Fetal alcohol spectrum disorder (FASD) is a highly prevalent neurodevelopmental disorder that has significant implications for the criminal justice system. Caused by prenatal exposure to alcohol, FASD is characterized by behavioral, emotional, and physical health problems that can have catastrophic consequences across the affected individual’s lifespan. For instance, FASD drastically increases a person’s risk of contact with the criminal justice system as a victim, witness, or suspect of a crime. The latest prevalence rates of FASD in the general population are approximately 2–5 percent in the United States and 1–8 percent worldwide, but these prevalence rates are estimated to be significantly higher in criminal justice and forensic settings.1 Recent studies have suggested that the rate of criminal justice contact for persons with FASD has been approximately 60 percent for adults and adolescents.2 Understanding the extent of the prevalence of this disorder among criminal justice populations is limited due to difficulties with attaining an accurate diagnosis. However, studies are beginning to demonstrate the pervasiveness of this disorder within legally involved populations. Youthful offenders involved in the criminal justice system who meet criteria for an FASD are estimated to range from 23–36 percent.3 A study by public health researcher Dr. Svetlana Popova and her colleagues indicated individuals with an FASD were 19 to 40 times more likely to have involvement in the criminal justice system compared to individuals without the disorder.4 A more recent study by clinical psychologist Dr. Katherine McLachlan and her co-researchers found that 30 percent of individuals with prenatal alcohol exposure had been involved in the criminal justice system, compared to less than 1 percent of the general population.5 Overall, the research that has been completed on this population indicates individuals with an FASD are at very high risk of criminal justice involvement at some point in their lives.
Law enforcement officers likely encounter individuals with FASD on a regular basis. Encounters could range from minor situations that require little to no law enforcement intervention to serious situations where a person with FASD may have been the witness; victim; or, in some instances, perpetrator of a crime. Failure to account for the symptoms of FASD during these situations can create significant risks for the individuals as well as law enforcement personnel. For example, a person with FASD could be the focus of a welfare check that escalates into a situation like a stand-off. As such, law enforcement and criminal justice professionals are strongly encouraged to acquire a basic understanding of FASD, at the very least. Serving as an entry into advanced education and training, this article presents an overview of FASD along with a framework that law enforcement and other professionals can use to address the challenges and complexities presented by individuals with FASD during daily interactions.
Invisible Deficits
The impairments associated with FASD can range from mild to severe.6 Some common physical, behavioral, or medical indicators of FASD may be as follows:
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- Abnormal facial features such as smooth ridge between the nose and upper lip
- Smaller head circumference or head size
- Medical problems such as with the bones, heart, and kidneys
- Shorter-than-average height
- Problems with vision and/or hearing
- History of sleep problems that started during infancy
- Low IQ or intellectual disability
- Language and speech delays
- Poor judgement and reasoning
- Problems in school and difficulties in certain subjects, namely math
- Learning disabilities
- Poor attention
- Poor memory
- Lower body weight
- Poor coordination
- Hyperactivity
However, in spite of these deficits, individuals with FASD frequently appear capable, informed, and competent upon initial encounter. One reason for this is the fact that the overwhelming majority of persons exposed to alcohol prenatally show no outward signs of impairment. Additionally, one feature often present in those with FASD is what is referred to as “superficial talkativeness.” In other words, on a superficial level, they can engage in conversation and sound like they understand and are knowledgeable; however, when asked more in-depth or abstract questions, it becomes obvious that they do not really understand. Nonetheless, individuals with FASD often deal with an array of invisible deficits that place them at a great disadvantage within the criminal justice system.7 A portion of Table 2 illustrates various impairments that are often invisible until the individual is stressed or overwhelmed. Such a lack of obvious symptoms can even result in law enforcement professionals misconstruing individuals with FASD as lazy, manipulative, or noncompliant. For example, persons with FASD may acknowledge that they understand their Miranda rights, but not actually comprehend what their rights truly entail or the consequences associated with waiving these rights. Therefore, law enforcement professionals should take extra precautions when advising someone of their rights and questioning them when the individual may have FASD.
