Fetal alcohol spectrum disorder: Can diminished responsibility diminish criminal behaviour?

International Journal of Law and Psychiatry 36 (2013) 46–54

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International Journal of Law and Psychiatry

Fetal alcohol spectrum disorder: Can diminished responsibility diminish criminal behaviour? Mansfield Mela a,⁎, Glen Luther b, 1 a b

Department of Psychiatry, University of Saskatchewan, 103 Hospital Drive, Saskatoon, Saskatchewan, Canada S7N 0W8 College of Law, University of Saskatchewan, 15 Campus Drive Saskatoon, Saskatchewan, Canada S7N 5A6

a r t i c l e

i n f o

Available online 7 December 2012 Keywords: Crime Diminished Responsibility FASD Alcohol Pregnancy

a b s t r a c t This text examines how current scientific knowledge has the potential of fulfilling one of the major functions of the criminal justice system. Scientific knowledge should be used to ensure that the criminal justice system's functioning results in maximizing societal protection and crime reduction. Abnormal states of the mind contribute to criminal behaviour and are considered in exculpatory defences. The failure of the long standing insanity defence and its utility among cognitively impaired offenders, provided impetus to this work. In estimating the success rates (or lack thereof) of raised defences for the cases of the ‘invisible disorder’, fetal alcohol spectrum disorder (FASD), coming before the Canadian Courts, we sought to expound on the reasons, from knowledge and pragmatic perspectives. We propose that a diminished responsibility defence and verdict that recognizes the ‘grey zone’ between ‘knowing’ and ‘not knowing’ based on neurocognitive disparities in FASD serves the individual, legal system and the society better than the current practice. © 2012 Elsevier Ltd. All rights reserved.

1. Introduction Worldwide, it is recognized that abnormal mental states in the accused need careful consideration and contextualization (Cryer, Friman, Robinson, & Wilmshurst, 2007). Indicators of behaviours associated with criminal conduct like desire, impulse control, planning, consciousness or the awareness of the legal expectations including unlawful or poor decision making processes originate directly from the brain and its abnormalities, and constitute the critical thinking and judgement processes that are adjudicated (Buchanan, 2008; De Martino, Kumaran, Seymour, & Dolan, 2006; Felthous, 2008; Pessiglione et al., 2007). This is an important process that necessitates a close relationship between the practice of psychiatry and its application to legal principles. Understanding the connection and appropriately applying correct knowledge during the adjudication and disposition of offenders in this double bind can ultimately contribute to a significant reduction in crime and its prevention (Draine & Solomon, 1999; Grudzinskas, Clayfield, Roy-Bujnowski, Fisher, & Richardson, 2005). Until recently, only insanity or mental defects have been within the purview of consideration in the criminal justice system (CJS). Fetal alcohol spectrum disorder (FASD) is the umbrella terminology adapted to cover the range of disorders of permanent brain damage or abnormalities associated with pre-natal alcohol exposure. FASD does

⁎ Corresponding author. Tel.: +1 306 9668230; fax: +1 306 9668177. E-mail addresses: mansfi[email protected] (M. Mela), [email protected] (G. Luther). 1 Tel.: +1 306 966 5887; fax: +1 306 966 5900. 0160-2527/$ – see front matter © 2012 Elsevier Ltd. All rights reserved. http://dx.doi.org/10.1016/j.ijlp.2012.11.007

not fit nicely within the current Canadian Criminal Code definitions of “mental disorder” or “disease of the mind” nor into the subsequent demands in the statute that the disease lead to a failure to appreciate the nature and quality of the act or to know that it is wrong thereby making sufferers of the condition excluded from the benefits afforded other less permanent diagnoses. Realistic ramifications for dealing with the mental state associated in criminal acts are reflected in the discourse of the Rome Statute of the International Criminal Court (Clark, 2001). Specifically, Article 30 defines criminal responsibility as being present when “material elements are committed with intent and knowledge”. Alternatively, to exclude one from criminal responsibility, on the grounds of mental “disease or defect”, Article 31 of the statute requires that one's mental state is such that it sufficiently “destroys the person's capacity to appreciate the lawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirement of the law”. The knowledge of right and wrong is thus extended to include the ability to control one's behaviour regardless of whether or not the individual understands the concept of right and wrong. This is recognized as a broadening of the M'Naughten2 criteria originally setting the standard for an insanity defence. The Rome statute's general tenets have not only been adopted by several individual European countries and some states in the U.S.A., they also reveal the restrictive nature of the strict M'Naughten rules. Arguably, those legal statutes that emanate from experience/failure and modern knowledge of the human mind demonstrate

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M'Naghten's Case (1843), 10 Cl. & Fin. 200, 8 E.R. 718 [M'Naughten].

