Fetal Alcohol Spectrum Disorder and the Criminal Justice System: A Research Summary

Jacqueline Pei1,2, Katherine Flannigans1*, Sarah Keller2, Michelle Stewart1,2, Alexandra Johnson3

1Canada Fetal Alcohol Spectrum Disorder Research Network, PO Box 11364 Wessex PO, Vancouver, BC, Canada, V5R 0A4

2Department of Educational Psychology, University of Alberta, 6-102 Education North, Edmonton, AB, Canada, T6G 2G5

3Department of Justice Studies, University of Regina, 3737 Wascana Parkway, Regina, SK, Canada, S4S 0A2

Fetal Alcohol Spectrum Disorder (FASD) is a neurodevelopmental disability that occurs as a result of fetal exposure to alcohol. Such exposure can impact physical, cognitive, social-emotional, and behavioural development, which renders individuals with FASD vulnerable to a range of adverse life outcomes when adequate supports and services are not available. One of the common adverse outcomes associated with FASD is criminal justice system (CJS) involvement, and individuals with FASD are believed to be over-represented in forensic and correctional settings. The FASD population is an exceptionally heterogeneous and complex group, with varying life experiences, clinical profiles, and levels of functional ability. These factors likely impact how an individual with FASD might engage with the CJS, function within the system, and respond to justice-related supports and intervention initiatives. In this mini review, we provide a synopsis of the current state of the literature regarding the intersections between FASD and the CJS, including research on prevalence and screening, as well as profiles and perspectives of individuals with FASD who are justice-involved. Further, recommendations are put forward to guide our work with justice-involved individuals with FASD, keeping in mind that no two individuals will present in the same way.

Fetal Alcohol Spectrum Disorder (FASD) describes a range of neurodevelopmental deficits that can occur as a result of prenatal alcohol exposure (PAE), with impacts on physical, cognitive, social-emotional, and behavioural functioning1,2. FASD affects an estimated 2-5% of the population in the US3 and Canada4,5 and is a lifelong condition often associated with significant postnatal adversity. Individuals with FASD experience high rates of child welfare involvement6, malnutrition7, and increased risk for multiple placements as well as maltreatment before age 68. School disruptions, substance use, inappropriate behaviours, trouble with the law, incarceration, residential and employment instability, and mental disorders are experienced much more frequently among individuals with FASD than in the general population9.

The FASD population is an incredibly complex group with needs that evolve and extend across the lifespan. It is believed that intervention research can provide answers for treating specific challenges and ameliorating negative outcomes for individuals with FASD, however the literature examining the effectiveness of treatment with this population is limited10,11.

Criminal justice system (CJS) involvement has long been identified as a significant adverse outcome for many individuals with FASD9, and individuals with FASD are believed to be overrepresented in correctional settings. Legal issues in FASD have substantial financial implications, accounting for 30-40% of the total cost of FASD in Canada12,13. It is no surprise that the issue of FASD in the CJS has garnered increasing public, policy, and academic attention.

Indeed, there is growing interest in how to shape judicial responses, treatment, and policy to better address the needs of this population. The appetite for FASD knowledge, education, resources, and training opportunities among justice professionals is well-documented14,15,16,17. FASD is also emerging as a relevant issue for consideration in the courtroom18,19. However, the extent to which interventions and reforms are grounded in empirical evidence is unclear, and uninformed changes could not only prove to be ineffective but may even lead to unanticipated negative outcomes. Therefore, it is critical that a clear understanding of existing evidence is established to facilitate the implementation of ongoing evidence-based reforms, and evaluate current justice and treatment approaches. To this end, we recently conducted a systematic review of the peer-reviewed literature on criminal justice involvement among individuals with FASD, with results summarized below20.

There is currently no clear consensus around FASD prevalence in forensic settings. In one early study, US researchers reported that 60% of adolescents and adults with FASD experienced trouble with the law9, whereas Swedish researchers recently suggested that criminality was no more common in adults with FAS than a comparison group21. Early diagnosis and access to services is a significant protective factor against negative outcomes for individuals with FASD, and lower rates of criminality among Swedish adults may reflect the fact that they were diagnosed at a young age and well connected to support21.

