PUBLISHER'S: Fetal Alcohol Spectral Disorder - the disorder brought to public attention in New Zealand by The Teina Pora case - is hardly unique to New Zealand. It could well be lurking, unnoticed, in justice systems a throughout the world. I am also enclosing a link to a brecent Globe and Mail article - at the link below which details how experts are welcoming a new court in Manitoba that has been set up to deal with people afflicted by the disorder.
Harold Levy: Publisher; The Charles Smith Blog.
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PASSAGE OF THE DAY: The problem, according to advocates and experts in neurodevelopmental science, is that incarceration and punishment simply don’t work for people with FASD. Some say our criminal justice system is set up to fail them. The reason is that people who have FASD experience difficulties with all four of the basic assumptions of the law.
The law assumes offenders
1. Broke the law knowingly with the intention to cause harm
2. Know right from wrong
3. In this knowledge, chose wrong instead of right
4. Have the capacity to participate meaningfully in legal process
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STORY: "Courts no place for fetal alcohol victims," by reporter Emma Espiner, published by Newsroom.co.nz on September 15, 2019.
SUB-HEADING: People with fetal alcohol syndrome are still being punished by the criminal justice system, despite the Teina Pora case," writes Emma Espiner."
GIST: "When Teina Pora’s appeal was upheld by the Privy Council in 2015,
fetal alcohol spectrum disorder (FASD) gained a rare moment in the
spotlight. Pora was twice convicted of the rape and murder of Susan
Burdett, and it was only after the second conviction that he was
diagnosed with FASD. It was eventually proven that his undiagnosed condition had
substantially contributed to the appalling miscarriage of justice which
saw Pora imprisoned for 20 years for a crime he didn’t commit.
Unfortunately, when justice was finally delivered for Teina Pora, the
opportunity to protect other people with FASD from a similar fate was
ignored. The problem, according to advocates and experts in neurodevelopmental
science, is that incarceration and punishment simply don’t work for
people with FASD. Some say our criminal justice system is set up to fail
them. The reason is that people who have FASD experience difficulties with all four of the basic assumptions of the law.
The law assumes offenders
1. Broke the law knowingly with the intention to cause harm
2. Know right from wrong
3. In this knowledge, chose wrong instead of right
4. Have the capacity to participate meaningfully in legal process
FASD brain impairments are characterised by deficits in communication, memory, being able to appreciate another person’s perspective and to recognise emotional states in others. There can also be problems with emotional regulation, attention and the ability to plan and reason. The comments in Pora’s appeal letter to the Privy Council clearly show how his ability to meaningful participate in the system was severely impaired by his condition. A psychiatrist who assessed him for the appeal said he “had great difficulty in understanding questions put to him and remembering the content of the question when composing his reply” and "he had no demonstrable capacity for abstract thought and a strong tendency to maintain a position even when it was shown to be entirely untenable.” Teina Pora is now a household name but unfortunately the lesson unearthed through his experience has simply been buried again - a person who has FASD and encounters the criminal justice system is barely any better off now than Pora was all those years ago. This year, highly anticipated changes to the law saw most 17 year olds dealt with in the youth justice system except for those facing certain serious offences. However many of those charges are typical of those for which young people often appear in the youth Court for. Some commentators have said these exemptions are political - allowing the government to appear ‘tough on crime’ while still being able to claim they have acted compassionately towards young offenders. This has special relevance for people with FASD as research from Australia and Canada suggests 20-30 percent of youth correctional populations have a diagnosis of FASD. There is a lack of quality data on the prevalence of FASD in Aotearoa but researchers believe it could be similarly high. The Youth Court has far more advanced processes than the District Court for identifying and responding appropriately to complex neurodevelopmental and social issues such as FASD. None of this is a surprise to FASD experts and advocates. The disorder has been severely under-researched. Whānau, service providers and researchers have been advocating for increased funding for years. The $1.6million allocated to the FASD Action Plan has been claimed as insufficient to address the scale of the implications and reflecting a lack of commitment from the Government. The problem is multi-faceted, according to FASD researcher Dr Andi Crawford. “We have a lack of diagnostic services, so we can’t even give certainty to whānau about what’s happening with their young people, and then everything snowballs from there. Limited diagnostic services mean we don’t know how many people are affected, which means we can’t budget for the sorts of wraparound services we know whānau with FASD require. We don’t know the demographics of those affected, so we can’t work with representative groups to design appropriate services.” This leads us back to the criminal justice system. We have seen how people with FASD are likely to fare in the adult courts, and it doesn’t get better once they reach the prisons. A similar paradox occurs during the sentencing process which assumes that offenders:
1. Learn, from the sanctions applied, not to offend again
2. Can be deterred by sentences imposed on other offenders
3. Acknowledge and understand the harm they caused
4. Make amends for it in some way, therefore not repeat their mistakes “The principles which underpin sentencing in our courts are simply not reasonable for people with FASD,” Crawford told Newsroom. “We might be lacking some data with respect to the epidemiology of FASD but we do know for certain that these principles do not hold true for children and youth with significant difficulty with attention, impulsivity, reasoning and other executive functions.” Dr Crawford says the research shows treating people with neurodisability in a punishment style model will not enable positive change - for the individual or the community. Dr Nicki Jackson from Alcohol Healthwatch, who has advocated for more compassionate and evidence-based approaches to FASD treatment and services says: “The solutions for youth with FASD who are experiencing difficulties with the law should come from the community, not the courts. "If people have neurological impairments then they operate like a much younger person. What do we do when a tamaiti or rangatahi make a mistake? We bring them closer. We include them in their community, care and supervise, whilst also providing safeguards so behaviour is not repeated. Only by creating a turangawaewae will people be enabled to follow a different path.” The changes to the Oranga Tamariki Act and Children’s and Young Person’s Wellbeing Act emphasise Youth Court consequences should strengthen the family whānau, hapū and iwi connections. The Act says it is also important to foster family, whānau, hapū and iwi to develop new pathways of dealing with offences and the young person should be kept in the community where possible. Now we just need to apply it to all young people and those adults who function at a much younger age. “It’s important to emphasise that people who receive a diagnosis of FASD shouldn’t expect a fast-track into the criminal justice system,” says Crawford. “Many people with FASD don’t have any issues with the law. But what we need to see is that the system currently unfairly criminalises people whose problems are often social in nature, and which could be entirely solved through appropriate community-based interventions.”