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fairness and forward thinking at the international level. Strict M'Naughten rules or similar equivalent rules predominate in many jurisdictions. Canada, whose insanity defence statute has been dubbed ‘a disguised M'Naughten rule’, is no exception to this assertion (Arboleda-Florez, 1978). Canadian courts are regulated and bound by Part XX.1 of the Criminal Code when dealing with accused that have mental disorders. This part of the Criminal Code sets out procedures for obtaining treatment orders for the unfit to stand trial (UST), diversion of the criminally insane and minimization of risk considerations with regard to the jurisdiction of the Not Criminally Responsible Review Board (NCRRB). All of which signify an attempt, not only to be fair but to subtly and adequately ‘manage’ the implied causes of criminal behaviour; specifically being mental disorder or disease of the mind as defined in the Code. Analysis of recent court decisions in Canada, (R. v. Demers, 3 R. v. L.E.K,4and Mazzei 5) highly suggests that entrenched in the criminal justice system are not just findings at the conclusion of a trial but rather that functions of treatment and reduction of the causes of mental disorder oriented criminal behaviour go hand in hand. The finding of unfit to stand trial and not criminally responsible serve to ‘divert’ accused towards treatment as opposed to punishment. A similar approach has been evoked in the case of involuntary hospitalization even when criteria for commitment are not fulfilled (Gray & O'Reilly, 2001; Gutheil, 1999; Sneiderman, Irvine, & Osborne, 2003). Thus the legal framework has the capacity, by aiding treatment thereby reducing root causes of criminal behaviour, to have a side function. Medical jurisprudence encompasses such endeavours. Prerogatives of the CJS are fairness and reduction of criminal behaviour, which ultimately translate into societal protection (Grudzinskas et al., 2005; Nuttall, Goldblatt, & Lewis, 1998; Poythress, Petrila, McGaha, & Boothroyd, 2002; Winick, 2003). The Courts occupy a pivotal position along the criminal justice system pathway with major gatekeeper function between policing on the one hand and the corrections and parole systems on the other (Dupont & Cochran, 2000; Petrila, 2004a, 2004b; Wolff, 2003). There is a cost and price to the system and its appendages involved in reducing crime (Draine & Solomon, 1999; Grudzinskas & Clayfield, 2004; Grudzinskas et al., 2005). The prevention of crime however has many prudent implications, among them, saving money for other government programs (Braddock, 2002; Cartwright, 2000). The success of the CJS in achieving a balance between individual rights and societal protection depends greatly upon the expertise of the professionals in applying adequate knowledge to deal with individuals who come before the courts. This is more so in unusual, rare and peculiar cases (Grudzinskas et al., 2005; Poythress et al., 2002). The function of the CJS therefore is not just to adjudicate but to incorporate its mandate and operative apparatus to reduce and prevent criminal behaviour. Given the direct, indirect, intangible costs of crime, the consequential physical and psychological sequelae of victimization, the costs of crime related disorders like post traumatic stress disorder (PTSD) (Suris, Lind, Kashner, Borman, & Petty, 2004; Walker et al., 2003) and the unaccounted cost of suffering and loss of productivity, the proliferation of programs geared towards crime prevention is justified (Grudzinskas et al., 2005; Nuttall et al., 1998). This can be achieved directly or indirectly, through sentencing, rehabilitation, retribution, deterrence and punishment. Unfortunately, different outcomes for individual offenders are a result of deficiencies in the practical application and follow up required by professionals in the CJS potentially causing disequilibrium or misinterpretation of the goals incorporated in sentencing statutes. It is this thesis that led Justice McLachlin, as she then was, of the Supreme Court of Canada to hold, in

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[2004] 2 S.C.R. 489, 240 D.L.R. (4th) 629. R. v. L.E.K, 2001 S.J. No. 434, reversed on appeal (but not on this point): 2001 SKCA 48, 2003 Sask. R. 273. 5 Supra note 1.

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Winko v. British Columbia (Forensic Psychiatric Institute), [1999],6 that the section dealing with the criminal responsibility of the Criminal Code of Canada 7 lends itself to a therapeutic rather than a punitive approach to mental disorder (Carver & Langlois-Klassen, 2006). It is the aim of this paper to show that the current provisions of the Criminal Code exclude individuals that should benefit from therapeutic provisions available in the CJS in Canada. We discuss the basis of this being the mismatch of the application of modern science to antiquated rules of exclusion from criminal responsibility. Specifically the lack of awareness and acknowledgement of the ‘invisible disorder’ resulting from prenatal alcohol exposure and its related manifestations are argued as important antecedents to this deficiency. We submit that any consideration of crime reduction necessitates the CJS to adopt a graded view of responsibility or at the very least lead to a debate of modern ideas shaped by the advancement of science with regard to fetal alcohol spectrum disorder along with other diagnoses that are excluded from mental disorder as currently defined. The goal is to proverbially widen the net to include accused individuals whose appreciation of criminal acts may not meet the stringent knowledge test but by alternate definition involve individuals who are not ‘totally’ responsible either. 2. Methodology A Westlaw Canada search of all written judgements on cases and corresponding journal articles involving fetal alcohol spectrum disorder in the legal system was obtained and reviewed. Themes selected included findings of unfit to stand trial (UST) and not criminal responsibility (NCR) judgements. Judges' comments, frustrations and solutions proffered about the standards described by previous judgments were surmised to delineate the concepts advanced in this paper. The authors synthesized the ideas simultaneous to their extensive medico-legal practice and comments from experts attending an international conference on FASD and the Law (Mela, Luther, & Mitten, 2010) to deduce solutions for future cases. 3. Results 3.1. The contribution of FASD and cognitive disorders to the crime statistics The test of the impact of the CJS in reducing criminal behaviour is supposedly born out of the rates of criminal behaviour or trends of such behaviours over the years. On this basis, there is a growing recognition that traditional judicial approaches fail to reduce the likelihood of certain individuals reoffending, particularly in the areas of substance abuse, domestic violence, child abuse/neglect and mental illness (Chartrand & Forbes-Chilibeck, 2003; Wexler & Winick, 1996). The failure of traditional adjudication methods is inferred from the high prevalence of FASD common in these areas. This failure is substantiated by the general dissatisfaction of the actors and participants of the Criminal Justice System when FASD is encountered. FASD has been a subject of expressed frustration in judgments reflective of these concerns (Chartrand & Forbes-Chilibeck, 2003; Rigling & Russo, 1992; Sigurdsson & Gudjonsson, 2004). Although crime rates have been declining over the last decade, little of that decline is ascribed to the criminal justice system and its functions. Social, cultural, political and economic changes in the society are the major determinants suspected as contributing to the decline. Specific factors usually include, correctional programs, treatment of mentally disordered offenders with medicine, increased policing activities with subsequent higher apprehension probability, and aging of the population in general. In considering trends in criminal

4

6 7

[1999] 2 S.C.R. 625, 175 D.L.R. (4th) 193 [Mazzei]. R.S.S. 1985, c. C-35 [Criminal Code].

