The sentencing of offenders with fetal alcohol syndrome.

Introduction On May 29th, 2002, the Globe and Mail covered the story of a nine-year-old girl, Jessica Russel, who had been brutally slain by David Trott. A murder, although certainly tragic, would not necessarily garner in-depth coverage in a national paper. What caught the attention of the Globe reporter was the resignation of the accused' s lawyer subsequent to his client's decision to plead guilty. Mr. Trott's personal history is not unlike the history frequently heard in court: he was bounced around the foster care system from the time he was 12 years old and was known to the police at an early age. In his teens he graduated from petty crimes, to assault and auto theft. Only days before Jessica's murder, Trott was in jail awaiting a psychiatric assessment stemming from a previous assault charge. The assessment never arrived and the judge released him. When released from prison, Mr. Trott had no place to go and no access to appropriate treatment or support. He then, tragically, came in contact with Jessica Russel resulting in her brutal assault and murder. His lawyer, Howard Smith was prepared to raise a not guilty by reason of insanity defence, describing Mr. Trott as having the attention span of a gnat, but his client wanted to get the proceedings over with. The reasons that Mr. Trott provided for his decision to plead guilty make little sense to anyone--Mr. Trott wanted to be in a federal penitentiary, where he could smoke. (1) Subsequently, Mr. Smith resigned, clearly attempting to send a message regarding his concerns. Mr. Trott has a mental disorder called fetal alcohol syndrome. The Trott case is reflective of growing misgivings regarding the appropriate judicial treatment of individuals suffering from fetal alcohol syndrome (FAS) or alcohol related neurodevelopmental disorders (ARND). (2) There is a suspicion that FAS/ARND may be largely unrecognized by the courts, contributing to inappropriate sentences for many suffering from fetal alcohol related disorders. Where the courts recognize the condition, there is a great degree of variation as to how it should be taken into account. Some courts do not acknowledge the presence of FAS/ARND as deserving of any special consideration, others may simply recognize it as one of several mitigating and aggravating factors and, in the opinion of the authors, fortunately, there are a growing number of courts that recognize that an offender with FAS/ARND should not to be treated like typical offenders. Their FAS/ARND diagnosis calls for specific attention to be given to the disorder and for sentencing to reflect the need for rehabilitation and treatment, addressing therapeutic needs rather than simply focusing on punishment and deterrence. Courts are becoming increasingly aware of FAS/ARND and there is a line of authority concerned with the development of specific legal principles that are exclusively applicable to the sentencing of offenders with such a condition. However, the courts that take into account the specific and unique needs of an offender with FAS/ARND face challenges and barriers because of the lack of cooperation and resources in the correctional system to accommodate and treat offenders with FAS/ARND. This paper will consider the jurisprudence in this area and describe how traditional sentencing principles are seen to be inappropriate and are rejected in favor of a sentencing approach that is sensitive to the unique circumstances of offenders with FAS/ARND. Beginning with an overview of the nature of FAS/ARND and its prevalence in the criminal justice system, we then examine the case law involving the sentencing of offenders with this condition and identify emerging sentencing principles and issues of concern. In particular, we discuss the problems identified by a number of judges who are prevented from being able to fashion appropriate sentences for offenders afflicted with FAS/ARND. Some of the problems with the initial assessment of FAS/ARND and of the failure of the existing corrections system to provide appropriate sentencing options for offenders with FAS/ARND have also given rise to various challenges based on Charter and potential human rights violations. …

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