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  • Stopping the Revolving Door of the Justice Systems: Ten Principles for Sentencing of People With FASD

    by Anthony P. Wartnik, Judge (Retired)

    There are people in your courts who deserve special attention. Some have committed crimes they didn’t understand and some have been convicted of crimes for which they are not fully culpable and both are doomed to getting caught in the juvenile and or adult criminal justice revolving door unless we recommend and or do things differently. They may have Fetal Alcohol Spectrum Disorder (FASD) and need special attention and special approaches to sentencing in order to avoid being continually caught in the revolving door. This paper identifies and discusses ten principles for the sentencing of people with FASD. These ten principles of sentencing for people with FASD were developed through the joint effort of Dr. Ann Streissguth, recently retired as the Director of the Fetal Alcohol Drug Unit (FADU) of the University of Washington School of Medicine, Ms. Kay Kelly, Project Manager of the FASD Legal Issues Resource Center at FADU, Professor Eric Schnapper, University of Washington School of Law liaison to the FADU, and myself.

    The ten principles for sentencing people with FASD were part of the Power Point presentation delivered by this author at the 2nd International Fetal Alcohol Spectrum Disorder Conference on March 10, 2007. The discussion that follows each principle is based on my experiences in dealing with juveniles and adults with FASD or suspected of having FASD during my nearly twenty-five year career as a judge of the King County Superior Court in Seattle Washington, and particularly from 1994 until my retirement in 2005. My reference point throughout the discussion that follows is the sentencing laws of the State of Washington for felonies, frequently referred to as the Sentencing Reform Act or SRA. I will, however, cite a limited amount of case law from other jurisdictions to support a basic legal principle that FASD can constitute mitigation in sentencing. It should be noted that the SRA is a system for determining the presumed sentencing range for each offender based on the seriousness of the crime for which he or she is being sentenced and that person’s prior felony criminal history. The sentencing judge is required to impose a sentence that is within the standard range unless there are substantial and compelling reasons to impose an exceptional sentence outside the range, either below or above it. The judge has much more discretion in sentencing for misdemeanor and gross misdemeanor criminal offenses since the SRA does not apply to this class of crimes.

    The fact that a person has FASD may bear on sentencing in one or more of three ways. (1) The presence of FASD may reduce culpability for the criminal conduct. (2) The presence of FASD may require different measures to reduce the chances of recidivism. (3) The presence of FASD usually means significant difficulties functioning in adult society, problems which a particular sentence may either aggravate or alleviate.

    The first principle for sentencing of people with FASD is to consider whether the disability entails reduced culpability and thus warrants a less severe sentence. Assuming that there is statutory authority for the exercise of discretion or for sentencing outside a standard sentencing range, look at and consider matters that constitute mitigation. In Washington, our statute permits an exceptional (lower) sentence where the defendant’s capacity to appreciate the wrongfulness of his or her conduct, or to conform conduct to the requirements of the law, was significantly impaired. Either or both of these factors may be present when an offender has FASD. There is case law authority supporting the concept that FASD can constitute a basis for a finding of mitigation for sentencing purposes. See, Silva v. Woodford, 279 F.3rd 825 (9th Cir. 2002). See, also, State v. Brett, 126 Wn2d 868 (2001). Both of these cases dealt with ineffective assistance of counsel for not investigating or seeking a diagnosis of FASD for sentencing mitigation. See, also, the case of Castro v. Oklahoma, 71 F3rd 1502 (1995), which held that a criminal defendant was entitled to appointment of an expert to develop evidence regarding FASD provided that there was a substantial showing that his mental state was in dispute and was relevant to the outcome of the case, to either the guilt determination or to the sentence to be imposed.

    It must be kept in mind that individuals with FASD frequently do not fully grasp the standards of conduct reflected in the criminal law. For example, an individual with FASD would usually understand that it was wrong to steal from a store, but might not understand that it was wrong to temporarily take an acquaintance’s car without permission. Second, individuals with FASD at times engage in impulsive behavior, unable to resist the urge to do something they may grasp as wrong. Shoplifting items for personal use or for the use of a “friend” is among the offenses they commit most often. The lack of apparent predisposition to commit a crime, the participation by being induced by others, is also a mitigating circumstance in Washington. Individuals with FASD, often anxious to please others and unsophisticated about whether they are being used, can too easily be persuaded to engage in conduct, which they may or may not fully realize is criminal, by individuals with substantial criminal records and or substantial criminal sophistication.

    The second principle for sentencing is to avoid lengthy (or any) incarceration in favor of longer periods of supervision. Although community safety is of primary or significant concern in any sentencing, do not let it inappropriately control your better judgment. When you are uncomfortable due to concerns about whether leaving a defendant with FASD in the community presents a risk to the community, it is far too easy to use community safety considerations as a justification for incarceration rather than facing the issue head-on in relation to long-term consideration of what the risk to the community will be upon release of the defendant from incarceration. Lengthy incarceration usually does not contribute in any way to preventing further offenses by individuals with FASD; often times it may do the opposite. Remember that this offender normally doesn’t learn from prior experiences and is not able to apply them to new situations. The result may be that you are able to protect the community during the period of incarceration but the offender will be as or more dangerous upon release from custody due to an inability to learn from the incarceration experience and an inability to link the incarceration with the crime that gave rise to it.