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behaviour, these factors receive greater credit (Imrohoroglu, Merlo, & Rupert, 2004). Mental disorder contributes significantly to crime rates in Canada as well as worldwide (Arboleda-Florez & Holley, 1988; Hodgins & Muller-Isberner, 2000; Teplin, McClelland, Abram, & Weiner, 2005). Various factors have been implicated for this contribution. Easy arrest, re-arrest, easy conviction, prolonged incarceration and increased recidivism from response to psychotic symptoms are some of the mechanisms by which mental disorder contributes to high crime rates. Whatever the cause, including the inverse relationship between hospital beds and prison population of mentally ill patients (Penrose, 1939), the trend for the mentally ill does not bear out the prevention or crime reduction functions of the CJS. Indeed, there is evidence that in those with specific cognitive abnormality, inappropriate disposition by the court may be counter-productive and ultimately add to crime statistics (Chartrand & Forbes-Chilibeck, 2003). In the case of a disorder like fetal alcohol spectrum disorder (FASD) with subcategories equated to dementia of some sort, various characteristics of the disorder can explain criminal behaviour (Boland, Burrill, Duwyn, & Karp, 1998; Boland, Chudley, & Grant, 2002). For instance, several of the abnormalities of static encephalopathy or other cognitive abnormalities associated with the disorder, including impulsivity, poor abstraction and lack of consequential thinking can explain criminal behaviour. When coupled with vulnerability, FASD offenders inevitably commit offences for other people who abuse their powers of suggestion and when they've claimed they do not know why they committed crime; they really have no idea but for the recognition and attention of the person who suggested the criminal behaviour (Fast & Conry, 2009; Moore & Green, 2004; Roach & Bailey, 2009). 3.2. Fetal alcohol spectrum disorder and crime Fetal alcohol spectrum disorder results from prenatal alcohol exposure to a fetus. It is not just a childhood disorder. Its course is predictably long term and involves a progression into adulthood in which maladaptive behaviours present the greatest challenge to treatment (A. P. Streissguth et al., 1991). While diagnosis in adulthood can be difficult (A. P. Streissguth, Bookstein, Barr, Press, & Sampson, 1998) to obtain and confirm, due to various reasons, knowledge of the guidelines for diagnosis and the benefits of diagnosis including better prognosis have been reported (Chudley et al., 2005; Kerns, Don, Mateer, & Streissguth, 1997; Loock, Conry, Cook, Chudley, & Rosales, 2005). Proper diagnosis depends on the confirmation of prenatal alcohol exposure in the context of significant growth, facial and brain abnormalities. While various computations of diagnoses are possible, the two major diagnoses utilized in the past were fetal alcohol syndrome (FAS) when the complete syndrome is present and fetal alcohol effects (FAE) when various components are present but not complete. Unfortunately, the fetal alcohol effects have been known to be readily concealable to the point of elevating individual prognosis to a worse level. Judges have commented on cases supporting the worsening influence of fetal alcohol effects (R. v. Gray8 and SLN9(Chartrand & Forbes-Chilibeck, 2003). The prevalence of FASD is generally estimated as 1% and that of the prototype disorder FAS as 0.19% (Abel, 1995; Sampson et al., 1997). These estimates vary depending on the community studied (Habbick, Nanson, Snyder, Casey, & Schulman, 1996) and drinking rates (Abel, 1995; Barr et al., 2006). These proportions are considered an underestimation of the actual numbers (May et al., 2009). Certain factors have also been associated with an increased risk of developing the syndrome, for instance, race, parity, cultural systems of alcohol use, measured level of drinking estimated by a positive Michigan Alcoholism Screening Test (MAST) score and percentage of drinking days in the pregnant mother (Abel & Hannigan, 1995). The mechanism by which the alcohol causes 8 9

[2002] B.C.J. No. 428 (Prov. Ct.) (QL) [Gray] at para. 62. S.L.N. (Re), [1998] S.J. No. 709; 40 W.C.B. (2d) 183, (Prov. Ct.) (QL) at para. 20.

