Stopping the Revolving Door of the Justice Systems
***Ten Principles for Sentencing Other Disposition of People With a FASD***
(Revised – October 23, 2007)
Anthony P. Wartnik, Judge (Retired)
There are people in your courts who deserve special attention. Some have committed crimes they
didn’t understand and some have been convicted of crimes for which they are not fully culpable
and both are doomed to getting caught in the juvenile and or adult criminal justice revolving door
unless we recommend and or do things differently. They may have a Fetal Alcohol Spectrum
Disorder (FASD) and need special attention and special approaches to sentencing or other
disposition in order to avoid being continually caught in the revolving door of the justice systems.
This paper identifies and discusses ten principles for the sentencing and other disposition (deferral
of sentence and other dispositions such as diversion, deferred dispositions, deferred sentences and
restorative justice dispositions) of people with a FASD. These ten principles for people with a
FASD were developed through the joint effort of Dr. Ann Streissguth, recently retired as the
Director of the Fetal Alcohol Drug Unit (FADU) of the University of Washington School of
Medicine, Ms. Kay Kelly, Project Director of the FASD Legal Issues Resource Center at FADU,
Professor Eric Schnapper, University of Washington School of Law liaison to the FADU, and
myself.
These principles were part of the Power Point presentation delivered by this author at the 2nd
International Fetal Alcohol Spectrum Disorder Conference on March 10, 2007. The discussion
that follows each principle is based on my experiences in dealing with juveniles and adults with a
FASD or suspected of having a FASD during my nearly twenty-five year career as a judge of the
King County Superior Court in Seattle Washington, and particularly from 1994 until my
retirement in 2005. My reference point throughout the discussion that follows is the sentencing
and alternate disposition laws of the State of Washington for felonies, frequently referred to as
the Sentencing Reform Act or SRA. I will, however, cite a limited amount of case law from
other jurisdictions to support a basic legal principle that FASD can constitute mitigation in
sentencing or disposition. It should be noted that the SRA is a system for determining the
presumed sentencing range for each offender based on the seriousness of the crime for which he
or she is being sentenced and that person’s prior felony criminal history. The sentencing judge is
required to impose a sentence that is within the standard range unless there are substantial and
compelling reasons to impose an exceptional sentence outside the range, either below or above it
or unless, in juvenile court, the youth’s offense is either diverted by the prosecutor prior to the
filing of a criminal charge, or the court grants a deferred disposition following the filing of a
formal criminal charge The latter two mechanisms result in the youth not being subject to a
criminal conviction upon successful completion of the conditions of the diversion or deferred
disposition. The judge has much more discretion in designing the conditions of sentencing and
deferred disposition for misdemeanor and gross misdemeanor criminal offenses since the SRA
does not apply to this class of crimes.
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The fact that a person has a FASD may bear on sentencing and deferred disposition in one or more
of three ways. (1) The presence of a FASD may reduce culpability for the criminal conduct. (2)
The presence of a FASD may require different measures to reduce the chances of recidivism. (3)
The presence of a FASD usually means significant difficulties functioning in adult society,
problems which a particular sentence or disposition may either aggravate or alleviate.
The first principle for sentencing and disposition of people with FASD is to consider whether
the disability entails reduced culpability and thus warrants a less severe sentence. Assuming
that there is statutory authority for the exercise of discretion or for sentencing outside a standard
sentencing range, look at and consider matters that constitute mitigation. In Washington, our
statute permits an exceptional (lower) sentence where the defendant’s capacity to appreciate the
wrongfulness of his or her conduct, or to conform conduct to the requirements of the law, was
significantly impaired. Either or both of these factors may be present when an offender has a
FASD. There is case law authority supporting the concept that a FASD can constitute a basis for a
finding of mitigation for sentencing purposes. See, Silva v. Woodford, 279 F.3rd 825 (9th Cir.
2002). See, also, State v. Brett, 126 Wn2d 868 (2001). Both of these cases dealt with ineffective
assistance of counsel for not investigating or seeking a diagnosis of a FASD for sentencing
mitigation. See, also, the case of Castro v. Oklahoma, 71 F3rd 1502 (1995), which held that a
criminal defendant was entitled to appointment of an expert to develop evidence regarding a FASD
provided that there was a substantial showing that his mental state was in dispute and was relevant
to the outcome of the case, to either the guilt determination or to the sentence to be imposed.