    The prospect of a lengthy sentence (or of a longer sentence for a more serious crime) is unlikely to affect an individual with FASD. These individuals have only a limited grasp of cause and effect and have trouble planning for even a single day; they would usually be incapable of weighing the risk of a long prison term against the hoped for gain from a particular offense. Having served a long sentence may have no effect on future conduct. Individuals with FASD at times do not fully understand why they are (or were) in prison. Conversely, prolonged incarceration may severely harm the ability of an already disabled individual with FASD to function when he or she returns to society. Think of the emotional effect of putting a ten-year-old in an adult prison. Additionally, those disabled by FASD are often vulnerable to victimization, both physically and emotionally, by fellow inmates. An introduction of the defendant with FASD into an inmate population may result in continued destructive influences even after release from custody. The social arrangements that earlier assisted an individual with FASD to function in society (housing, jobs, etc.) are likely to disappear when they are incarcerated for an extended period.

    The third principle of sentencing is to use milder but targeted sanctions. Sanctions can work if they are sufficiently limited so as to be non-destructive, are used prospectively and are targeted at affecting very specific conduct. Generalized deterrence is unlikely to be effective because it is directed at a large and complex set of rules (“obey the law or you will go to prison”) which an individual with FASD does not fully understand; in any event, the connection is simply too abstract for an individual with FASD to grasp and understand. People with FASD tend to see things in concrete terms and respond better to concrete presentations. What may work is linking a particular sanction (say, ten hours of community service) to a very specific type of conduct the court wants to prevent (e.g.), getting drunk or shoplifting. These individuals can master the importance and meaning of a particular rule (or a few) tied to known sanctions. The best analogy might be to a rule that a six-year-old would be sent to his room any time he took his sibling’s toys. For such a system to work, the individual with FASD must be repeatedly reminded of the rule (and rule-sanction connection). Repetition is the key to effective learning for those with this disability. And, the sanction should focus on something that is of major significance (e.g.), a sanction for using drugs, but not a sanction for being late to an appointment.

    The fourth principle of sentencing is to impose, recommend or arrange for a longer term of supervision. Individuals with FASD have a life-long need for guidance from a non-disabled individual and for a variety of social services. These are not defendants who merely need to (or can) straighten their lives out, or who (as in the case of juvenile offenders) are going to mature with time. Supervision by a Department of Corrections (or other) probation official who understands FASD is of ongoing importance for as long as it can be arranged, both to avoid recidivism and to improve functioning. The court should attempt to impress the importance of this on both the prosecution (which may focus primarily on the amount of prison or jail time) and the defense (which usually seeks to have the defendant on the street and off supervision as soon as possible). The extended supervision sentence is one that, generally, neither side will ask for. It may be necessary to seek legislation that mandates longer periods of supervision for people with FASD just as legislatures have done in other problem areas such as with sex offenders, violent and persistent offenders, etc. Judges should be creative in finding ways to prolong Department of Corrections or other supervision, through the consent of the parties, by postponing final sentencing, or other means.

    The fifth principle of sentencing is to use the judge’s position of authority (stature) with the defendant. Individuals with FASD often have great respect for authority figures and are anxious to please. The particular authority and stature of a judge and the trappings of a courtroom (or chambers) can be important tools in shaping their behavior. Where practicable, a defendant with FASD should be asked (over and above any Department of Corrections supervision) to return on a regular basis to report to the judge on how he or she is doing. Positive behavior should be greeted with much praise and support (as we have already learned to do with defendants in the drug treatment court and mental health court settings). Recognition of success (certificates, tokens memorializing periods of sobriety, courtroom applause) may be helpful. This approach has certainly become part of the culture in drug treatment and mental health courts. Failures should be the occasion to review the sentencing plan, call together the interested agencies, implement other services, and discuss with the defendant and the sponsor or advocate the defendant’s plan for improvement.

    It may be possible to persuade the defendant, after formal supervision has ended, to continue to come to the courtroom or chambers on a regular basis to report to the judge. While that might have to be voluntary, and most defendants would have no interest, individuals with FASD might be pleased to continue their connection with the judge. I was a local district court judge from 1971 to 1980 where I handled misdemeanor and gross misdemeanor cases. The post-sentence case load was more than the local probation department could supervise effectively. I met anywhere from monthly to every 90 days with many of the people that I had ordered onto probation. This was one of the most enjoyable and satisfying parts of my judicial work. I also believe, based on the responses received from the probationers that they appreciated the personal effort taken by me as “my” judge.

    The sixth principle of sentencing is to obtain a sponsor or advocate for the defendant. Individuals with FASD need guidance and assistance from a non-disabled individual. Department of Corrections officials or probation officers will only be available for so long and can devote only a limited amount of time to any one probationer.

    Whenever possible, someone else should be found who will agree to help the defendant on an ongoing basis. This might be a family member (such as a responsible parent or sibling), a family friend, a relative, or someone in a local organization (e.g.), a church group, retired citizens group, etc.. Defense counsel or probation officials could be asked to look for someone who would function in this capacity. When found, this individual should be asked to come into court with the defendant to discuss his or her participation. Ideally, such a person would be found before sentencing, and at the hearing, would assure the court and the defendant of his or her willingness to play a supportive role.

    The seventh principle of sentencing is to create a structure in the defendant’s life. These individuals often lack the basic skills needed to organize a day. At best, needed tasks (shopping for, and preparing meals, getting to work, laundry, personal hygiene, etc.) may go undone; at worst the individual will drift into destructive conduct for want of any sense of how to better utilize his or her time. Structure could include linkage with vocational rehabilitation services, a sheltered workshop (particularly one that provides job coaches and will help the client find a job that he or she is capable of being successful at and who is also skilled in training the client in maximizing the application of his or her strengths to the requirements of the job). This may include the use of alternative approaches for performing the required work, use of alternative types of tools, equipment, etc. which is a very common practice in training persons with developmental disabilities.