the damage to the brain is not well known. Brain damage delineated through behavioural, treatment response and animal studies implicate/ pinpoint the brain areas concerned with impulse control, consequential thinking, intellectual prowess and difficulties with abstraction like time and space, cause and effect and generalizing from one situation to another. These neuropsychological deficits increase the likelihood of maladaptive functioning and criminal activities. Unfortunately diagnosing FASD can be overlooked by professionals due to seemingly competent offenders who utilize superficial verbal skills and the invisible nature of the disorder. This is more so when variants of the disorder are neither present nor easily recognizable by virtue of the physical features of stunted growth and facial abnormalities. FASD is known to be closely related to criminality or increased offending. A cross sectional study of 473 FASD diagnosed subjects reported high rates of criminal activities, trouble with the law (60%) and institutional placement (50%) (A. P. Streissguth et al., 2004b). Among referred probationers for a diagnosis, almost 90% were confirmed to have one of the FASD diagnoses. In a youth forensic assessment unit, the one year rate of FASD was 23%. Using the Fetal Alcohol Behaviour Scale among a non-psychotic male prison population in Washington State, 15% of those evaluated fell within the range of FAS/ FAE (A. P. Streissguth et al., 1998). These methods suggest a high prevalence of FASD in the correctional system. The Correctional services of Canada researchers conducted an incidence study among 92 new admissions to the federal penitentiary system. In the FASD affected in the criminal population studied, all had a criminal record with at least 15 convictions. Theft, breaches and failures not only characterized their records, they propound the mechanism for such increased criminal activity. In the analysis, the confirmed incidence was 10% and the possible incidence, given the challenge of confirming maternal alcohol consumption, was 18% (MacPherson & Chudley, 2008; Streissguth et al., 2004b). A recent systematic review of the prevalence of FASD in the correctional system using the worldwide literature concluded that youths with FASD are 19 times more likely to end up incarcerated than those without FASD (Popova, Lange, Bekmuradov, Mihiv, & Rehm, 2011). 4. Discussions The findings of a high prevalence of FASD in criminal populations and the relationship with crime, albeit preventable, are captured by the frustrations of those who deal with offenders with the disorder (Carver & Langlois-Klassen, 2006; Chartrand & Forbes-Chilibeck, 2003). The Criminal justice system lags behind the advances in knowledge of the understanding of the influence of FASD in initiating, aggravating or reactivating criminal activity (D. K. Fast & Conry, 2009). This is graspable when the concept of the presence or absence of criminal responsibility is juxtaposed with the continuum framework of FASD. Defining these limitations from the various brain domains concedes to a new way of looking at criminal responsibility in FASD defendants. The more efficient route of rehabilitating those found less responsible could potentially reduce the revolving door phenomenon of high crime rates. 4.1. The implications of the FASD–crime relationship Through its primary and secondary disabilities, FASD predisposes and increases criminal behaviour in affected individuals. The described neurocognitive abnormalities of FASD are suggested by several authors as the potential mechanism for criminal behaviour (Boland et al., 1998; Fast & Conry, 2006; Fast & Conry, 2009). Demonstrated deficits in the areas of cognitive flexibility, planning and strategy use, verbal reasoning, some aspects of inhibition, set shifting, fluency, working memory, and, recently, on tests of emotion-related executive function are the primary disabilities. These disabilities heighten vulnerability through poor impulse control, decreased capacity for moral judgement and rational thought. These are fertile

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soils for criminal behaviour especially in the context of less developed intelligence (Fast & Conry, 2006; Rasmussen, 2005). Mental disorder found in 90% of those affected, and characteristically linked risk of offending elevates criminal behaviour statistics (Barr et al., 2006; Famy, Streissguth, & Unis, 1998; Streissguth, Barr, Kogan, & Bookstein, 1996; Taylor, 2004). Impulsive disorders like attention deficit hyperactivity disorder (ADHD) have been related to high rates of criminal behaviour (Barkley et al., 2006; Klein & Mannuzza, 1991) and FASD is suspected to be linked pathophysiologically with ADHD and is very closely colligated to ADHD criminal behaviour manifestations. Such high estimates warrant special attention to address the evaluations and management of FASD in forensic populations (Fast, Conry, & Loock, 1999; MacPherson & Chudley, 2008. The types of offences reflective of FASD are those that result from the inability to apply cause and effect logic or the concept of time and space. These lead to repeat violations and expensive court generated offences like; failure to attend court or failure to comply with conditions. Such court generated offences are not only expensive but worsen the trend of crime rates and are often considered aggravating factors in sentencing. Such trends will be expected to continue negatively if the ‘root’ neurocognitive causes like FASD are not recognized, identified and addressed. The use of diagnostic labels (partial FAS and FAE) by defence counsel or expert witnesses unqualified in making complete/accurate FASD diagnosis connoted a watered down form of the disorder, albeit inaccurately. The term fetal alcohol effects was always seen by diagnosticians as a less than complete form of the FAS. It turns out that FAE, more difficult to diagnose as a result of its invisibility, eludes detection and bears a worse prognosis than FAS (A. P. Streissguth et al., 2004a). False confession and suggestibility portend serious disadvantages for the FASD accused in the CJS. The former, a likely product of disturbed memory, is recognized among FASD accused, however without the distinctive facial features, false confessions by an FAE accused would go undetected (Fast & Conry, 2006; Moore & Green, 2004). The disturbed memory attribute complicates how readily an accused is even able to recall their involvement in a crime. Cognitive deficits, like slower information processing speed and ability, mean that FASD accused persons are unable to retain valid information perceived at the site of a crime and valid recollections of timelines are near impossible. Suggestibility poses a significant problem particularly in those circumstances where memory recall and processing are difficult for FASD accused (Moore & Green, 2004). Findings of guilt in these individuals relegate them to the crime statistics either for the index offence or the resulting inability to satisfactorily keep system imposed conditions. Without changes, these circumstances have the makings of increased criminal behaviour and statistics. It may likely have something to do with the conceptualization of mens rea, rooted and ingrained on its presence or absence in absolute terms, when cognitive cases like FASD are deliberated. Thus, separate consideration for FASD accused when traversing the courts must be addressed (Mitten, 2009). 4.2. Mens rea; black and white or shades of grey In most developed countries with laws guiding the treatment of mentally disordered offenders, the M'Naughten rules for the insanity defence apply in general (Arboleda-Florez, 1978; Goldstein & Rotter, 1988; Marcus, 1967). These form the basis of determining criminal responsibility, with minor alterations to the framework in the different countries and regions. Consequently, the presence or absence of criminal responsibility is the object of pursuit in such criminal trials. This gives criminal responsibility a modus operandi that is essentially black and white. Dissatisfaction with this model has led to the emergence of various approaches of conceptualizing the mind element of crime (mens rea). Using autonomy in place of will was articulated to help clarify the grey zone of criminal intent (Juth & Lorentzon, 2010). The basic principle that considers the guilty mind as a necessary component of a crime infers and presupposes its existence or lack