Prevalence estimates in Canada and the US vary widely. In one study of justice-involved youth, researchers conducted comprehensive assessments for FASD and found that 23% of participants had an alcohol-related diagnosis22. In another study, researchers undertook retrospective file reviews and determined that 11% of justice-involved youth were diagnosed or suspected of having FASD23. In adult populations, researchers surveying Directors of Corrections reported drastically lower numbers: only 13 of 148,979 justice-involved individuals in Canada, and 1 in over 3 million in the US had a documented FAS diagnosis24,25. Across studies, researchers noted that FASD screening and assessment services are largely unavailable in justice settings. These varied results may then suggest that difficulties establishing prevalence are in part due to diagnostic capacity issues, as researchers who directly assess for FASD as part of their studies identify higher rates than those examining existing diagnoses. Researchers also report a critical need for better FASD screening, increased FASD awareness and recognition, as well as enhanced clinical training among CJS professionals.

Efforts have been made to establish FASD screening methods for justice populations, with proposed strategies ranging from training correctional officials to identify FASD, to intensively screening all inmates via medical evaluation26. However, only one group of researchers has empirically evaluated a screening tool in this context. In 1998, Streissguth and colleagues27 studied the Fetal Alcohol Behavior Scale (FABS) in an adult inmate population and suggested that the FABS may have some utility in identifying justice-involved individuals with “presumed” PAE, but more research is needed to make a stronger link between the FABS and clinical diagnosis of FASD. It is clear from the lack of research (and particularly newer studies) in this area that a significant priority should be to develop effective FASD screening strategies that are relevant in the current CJS context.

Exploring the profiles and perspectives of justice-involved individuals with FASD allows us to better understand, characterize, and support this population. Among Canadian justice-involved youth, there is some recent evidence to suggest that they present with different experiences, risks, needs, and clinical profiles compared to youth without FASD. For instance, researchers have shown that justice-involved youth with FASD display earlier onset of offending behaviour, greater criminogenic risk (e.g., foster placement, early alcohol use, comorbid disorders), fewer protective factors (e.g., social support, school commitment, resilient personality characteristics), a higher likelihood of re-offending, and greater impairments understanding and appreciating their justice-related rights compared to youth without FASD28,29,30. In 2013 Rogers, McLachlan, and Roesch31 explored self-reported resilience, enculturation, and offense history among Canadian justice-involved youth with FASD and showed that the FASD group experienced different resiliency factors than youth without FASD, with cultural and spiritual factors appearing particularly important. This work on resilience and protective factors are important contributions to the strengths-based FASD literature and identify potential targets for building resilience and reducing offending.

Several studies have also been conducted to better understand adults with FASD who are justice-involved. Similar to youth justice populations, Canadian researchers described the lives of two male parolees with FASD to be characterized by severe early adversity, trauma, social isolation, instability, and mental illness, but also strength and resilience32. Researchers in the US have also reported that justice-involved adults with FASD experience an earlier onset of behaviour problems, and higher rates of impairment, abuse, trauma, and parental substance use than justice-involved individuals with other disabilities33. In a small US pilot study, Brown and colleagues (2011)34 explored interrogative suggestibility among justice-involved adult males referred for FASD assessment. They found that justice-involved adults with FASD displayed significantly greater suggestibility compared to non-forensic norms, but fewer differences when compared to court-referred adults, concluding that the heightened suggestibility in FASD may be an inherent characteristic of the disorder rather than situation-specific. These findings highlight the clinical complexity of this group and provide important insight for treatment planning.

In 2016 Currie and colleagues35 interviewed 14 Canadian adults with FASD and their support workers to explore service access and better understand what factors might influence long-term outcomes. Eight (57%) of the adults reported justice involvement, which they associated with substance use; lack of access to an FASD-trained support worker; and lower daily structure, routine, and supervision; and later life diagnosis. The authors emphasized early diagnosis, support for addictions, enhanced FASD training for caregivers and service providers, structure and supervision, and vocational opportunities as potential avenues for fostering successful outcomes.

Pei and colleagues (2016)36 explored the perspectives of another group of Canadian justice-involved adults with FASD and service providers experienced in working with this group. Participants discussed factors that influenced CJS involvement, including biological (e.g., cognitive deficits), psychological (e.g., mental illness), and social factors (e.g., early trauma). Participants also described what helped them to move beyond the CJS, including hope for a better future, willingness to change, and resilience. The authors made recommendations for ameliorating negative outcomes, including providing access to stable housing, better case management, improved assessment and diagnosis, moving away from punishment to strengths-based approaches, and increasing FASD awareness, education, and training in the CJS.