    External structure (like an “external brain”) can help greatly. This might include (a) living in a group home or facility with an established regiment (when to get up, eat, etc.), (b) a very structured (even part time) job (indeed one of the values of even part time employment is that it gives someone with FASD something regularized that he or she needs to do every day, (c) a daily schedule created in collaboration with the defendant and overseen by a parent, advocate, sponsor, or other party, (d) involvement in frequently scheduled treatment programs such as classes in anger management , sexual deviancy treatment, drug testing, drug treatment, Alcoholics Anonymous (AA) meetings, family counseling, group therapy and recreational groups.

    The eighth principle of sentencing is to write out, simplify and repeat rules/conditions of supervision. Individuals with FASD will not readily assimilate rules or admonitions from the court or probation. The steps they are to take need to be put in writing and framed in simple, non-legalistic terminology. The Judgment and Sentence or the Conditions of Supervision Appendix should set out all of the conditions in short and concise statements using simple and understandable (to the defendant) language. Repetition is the key to the manner in which these individuals learn. Once is not enough. Probation officials and, in certain instances the court, need to go over the rules (what to do, what not to do) again and again and again, and in very simple and concise statements. Even requiring the defendant to comply with repetitive tasks is a helpful activity in the learning process (e.g.), require the defendant to call the employer to say, “I am leaving home for work now” and to call the parent or other support person every day to say, “I have finished work and am leaving for home.”

    The ninth principle of sentencing is to make sure the probation officer understands FASD. Once sentencing is over, the probation officer ultimately assigned to the defendant will have far more contact with the defendant than will the court. For that reason, the court needs to make sure that the probation officer knows that the defendant has FASD and understands the disability, as well as the communication, expectations, and performance issues and how to address them. The sentencing order should include (in its body or appendix) a statement that the defendant has FASD and an explanation of the disability. Once a probation officer is assigned to the defendant, where possible, that officer should be directed to accompany the defendant to court to discuss his or her case with the judge.

    If the defendant is going to be incarcerated, the court should take appropriate steps to assure that prison or jail officials know that the inmate is disabled and that they receive information about the disability.

    One of the things you might want to have the probation officer do, or that the court might want to do at the time of sentencing is to give the defendant a card with instructions to keep it on his or her person at all times and to show it immediately to any law enforcement officer who contacts the defendant that says, “I have FASD. I want to talk to an attorney. I want my mother or father/guardian/advocate called immediately and want one of them present before I will talk.”

    The tenth and final principle for sentencing of people with FASD is not to overreact to probation violations – particularly status offenses. Those disabled by FASD will often engage in behaviors for which a non-disabled probationer would be punished. Individuals with FASD have difficulty remembering and keeping appointments; whether it is the required meeting with the probation officer or AA attendance, their failure to do so is usually not an act of defiance, but a symptom of the disability. The court could suggest to the probation officer that the problem of missed appointments be dealt with prospectively by setting up a system of prompts and by drawing on the support of the sponsor or advocate.

    These individuals may have annoying personal mannerisms that in a non-disabled individual would be a sign of recalcitrance or defiant disrespect. Their characteristic impulsivity can yield inappropriate expressions of anger which in the non-disabled would call for sanctions. However, understanding the nature of the cognitive deficits, probation officials can look past this, evaluating a probationer’s conduct in the context of his or her disability. The focus should be on bringing about compliance with rules of substantial inherent importance (e.g.), not using drugs, rather than rules that the Department of Corrections or probation department would ordinarily enforce in order to encourage the non-disabled probationer to assume responsibility for fulfilling his or her supervision responsibilities.

    In conclusion, if individuals with FASD are to be successful on probation or parole, and if they are to take their place in the community as productive and contributing members of society, then all of us who play a role in the system need to provide them with the special attention and special approaches to sentencing and supervision that maximizes their opportunity for success. If we do not address the special needs of those with FASD, and if we do not strive to develop and utilize the special approaches that are unique to their needs, we doom them to a recidivistic life style and continual re-entry into the revolving doors of the justice system, whether it be juvenile court system or the adult criminal justice system.

    Anthony P. Wartnik, Judge (Retired)
    APW Consultants
    8811 SE 55th Pl.
    Mercer Island, WA 98040
    Phone: 206-232-2970
    Cell Phone: 206-290-0451
    Email: TheAdjudicator@comcast.net

    ******

    Judge Anthony (Tony) Wartnik (Retired) has a long and distinguished career in law and has been recognized by his peers for his outstanding contribution to his field. His 34 year career as a trial judge started in 1971 as a District Court (Limited Jurisdiction) Judge, and he retired in 2005 as the Senior Judge of the King County Superior Court (General Jurisdiction) of the State of Washington where he served from 1980 to 2005. During his Superior Court career, Judge Wartnik served as Presiding Judge for the Juvenile Court, Chief Judge for the Family Law Court, and chair of the Family Law Department and the Family and Juvenile Law committees. Tony also was the Dean Emeritus of the Washington Judicial College, Chair of the Judicial College Board of Trustees, and Chair of the Washington Supreme Court Education Committee. Judge Wartnik chaired a multi-disciplinary task force to establish protocols for the determination of competency for youth with organic brain damage and chaired Governor Mike Lowry’s Advisory Panel on FAS/FAE.