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thereof. As much as proving either may serve the purposes of the tenets of the law, knowledge of the basic components of the mind in neurobiological terms defeats that assumption. Individual will and intentional choice are evoked as necessary in the commission of an act since they provide the requisite mens rea component; the guilty mind. This concept which is closely linked to individual autonomy within the framework of modern liberal political philosophy means, to be a free individual is to have liberty to make choices affecting one's own person (Fulford, Thornton, & Graham, 2007). To guarantee an individual's free will and thus his/her ability to choose, certain limits of these expressions must be fixed. In contrast, capacity which is closely linked to rationality can be affected in varying degrees along a spectrum. It can then be used as a model for understanding criminal responsibility. To fully appreciate the comparison, consent and responsibility appear to be antonyms in this paradigm. Consent is conceptualized as adequate permission ‘giving’, while responsibility resembles the concept of adequate permission ‘received’. Based on the legal underpinnings of consent, self determination can be seen as a nonabsolute conditional state qualified by factors such as age and mental disorder or ‘soundness of mind’ (Appelbaum & Roth, 1982; Brock, 1991; Grisso & Appelbaum, 1998; Juth & Lorentzon, 2010). By extension, presuming responsibility as an absolute concept carries a huge error risk. In the case of R v. C.P.F.,10 incapacity was equated to being not criminally responsible. The capacity involved in the recognition of criminal behaviour is said to be the grounds for holding accused responsible. Although capacity and responsibility are defined differently in various spheres and statutes, they are used interchangeably in this case. The term diminished capacity can mean diminished responsibility when understood in their shared deductive roles. Preferences for either term are reflected in the different statutes. The United Kingdom, for instance recognizes diminished responsibility as a factor in mitigating murder to manslaughter (Ward, 2002). Capacity, an ingredient in the composite definition of competence applies to the choice of a capable individual. When one is able to choose something, he or she is most likely responsible for that choice. Capacity is not just actual understanding; it involves some analysis of information to assist in decision making. Such decisional capacity is divided into four sub-capacities. These are: (1) understanding; (2) appreciation; (3) reasoning; (4) choice (Appelbaum, Roth, & Lidz, 1982; Brock, 1991; Grisso & Appelbaum, 1998). By implication, to be responsible for a criminal act, one will be expected to not only understand the perceived information surrounding the act but must also understand the other related factors involved. Other requirements in the chain of events include understanding the input, processing the information and analysing the pros and cons of the act. This refers to the cause and effect before making any choice willingly to proceed with the act. Any of these events require the optimum functioning of the brain domains. Specifically those controlling attending to information (arousal and attention), maintaining that focus (concentration), abstract thinking (executive function), learning from the experience and remembering previous experiences (short and long term memory). For a successful execution of any of these events, the brain domains controlling the specific functions must be optimal in operation. An individual's capacity and equally their responsibility is brought into question when even one of the spheres of function is impaired, disordered or absent (Brock, 1991). As such ascribing responsibility is best represented by a continuum of capacities.

4.3. Insanity defence for the cognitively impaired The origins and interpretations of the modern standards for the insanity defence are intricately linked to the 1843 guidelines 10

2006 NLCA 70, 262 Nfld. & P.E.I.R. 165.

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provided by the English House of Lords in the case involving a murder committed by a deluded individual. The provisions allow exemptions to the guilty mind resulting from the abnormalities of reason that renders an individual “not to know the nature and quality of the act…” and “not know he was doing what was wrong” (Menzies, 2002; Ward, 2002). The cognitive abnormalities implied and implicated in disorders like fetal alcohol spectrum disorder are distinct from those related to the issues of criminal responsibility from these historical underpinnings. Considering the case of Daniel M'Naughten, who was psychotic at the time of his offence, the ‘knowledge threshold’ tests point more to the brain functions of perceiving and believing as compared to those of comprehending, abstraction, remembering and analytical functions, the latter are affected more in the cognitively impaired. Prediction of the outcome of an act involves consequential thinking. This process and the threshold of ‘knowing’ may be impaired in both psychotic and cognitive disorders. However, the relevant substrates and brain domains expressing the abnormalities that satisfy these criteria for insanity defence may indeed be different. Organic disorders however, have as their major manifestation, the abnormality of ‘knowing’. In FASD, the disorder of the frontal lobe circuitry causes the incapacity for cause and effect analysis (Astley et al., 2009; Streissguth et al., 1991). In a floridly psychotic individual, the presenting situation, affectation of perception and thought may interfere with such consequential thinking. This level of severe expression of psychosis is, in fact, the only way a psychotic individual will qualify for having no guilty mind. Even when ‘knowing’ is not completely obliterated in milder cognitive forms of FASD, the specific abnormal brain function should render the individual less responsible for the acts in question. Furthermore, there are other functions of the brain that are affected in organic situations that will present a challenge to the M'Naughten test that do not conform to the strict psychotic model. Memory and the ability to generalize previous experience, varied abilities of comprehension and poor abstraction can be equated to functions within the spheres of cognitive decline that can have an impact in an individual's knowledge, appreciation and choice. The presence of these discrepant brain functions can explain the difficulties encountered by various jurisdictions in trying to introduce an argument around irresistible impulse. It will therefore, seem hard to maintain and promote the principle of fairness from a perspective of black and white decision with regard to responsibility. This applies more so to those who may have an impulse control disorder, fetal alcohol spectrum disorder, mental retardation and severe cognitive abnormalities. In the Canadian system, the pre-1992 definition of mental disorder included the word ‘imbecile’. This terminology is essentially related to the word ‘mental defect’ meaning a permanent disorder not expected to change with treatment. The Rome statute utilizes the term mental defect (its definition is inclusive of cognitive disorders like FASD) as part of the definitions contained in its provisions for exclusion from criminal responsibility. Imbecility was inexplicably removed from the Canadian Criminal Code in the revision of the Code that occurred after R. v. Swain11 in 1991. Its removal may reflect the fact that accused with visible disabilities like Down's syndrome only rarely present before the criminal justice system except when their cases relate to them as being victims (R. v. B.R.S.12). Their own offences are understood as consequential to the level of intellectual functioning, but their visibly distinct features are protective by diverting them away from the Criminal Justice System (Kyskan & Moore, 2005; Roach & Bailey, 2009). In a summary of the cases through the Canadian courts, despite many applications before the court, no successful Not Criminally Responsible (NCR) verdict was returned for defendants with FAS[D] (Chartrand & Forbes-Chilibeck, 2003). A further extensive reanalysis of all Canadian cases involving FASD found only the recognition that 11 12

[1991] 1 S.C.R. 933, 125 N.R. 1 [Swain]. [1995] B.C.J. No. 3131 (QL), 1995 BCPC 6.