Secondary Disabilities and Conditions
Law enforcement professionals should also consider the likelihood that individuals with FASD suffer from secondary disabilities or conditions. When individuals with FASD go undiagnosed and untreated, secondary conditions and disabilities become quite common. Individuals with FASD are prone to making poor choices, struggle with adapting to challenges, and have difficulty conforming with societal norms.8 As a result, individuals with FASD are disproportionately likely to develop secondary disabilities and conditions like mental illness, substance use problems, economic instability, and other issues (see Table 1). If law enforcement officers become familiar with the secondary disabilities common among individuals with FASD, these professionals could help improve detection of FASD and help ensure appropriate adjustments are made during criminal justice processes.
| Table 1. Fetal Alcohol Spectrum Disorder: Deficits, Secondary Disabilities, and Risk Factors. | |
| Area | Examples |
| Invisible Deficits |
|
| Secondary Disabilities and Conditions |
|
| Common Environmental Risk |
|
Common Environmental Risks
Knowledge of common background risk factors for FASD could also benefit law enforcement professionals and the communities that they serve. Individuals with FASD often unfairly experience one or more historical adversities in addition to prenatal exposure to alcohol. As presented in Table 1, these forms of adversity can include maltreatment, exploitation, victimization, and poverty.9 These adversities typically exacerbate FASD impairments, secondary conditions (e.g., neurodevelopmental disorders and psychopathology), problematic behaviors, and broader life course trajectories. Further, the experience of these different adversities are typically also significant predictors of criminality. Therefore, law enforcement professionals should be aware of common background risk factors for individuals with FASD.
Law Enforcement Considerations
Individuals with FASD are often mistaken for being willfully defiant because there does not appear to be any logical or plausible reason for their behavior. Other examples of problematic tendencies displayed by individuals with FASD include difficulty focusing and providing logical answers, emotion dysregulation, or appearing intoxicated on illicit substances. The failure to perform simple tasks in accordance with societal norms are examples of the FASD-related brain damage making itself evident. Failure to account for FASD deficits can have profoundly negative consequences for the individual, particularly when the encounter involves law enforcement professionals. To protect against the possibility of such deleterious outcomes, Table 2 highlights several clues drawn from the peer-reviewed literature that can help improve the recognition of FASD in criminal justice contexts. Law enforcement professionals should carefully consider the possibility of FASD when individuals present with any of these indicators.
| Table 2. Possible Indicators of FASD in Law Enforcement Settings | |
| Indicators | Description |
| Desire to please | Predisposed to chattiness, compliance, and gullibility |
| Decision-making | Impulsive and inconsistent decision-making (e.g., waiving of legal rights) |
| Memory problems | Proneness to short- and long-term memory deficits, suggestibility, confabulation, and false confessions |
| Social awkwardness | Social inappropriateness (e.g., laughing or smiling at unseemly topics), poor interpersonal boundaries, perceived immaturity, and verbal and nonverbal communication skills deficits [#d9d6cf] |
| Sensory sensitivities | Exacerbated negative behaviors in response to sensory perception issues |
| Affect | Flat affect, no remorse, or lack of understanding the severity of offense |
| No perceived gain from crime | Illogical, offensive behavior or conduct |
Interviewing Approaches
In light of the cognitive, social, and adaptive functioning impairments of FASD, law enforcement professionals are encouraged to learn practical approaches for communicating with individuals that may have FASD. One such approach is the D.E.A.R. method (see Table 3). This method involves the use of direct language, engagement of support systems, ensuring the accommodation of needs, and always remaining calm. The D.E.A.R. approach is based in empirical evidence and can help law enforcement officers minimize the likelihood of miscarriages of justice such as false confessions and convictions.
| Table 3. D.E.A.R.: An Interviewing Approach | |
| D.E.A.R. Method | Rationale |
| Direct Language | Populations that typically suffer from difficulties with abstract thinking concepts can often benefit from an approach that is direct and concrete. Further, such an approach should avoid providing suggestions or misleading information while not pressuring a person toward compliance. Legal or professional jargon should be avoided, as well as the use of indirect communication such as analogies or sarcasm. Other beneficial strategies include (a) allowing longer processing times and (b) using open-ended and non-leading questions. Together, these strategies may decrease the likelihood of suggestibility or confabulation. |
| Engage Support System | Individuals with FASD struggle with adaptive behavior and often experience multiple disadvantages, which predisposes them to involvement with the criminal justice system. Without proper representation and support, individuals with FASD are vulnerable to providing self-incriminating or inaccurate statements, especially when under stress. To protect against this possibility, the involvement of informal or formal support systems is critical. [#d9d6cf] |
| Accommodate Needs | Individuals with FASD suffer from sensory processing challenges and typically function at an age that is developmentally younger than their chronological age. Law enforcement professionals are encouraged to adapt language appropriately to the individual’s developmental functioning level and ensure interrogation areas minimize distracting stimulation. To prevent the intimidation of individuals with FASD, law enforcement officers should speak in a calm voice, avoid physical contact, and not make any sudden gestures. |
| Remain Calm | Individuals with FASD can struggle to manage their emotions and stress and can easily exhibit erratic and maladaptive behaviors or suffer the worsening of preexisting impairments. Law enforcement professionals must be sure to remain calm and patient during any interpersonal interactions. |
Tips for Law Enforcement Professionals
The challenges, needs, and abilities of individuals with FASD differ vastly from many other people who come into contact with the criminal justice system. Individuals with FASD are at increased risk of contact with criminal justice professionals as witnesses, victims, and offenders. In light of this, law enforcement professionals should carefully consider how they approach, communicate, and interact with individuals with FASD. Table 4 provides tips on how law enforcement officers can better understand the perspectives of people with FASD.