    Judge Wartnik is currently the Legal Director for FASD Experts and a consultant to the University of Washington Medical School’s Fetal Alcohol and Drug Unit (FADU). In his role with FASD Experts, Judge Wartnik provides general legal review of the Team’s functioning and protocol development and also serves as a liaison between the Team and the client’s legal counsel as well as being available as a consultant to legal counsel, providing legal expertise regarding specific issues of relevance. He has been a presenter at numerous local, state, interstate, national and international conferences and workshops on issues related to FASD and the juvenile and adult justice systems. He is a graduate of the SAMSHA sponsored FASD workshop “Training the Trainers.”

  • Juvenile Court Users’ Research and Technical Assistance Project

    A Project of the Center for Families, Children & the Courts Judicial Council of California – Administrative Office of the Courts & The National Council of Juvenile and Family Court Judges
    by Cheri Ely, M.A., LSW, Program Manager, NCJFCJ

    The Judicial Council of California – Administrative Office of the Courts is dedicated to improving the quality of justice and services to meet the diverse needs of children, youth, families, and self-represented litigants in the California courts. One of the projects created to help improve the quality of justice provided is the Juvenile Court Users’ Research and Technical Assistance Project. The starting point for this project was the Juvenile Delinquency Court Assessment 2008, completed by the Judicial Council, which identifies the experiences of court users and professionals in California.

    From these statewide findings, and working with courts in California, this project aimed to identify barriers to the court users’ comprehension of court processes, propose solutions and assist these courts with implementation of developed improvement plans. For the purposes of this project, Court User is defined as the youth involved in the juvenile justice system, his/her parent or guardian, or a victim of a juvenile offender. This 18 month project occurred between June 2009 and December 2010.

    The National Council of Juvenile and Family Court Judges (NCJFCJ) was contracted as the consultant to work with the selected juvenile courts to identify areas that may need improvement. Four courts initially accepted invitations to participate in this project: Fresno, Sacramento, San Diego, and Santa Cruz, although Sacramento withdrew from the project during the early stages. NCJFCJ worked with court staff, stakeholders, and court users in the juvenile justice system to identify and assess barriers that may effect participation in the court. A strategic plan was then developed to address those barriers. The California AOC legal and research staff was available to provide legal technical assistance during implementation and to evaluate the pilot improvement projects with systematic research and reporting.

    Some of the common barriers experienced by Court Users in the participating project sites included:

    • Difficulty in understanding outcomes of court hearings or the court case process
    • Lack of a central contact person to receive and answer questions from Court Users
    • Frustratingly long wait times at the courthouses for hearings, which caused loss of time from work or school
    • Barriers for victims of juvenile offenders included:
    • Inconsistent notifications of hearings
    • Confusion regarding the restitution process
    • Safety concerns when encountering the juvenile offender and his/her family at the courthouse.

    Project sites developed varied strategic action plans and goals to assist Court Users. Strategies included improving understanding of the juvenile court case process through videos, literature specific to juvenile courts, modifying language used in hearings, or providing a central point of contact for questions and answers at the courthouse. Strategies to improve victim participation included providing information on victim rights, improving safety for victims in the courthouse and increasing awareness of victim advocacy services. Below are some specific intervention strategies that were implemented:

    • Experiment with longer hearings to permit more meaningful exchanges
    • Schedule specific hearing times for cases to facilitate attendance by parents/guardians and victims
    • Create a juvenile court illustration that explains the role of each person in the court room
    • Assign a Family/Court Counselor/Consultant to assist with the case
    • Develop a Case Processing Flow Chart for display that clearly and simply explains the juvenile court process
    • Development of plain language scripts for use in court
    • Develop a video or other type of media that explains the court process, possibly narrated by a parent, youth and/or victim (to see a video currently in use, go to http://www.courtinfo.ca.gov/programs/cfcc/)
    • Take a fresh look at your court – sit in waiting areas, tour facility, just observe
    • Escort victims and families in and out of courtroom separately
    • Separate waiting areas for juvenile offenders and victims
    • Receive feedback from court users on their comprehension of court language (regular surveys & evaluations)

    The Judicial Council intends to utilize lessons learned from this project and encourage courts statewide to evaluate their own processes in regards to Court User engagement and understanding and make improvements to produce positive outcomes for youth, families and victims involved in the juvenile justice system. For more information about this project, please contact:

    Center for Families, Children & the Courts
    Judicial Council of California – Administrative Office of the Courts
    455 Golden Gate Avenue
    San Francisco, CA 94102-3688
    CFCC@jud.ca.gov

  • Fetal Alcohol Spectrum Disorders

    by Laura Nagle

    Brain damage caused by prenatal exposure to alcohol can result in behaviors that increase an individual’s likelihood of becoming involved in the justice system. This article will provide a foundation of knowledge about the effects alcohol can have on a developing brain, and the connection between brain function and behavior. Future articles will continue to explore the impact of FASD on the criminal justice system.

    Brief Overview of an Enormous Issue
    Fetal Alcohol Syndrome, the leading known cause of mental retardation in the United States, affects a small but significant number of the country’s population. Prenatal exposure to alcohol, however, is much more prevalent than just the number of individuals with a diagnosis of FAS. Many individuals with Fetal Alcohol Syndrome (FAS) and a majority of individuals with Fetal Alcohol Spectrum Disorders (FASD) remain undiagnosed, wrongly identified and untreated.