It must be kept in mind that individuals with a FASD frequently do not fully grasp the standards of
conduct reflected in the criminal law. For example, an individual with a FASD would usually
understand that it was wrong to steal from a store, but might not understand that it was wrong to
temporarily take an acquaintance’s car without permission. Second, individuals with a FASD at
times engage in impulsive behavior, unable to resist the urge to do something they may grasp as
wrong. Shoplifting items for personal use or for the use of a “friend” is among the offenses they
commit most often. The lack of apparent predisposition to commit a crime, the participation by
being induced by others, is also a mitigating circumstance in Washington. Individuals with a
FASD, often anxious to please others and unsophisticated about whether they are being used, can
too easily be persuaded to engage in conduct, which they may or may not fully realize is criminal,
by individuals with substantial criminal records and or substantial criminal sophistication.
The second principle for sentencing and disposition is to avoid lengthy (or any) incarceration
in favor of longer periods of supervision. Although community safety is of primary or
significant concern in any sentencing or disposition, do not let it inappropriately control your better
judgment. When you are uncomfortable due to concerns about whether leaving a defendant with a
FASD in the community presents a risk to the community, it is far too easy to use community
safety considerations as a justification for incarceration rather than facing the issue head-on in
relation to long-term consideration of what the risk to the community will be upon release of the
defendant from incarceration. Lengthy incarceration usually does not contribute in any way to
preventing further offenses by individuals with a FASD; often times it may do the opposite.
Remember that this offender normally doesn’t learn from prior experiences and is not able to apply
them to new situations. The result may be that you are able to protect the community during the
period of incarceration but the offender will be as or more dangerous upon release from custody
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due to an inability to learn from the incarceration experience and an inability to link the
incarceration with the crime that gave rise to it.
The prospect of a lengthy custodial sentence (or of a longer sentence for a more serious crime) is
unlikely to affect an individual with a FASD. These individuals have only a limited grasp of cause
and effect and have trouble planning for even a single day; they would usually be incapable of
weighing the risk of a long prison term against the hoped for gain from a particular offense.
Having served a long sentence may have no effect on future conduct. Individuals with a FASD at
times do not fully understand why they are (or were) in prison. Conversely, prolonged
incarceration may severely harm the ability of an already disabled individual with a FASD to
function when he or she returns to society. Think of the emotional effect of putting a ten-year-old
in an adult prison. Additionally, those disabled by a FASD are often vulnerable to victimization,
both physically and emotionally, by fellow inmates. An introduction of the defendant with a
FASD into an inmate population may result in continued destructive influences even after release
from custody. The social arrangements that earlier assisted an individual with a FASD to function
in society (housing, jobs, etc.) are likely to disappear when they are incarcerated for an extended
period.
The third principle of sentencing and disposition is to use milder but targeted sanctions.
Sanctions can work if they are sufficiently limited so as to be non-destructive, are used
prospectively and are targeted at affecting very specific conduct. Generalized deterrence is
unlikely to be effective because it is directed at a large and complex set of rules (“obey the law or
you will go to prison”) which an individual with a FASD does not fully understand; in any event,
the connection is simply too abstract for an individual with a FASD to grasp and understand.
People with a FASD tend to see things in concrete terms and respond better to concrete
presentations. What may work is linking a particular sanction (say, ten hours of community
service) to a very specific type of conduct the court wants to prevent (e.g.), getting drunk or
shoplifting. These individuals can master the importance and meaning of a particular rule (or a
few) tied to known sanctions. The best analogy might be to a rule that a six-year-old would be
sent to his room any time he took his sibling’s toys. For such a system to work, the individual with
FASD must be repeatedly reminded of the rule (and rule-sanction connection). Repetition is the
key to effective learning for those with this disability. And, the sanction should focus on
something that is of major significance (e.g.), a sanction for using drugs, but not a sanction for
being late to an appointment.
