASD may break the law without intending 

to do so. For example, they may touch people when it is 

unwanted and think they are just being friendly. They may 

take things that do not belong to them because they like them. 

People can take advantage of individuals with an FASD. 

They may talk them into committing crimes. Females with 

an FASD may be involved with destructive men for food, 

shelter, attention, or drugs.3 These relationships put them 

at risk for arrest. 

NUMBER OF PEOPLE IN THE CRIMINAL JUSTICE 

SYSTEM WITH AN FASD 

It is difficult to know how many people in the criminal 

justice system have an FASD. Data are limited, and 

populations vary by State. In addition, few systems screen 

for FASD or conduct a full diagnostic assessment. Researchers 

at the University of Washington estimate that 35 percent of 

individuals with an FASD have been in jail or prison at 

some point. They also estimate that more than half the 

people with an FASD have been in trouble with the law.1 

The number of people with an FASD in the criminal justice 

system is assumed to be high. In the United States, 

approximately 3 million people are in jail or prison. Based 

on estimates of FASD in the general population, as many 

as 28,036 inmates could have an FASD.2 

ISSUES RELATED TO FASD IN THE CRIMINAL 

JUSTICE SYSTEM 

Laws vary by State and case law is binding only in the State 

or circuit where the case was decided. Only Supreme Court 

cases are binding nationally. However, several general issues 

can arise for attorneys and judges dealing with persons with 

an FASD: 

• Competency to stand trial, which is the ability to 

understand the charges, participate in a trial, and assist 

in one’s own defense. Persons with an FASD may not 

understand the charges against them. They may find 

criminal proceedings confusing. They may have problems 

with time management and come to court late or not 

at all. Several cases address competency and FASD.4–6 

• Validity of expert testimony regarding diagnosis. 

Questions arise about the types of exams that are sufficient 

to determine a diagnosis of an FASD. For example, what 

if maternal alcohol use during pregnancy is unknown?7,8 

• Diminished capacity. Capacity refers to the ability to 

understand right and wrong and to understand the 

There was a part of me that was angry, but I also knew that the police department and the justice system were uninformed 

about how vulnerable and easily swayed people [with an FASD] are. 

—Mother whose son with an FASD was wrongly convicted of a crime 

FETAL ALCOHOL SPECTRUM DISORDERS 

FASD is an umbrella term describing the range of effects that can occur in an individual 

prenatally exposed to alcohol. These effects may include physical, mental, behavioral, and/or 

learning disabilities with possible lifelong implications. FASD is not a clinical diagnosis. It 

refers to conditions such as fetal alcohol syndrome (FAS), alcohol-related neurodevelopmental 

disorder (ARND), and alcohol-related birth defects (ARBD). 

WHAT YOU NEED TO KNOW
R

many unknowingly waive their rights by signing forms that 

they do not understand. In addition, they may consent to 

being searched or take responsibility for the crimes of others 

to win favor. 

Sentencing is also an issue. Some persons with an FASD 

respond well to the intense structure and rules of prison. 

Others are vulnerable to attack, exploitation, and 

manipulation by other inmates. Some do not 

understand prison rules and break them. Because 

corrections officers may not understand FASD, they 

may punish inmates with an FASD for failing to follow 

directions. It is critical to offer training on FASD to all 

corrections staff so they can learn strategies to respond to 

inmates with an FASD. 

Once on probation, persons with an FASD may have trouble 

meeting probation requirements. They can have problems 

managing time, recalling appointments, and making plans. 

Therefore, they may need a greater level of supervision. A 

relative or support person may need to be assigned to follow 

up on probation requirements. Highly structured probation 

that includes supervised living, life skills education, and drug 

and alcohol treatment can be very effective.15 In fact, supervision 

can help prevent crime. Many clients with an FASD can remain 

crime free with intense supervision.14 

Other effective alternatives to prison include halfway houses, 

group home treatment centers, or electronic monitoring at 

home. In such cases, emphasis must be placed on creating a 

well-structured environment with predictable rules and 

consequences. In these settings, persons with an FASD can 

continue to participate in the community but their behavior 

will be more closely monitored.16 

likely outcome at the time of the act. Some crimes require 

evidence of intent for the person to be found guilty. 