    The damage caused by prenatal exposure to alcohol is irreversible and the financial and emotional costs to individuals, families and communities are enormous. Conservative estimates give an annual cost of three million dollars to support and maintain an individual with FASD throughout their lifetime, including special education, medical costs, respite care, foster care, legal expenses and mental health care (Harwood, H. 1998. The economic costs of alcohol and drug use in the United States. Bethesda MD) Families, service systems and communities cannot afford this expense; on the other hand, without a large network of these support services, individuals with FASD will develop damaging secondary disabilities that affect the individual, the family and the larger community. All service systems, including the justice system, are affected by the challenges of serving clients living with FASD.

    Most individuals living with FASD are not fortunate enough to have a diagnosis. This disability can be an invisible one; a person with a FASD often has an IQ in the average range and no obvious facial characteristics. To make the situation even more confusing, many people with FASD “talk better than they think”. From the outside, they appear to be competent. Parents, caregivers and teachers experience burnout and frustration towards this child who “just doesn’t get it”. Service providers and employers feel irritated and angry at this teenager or adult who “just doesn’t care” or “refuses to follow through”. Well-meaning and supportive people try as hard as they can to help, and then give up. Without understanding the underlying brain damage, traditional strategies for teaching, intervening and supporting will not be effective.

    Brain dysfunction is the primary disability of FASD, and it is invisible. It manifests itself in behaviors such as the following:

    • difficulty understanding cause and effect relationships
    • difficulty understanding abstract concepts and phrases
    • inability to change behavior depending on the situation
    • inconsistent memory / poor short term memory
    • chronic poor judgement

    If we do not understand FASD, we assume that the individual could do better if s/he “only tried harder”. As professionals, it is our responsibility to educate ourselves about the impact this invisible disability has on our community as a whole. Learning to recognize warning signs and respond accordingly can make a tremendous difference for the individuals and families we work so hard to support.

    FASD: Background Information
    Researchers from the University of Washington in Seattle first introduced the term “Fetal Alcohol Syndrome” in 1973 to describe a pattern of characteristics and birth defects found in infants born to mothers addicted to alcohol. These characteristics in the newborns included central nervous system damage, a specific pattern of facial abnormalities and growth deficiencies. Since 1973, researchers around the world have continued to come to the same conclusion: alcohol can cause specific and extensive damage to a developing fetus.

    When FAS was first identified in 1973, only the most extreme cases were included in the definition. Research focused on children exposed to heavy amounts of alcohol throughout the duration of pregnancy; these children were born with mental retardation or a severe developmental delay. In the years after FAS was first identified, research broadened to include the impact of light drinking, moderate drinking and sporadic binge drinking during pregnancy.

    Alcohol and Fetal Development
    In order to understand this disability, we must understand the way alcohol affects the developing fetus. The most important thing to remember is this fact: Alcohol can affect anything that is developing at the time that alcohol is present in the fetus’ body. And what develops every single day of gestation? The brain. Every time alcohol is present the developing brain can be affected.

    Fetal Alcohol Spectrum Disorders can only be caused by alcohol consumption during pregnancy. Drinking by a male before conception cannot cause this particular disability, nor can drinking by a female before conception. However, many women do not realize that they are pregnant until well into the second month of pregnancy. Significant damage can be done if alcohol is consumed during the short period of time before a woman knows she is pregnant. A prevention message is this: If you’re pregnant, don’t drink. If you drink, don’t get pregnant.

    The Institute of Medicine’s 1996 Report to Congress states: “Of all the substances of abuse, including heroin, cocaine and marijuana, alcohol produces by far the most serious neurobehavioral effects in the fetus, resulting in life-long permanent disorders of memory function, impulse control and judgment.” Since alcohol is a legal drug, many people do not realize the extent of the damage it can cause to a developing fetus.

    There is no time period where the fetus is safe from the effects of alcohol. Alcohol is classified as a “neurobehavioral teratogen” because it produces Central Nervous System (CNS) damage, which causes brain damage and modified behavior. According to Dr. Ann Streissguth at the University of Washington’s Fetal Alcohol and Drug Unit, the neurobehavioral effects of alcohol can be observed at levels of exposure that produce no physical abnormalities, due to the fact that it takes a higher dose of a neurobehavioral teratogen to produce physical malformations than it does to cause CNS damage.

    The facial characteristics of Fetal Alcohol Syndrome (elongated philtrum, thin upper lip, small eye sockets) are directly connected to alcohol exposure in early pregnancy. For example, the philtrum and upper lip form around Day 19 of pregnancy. If alcohol is not present in the fetus on that particular day, the identifiable facial characteristics of FAS will not be present. Therefore, if an individual does not have those facial features of Fetal Alcohol Syndrome, that only tells us that alcohol was not present in sufficient amounts around Day 19 of pregnancy to cause that damage.

    Understanding the complex specificity of the many regions of the brain will make it easier to see a link between behavior and brain function in individuals with FASD. For example, the frontal lobe of the brain controls the following functions: impulse control, judgment, regulation of emotions. What would behaviors look like if this brain region didn’t function properly? Many times this is an invisible disability that manifests itself through behavior.

    “He just doesn’t get it.”
    Since alcohol affects cell growth at the precise moment of exposure, every single individual with FASD has different challenges, abilities and “quirks.” It is impossible to compile a behavioral checklist, due to the varying manifestations of alcohol exposure to the many regions of the brain. However, there are several characteristics common to many children, adolescents and adults prenatally exposed to alcohol.