The entire story can be read at:
https://www.newsroom.co.nz/2019/09/13/806769/courts-no-place-for-fetal-alcohol-victims
--------------------------------------------------------------
Also read the Globe and Mail article on a new court in Manitoba for people with fetal alcohol spectrum disorder - 'Experts welcome Manitoba court for people with fetal alcohol syndrome,' at the link below, reporter Kelly Geraldine Malone (Feb. 2, 2-2019) - at the link below."
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
The law assumes offenders
1. Broke the law knowingly with the intention to cause harm
2. Know right from wrong
3. In this knowledge, chose wrong instead of right
4. Have the capacity to participate meaningfully in legal process
FASD brain impairments are characterised by deficits in communication, memory, being able to appreciate another person’s perspective and to recognise emotional states in others. There can also be problems with emotional regulation, attention and the ability to plan and reason. The comments in Pora’s appeal letter to the Privy Council clearly show how his ability to meaningful participate in the system was severely impaired by his condition. A psychiatrist who assessed him for the appeal said he “had great difficulty in understanding questions put to him and remembering the content of the question when composing his reply” and "he had no demonstrable capacity for abstract thought and a strong tendency to maintain a position even when it was shown to be entirely untenable.” Teina Pora is now a household name but unfortunately the lesson unearthed through his experience has simply been buried again - a person who has FASD and encounters the criminal justice system is barely any better off now than Pora was all those years ago. This year, highly anticipated changes to the law saw most 17 year olds dealt with in the youth justice system except for those facing certain serious offences. However many of those charges are typical of those for which young people often appear in the youth Court for. Some commentators have said these exemptions are political - allowing the government to appear ‘tough on crime’ while still being able to claim they have acted compassionately towards young offenders. This has special relevance for people with FASD as research from Australia and Canada suggests 20-30 percent of youth correctional populations have a diagnosis of FASD. There is a lack of quality data on the prevalence of FASD in Aotearoa but researchers believe it could be similarly high. The Youth Court has far more advanced processes than the District Court for identifying and responding appropriately to complex neurodevelopmental and social issues such as FASD. None of this is a surprise to FASD experts and advocates. The disorder has been severely under-researched. Whānau, service providers and researchers have been advocating for increased funding for years. The $1.6million allocated to the FASD Action Plan has been claimed as insufficient to address the scale of the implications and reflecting a lack of commitment from the Government. The problem is multi-faceted, according to FASD researcher Dr Andi Crawford. “We have a lack of diagnostic services, so we can’t even give certainty to whānau about what’s happening with their young people, and then everything snowballs from there. Limited diagnostic services mean we don’t know how many people are affected, which means we can’t budget for the sorts of wraparound services we know whānau with FASD require. We don’t know the demographics of those affected, so we can’t work with representative groups to design appropriate services.” This leads us back to the criminal justice system. We have seen how people with FASD are likely to fare in the adult courts, and it doesn’t get better once they reach the prisons. A similar paradox occurs during the sentencing process which assumes that offenders:
1. Learn, from the sanctions applied, not to offend again
2. Can be deterred by sentences imposed on other offenders
3. Acknowledge and understand the harm they caused
4. Make amends for it in some way, therefore not repeat their mistakes “The principles which underpin sentencing in our courts are simply not reasonable for people with FASD,” Crawford told Newsroom. “We might be lacking some data with respect to the epidemiology of FASD but we do know for certain that these principles do not hold true for children and youth with significant difficulty with attention, impulsivity, reasoning and other executive functions.” Dr Crawford says the research shows treating people with neurodisability in a punishment style model will not enable positive change - for the individual or the community. Dr Nicki Jackson from Alcohol Healthwatch, who has advocated for more compassionate and evidence-based approaches to FASD treatment and services says: “The solutions for youth with FASD who are experiencing difficulties with the law should come from the community, not the courts. "If people have neurological impairments then they operate like a much younger person. What do we do when a tamaiti or rangatahi make a mistake? We bring them closer. We include them in their community, care and supervise, whilst also providing safeguards so behaviour is not repeated. Only by creating a turangawaewae will people be enabled to follow a different path.” The changes to the Oranga Tamariki Act and Children’s and Young Person’s Wellbeing Act emphasise Youth Court consequences should strengthen the family whānau, hapū and iwi connections. The Act says it is also important to foster family, whānau, hapū and iwi to develop new pathways of dealing with offences and the young person should be kept in the community where possible. Now we just need to apply it to all young people and those adults who function at a much younger age. “It’s important to emphasise that people who receive a diagnosis of FASD shouldn’t expect a fast-track into the criminal justice system,” says Crawford. “Many people with FASD don’t have any issues with the law. But what we need to see is that the system currently unfairly criminalises people whose problems are often social in nature, and which could be entirely solved through appropriate community-based interventions.”
