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September 14, 2022
"'Take the Motherless Children off the Street': Fetal Alcohol Syndrome and the Criminal Justice System"
The title of this post is the title of this new article authored by Michael Perlin and Heather Cucolo now available via SSRN. Here is its abstract:
Remarkably, there has been minimal academic legal literature about the interplay between fetal alcohol syndrome disorder (FASD) and critical aspects of many criminal trials, including issues related to the role of experts, quality of counsel, competency to stand trial, the insanity defense, and sentencing and the death penalty. Nor has there been any literature about the interplay between FASD-related issues and the legal school of thought known as therapeutic jurisprudence.
In this article, the co-authors will first define fetal alcohol syndrome and explain its significance to the criminal justice system. We will then look at the specific role of experts in cases involving defendants with FASD and consider adequacy of counsel. Next, we will discuss how the impact of FASD on the major fundamentals of criminal law and procedure, especially as it relates to questions of culpability. Under this broad umbrella of topics, we consider questions that may arise in the criminal trial process, such as those related to competency to stand trial (and, to a limited extent, other criminal competencies), the insanity defense, sentencing, and the death penalty. We look carefully at the way that courts all too often dismiss effectiveness-of-counsel claims in such cases, and the implications of this case law.
Finally, we investigate why it is so significant that the caselaw in this area has totally ignored the teachings of therapeutic jurisprudence, and offer some conclusions and recommendations (based on therapeutic jurisprudence principles) that, we hope, can (at least partially) ameliorate this situation.
This article strikes me as especially timely given that the capital defense of Nikolas Cruz, the Parkland school shooter, has been particularly focused on FASD. This new article, headlined "Nikolas Cruz trial: FASD expert has ‘never seen’ pregnant woman abuse alcohol as much as shooter’s mother," provides a partial account of the evidence being developed during his on-going capital sentencing proceeding.
September 14, 2022 at 10:21 AM | Permalink
Comments
When you run out of other people to blame, you can always blame your mother. Didn't Freud go through all this about 100 years ago?
Posted by: Bill Otis | Sep 14, 2022 9:52:58 PM
Bill -
If fetal alcohol use by the birth mother impairs an individual's ability to obey the law, it should be considered when determining if that individual should be punished and in mitigation during sentencing.
Brett Miler
Posted by: Brett Miler | Sep 15, 2022 11:59:51 AM