    Difficulty With Abstract Thinking: Many people with FASD experience the world in a very concrete and literal way. As children, most of us were not taught to think abstractly – we learned to understand abstractions inferentially. For example, one paper dollar is the same as four quarters, even though four is a bigger number than one. The same number, one, can also represent “one television program,” “one feature-length movie,” “one day,” “one hour” and “one year.” From a young age, we were able to hear the concrete number “one” and distinguish the abstractions of money, value and time.

    Due to brain injury, most people with FASD cannot understand abstractions without being taught in a concrete way. Start paying attention to the words and phrases that we use. It’s surprising how many of them are abstract. “Behave.” “Act your age.” “Don’t get smart with me.” “Do the right thing.” “Drink responsibly.” “Practice safe sex.” In a Kentucky school, the principal told a 7th grade student, “Don’t let me down.” The student responded, confused, “But you’re standing on the ground.” This student with FASD was suspended for “smarting off” to the principal. In reality, he was responding to a concrete phrase that didn’t make any sense to him.

    Think about all of the abstract concepts, both subtle and overt, that we have to understand in order to get through our own day relatively successfully. Most of these abstractions are unspoken, and require us to “read” our environment and infer meaning based on the situation.

    • Appropriate dress. (If the policy says I can’t wear jeans, that includes jean shorts and denim skirts. No Tube Tops is implied, not stated. Appropriate dress is different for the staff picnic than it is for a board meeting.)
    • Punctuality. (Don’t be late. But, it’s better to be late than to not show up at all.)
    • Relationships With Co-Workers. (I talk to co-workers differently in the break room than I do at a business meeting. Even if co-workers are friendly to each other, it isn’t the place to reveal too much personal information.)
    • Ownership. (At the office, my pen is mine and I can take it home without getting in trouble. The computer on my desk is also mine, but if I take it home, I get in trouble. Even though no one is touching the boxed lunch in the refrigerator and no one’s name is on it, it still belongs to someone and I shouldn’t eat it.)

    Most of our social rules and expectations are unspoken. Imagine trying to navigate all the layers of “personal space” “time management” “body language” or “organizational hierarchy” without understanding any of the abstractions or subtleties that accompany them.

    Difficulty Generalizing Information from One Setting to Another: A healthy, typical brain is able to learn information and then transfer that information to a similar, yet different situation. For example, we learn addition and subtraction from worksheets, but are then able to use those skills in the “real world” to balance a checkbook or stay within a grocery budget. People with FASD have a hard time taking information learned in one setting and applying it elsewhere.

    • Austin, a young man with a FASD was caught stealing chocolate milk and a candy bar from a gas station. His parents, trying very hard to be concrete, told him that it was wrong to take things from the gas station. He wasn’t allowed to go to the gas station with his friends anymore. Two weeks later he stole shoelaces from Kmart. When questioned, he said, “But I didn’t go near the gas station.” He truly didn’t see the similarity between the situations.
    • Nora, a young woman with a FASD, got her driver’s license, and often helped her grandmother by driving her to the post office and the bank. A friend asked Nora to help her out by driving the car while a group of friends robbed a bank. When they got caught, Nora was arrested as an accomplice. She said, “I was just doing a favor for a friend who needed a ride.” She didn’t see the difference between driving her grandmother on an errand and driving a friend on a robbery.
    • Justin, a young man with a FASD, went to the grocery story for his mother to pick up milk and bread. He returned, saying “They don’t have milk and bread.” Confused, his mother went back to the store with him, and discovered that their regular grocery store had been remodeled, changing the familiar layout. When Justin didn’t find the milk or the bread in their usual places, he came home, saying that the store didn’t have any. He wasn’t able to generalize the fact that ALL grocery stores have milk and bread.

    Without understanding the brain dysfunction, this behavior looks like “no common sense” or “a smart aleck.” What 24-year-old with an average IQ wouldn’t look around the store until he found the milk and bread? People with FASD often appear much more competent than they truly are, so friends, family members and outsiders don’t understand the severity of the disability.

    Problems Sequencing / Organizing Information: Children, adolescents and adults with FASD often have difficulty organizing tasks without assistance. For example, if we have an appointment at 11:00 in the morning, we are able to arrange our activities to accommodate our schedule. We know what time we need to leave in order to be on time for our appointment, depending on a number of factors: if we’re driving or walking, if it’s raining, if it’s rush hour, if we have to fill up the car with gas first. We are able to calculate time in our head and organize ourselves in order to be on time.

    A person with a FASD may have every intention to be on time or complete a task as required, but the end result may not show that intention due to the difficulty of getting all of the steps in place. Instructing a person with a FASD to “clean your room” will only lead to success if specific, written step-by-step instructions are provided. (For example: First, pick up your dirty clothes. Carry them to the laundry room. Next, hang your clean shirts in the closet. Put your clean socks in the drawer. Then, bring dirty dishes and glasses to the kitchen). Even with written specific tasks, they may well need someone to go over the instructions one at a time with them. Non-compliance or failure to complete a task may actually be an inability to plan, sequence and organize.

    Difficulty Predicting Outcomes: People with FASD generally have a hard time understanding cause and effect relationships. This makes sense when we understand the brain’s difficulties with time, abstractions and generalizing information. Predicting future outcomes requires all of these skills, plus the ability to remember lessons learned from the past. People with FASD often do not have the benefit of learning from their mistakes, and will often repeat similar mistakes over and over. Without understanding the brain dysfunction, this looks like a person who may be “sociopathic” and “just doesn’t care”.