FASD met the legal definition of disease of the mind. Despite the yearly increase in the number of judgments citing FASD, no successful insanity defences (known in the Canadian context as Not Criminally Responsible on account of Mental Disorder—NCRMD) based on the abnormalities of FASD have been reported (Roach & Bailey, 2009). This could be a result of a lack of understanding or the deficiency of the ‘one-size-fits-all’ black and white model of ascribing criminal responsibility. Thus the current status is not working for particular disorders in some situations. Some judges have cautioned that such level of understanding and the refusal to ‘think outside the box’ in FASD accused, only leads to victimization of the accused (Chartrand & Forbes-Chilibeck, 2003). Given the emphasis on the presence or absence of complete mens rea in ascertaining and endorsing the NCR finding, and the recognition that the various spheres or domains in the brain are required for an accurate appraisal of the disease of the mind characterization in relation to criminal acts, one is tempted to ask; Have we got it wrong? The processes required for determining organic disorders cannot be sustained or substantiated by those utilized in functional illnesses as was the case in M'Naughten (Mitten, 2009). Out of fourteen cases which raised the NCR defence by virtue of FASD, none were successful (Chartrand & Forbes-Chilibeck, 2003; Roach & Bailey, 2009). The reported success rate of NCR raised defences is 25% (Callahan, Steadman, McGreevy, & Robbins, 1991; Rogers, Bloom, & Manson, 1984). This rather dismal outcome for FASD accused in comparison to rates for other mental conditions flies in the face of the increased insanity referrals and assessments after the Canadian Criminal Code changes of 1992. Bill C-30, which was responsible for the increase of referrals and findings of NCR in Canada, cannot be said to have been fair to the FASD accused (Reiss, 1997). This calls for a different framework after over 20 years of using the same criteria. This ultimately confirms that FASD patients are languishing in the criminal justice system especially in prison. Equated with incarceration of Down's syndrome patients, the practice is at best appalling and disturbing for a free and liberal society. 4.4. Advancing neurobiological knowledge as the backbone of diminished responsibility Extrapolating the legal components of capacity in neuropsychological terms, it was underscored as: “Understanding and retaining information, believing it, weighing it up in analysis of pros and cons and arriving at a choice”, (Roth, Meisel, & Lidz, 1977). Understanding refers to the brain domain of intellectual prowess commonly called intelligent quotient (IQ). Although this rather stable quality of the brain is summarized and presented as a composite score, it represents distinct and individually tested components of brain integrity. Categorized as verbal comprehensive index (VCI) and perceptual reasoning index (PRI), the whole represents many parts such as how the brain controls dexterity, planning, execution, speed of learning, visual alertness and remembering, again pointing to the multifaceted aspect of brain function. Retaining the information is a complex short and long term process referred to as memory. In neuropsychological terms, the information presented to an individual moves from the physical form into a code or a representation that the memory center can identify with and accept. This process lasts for a brief period. It is subsequently followed by some retention and storage of the information in what is known as the Storage Stage. The next component in this process of retaining information is known as the Retrieval Stage. It is estimated that before any information can be retrieved from brain stores, it would have been modified and rehearsed a number of times to ensure its ‘stable’ storage. Different brain areas are involved in these processes, specifically the hippocampus which deals with the movement of information from the short term to the long term basis. This structure, the hippocampus, is housed in the medial temporal lobe of the brain. It is also closely located to the organ known to rate the

