FASD and the Criminal Justice System (PDF Version)
Prenatal alcohol exposure (or drinking alcohol during pregnancy) can cause fetal alcohol spectrum disorders (FASD). FASD refers to a range of conditions including birth defects, brain injury, and physical, behavioral, and intellectual disabilities.1 These conditions are lifelong and irreversible. Individuals with an FASD are involved in the criminal justice system at an alarming rate. Youth and adults with an FASD often have a form a brain injury that may make it difficult for them to stay out of trouble with the law.2-6 They may not know how to deal with police, attorneys, judges, social workers, psychiatrists, corrections and probation officers, and others they may encounter.
Addressing FASD in the Criminal Justice System
12.8 – the average age that children with an FASD begin having trouble with the law.7
The annual cost to the US of Fetal Alcohol Syndrome alone in direct and indirect costs.
FASD by the Numbers:
- In 2012, the American Bar Association passed a
resolution urging all attorneys and judges to receive training to help identify
and respond effectively to individuals on the fetal alcohol spectrum. 8
- 50% of individuals with an FASD have a history
of confinement in a jail, prison, chemical health treatment facility, or
- People with an FASD are vulnerable to
confabulation and making false confessions.10
- People with an FASD may be unable to understand
the charges against them and participate in their own defense.
- Youth with an FASD are likely to be safer in a
juvenile facility than an adult prison due to vulnerabilities.
- Attorneys may be successful in presenting FASD
as a mitigating factor. Alternative/diversionary sentencing options should be
- Court-ordered treatment is sometimes the most
There is hope. We can change how lawyers, clients, police, judges, probation officers, prison guards, and family members work with FAS clients.
– David Boulding, attorney for clients with an FASD
Reasons Individuals with an FASD May Get in Trouble with the Law
“Many of the behavioral features that are characteristic of children with FASD, such as attention deficits, hyperactivity, and impulsivity, have been shown in longitudinal studies to be predictors of delinquency and adult criminal behavior.”12
Research shows that individuals with an FASD have specific types of brain injury that can lead to behaviors that can cause them to get involved in criminal activity. These include:
- Difficulty with impulse control and inability to
understand future consequences of current behavior
- Difficulty planning, connecting cause and
effect, empathizing, taking responsibility, delaying gratification, and/or
making good judgements
- Tendency toward explosive episodes and longer
period to calm or regulate themselves
- Vulnerability to peer pressure (e.g., may commit
a crime to please their friends)
- Burd L, Blair J, Dropps K. Prenatal alcohol
exposure, blood alcohol concentrations and alcohol elimination rates for the
mother, fetus and newborn. Journal of Perinatology. 2012;32(9):652-659.
- Subramoney S, Eastman E, Adnams C, Stein DJ,
Donald KA. The Early Developmental Outcomes of Prenatal Alcohol Exposure: A
Review. Frontiers in Neurology. 2018;9(1108).
- Gross AC, Deling LA, Wozniak JR, Boys CJ.
Objective measures of executive functioning are highly discrepant with
parent-report in fetal alcohol spectrum disorders. Child Neuropsychology.
- Glass L, Mattson SN. Fetal Alcohol Spectrum
Disorders: A Case Study. J Pediatr Neuropsychol. 2017;3(2):114-135.
- Terasaki LS, Schwarz JM. Impact of Prenatal and
Subsequent Adult Alcohol Exposure on Pro-Inflammatory Cytokine Expression in
Brain Regions Necessary for Simple Recognition Memory. Brain Sciences
- Treit et al. Longitudinal MRI reveals altered
trajectory of brain development during childhood and adolescence in fetal
alcohol spectrum disorders, Journal of Neuroscience. 2013;33(24):10098-109.
- American Bar Association. Fetal Alcohol Spectrum
Disorders (FASD): What You Need to Know to Help Your Clients. https://www.americanbar.org/content/dam/aba/publications/litigation_committees/childrights/l12juncm1.authcheckdam.pdf
- American Bar Association. Resolution 112B. https://www.americanbar.org/content/dam/aba/administrative/mental_physical_disability/Resolution_112B.authcheckdam.pdf
- Streissguth, AP, Bookstein FL, Barr HM, et al.
Risk factors for adverse life outcomes in fetal alcohol syndrome and fetal
alcohol effects. Journal of Developmental and Behavioral Pediatrics.
- Gagnier KR, Moore TE, Green JM. A Need for
Closer Examination of FASD by the Criminal Justice System: Has the Call Been
Answered? Canadian Journal of Clinical Pharmacology. 2011;18(3):e426-e439.
- U.S. Department of Health and Human Services.
Fetal Alcohol Spectrum Disorders and Juvenile Justice: How Professionals Can
Make a Difference. https://www.prevention.org/Resources/0D69547D-B224-467E-A3DA-9B789186FD8B/FASD_andJuvenileJustice.pdf
Council of Juvenile and Family Court Judges. Fetal Alcohol Spectrum Disorders:
Implications for Juvenile and Family Court Judges. https://www.niaaa.nih.gov/sites/default/files/publications/ICCFASD/NCJFCJ_FASD_Guide_Final-12012016.pdf
Last updated: June 2019