The entire story can be read at:
https://www.newsroom.co.nz/2019/09/13/806769/courts-no-place-for-fetal-alcohol-victims
--------------------------------------------------------------
Also read the Globe and Mail article on a new court in Manitoba for people with fetal alcohol spectrum disorder - 'Experts welcome Manitoba court for people with fetal alcohol syndrome,' at the link below, reporter Kelly Geraldine Malone (Feb. 2, 2-2019) - at the link below."
Lawyers
and judges say a new court set to open in Manitoba specifically for
people with fetal alcohol spectrum disorder could be a game changer.
'“If
you have somebody who can’t read, can’t write, physically cannot
connect cause and effect, there has to be a way to address a sentence
that they will understand,” said Winnipeg defence lawyer Lori Van
Dongen.
“That is just common sense.”
Ms.
Van Dongen said people with the disorder are often set up by the
justice system to fail. The legal world has been slow to adapt to their
challenges – whether it’s bail conditions they can’t adhere to or a list
they are unable to read, she said.
When
a fetus is exposed to alcohol it can cause brain injury and the impacts
range from mild to severe. Only some people show physical signs, but
most people with the disorder see and understand the world differently.
They
struggle to understand the consequences of their behaviour and many are
impulsive. They follow others easily and have drug or alcohol problems.
Without the proper support they often end up in front of a judge and
behind bars.
It’s not known how many
people in Canada have the disorder, because it can go undetected and is
difficult to diagnose. But Health Canada says it’s the leading known
cause of preventable developmental disability in the country.
Research
suggests that up to one-quarter of inmates in federal corrections
facilities could have the disorder. A 2011 study out of Stony Mountain
Institution in Manitoba found the rate was 10 times greater in the
federal prison than in the general population.
Mary
Kate Harvie, a Manitoba provincial court judge, said it was clear a
long time ago that changes had to be made so people with the condition
could be treated fairly in the legal world.
In
2004, she was involved in creating a program that helps young people
get a diagnosis and connects them to community supports. It also gives
lawyers and judges more information about issues an accused offender
might have because of the disorder.
The program has had more than 1,200 referrals, has done more than 400 assessments and helped get almost 300 kids diagnosed.
Ms.
Harvie said the Manitoba Court of Appeal has made it clear that a
sentencing judge should consider how challenges faced by someone with
fetal alcohol spectrum disorder can be linked to their criminal
behaviour.
“If people are not
showing up to court because they have short-term memory loss, that’s a
big difference from someone who is just blowing court off.”
Administrative
charges have filled courts, remand centres and prisons with offenders
who break curfew or miss a meeting with their parole officer because
they struggle with the concept of time, Ms. Harvie said.
“We are hoping this project will start to address a number of aspects of that.”
The
court, which is expected to open at the end of February and sit one day
a week, is an extension of the original youth program. It will have
judges with an understanding about the complexities of the disorder as
well as support workers to advise and connect sufferers with community
programs.
It
will also help obtain a medical diagnosis for anyone who shows signs of
having the brain injury – although the wait continues to be long.
There
will be a smaller, quieter courtroom with fewer distractions and visual
images will be used to make sure offenders understand what’s going on.
Defence
lawyer Wendy Martin White said she is optimistic that the new court
will help her clients and hopes it will divert people from jails and
toward community supports.
“This is a
really good move for our courts, for our province, for our clients,”
she said. “I’m looking forward to seeing where it’s going to be in a
year’s time and then in five years’ time.”
Audrey McFarlane, executive director of Canada FASD Research Network, suggests it’s time for a national strategy.
“Right
now all the provinces and territories do what they think is best and …
they are trying really hard, but Canada needs to also provide additional
support, guidance and leadership,” she said.
“Canada, as a whole, has put in very few resources to address FASD.”
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