| Table 4. Six Tips to Improve Interpersonal Interactions for Law Enforcement Professionals | |
| Description | |
| Tip 1 | Remember that logic cannot be expected from a person with FASD during a crisis. NEVER ASK WHY the person did or is doing something. The person may have no idea. A person with FASD is prone to both impulsivity and a lack of personal insight. |
| Tip 2 | Remember that recollections of the exact sequencing of an event will likely never be consistent or match the actual sequence of what happened. The sequence could be all mixed up because individuals with FASD often have trouble with memory. Further, abstract concepts of time and money can also big stumbling blocks for those with FASD. The answers given to the same questions may be different even in the space of a minute. |
| Tip 3 | When possible, communications should be conducted in a quiet and safe environment. Surrounding a person with FASD with several law enforcement officers and rapidly asking questions is a recipe for disaster. One-on-one interpersonal interactions are preferable. The professional should look into the person’s eyes, quietly and calmly, without any emotion. Those with FASD are highly influenced by the emotional atmosphere around them. Any frustration or intense emotion on the law enforcement officer’s part will be absorbed and magnified back by the person with FASD. |
| Tip 4 | Professionals should be sure to help a person with FASD orient to the situation. This should include clearly explaining what is happening at each step during the process. The use of clear, simple, and short sentences can be incredibly beneficial. The professional should continue to reassure the person with FASD and let him or her know that he or she is safe. Professionals should help minimize the risk of catastrophizing. |
| Tip 5 | Always ask a person with FASD how to contact his or her “safe person.” Be sure to give individuals the opportunity to communicate with their safe person. |
| Tip 6 | People with FASD often struggle to understand another person’s intent. As such, law enforcement officers should slow down conversations and use straightforward language that can encourage comprehension. What may appear to be blatant disobedience could just be an example of the person’s inability to understand and follow directions. When possible, call the person by name to get his or her attention. The law enforcement officer may need to repeat something several times. Again, the use of direct eye contact is helpful. |
Summary
FASD is a serious condition that impacts families and broader communities and contributes to situations that necessitate the intervention of law enforcement professionals. Although it is uncertain how frequently police officers encounter individuals with FASD, given the prevalence of FASD, it remains incredibly likely that such encounters occur on a regular basis. In these situations, there are multiple considerations that law enforcement professionals should weigh when interacting with a person who may have FASD. Many of these are highlighted in Table 5, which provides several important take-aways. Despite the serious need for increased knowledge in this area, there are very few formal FASD-based training programs tailored to law enforcement officers. As a result, FASD continues to be under-recognized and misunderstood by law enforcement professionals. Improved recognition pertaining to the signs, symptoms, and consequences of FASD are critical in preventing miscarriages of justice. Officers who are knowledgeable about FASD will be in a better position to assist these highly vulnerable individuals. To this end, law enforcement professionals are strongly encouraged to seek out continuing education opportunities and place themselves in a better position to assist these highly vulnerable individuals.