    • Will, a young adult with a FASD, was making a box of macaroni and cheese. After he had boiled the pasta, he realized that he was out of milk. His girlfriend had just left for work and he didn’t have a car, but he saw his neighbor’s car sitting in the driveway next door. When he returned from the grocery store, the neighbor had called the police. Will said, “But I didn’t steal the car. I brought it right back.” He didn’t understand that someone would see the car missing and report it stolen, because he knew that the car was safe the whole time.
    • Tony, a young man with a FASD was upset with his boss for making him stay late one afternoon to fill in for a co-worker, so he called in a bomb threat to the store later that evening. “I didn’t really have a bomb. I just wanted to show him what happened when he messed with me,” he said, when he got caught. He couldn’t think ahead to the consequence of making such a threat.

    Slow Intake / Output of Information: Alcohol can affect a developing brain in many ways. One of the things it does is decrease the number of cells, or neural pathways, in the brain. This means that it physically takes more time for information to travel in and out of the brain. With the rapid pace of our daily life, this sometimes means that people with FASD only hear every fourth or fifth word we say. Imagine if this is what you heard:

    You… right… Anything…. can… be… you …court…. You…right …attorney…one … the police…cannot ….one …..appointed . Understand… you?

    DO YOU UNDERSTAND?

    Often, when we are trying to explain something to a person who doesn’t seem to understand, we try to explain it better and better, using more words and talking faster. For a person who has a slow intake of information, this makes it harder and harder for the brain to “catch up.” Many people with FASD learn to nod and act as though they heard and understood the information to avoid having it repeated over and over, faster and faster. It might take an alcohol-affected brain fifteen seconds to come up with an answer to a seemingly simple question. Without understanding the brain dysfunction, it looks as though the person is avoiding the question or ignoring the questioner. In reality, the individual may need much more time than a person with a typical brain to respond to questions and conversation.

    Sensory Overload: Due to the underdevelopment or overdevelopment of nerve cells, people with FASD are often affected by environmental factors such as bright lights, noises or distractions because the alcohol-affected brain is not able to filter out these external stimuli.

    Behavior is often directly related to sensory overload. Imagine that you’re driving home from work after an especially long day. You’re hungry because you didn’t have time for lunch, and you’ve had too much coffee, so you’re a little shaky. The sun is starting to set, and it’s glaring through the windshield right into your eyes. It’s hard to see the road and the stoplights. Your favorite song is on the radio, but it’s fading in and out, and you can barely hear the song through the static. Your pants are too tight around your waist and the backs of your heels have blisters from your shoes. There is a truck right in front of you blowing exhaust at you and driving too slowly.

    Can you feel the tension and anxiety growing in your body? This is sensory overload. Now imagine that your neighbor approaches you as you get out of your car to inform you that your dog has stolen his newspaper again. What is your reaction? How is your reaction different based on the state of your body and mind? A person with a FASD reaches this threshold of overload at a much earlier point than a person with a fully functioning brain. Often, behavior occurs as a direct result from this sensory overload and the inability to handle it appropriately.

    Poor short-term memory: When developing brain cells die, the missing cells cause gaps or holes to be left in the brain. As information travels through the neural pathways of the brain, sometimes it reaches an area that simply didn’t develop. When information hits one of these holes, the information cannot travel any further, and it disappears. The next piece of information may travel on a pathway that is complete; this leads to an inconsistent memory and an inconsistent skill level. One day a person with a FASD may not remember something, but can recall it perfectly the next day. One day a person with a FASD may be able to complete a task correctly; the next day s/he me be unable to complete the same task. From the outside, the individual appears to be lazy or manipulative; however, the affected brain is simply incapable of performing to the same standard

    Lifespan Issues
    As discussed earlier, many individuals with brain damage caused by prenatal exposure to alcohol are not identified or diagnosed, and grow up believing the labels of “lazy” “just doesn’t care” and “bad kid.” The individual affected by prenatal alcohol exposure doesn’t understand why s/he keeps making the same mistakes over and over again, why s/he can’t memorize the multiplication tables like everyone else, why s/he can’t ever say or do the right thing. These feelings of frustration and worthlessness lead to secondary disabilities, caused by a failure to address the brain damage, the primary disability.

    A study conducted by the University of Washington Medical School’s Fetal Alcohol and Drug Unit looked at secondary disabilities in a sample of 473 individuals with FASD. (Streissguth, A., Barr H., Kogan J. & Brookstein, F. 1996. Understanding the Occurrence of Secondary Disabilities in Clients With Fetal Alcohol Syndrome and Fetal Alcohol Effects FAE. Seattle: University of Washington School of Medicine, Department of Psychiatry & Behavioral Sciences.)The range of IQ in the sample was from 29 to 142, with a mean IQ being 85. Only 16% of all the individuals in the study qualified as having mental retardation; 84% of individuals have an IQ in the “normal” range and therefore do not qualify for services for developmental disabilities.

    Six main categories of secondary disabilities are defined:

    • Mental Health Problems: 94% of the full sample have experienced mental health problems. During childhood, 60% had a diagnosis or behaviors consistent with ADHD. 23% of the sample have attempted suicide.
    • Disrupted School Experience: 70% experienced a disruption in schooling, including suspension, expulsion or dropping out. Common school problems include: not paying attention, incomplete homework, can’t get along with peers, talking back to teacher, and truancy.
    • Trouble With the Law: 60% were charged or convicted of a crime. The most common first criminal behavior reported was shoplifting. The most common crimes committed were crimes against persons (theft, burglary, assault, child molestation, domestic violence, running away), followed by property damage, possession / selling drugs, sexual assault and vehicular crimes.
    • Confinement: 60% of the sample had spent time in a psychiatric hospital, an alcohol / drug rehab facility or jail / prison. 40% had been incarcerated, 35% had spent time in a psychiatric hospital and 25% had been confined for substance abuse treatment.
    • Inappropriate Sexual Behavior: 45% of the sample displayed inappropriate sexual behavior that was repeatedly problematic or had required incarceration or treatment; 65% of the males sampled displayed inappropriate sexual behavior. The most common problematic sexual behaviors include: sexual advances, sexual touching, promiscuity, exposure and masturbation in public.
    • Alcohol / Drug Problems: 30% of the sample experienced severe problems with drugs or alcohol.

