Sword or Shield? A Systematic Review of the Roles FASD Evidence Plays in Judicial Proceedings

Abstract

In this first-ever systematic review of fetal alcohol spectrum disorders in all federal court cases arising prior to 2011, the authors identified 1713 cases, with 131 cases substantively relevant to mental capacity, criminal intent, sentencing, and attorney malpractice. The majority of cases arose after Atkins v. Virginia, the pivotal Supreme Court case that prohibits the death penalty for mentally disabled persons. Among other things, this study reveals that FASD evidence usually defeats a death penalty sentence, but the lower courts reflect inconsistencies in how courts receive and handle mental health evidence.