Is there justice for people with fetal alcohol brain damage?

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Behind bars
Newton Henderson, 26, is serving time in the Stillwater state prison for kidnapping, robbing and sexually assaulting a woman. Several of his siblings have been diagnosed with a fetal alcohol disorder, and Henderson thinks he may also be affected by it.
MPR Photo/Tom Robertson

Newton Henderson, 26, has been locked up at the Stillwater state prison, east of the Twin Cities, nearly half his life. He walks into a small conference room clad in a white t-shirt and baggy prison pants.

Henderson bounced around as a kid and lived in several states. He grew up in a violent household where alcohol abuse was common. He was living on the street by age 13. In October 1997, when he was just 15 years old, Henderson found himself in serious trouble.

"I couldn't get anybody to give me a ride, so I went and I hitched a ride. And I ended up kidnapping and sexually assaulting a female and robbed them," says Henderson. "That same night I got caught, and I've been in prison ever since."


Henderson is from a big family -- he has seven brothers and sisters. The youngest four have been diagnosed with fetal alcohol syndrome. Henderson has not been diagnosed, but his behavior is similar to his younger siblings. He's impulsive, and can be short-tempered.

Like people with fetal alcohol exposure, Henderson says he has trouble remembering and keeping track of more than a few things at a time.

Linda Walinski
Linda Walinski and her husband, Mike, from Isanti, are in the process of adopting 26-year old Newton Henderson, an inmate who likely is affected by fetal alcohol exposure. The Walinskis also adopted four of Newton's siblings, who are affected by fetal alcohol exposure.
MPR Photo/Tom Robertson

"I've never been someone who can take instruction very well. I'm always thinking about other things," says Henderson. "Even though I'm doing this, I'm thinking about this, and before I even get to that, I'm thinking about something else. Unless I physically do it, it's probably not going to stick the first time, the first couple of times."

Henderson says he isn't crazy about the idea of being labeled with a fetal alcohol disorder. But he says he'd like to know, because at least it would help explain why his life has gone the way it has.

"I don't know whether or not I was a victim of fetal alcohol syndrome or not. It's obviously an option because it's affected so many of my brothers and sisters," he says. "But what I can say for sure is that it's obviously having a big impact on all our lives right now."

No one can say how many of the country's more than two million prison inmates are affected by fetal alcohol disorders. Minnesota and most other states don't screen inmates for the disorder. Some experts believe the number could be high, maybe as many as one in four. But there's no real data to back that up, since no studies have been done.

Henderson gets out of prison in two years. He's not sure if he'll try to get tested for fetal alcohol exposure. But there's a bright spot in his future. The 26-year-old is being adopted by a family from Isanti, Minnesota -- Mike and Linda Walinski. They are the same couple who adopted Newton's four fetal alcohol-affected siblings.


Linda Walinski says based on what she knows about Henderson and his family history, she believes the young man was likely exposed to alcohol while still in the womb. She thinks prison has done him a lot of good.

"He says, 'These have been the best years of my life. If it wasn't for this, I'd be dead,'" says Walinski. "He got to get his GED there. He is nourished there. He gets exercise there. There's clothing, there's warm shelter, sobriety. That's what they need is order, structure, routine, etc. Clearly, Newton is soaring."

Walinski says when she first contacted Newton in prison almost a decade ago, he had no connection with anyone on the outside. No one had visited him. No one cared about him. Walinski says her family will provide the support he needs to succeed when he gets out of prison.

"He's had a really long time to practice the skills of not getting in trouble, not antagonizing people, following the rules," says Walinski. "It's believed that in individuals with fetal alcohol, that repetition, repetition, repetition, millions of times, is what does help with learning."

Alcohol-exposed children often have lives filled with turmoil early on. Most end up in foster care. Studies show nearly three-quarters of them are either physically or sexually abused. Sixty percent get suspended, expelled or drop out of school.

One study at the University of Washington found that 60 percent of adolescents and adults with fetal alcohol syndrome get in trouble with the law. Ann Streissguth is professor emeritus of psychology at the University of Washington and was involved in the study.

"How could anyone be normal who had that kind of a background, on top of being brain-damaged?" Streissguth says.


Streissguth was part of the team that first identified fetal alcohol syndrome, or FAS, in 1973. She spent most of her career studying people affected by the disorders. Streissguth says there are some typical behavior patterns for these people.

Because of the physical damage from prenatal alcohol exposure, the thinking part of their brain doesn't work right. People with the disorder get in trouble because their brain can't process cause and effect.

Early FASD researcher
Psychologist Ann Streissguth was part of the University of Washington team that first identified Fetal Alcohol Syndrome, or FAS, in 1973. She spent most of her career studying people affected by the disorders.
Photo courtesy of the Teratology Society

That means they're unable to make good judgments. They often exhibit explosive behavior. Streissguth says they may commit crimes to impress their friends.

"These patients are often very gullible and very eager to be liked by their peers," says Streissguth. "They are very conspicuous scapegoats for all of the smarter criminals that are around. So they're the one that are going to be caught with the stolen goods. They're the ones that people are going to say, 'Oh, he's the one that pulled the trigger. We were just there.' And it happens over and over again."

Streissguth says people with FAS may run from authorities for no reason. They're unlikely to understand their legal rights. They may even admit to crimes they didn't commit.

Once they enter the court system, people with fetal alcohol damage are often confused by the proceedings. They sometimes don't show remorse and may come across looking guilty. They often aren't given a break because judges don't understand the disorder.

Also, Streissguth says national estimates suggest the vast majority of people affected by prenatal alcohol exposure have never been diagnosed.