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emotional valence of an experience, the amygdala (Hahn et al., 2010). Damage, mild, moderate or severe, to various other parts of the brain, involved with these complex interplay, affect retaining information (Baddeley, 2003). The neurobiology of thoughts, beliefs, analysis and decision are particularly important in apportioning capacity for a choice and responsibility for an act. Believing is a thought process arrived at and controlled by imagery, propositional and motoric modes of brain function and operation (Andersen, 1995). When presented with a problem, for instance, problem solving strategies utilized will evoke the various components of the brain needed to brainstorm and arrive at decisions. Using positron emission tomography (PET) scans, the brain structures involved in perception and imagery were more accurately outlined (Kosslyn, DiGirolamo, Thompson, & Alpert, 1998; Kosslyn & Thompson, 2000). These contribute to the thought process by weighing up evidence involved to foresee consequences in the cause and effect modes of thinking. The frontal part of the brain by controlling sequencing, planning, organization and abstraction contribute to decision making. From the foregoing, the definition of capacity not only includes understanding what goes into weighing information in the balance, it also incorporates the content of the weighing. Complete and full understanding of an act is different from sufficient understanding. Combined with other inadequacies in the capacity test, it is plausible that one cannot be totally responsible for an act, as such. If an individual is found responsible, then finding is concomitant to guilt. As well, the person is not totally responsible because some factors in the spheres of brain function are still adequately or even optimally operational. Relegating psychological predisposition, lack of education to important factors for sentencing, legal scholars assert that they be not used to excuse criminal conduct (Linden, Feldthusen, Klar, & Wright, 2004). These authors peg criminal responsibility on the capacity to appreciate risk which as discussed requires a multifaceted maneuvering of various neurocognitive functions. Planning and awareness are different in the physical concrete, for instance, getting even in revenge contrasts to planning revenge in abstract terms. In a disordered brain the latter is easier to fail. The courts have in our view, looked at planning in the former context. If so, most accused will then have the capacity to concretely plan but to abstractly plan is more difficult. If viewed befittingly, a diminished capacity is the logical verdict. Abstract planning will include the executive functions mentioned above; sequencing and organization that are controlled by the frontal lobes of the brain. 4.5. Synthesizing the case in defence of diminished capacity/responsibility In light of the failings of the CJS in rehabilitating FASD offenders and in search of a better approach, we submit that a verdict of diminished responsibility warrants a place in the Criminal Code of Canada. The diminished responsibility legal framework exists in most countries but with varying applicability. In cases of homicide, diminished responsibility can result in a lesser charge and hopefully lesser punishment. Precedence occurs for the concept of diminished capacity and diminished responsibility. This however, in the countries concerned, especially the United Kingdom, relate only to the offence of homicide. The definition contained in the provision of the Homicide Act 1957, s.2.1 states that the court must be satisfied that the defendant was suffering from “an abnormality of the mind that substantially impaired his/ her responsibility” for the act (Lareau, 2009; Mitchell, 1997). It is said that when events substantially impair mental responsibility, the finding of diminished responsibility is evoked. This essentially reduces the individual's criminal liability. Thus the key word here is substantial in which case not trivial, but definitely less than total. The difference between diminished capacity and diminished responsibility has been explained narrowly, equating the former to the determination of mens rea and the latter to be a better concept reserved for sentencing (Fradella, 2007). Thus maintaining the difference between diminished capacity and diminished responsibility to determinations of mens rea

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and sentencing respectively creates a bed for the ongoing propagation of the proverbial bed mates in different rooms. The finding that mens rea is somehow present but incomplete, should equally render an accused minimally responsible for the act. Criminal responsibility “rests on the presumption that individuals possess the capacity to make rational choices to act or refrain from acting,” and, thus, “[if] a person, while understanding the significance of the act, performs it voluntarily and intentionally, he or she will be held responsible (Yannoulidis, 2005). Determination of this is challenging and even the Supreme Court of Canada has been hinting to a diminished form. The need for clarification from the Canadian Supreme Court, over the years, has earmarks of the unease associated with criminal responsibility determinations that are inherently and indispensably black and white. After defining what a disease of the mind is in criminal defences (R v. Cooper 13) the cases that followed in succession (R. v. Rabey, 14 R v. Chaulk, 15 R v. Swain, 16 R v. Oommen 17 and Winko 18) were not only heard to deal with the various legal matters raised, they are chronological and revealing in their attempts to clarify the boundaries of the unacknowledged ‘shades of grey’ in the NCR defence. If it can be argued that responsibility for an action is under the control of several processes, some of which are biological, psychological and sociological, consideration for various “shades” of responsibility can be entertained other than the black and white approach. To the extent that capacities are linked somewhat to rationality, determining responsibility alone or testing for it along with its rational arm supposes the deduction that responsibility is a continuous function determined by the multifaceted domains of brain function. There are arguments against implementing a diminished responsibility verdict in the Canadian scenario (Lareau, 2009) which need not be neglected and overlooked. Arising from past experiences of subsyndromal and nonvalid mental disorders used for questionable insanity defences, concerns about false positive findings and misuse of the CJS have been raised (Appelbaum et al., 1993; Rogers, Kropp, Bagby, & Dickens, 1992). With the swinging of the pendulum, concepts of the mentalization of criminal behaviour and criminalization of the mentally ill are put forward to discourage going this route. Similarly, in disapproving irresistible impulse as a defence, it was argued that incarceration upon conviction incapacitates the accused which then serves the good of societal protection. Whether this is correct depends on what happens to the accused when released into the community without the treatment necessary to reduce the ‘impulse’ in question. Embracing and fashioning better safeguards are the required ingredients for successful integration and consolidation of a new diminished responsibility defence. Safeguards could include guidelines incorporating medical and legal perspectives. Any mental condition used to raise the issue of diminished responsibility must be qualified by having an etiological basis. This should be linked to disease of the mind incorporating neurobiological, behavioural or empirically studied set of criteria that should result in a possible treatment and prognosis. This aegis would help reduce the possibilities of abuse of the framework of diminished responsibility, whose opponents propose it will be opening the “flood gates” of frivolous defences. Maintaining the rehabilitative component of the criminal justice system would seem to be its better function for the FASD accused and family than the retribution, deterrence, punishment and aversion component given that their brain abnormalities make little of the contributions of these latter principles. Arguably, this is required for a society that looks out for its disadvantaged and has a good medical

13 14 15 16 17 18

(1979), [1980] 1 S.C.R. 1149, 110 D.L.R. (3d) 46. [1980] 2 S.C.R. 513, 114 D.L.R. (3d) 193. [1990] 3 S.C.R. 1303, 119 N.R. 161. Supra note 10. [1994] 2 S.C.R. 507, [1994] S.C.J. No. 60. Supra note 1.