| Table 5. Twelve Key Take-aways about FASD for Law Enforcement Officers | |
| Description | |
| 1 | People with FASD often present with maladaptive behavioral patterns and secondary disabilities. This is due to untreated impairment-related problems such as challenges with self-regulation, comorbid psychiatric disorders, and problems with adaptive functioning. |
| 2 | Aggression, self-abusive behaviors, inappropriate responses, impulsivity, noncompliance, and withdrawal are some typical externalizing behaviors that become increasingly likely when a person with FASD is experiencing anxiety or stress due to impairment-related challenges. |
| 3 | Many people with FASD or other mental health issues may be sensitive to external stimulation. This could result in the escalation of defensive behaviors due to the overstimulation of sensory processes. |
| 4 | People with FASD may demonstrate verbal fluency or chattiness but have severe impairment to language and reading comprehension. This may hinder their understanding of their Miranda rights, legal jargon, and documentation, which can increase the risk of self-incrimination or unjust outcomes. |
| 5 | Law enforcement professionals should make sure that a person with FASD understands the legal process. A common way to verify comprehension is requesting the person to restate something in his or her own words. The impairments of FASD can greatly undermine the individual’s comprehension of all legal processes. |
| 6 | People with FASD often suffer from executive functioning deficits. These may result in poor behavior or criminality because the person lacks apparent planning, organization, reasoning, and high-level problem-solving skills. |
| 7 | People with FASD often experience severe executive functioning deficits, lack social skills, and are vulnerable to manipulation. This renders them susceptible to committing crimes due to peer pressure and having an inability to understand or appreciate the consequences of their behavior. |
| 8 | People with FASD are understood to suffer from memory impairments, the desire to please, and social neediness. When pressured by police, these traits may increase the risk of suggestibility, confabulation, false confessions, or accepting blame for the actions of others. |
| 9 | Attachment problems and conduct challenges are common in persons with FASD, which may impact their interactions with authority figures. |
| 10 | People with FASD are faced with cognitive impairments and slower information processing times. This may negatively impact the ability to understand and follow multistep directions. |
| 11 | People with FASD often experience physical challenges due to impairments such as limited motor skills and poor coordination. These may negatively impact field sobriety testing even in the absence of substance use. |
| 12 | Sleep problems are common in persons with FASD. Such problems may further impact executive functioning deficits and the ability to self-regulate. Therefore, people with FASD may become easily fatigued and require frequent breaks during questioning. |
Jerrod Brown, PhD, MA, MS, MS, MS, is an assistant professor and program director for the master of arts degree in human services with an emphasis in forensic behavioral health for Concordia University, St. Paul, Minnesota. He has also been employed with Pathways Counseling Center in St. Paul, Minnesota, for the past 19 years. He is the founder and CEO of the American Institute for the Advancement of Forensic Studies (AIAFS) and the editor-in-chief of Forensic Scholars Today (FST).
Notes:
1Michael Widder et al., “Evaluation of the German Biographic Screening Interview for Fetal Alcohol Spectrum Disorder (BSI-FASD),” Scientific Reports 11, March 4, 2021.
2Najat Khalifa et al., “The Neurocognitive Profiles of Justice Involved People with Foetal Alcohol Spectrum Disorder: A Systematic Review,” Behavioral Sciences & the Law 40, no. 1 (January/February 2022): 87–111.
3Carol Bower et al., “Fetal Alcohol Spectrum Disorder and Youth Justice: A Prevalence Study among Young People Sentenced to Detention in Western Australia,” BMJ 8, no. 2 (April 2018); Diane K. Fast, Julianne Conry, and Christine A. Loock, “Identifying Fetal Alcohol Syndrome among Youth in the Criminal Justice System,” Developmental and Behavioral Pediatrics 20, no. 5 (October 1999).
4Svetlana Popova et al., “Fetal Alcohol Spectrum Disorder Prevalence Estimates in Correctional Systems: A Systematic Literature Review,” Canadian Journal of Public Health 102, no. 5 (September–October 2011): 336–340; Svetlana Popova et al., “Cost Attributable to Fetal Alcohol Spectrum Disorder in the Canadian Correctional System,” International journal of Law and Psychiatry 41 (July–August 2015): 76–81.
5Kaitlyn McLachlan, “Difficulties in Daily Living Experienced by Adolescents, Transition-Aged Youth, and Adults with Fetal Alcohol Spectrum Disorder,” Alcoholism, Clinical and Experimental Research 44, no. 8 (August 2020): 1609–1624.
6Centers for Disease Control and Prevention, “Basics about FASDS,” January 11, 2022.
7Natalie Novick Brown and Stephen Greenspan, “Diminished Culpability in Fetal Alcohol Spectrum Disorders (FASD),” Behavioral Sciences & the Law 40, no. 1 (January/February 2022): 1–13.
8Rebecca Pedruzzi, “Navigating Complexity to Support Justice-Involved Youth with FASD and Other Neurodevelopmental Disabilities: Needs and Challenges of a Regional Workforce,” Health & Justice 9, February 27, 2021.
9Katherine Flannigan et al., “Characterizing Adverse Childhood Experiences among Children and Adolescents with Prenatal Alcohol Exposure and Fetal Alcohol Spectrum Disorder,” Child Abuse & Neglect 112 (February 2021): 104888.
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Please cite as
Jerrod Brown, Amy Jozan, and Megan Carter, “Interview Considerations – Fetal Alcohol Spectrum Disorder: A Beginner’s Guide for Criminal Justice Interviewers,” Police Chief Online, July 6, 2022.