Very few studies have been conducted to examine offending patterns among justice-involved individuals with FASD, but in one early study, researchers suggested that crimes against persons were the most common offense type in this population, and first crimes were most often theft or shoplifting committed between the ages of 9 and 149. Sentencing outcomes were most often juvenile justice and detention, and the most common alternative sentences were probation and community service. Importantly, staying in school and absence of substance abuse problems were related to lower rates of trouble with the law, which sheds light on potential areas for intervention among individuals with FASD who may be at heightened risk for problematic behaviours.

The FASD population is an exceptionally heterogeneous and complex group, with varying life experiences, clinical profiles, and levels of functional ability. These factors likely impact how an individual might engage with the CJS, function within the system, and respond to supports and intervention initiatives. The following recommendations are put forward to guide work with CJS clients with FASD in general, keeping in mind that no two individuals will present in the same way:

1. An integrated and individualized response to justice-involved youth and adults with FASD is indicated to address core underlying issues and achieve just and successful outcomes.

2. A “one size fits all” approach will not be appropriate or sufficient for improving outcomes of individuals with FASD who are justice-involved. Rather, an alternative approach may be to develop justice-based interventions that recognize and support “cognitive diversity,” and incorporate a high degree of flexibility and individualization to address the needs of each individual being served.

3. Expanding the framework within which FASD and criminality are considered might serve to improve outcomes, and alternative justice measures may be appropriate in some cases.

4. We must consider the potentially damaging consequences of associating FASD with CJS involvement. It is important to understand that many individuals with FASD do not encounter the CJS, and that the difficulties experienced by individuals with FASD who end up involved in the CJS are not necessarily unique to FASD. Importantly, causal discussions could place individuals with FASD on a downward trajectory as soon as we characterize criminality as FASD-specific. Rather, the constellation of challenges and life experiences that individuals with FASD experience may lead to increased risk for a range of adverse outcomes, including CJS involvement.

5. The factors underlying CJS involvement involve broad social justice issues such as poverty, unstable housing and unemployment, racism, lack of access to services, and concurrent issues such as substance use and mental and physical health challenges37. Accordingly, the social determinants of health and issues underlying CJS involvement must be prioritized, not only for those with FASD but for all groups of marginalized individuals.

6. Numerous gaps exist in the literature, requiring further exploration, including: justice-specific FASD screening and assessment practices, FASD-informed justice interventions, FASD education and training for justice professionals, risk assessment in FASD (e.g., whether measures should be adapted), as well as crime prevention among individuals with FASD and identification of protective factors that support resiliency and prosocial behaviours. Important insight into these gaps may be gained from research with other populations, including those with mental health challenges and other disabilities.

There is an urgent need for a stronger connection between research, practice, and policy as it relates to FASD and the CJS – connection grounded in evidence-based research. Researchers, service providers, and policy-makers are eager to pursue systemic change, however there is limited empirical evidence to guide this change. More research is needed to accurately identify justice-involved individuals with FASD, examine trajectories of individuals within the system, and explore how we might better respond in order to inform next steps. There are significant risks in developing programs and initiatives that are not informed by high quality research. Accordingly, this review highlights the current strengths in the literature while also speaking to the need for increased research and dissemination of existing evidence in order to cohesively and confidently move toward improved outcomes for individuals with FASD.

Modified from Flannigan, K., Pei, J., Stewart M., & Johnson, Fetal Alcohol Spectrum Disorder and the criminal justice system: A systematic literature review. Int J Law Psychiatry, 57, 42-52, Elsevier, 2018.

This research did not receive any specific grant from funding agencies in the public, commercial, or not-for-profit sectors.

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Article Info

Article Notes

  • Published on: August 21, 2018


  • Fetal Alcohol Spectrum Disorder

  • Prenatal Alcohol Exposure
  • Criminal Justice System
  • Offenders
  • Vulnerable Populations
  • Corrections
  • Forensics


Dr. Katherine Flannigan
Canada Fetal Alcohol Spectrum Disorder Research Network, PO Box 11364 Wessex PO, Vancouver, BC, Canada, V5R 0A4
Email: katy.flannigan@canfasd.ca.