A steady stream of offenders suffering from a syndrome with no cure - fetal alcohol spectrum disorder - are being unfairly entangled in the criminal justice system, says a leading criminal law scholar.
In an article scheduled for publication, University of Toronto law professor Kent Roach argues that the prosecution and imprisonment of fetal alcohol spectrum disorder (FASD) victims flies in the face of a justice system predicated on punishing only those who intentionally break laws, or are legally at 'fault' for their actions.
"The cognitive deficits associated with FASD present a fundamental challenge to the standard assumptions of the Canadian criminal justice system," he said.
Victims of the disorder suffer permanent brain damage because of prenatal alcohol exposure. Prof. Roach said that the syndrome deprives them of conventional free will and a sense of individual responsibility. It also leaves them prone to memory loss and impulsivity, and they are easily influenced by others.
Prof. Roach said that those with the syndrome get into considerably more trouble, yet typically refuse the help of legal counsel upon arrest and often give false confessions.
"One of the dangers of suggestibility of some people with FASD is that they may be persuaded to provide false confessions to the police," Prof. Roach said. He said that this trait becomes even more hazardous in light of recent Supreme Court of Canada decisions that permit police to be "persistent and suggestive" during interrogations.
"In some severe cases, defences are likely being ignored," Prof. Roach added in an interview. "In many other cases, inappropriate sentences are being applied."
Prof. Roach said that ignorance of fetal alcohol spectrum disorder also amounts to a form of racial discrimination, since it leads to the imprisonment of a disproportionate number of aboriginal people - for whom alcohol consumption is a particular problem.
In his article - scheduled for publication in the next edition of the U.B.C. Law Review - Prof. Roach said he found only 265 criminal court decisions that referred to the syndrome. That number is deplorably small, he said, considering an estimated two out of every thousand live births involves the syndrome.
"References to FASD in the reported cases vary dramatically among jurisdictions in Canada, with the most per capita references being made in the three northern territories and Saskatchewan, and with many of the most important decisions being made by a handful of judges," Prof. Roach observed.
One of these judges - Ontario Court Judge Melvyn Green - urged his colleagues recently to educate themselves about the syndrome: "A judge wants to do the right thing," he said, in a commentary posted on an FASD website.
"But a judge, like any mortal, can only work with what he's given," Judge Green said. "In too many cases, I suspect, judges are hamstrung because they're denied the information they need. This doesn't serve the interests of justice or the public or, perhaps most importantly, the interests of defendants with FASD who, far too often, find themselves in conflict with the law."
A 2003 Department of Justice study that sought information from every province and the territories about their FAS inmate population showed how little the problem is understood, Prof. Roach said in his law review article.
"It obtained a response that only 13 inmates of a total of 148,797 had a reported diagnosis of FAS," he said. "This figure is astoundingly low, and well below even the most conservative estimates of FAS in the general population."
Prof. Roach recommended that judges seriously consider whether FAS victims ought to be found unfit to stand trial. "FASD should be considered at the early stages of the criminal process, and the buck should not be passed to the sentencing judge," he said.
"The acceptance of false confessions or false testimony from people with FASD could result in miscarriages of justice."