The fourth principle of sentencing and disposition is to impose, recommend or arrange for a
longer term of supervision. Individuals with a FASD have a life-long need for guidance from a
non-disabled individual and for a variety of social services. These are not defendants who merely
need to (or can) straighten their lives out, or who (as in the case of juvenile offenders) are going to
mature with time. Supervision by a Department of Corrections (or other) probation official who
understands FASD is of ongoing importance for as long as it can be arranged, both to avoid
recidivism and to improve functioning. The court should attempt to impress the importance of this
on both the prosecution (which may focus primarily on the amount of prison or jail time) and the
defense (which usually seeks to have the defendant on the street and off supervision as soon as
possible). The extended supervision sentence is one that, generally, neither side will ask for. It
may be necessary to seek legislation that mandates longer periods of supervision for people with a
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FASD just as legislatures have done in other problem areas such as with sex offenders, violent and
persistent offenders, etc. Judges should be creative in finding ways to prolong Department of
Corrections or other supervision, through the consent of the parties, by postponing final
sentencing, or other means.
The fifth principle of sentencing and disposition is to use the judge’s position of authority
(stature) with the defendant. Individuals with FASD often have great respect for authority
figures and are anxious to please. The particular authority and stature of a judge and the trappings
of a courtroom (or chambers) can be important tools in shaping their behavior. Where practicable,
a defendant with a FASD should be asked (over and above any Department of Corrections
supervision) to return on a regular basis to report to the judge on how he or she is doing. Positive
behavior should be greeted with much praise and support (as we have already learned to do with
defendants in the drug treatment court and mental health court settings). Recognition of success
(certificates, tokens memorializing periods of sobriety, courtroom applause) may be helpful. This
approach has certainly become part of the culture in drug treatment and mental health courts.
Failures should be the occasion to review the sentencing plan, call together the interested agencies,
implement other services, and discuss with the defendant and the sponsor or advocate the
defendant’s plan for improvement.
It may be possible to persuade the defendant, after formal supervision has ended, to continue to
come to the courtroom or chambers on a regular basis to report to the judge. While that might
have to be voluntary, and most defendants would have no interest, individuals with FASD might
be pleased to continue their connection with the judge. I was a local district court judge from 1971
to 1980 where I handled misdemeanor and gross misdemeanor cases. The post-sentence case load
was more than the local probation department could supervise effectively. I met anywhere from
monthly to every 90 days with many of the people that I had ordered onto probation. This was one
of the most enjoyable and satisfying parts of my judicial work. I also believe, based on the
responses received from the probationers that they appreciated the personal effort taken by me as
“my” judge.
The sixth principle of sentencing and disposition is to obtain a sponsor or advocate for the
defendant. Individuals with a FASD need guidance and assistance from a non-disabled
individual. Department of Corrections officials or probation officers will only be available for so
long and can devote only a limited amount of time to any one probationer.
Whenever possible, someone else should be found who will agree to help the defendant on an
ongoing basis. This might be a family member (such as a responsible parent or sibling), a family
friend, a relative, or someone in a local organization (e.g.), a church group, retired citizens group,
retired probation, police and fire officers, etc.. Defense counsel or probation officials could be asked
to look for someone who would function in this capacity. When found, this individual should be
asked to come into court with the defendant to discuss his or her participation. Ideally, such a person
would be found before sentencing, and at the hearing, would assure the court and the defendant of
his or her willingness to play a supportive role.
The seventh principle of sentencing and disposition is to create a structure in the defendant’s
life. These individuals often lack the basic skills needed to organize a day. At best, needed tasks
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(shopping for, and preparing meals, getting to work, laundry, personal hygiene, etc.) may go undone;
at worst the individual will drift into destructive conduct for want of any sense of how to better
utilize his or her time. Structure could include linkage with vocational rehabilitation services, a
sheltered workshop (particularly one that provides job coaches and will help the client find a job that
he or she is capable of being successful at and who is also skilled in training the client in maximizing
the application of his or her strengths to the requirements of the job). This may include the use of
alternative approaches for performing the required work, use of alternative types of tools, equipment,
etc. which is a very common practice in training persons with developmental disabilities.
