FASD: Modifications for the Disability in the Courtroom

Hon. Michael JefferyHon. Michael I. Jeffery, Superior Court Judge, Second Judicial District, Barrow, Alaska

Summary: A rural judge knowledgeable about FASD but without local resources for diagnosis or a “mental health court” offers some suggestions on adaptations that can be accomplished in the courtroom.



The superior court at Barrow, Alaska[1] may be the farthest-north general jurisdiction court in the world, serving an area half the size of California. Most people in the multi-ethnic Barrow community of about 4,300 are Inupiaq Eskimo persons. I have served as superior court judge here for over 31 years.

I have come to realize that fetal alcohol spectrum disorder (FASD) probably affects a significant percentage of persons appearing in my court, even though few have been diagnosed. I’ve learned about the classic FASD symptoms of impulsivity; speaking well and appearing to understand when the person may actually understand at the level of half their age; limited appreciation of consequences; smiling or laughing inappropriately; the fact that the disability is a “spectrum” and each individual is affected differently; potential for victimization of the affected person by criminals but also by well-meaning teachers, counselors, and attorneys who do not understand this invisible disability; and the temptation of providers facing limited budgets to withdraw support services when they are still desperately needed. The court at Barrow faces the reality that most of the affected persons are not diagnosed and never will be. The closest diagnostic team is hundreds of miles south, with an expensive plane ticket needed.

So how does one adapt in this situation to bring procedural fairness to these affected persons? This is still a work in progress, but here is what I’m trying to do: 

  • Slow down. I know it is easy to follow a checklist and have a legally valid hearing. But I also know that it is all too easy to present an experience that is a blur of words with little comprehension. Speaking more slowly and allowing pauses helps avoid that result.
  • Use concrete English without unexplained legal jargon. For example, when going through a charging document, I say, “Here are the headlines,” and then explain why the person is involved in the hearing. I offer to go through the legal words if they want me to, but almost everyone avoids that opportunity.
  • Adapt commonly used written documents so that they are in plain English and have places for people to initial. The court administration is probably not too excited about my four-page bail order. (170 KB PDF) But it includes 14-point type, white spaces, explanations of terms, places for the person to initial by each part that they agree to, and positive wording. For example, I’ll say, “stay sober” instead of “do not use or possess alcoholic beverages.” In felony judgments I “cut and paste” into Alaska’s standard felony judgment forms my own felony probation conditions that have 14-point type, plain English, and places to initial. (160 KB PDF) The initialing helps all of us to focus on each condition.
  • Don’t depend on the well-meaning but very busy attorneys to have adequately explained key concepts. I provide this information personally, since I feel an ethical obligation to be satisfied that a juvenile delinquent, or a parent in dependency court, or an adult defendant understands their rights and the key concepts.
  • Take extra breaks. If I have been talking for some time, I will at least offer a break for consultation with the attorney or to simply allow things to settle in a little bit.
  • Look directly at the person involved at least some of the time and, when possible, ask the person a question or two about their life to build self-esteem in the intimidating courtroom environment.
  • When appropriate, specifically bring up FASD. I have added recommendations in juvenile and adult sentencing documents stating that this person “may be affected by a fetal alcohol spectrum disorder” and that those working with him or her should use plain English and frequent repetition to make sure the person understands. Bringing up the potential for an FASD assessment, especially in juvenile justice cases, takes advantage of one of the best moments to obtain this information.
  • When appropriate, schedule periodic “review hearings.” Attorneys are informed about them, but they need not attend. I ask how the treatment or school is going and get updates from the professionals involved.
  • Advocate when you can. People interested in legal change may not know how the justice system works and how the FASD condition plays out in this setting. Having a judicial officer as part of a working group can provide critically needed information. For example, I was part of the working group that assisted a state senator in creating an Alaska felony sentencing “mitigating factor” for defendants with a diagnosed fetal alcohol spectrum disorder that affected a defendant’s conduct in the offense. This is the only statute like this in the USA.

Of course I don’t have any studies to show the effectiveness of these initiatives. What I do know is that now that I have seen the importance of this invisible disability across the justice system, I feel ethically bound to try them.

Author biography:

Judge Michael I. Jeffery has been the superior court judge in Barrow, AK, for over 31 years. In addition to his caseload as a general jurisdiction judge, he currently serves as presiding judge for the three remote courts of Alaska’s Second Judicial District. He authored “An Arctic Judge’s Journey with FASD,” published in Journal of Psychiatry and Law 38/Winter 2010. He is the Alaska Court System representative to the Steering Committee of the Alaska FASD Partnership, and a member of the Alaska Juvenile Justice Advisory Committee, as well as the court system’s Children’s Rules Committee and Child In Need of Aid Court Improvement Committee. He has served on the Alaska FAS Steering Committee and the Alaska Criminal Justice Assessment Commission. He graduated from Stanford and from the Yale Law School. These comments are his own and do not represent the Alaska Court System.


References:

Fraser, C. (2008, September). Summary Report. Conference on the Path to Justice—Access to Justice for Individuals with Fetal Alcohol Spectrum Disorder. Whitehorse, Yukon. Retrieved October 12, 2010 from http://www.justice.gov.yk.ca/pdf/Path_to_Justice_Conference_Final_Report_FINAL_Eng.pdf

Jeffery, Michael I. (2010). An Arctic Judge’s Journey With FASD. Journal of Psychiatry and Law. 38:510-618.

Malbin, Diane. Fetal Alcohol Spectrum Disorder: Trying Differently Rather Than Harder (2002), Publisher: Diane Mablin
[1] Latitude 71.3º N.

 

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