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system to assist with the endeavours of rehabilitation. The different abnormalities relating to difficulties with abstraction, time and space, cause and effect, generalization and the like, would worsen any good intentions of the criminal justice system in diminishing crime. Indeed a Canadian Judge, Mary Ellen Turpel-Lafond, in the judgement of an FASD individual concluded, in R v. LEK 19 that the responsibilities should be squarely placed on the criminal justice system to devise various ways of dealing with the sufferers of FASD (Chartrand & Forbes-Chilibeck, 2003). Reflecting on Canadian judgments (Chartrand & Forbes-Chilibeck, 2003) chronicling a number of raised defences and legal tests concerning fitness and criminal responsibility in a number of fetal alcohol spectrum disorder cases, the outcomes were unsatisfactory to the authors and to the protagonists of the courts. Indeed a resonating tone of frustration among the judges dealing with these individuals, point to the deficits in the criminal justice system. While understanding the disorder and better education can assist in this matter as recommended by the authors, it is advocated that a different modality of dealing with these individuals, in this case, introducing the defence of diminished capacity/responsibility will be a more prized solution. The calls are getting louder and coming from various sections of the medicolegal community (Mitten, 2009). A re-evaluation of the current provisions with the therapeutic goals articulated by the Supreme Court of Canada in R v. Swain 20 and in the context of the advancing scientific knowledge is the least to be expected in this climate of change. This supports the fairness argument. Continuing to determine mens rea and fitness in FASD in the ‘M'Naughtenerian’ conceptualization, as has been done over the years, may not be unconnected with the frustrations expressed by several Judges (Chartrand & Forbes-Chilibeck, 2003). We will continue to not consider cognitive factors and consequential thinking in determining criminal responsibility, in this case limiting mens rea. The resulting disproportionate sentences defeat fairness and recently led to the Canadian Bar Association (CBA)'s resolution calling on the Canadian government to “amend criminal sentencing laws to accommodate the disability of those with FASD” (Hoyles, 2010). Policy and administration of justice play prominent roles in decisions emanating from courts. The interest of justice transverses the parameters of the individual accused and considers the good of the society. If court generated offences are a source of added burden to the criminal justice system and the mere occurrence of repeat victimization, with its intangible cost, attracts economic attention, it seems logical that a single factor responsible for the two is a big enough ‘catch’ for preventative endeavours. FASD by nature of its abnormalities and the weaknesses in adequately curbing its effects fulfills this mandate. Consequently, any attempt to identify persons and their criminal behaviour as the source of this economic and judicial burden, plan and appropriately divert them by the introduction of the framework of diminished responsibility, will potentially reduce the criminal behaviour. This is the promise of the legal system recognizing that mens rea is hardly just present or absent. It exists on a continuum similizing the differing severity of the cognitive deficits of FASD. The framework will pick up those whose abnormalities have helped increase the crime statistics but fall within the two extremes and offer a better therapeutic disposition. We have advanced the reasoning for a new legal defence of diminished responsibility to deal with the high crime rate pinned to the cognitive dysfunction flowing from disorders like FASD. Through diversion from prison and using the current knowledge of brain domain function as it relates to the deficits of component parts of criminal intent to substantiate the proposition. The appropriate diversion of defendants with a verdict such as diminished responsibility and the consequent rehabilitation model ascribed to their disposition should serve to reduce recidivism. The challenge is to appose the legal 19 20

Supra note 5. Supra note 10.

realm with these advances in science. The advances in neuropsychological discovery and the neuroimaging findings of brain function are useful as pivots to reliably rest the legal determination of such a verdict. If these adjustments are made, punishment will take a different view. The use of the Not Criminally Responsible on account of mental disorder Review Board (NCRRB) has proven useful in balancing the rights and needs of the accused in line with the protection of society. The individuals so found as having a diminished responsibility can equally be subject to the provisions of the Review Board (Balachandra, Swaminath, & Litman, 2004). 5. Conclusion Since the sphere of influence of the brain leads us to know that some offences will be committed not totally volitional and not totally in oblivion, a review of our current ‘yes or no’ determination of criminal responsibility and its cost to the individual and to society is long overdue for the Canadian system. The acquisition of advancing knowledge especially in the realm of psychological functioning of the brain needs not leave the advances in legal principles behind. If the knowledge of the varying degrees of optimal functioning of the different domains of the brain required in the conceptualization and execution of a planned event with the ramifications of attending and remembering, is anything to go by, the call for the statutes review is justified. If the understanding of the varying degrees of severity of mental disorders, cognitive and ‘functional’ and the place of not addressing the FASD issue in the administration of justice are as reported, the call for options is even more urgent. Such a review will address several insanity defence historical incompatibilities with modern technological advancement in the science of the mind. It will hopefully turn attention to the inadequacy of the Criminal Code provisions for mental disorder, consider abolishing the current NCRMD status, expanding its mandate or introducing a new verdict, diminished responsibility. This will encompass those who would be found NCR under the current provisions and those we have argued could be said to have diminished responsibility. It can be the solution for cognitive disorders especially FASD which contributes to crime in large numbers. Those found to be somehow responsible for their crime but in a diminished fashion on account of a mental disorder, will be subject to some supervision akin to that of the NCR accused. This advances and dignifies the system of rehabilitation, fairness and reduction of repeat type offences, without compromising either. Practicality, supervision and community reintegration are intersystem collaborations of justice and mental health (mental jurisprudence). Acknowledgments This work has been shaped by the generous support of the Foundation of Legal Research and the comments of participants at The Adolescents and Adults with FASD 2010 Conference in Vancouver, British Columbia on the way forward for the legal principles of dealing with FASD accused. We are thankful to Christine Goodwin for the useful editing and research work for the paper. In terms of conflict of interest, the authors have clients and patients that have FASD in their practices. Their unfortunate situation is usually a source of frustration to behold. References Abel, E. L. (1995). An update on incidence of FAS: FAS is not an equal opportunity birth defect. Neurotoxicology and Teratology, 17(4), 437–443. Abel, E. L., & Hannigan, J. H. (1995). Maternal risk factors in fetal alcohol syndrome: Provocative and permissive influences. Neurotoxicology and Teratology, 17(4), 445–462. Andersen, R. A. (1995). Encoding of intention and spatial location in the posterior parietal cortex. Cerebral Cortex, 14(5), 14.

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