External structure (like an “external brain”) can help greatly. This might include (a) living in a
group home or facility with an established regiment (when to get up, eat, etc.), (b) a very structured
(even part time) job (indeed one of the values of even part time employment is that it gives
someone with a FASD something regularized that he or she needs to do every day, (c) a daily
schedule created in collaboration with the defendant and overseen by a parent, advocate, sponsor,
or other party, (d) involvement in frequently scheduled treatment programs such as classes in anger
management , sexual deviancy treatment, drug testing, drug treatment, Alcoholics Anonymous
(AA) meetings, family counseling, group therapy and recreational groups.
The eighth principle of sentencing and disposition is to write out, simplify and repeat
rules/conditions of supervision. Individuals with a FASD will not readily assimilate rules or
admonitions from the court or probation. The steps they are to take need to be put in writing and
framed in simple, non-legalistic terminology. The Judgment and Sentence or the Conditions of
Supervision Appendix should set out all of the conditions in short and concise statements using
simple and understandable (to the defendant) language. Repetition is the key to the manner in which
these individuals learn. Once is not enough. Probation officials and, in certain instances the court,
need to go over the rules (what to do, what not to do) again and again and again, and in very simple
and concise statements. Even requiring the defendant to comply with repetitive tasks is a helpful
activity in the learning process (e.g.), require the defendant to call the employer to say, “I am leaving
home for work now” and to call the parent or other support person every day to say, “I have finished
work and am leaving for home.”
The ninth principle of sentencing and disposition is to make sure the probation officer
understands FASD. Once sentencing is over, the probation officer ultimately assigned to the
defendant will have far more contact with the defendant than will the court. For that reason, the
court needs to make sure that the probation officer knows that the defendant has a FASD and
understands the disability, as well as the communication, expectations, and performance issues and
how to address them. The sentencing order should include (in its body or appendix) a statement that
the defendant has a FASD and an explanation of the disability. Once a probation officer is assigned
to the defendant, where possible, that officer should be directed to accompany the defendant to court
to discuss his or her case with the judge.
If the defendant is going to be incarcerated, the court should take appropriate steps to assure that
prison or jail officials know that the inmate is disabled and that they receive information about the
disability.
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One of the things you might want to have the probation officer do, or that the court might want to do
at the time of sentencing is to give the defendant a card with instructions to keep it on his or her
person at all times and to show it immediately to any law enforcement officer who contacts the
defendant that says, “I have an FASD. I want to talk to an attorney. I want my mother or
father/guardian/advocate called immediately and want one of them present before I will talk.”
The tenth and final principle for sentencing and disposition of people with an FASD is not to
overreact to probation violations – particularly status offenses. Those disabled by a FASD will
often engage in behaviors for which a non-disabled probationer would be punished. Individuals with
a FASD have difficulty remembering and keeping appointments; whether it is the required meeting
with the probation officer or AA attendance, their failure to do so is usually not an act of defiance,
but a symptom of the disability. The court could suggest to the probation officer that the problem of
missed appointments be dealt with prospectively by setting up a system of prompts and by drawing
on the support of the sponsor or advocate.
These individuals may have annoying personal mannerisms that in a non-disabled individual would
be a sign of recalcitrance or defiant disrespect. Their characteristic impulsivity can yield
inappropriate expressions of anger which in the non-disabled would call for sanctions. However,
understanding the nature of the cognitive deficits, probation officials can look past this, evaluating a
probationer’s conduct in the context of his or her disability. The focus should be on bringing about
compliance with rules of substantial inherent importance (e.g.), not using drugs, rather than rules that
the Department of Corrections or probation department would ordinarily enforce in order to
encourage the non-disabled probationer to assume responsibility for fulfilling his or her supervision
responsibilities.
In conclusion, if individuals with a FASD are to be successful on probation or parole, and if they are
to take their place in the community as productive and contributing members of society, then all of
us who play a role in the system need to provide them with the special attention and special
approaches to sentencing and supervision that maximizes their opportunity for success. If we do not
address the special needs of those with a FASD, and if we do not strive to develop and utilize the
special approaches that are unique to their needs, we doom them to a recidivistic life style and
continual re-entry into the revolving doors of the justice system, whether it be juvenile court system
or the adult criminal justice system.
Anthony P. Wartnik, Judge (Retired)
APW Consultants
8811 SE 55th Pl.
Mercer Island, WA 98040
Phone: 206-232-2970
Cell Phone: 206-290-0451
Email: TheAdjudicator@comcast.net
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