JUNEAU — A proposal before the Alaska Legislature would give judges flexibility when handing down criminal sentences to people who were born with effects caused by their mother drinking during pregnancy.
Judges are not allowed to consider fetal alcohol spectrum disorders—a catch-all phrase for conditions caused by prenatal exposure to alcohol—during criminal sentencing. SB151 would change that by adding FASD to the list of mental conditions that judges can consider as a mitigating factor.
Senate Majority Leader Kevin Meyer, R-Anchorage, worked with a statewide coalition from various professions called the Alaska FASD Partnership to craft the bill in response to the large number of people affected by the fetal alcohol disorders in the criminal justice system. Meyer said a mitigating factor is not a “get out of jail free card” and only reduces punishment if proven that a condition played a direct role in a crime. The bill calls for proof of documentation of prenatal alcohol use as well as a convincing clinical diagnosis.
The proposal is welcomed by advocates, but not touted as a cure-all.
Public understanding of the issue is lacking, according to Teri Tibbett, the partnership’s coordinator, and problems are multifaceted and complex.
“Alcohol has been around for a long time and so have women,” Tibbett said. “Those two have gone together about that long, but we understand the impacts better now than ever.”
Modern research has determined cell death caused by exposure to alcohol in the womb is the root of damage, according to Susan Astley, an epidemiology professor at the University of Washington. The best-known result is a series of distinct facial features — smaller eye openings, a thin upper lip and the ridges below the nose are smooth — but other problems are also common, she said.
Morgan Fawcett is a 19-year-old getting ready to study journalism, but for now he travels around the U.S. and Canada sharing the story of his struggles with prenatal alcohol exposure with clinicians, lawmakers and others interested groups.
Fawcett recently told a group in Juneau that he made it to his early teens with an array of unexplained problems. He said he couldn’t focus or remember things he was just told; that he was often at a loss during class; that his jaw would lock, sometimes tightly enough that he couldn’t eat or drink, and that he suffered debilitating migraines.
He was 14 when he realized those problems and others resulted from his mother’s drinking during pregnancy.
“I was angry at (my mother) in the beginning, but I love her, and I know she didn’t do this on purpose,” Fawcett said. “No mother would do this intentionally. If more people understood this, mothers wouldn’t be the focus.”
Alaska has been somewhat of a national leader by creating a network of diagnostic clinics and treatment programs, Astley said.
“Damage can take place throughout pregnancy, from very early to the very end,” she said. “It’s impossible to predict exactly what damage will take place if you drink at a certain time, and you can’t tell for sure when certain effects were caused.”
Seven-term Rep. Beth Kerttula, D-Juneau, remembers when discussion in the Capitol started and ended with how severely mothers should be punished. Kerttula recalls a fellow legislator saying during a committee hearing a few years ago that drinking pregnant women should be taken to the wharf in downtown Juneau, latched into stockades and have tomatoes thrown at them.
Meyer said another bill would have held bartenders in Alaska criminally liable if they served alcohol to pregnant women.
“People have the right heart, even when they put up ideas like this,” Meyer said. “You want an easy target, and sure, the mothers are easy targets. But if it was that simple, someone else would have fixed this already.”
Judge Michael Jeffery of the Barrow District Court, which serves the North Slope, said a 1990 case that involved an 18-year-old affected by fetal alcohol syndrome brought the problem to his attention. Jeffery sympathized with a request by the young man’s lawyer who wanted the condition to count as a mitigating factor, but a panel of judges determined he could not add conditions at his discretion.
“Extra jail-time didn’t help him or anyone else, and it’s true for many people,” Jeffery said.
Jeffery learned the problem is endemic in his community and around the state, especially so in the justice system: an estimated 27 percent of Alaska’s inmate population has fetal alcohol syndrome, according to a 2006 state report.
Long before Jeffery’s experience in the United States’ northernmost court became the basis of SB151, he implemented a few changes of his own.
He uses plain English and large type to account for poor reading comprehension commonly associated with FASD during his court cases. Listening comprehension is another common problem, with only the last few words of sentences heard and remembered, so Jeffery repeats important points often and carefully structures sentences. Another procedure has caused tense moments, he said: He explains common effects of FASD, how it is caused and where to find treatment, often with parents and relatives in attendance.
“If someone doesn’t speak the language, you give them a translator in court,” Jeffery said. “What I’m doing for people with this disorder is no different. They don’t understand things the same way, interpret information the same.”
He said he wants to see similar changes elsewhere, and to that end the American Bar Association is working on a resolution that addresses some of the concerns about justice and FASD. Howard Davidson, who runs the ABA’s Center on Children and the Law, said the resolution is modeled after a similar step taken by the Canadian Bar Association in 2010; he said the wording is still being refined but could be ready for a vote of approval in time for the group’s national convention this August.
SB151 has attracted eight co-sponsors, and the Senate Health and Social Services Committee will start discussion Monday.