    Additionally, the following information was revealed:

    • 80% of adults with FASD lived dependently (with family, in group home or in residential facility)
    • 80% experienced significant problems with employment.
    • The greatest risk factors for developing secondary disabilities are: IQ over 70 and exposure to violence, and a diagnosis of FAE rather than FAS. Individuals with a lower IQ received more services, support and realistic expectations.
    • The greatest protective factors against secondary disabilities are: diagnosis before age 6, eligibility for state Developmental Disabilities services, living in a stable home and protection from witnessing or being victimized by violence.

    Working With Individuals Affected by FASD: What Can I Do Differently?
    Individuals with FASD learn, communicate and experience the world in a different way; therefore, we need to adapt both our expectations and our style of interaction in order to be effective. Deb Evensen, Director of FAS Alaska, has developed “8 Magic Keys” for working with individuals who have FASD. These 8 concepts are the basis for effective intervention, and can be adapted for any environment or age.

    1. Concrete. Pay attention to the words and phrases that you use. (For example, think about how the term “Waive your rights” might be misunderstood.) Be as concrete as possible. When in doubt, explain things as if you are explaining to a young child. Check often for deeper understanding. (For example, if you say “Be on your best behavior,” then ask, “What does it mean to be on your best behavior.”) Don’t ever assume that your client understands the deeper meaning, even if s/he can repeat the right words back to you.
    2. Consistent. Be consistent with the words and phrases that you use. Whenever possible, use the same words and phrases as cues for desirable behaviors. (For example, if you want someone to learn to stop interrupting when another person is talking, and you say “Not now” the first time, “Quiet, please” the second time and “It’s rude to interrupt,” the third time, s/he might not understand that you’re asking for the same behavior each time.)
    3. Repetition. Memory is a constant problem. Expect to repeat each small piece of information as many times as necessary. Write down as much as you can. Don’t make the individual rely on his or her memory.
    4. Routine. Changes or transitions are extremely difficult. People with FASD do best when they know what to expect. Discuss any changes in routine and provide reminders and reassurances.
    5. Simplicity. Remember the KISS rule: Keep it Short and Sweet. People with FASD can become overwhelmed by too many words and too much stimulation. Use as few words as possible and keep the environment simple.
    6. Specific. Say exactly what you mean. Don’t assume that the individual can “read between the lines” and know all the steps necessary to complete and activity. Tell the person what to do, step by step, even when it seems too obvious. Write down each step so s/he doesn’t have to rely on memory.
    7. Structure. Structure is absolutely essential to the success of an individual with FASD. Boundaries, limits and a consistent framework help people with FASD make safe decisions and be successful. (For example, a person with a FASD may need a “wake-up call” every morning and a “curfew call” at night to check in.)
    8. Supervision. People with FASD always need an External Brain in their environment to help them navigate new and unfamiliar situations. Impulse control and judgment will always be challenges. Supervision needs to be constant, and should not be removed when the individual is doing well.

    These intervention strategies are simple and can be used to improve communication with individuals with challenging behaviors. Most people with FASD do not show up for services already having a diagnosis. Although a diagnosis is the best thing that can happen for a person with a FASD, this is often a lengthy process. These intervention strategies can be helpful, even before an individual has been assessed for a FASD. If the person has not been prenatally exposed to alcohol, these strategies cannot be harmful. In fact, they are also effective for individuals with other learning disorders.

    Conclusion
    Fetal Alcohol Spectrum Disorders affect our communities in more ways than we know. Every single system – education, public health, social services, mental health, substance abuse, corrections – feels the long-term impact of prenatal exposure to alcohol. This is an invisible disability; most individuals with FASD appear much more competent than they truly are. In order to effectively meet the needs of clients with FASD, we need to understand the link between brain function and behavior. We would never punish a man who is blind for knocking over the furniture or for reacting out of anger when we rearranged the room without telling him; instead we would take the time to explain the environment in a way that made sense to him. People with FASD deserve similar understanding and consideration.

    This is new information and we must educate ourselves about this disability. We dedicate ourselves to giving everything we can to serve our clients and our community to the best of our ability. However, if we do not consider the effects of prenatal exposure to alcohol, we are sometimes missing an important piece of the puzzle.

    Kentucky’s FASD Prevention Enhancement Site can provide resources and technical support on this subject. Please visit www.kyfasd.org or contact Laura Nagle (Lmnagle@bluegrass.org) with questions and comments.

    *****
    Laura Nagle has worked for Bluegrass Regional MH/MR Board Inc. since 1999, serving as FASD Coordinator since 2001. Laura wrote and coordinated Kentucky’s first community-based federal research grant focusing on FASD, which was evaluated by the University of Kentucky. Laura is a member of a National Association of FASD State Coordinators and led Kentucky to become an affiliate of the National Organization on Fetal Alcohol Syndrome. She has trained over 6000 professionals, including 500 who now act as FASD trainers for their agencies across the state.