Defense lawyers may argue that persons with an FASD 

cannot form the intent to commit crimes because they 

cannot foresee the likely outcome.9 

• Effect of FASD on sentencing. Lawyers have appealed the 

death penalty by arguing that FASD was not introduced as 

evidence to support a lesser sentence.

10–12 

• Ability to testify. Persons with an FASD are highly 

suggestible and may not be able to give accurate testimony.

 They are prone to making false confessions.13 

• Recidivism. Offenses do not appear to get worse, such as 

from auto theft to robbery. However, persons with an FASD 

tend to repeat crimes of opportunity, such as shoplifting. 

Their thought process seems to be,“I want. I take.”14 

WAYS THE CRIMINAL JUSTICE SYSTEM CAN 

ADDRESS THE NEEDS OF PERSONS WITH 

AN FASD 

Because of their disabilities, persons with an FASD may repeat 

the same mistakes many times. Thus, support to improve 

funtioning might be more appropriate than rehabilitation. 

This approach focuses on education, job training, and family 

support, rather than punishment. Medication may also help.

 In some cases, adults with an FASD who had multiple jail 

stints for petty, impulsive acts avoided jail when given 

appropriate medical treatment.3 

Understanding how persons with an FASD respond to certain 

situations can help. Due to sensory issues, they can become 

overwhelmed by bright lights, causing them to panic and run 

from the police or resist arrest. Because they are eager to please, 

REFERENCES 

1.	 Streissguth, A.P.;Barr, H.M.; Kogan, J.; et al. 1996. Understanding 

the Occurrence of Secondary Disabilities in Clients With Fetal Alcohol 

Syndrome (FAS) and Fetal Alcohol Effects (FAE), Final Report to the 

Centers for Disease Control and Prevention. Tech. Rep. No. 96-06. 

Seattle: University of Washington, Fetal Alcohol and Drug Unit. 

2.	 Burd, L.; Martsolf, J.T.; and Juelson, T. 2004. Fetal alcohol spectrum 

disorder in the corrections system: Potential screening strategies. 

Journal of FAS International 2:e1. 

3.	 Page, K. 2003. The invisible havoc of prenatal alcohol damage. 

Journal of the Center for Families, Children & the Courts, 67-90. 

4.	 Dunn v. Johnson, 162 F.3d 302. (5th Cir. 1998). 

5.	 People v. Fleming, 2003 WL 21675890. (Mich. App.). 

6.	 State v. Lee, 220 Wis. 2d 716, 583 N.W. 2d 674 (Ct. App. Wisc. 1998). 

7.	 State v. Brett, 126 Wash. 2d 136, 892 P. 2d 29 (1995). 

8.	 Castro v. State of Oklahoma, 71 F. 3d 1502 (10th Cir. 1995). 

9.	 Dillbeck v. State, 643 So. 2d 1027 (Fla.). 

10. Floyd v. State, 2002 WL 58547, 27 Fla.L. Weekly S75 (Fla. 2002). 

11. State v. Haberstroh, 69 P. 2d 676 (Nev. 2003). 

12. Silva v. Woodford, 279 F. 3d 825 (9th Cir. 2002). 

13. Moore, T.E., and Green, M. 2004. Fetal alcohol spectrum disorder 

(FASD): A need for closer examination by the criminal justice system. 

Criminal Reports 19, Part 1, 99-108. 

14. Boulding, D. 2001. Mistakes I have made with FAS clients. 

15. Jeffery, M.I.	 No date. Suggestions for more user-friendly court 

hearings. 

16. Connor, P.	 2004. Prison: A warehouse for individuals with FASD. 

Iceberg 14(2):3-5. 

Stop and think. If you’re pregnant, don’t drink.


For more information, visit fasdcenter.samhsa.gov or call 866-STOPFAS.


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