"I think it's a foregone conclusion that mainly judges do not know that they are dealing with a person who has a fetal alcohol birth defect at the time they are dealing with them," Streissguth says. "If the defense lawyer assumes that they're competent and functional, then he won't necessarily pursue this. He'll assume the guy was thinking with a full stack of brains when he committed whatever he did."

When court officials don't fully understand the symptoms of fetal alcohol brain damage, offenders are treated just like everyone else.


That's what happened with 11-year-old Hunter. Because he's a juvenile, we will not use his last name.

One October day in 2006, Hunter and his younger brother went outside to play. It's not really clear how it started or who had the idea -- but the two boys broke into a neighbor's house and shattered everything -- windows, dishes, mirrors, knick-knacks and a big screen TV.

Hunter, 11, has Fetal Alcohol Syndrome. In 2006 he vandalized a neighbor's home. His parents say the police and judge didn't understand the affect that FASD has on Hunter's behavior.
MPR Photo/Cara Hetland

Hunter spent two weeks in a mental health treatment facility because when he admitted what he'd done to police, he showed no guilt or remorse.

"Still to this day, it's tough to try and get the reaction out of him that you want," says Kim, Hunter's adoptive mother. "He knows right from wrong, but he's very impulsive. The cause and effect, he just doesn't -- it's there one second. That's about how long it is there. Then it's gone, on to the next thing."

Hunter says he went a little crazy that October day. His parents say it was his fetal alcohol syndrome, coupled with a new medication, that led to the vandalism.

Darren, Hunter's father, says they noticed Hunter having mood swings on the new medication.

"We're not going to say for sure -- we knew it wasn't working and we had an appointment set," says Darren. "I just wish that appointment would have been a week before this happened."

People with FAS may run from authorities for no reason. They're unlikely to understand their legal rights. They sometimes don't show remorse and may come across looking guilty.

Hunter did change his medication and his moods are more controlled now. He went to court and his parents decided to plead guilty to avoid any costly jury trial. They just wanted to be done and move on.

The judge put Hunter on probation, and ordered him to pay $45,000 in damages when he becomes an adult.

"It stays on his record for 10 years," Kim says. "But the insurance company can reopen it and it can stay on his record forever. He can start out his life not being able to have anything."

Kim and Darren don't tell many people Hunter has FAS, because they don't believe anyone will understand it.

"It's not an excuse, is it Hunter?" Kim asks her son. "We try and tell Hunter, 'Who has control of you?'"

"I do," Hunter answers.

Hunter sits at the family kitchen table and listens. He speaks softly and gives only one or two-word answers. He often puts his hands in his head and rocks back and forth, a sign he is frustrated.

"When you get frustrated, Hunter, what does it feel like?" asks Kim.

"It feels like I'm going to explode and I can't do anything," Hunter replies.

There are no national guidelines for how people with fetal alcohol damage should be handled in the justice system. There's been little federal funding available to study the impact. But there are some efforts inside the courts to help identify people affected by the disorder.


In 2006, Hennepin County's juvenile justice system got a federal grant to begin screening young offenders for fetal alcohol damage. The goal was to get kids diagnosed, set up support for their families and educate people in the courts.

Susan Carlson is a court referee in the county's juvenile court division. She says of the more than 600 young offenders who were screened, 16 percent were diagnosed with fetal alcohol exposure.

Susan Carlson
Susan Carlson, a court referee in Hennepin County's juvenile court division, says repeat juvenile offenders in Minnesota are often sent to detention centers. It's a form of punishment that doesn't work well for people with fetal alcohol damage.
Photo courtesy of MOFAS

"A lot of these youth would never have gotten a diagnosis without this program," said Carlson.

Susan Carlson is the wife of former Minnesota Gov. Arne Carlson. During his administration, she led a statewide task force on the affects of fetal alcohol exposure. She founded and is currently president of the Minnesota Organization on Fetal Alcohol Syndrome.

Carlson says repeat juvenile offenders in the state are often sent to detention centers, which is a form of punishment that doesn't work well for people with fetal alcohol damage. Carlson says they're better served in specialized programs that are highly structured and supervised.

"I think we can get them out of the system, and that should be our goal," says Carlson. "It shouldn't be just to punish for something they probably wouldn't even understand why they were being punished anyway."

Carlson describes one young offender who'd been unsuccessful in five or six different placements. He was screened and diagnosed with partial FAS through the Hennepin County program. He was then placed in a Duluth group home that specializes in FAS care.

Carlson says the young man thrived. He earned a GED, held several jobs, and eventually joined the Army.

"I ran into the boy's probation officer a couple of weeks ago," says Carlson. "He was a non-believer when we started this whole process. And he was just beaming about this child, because he said the boy appeared to be headed for the correctional system. Now he's thriving. The probation officer said the young man was his most difficult kid."

The problem, Carlson says, is that there aren't many options for placement of offenders with fetal alcohol brain damage. There are only a few group homes that specialize in FAS. Some homes even refuse to take kids diagnosed with the disorder.

There are efforts in a number of states to educate police officers, court service staff, defense attorneys and judges to recognize and understand FAS and determine how to get proper help for offenders.


Mary Rogers is a researcher at Black Hills State University in South Dakota. Rogers has spent the past two years training people in the criminal justice system about how to recognize young FAS offenders.

Rogers says the justice system needs to work with other agencies to design probation or detention programs to help these kids.

Rogers says systems also need to be developed to figure out what works best for people with fetal alcohol brain damage, so they don't continue to offend over and over.

"What many people have told us over the years is that they have implemented strategies, but they have no information that shows and documents the case history -- how did this change this person's life?" said Rogers. "Were they able to change as far as their behaviors? Were they becoming more academically proficient? Nobody tracks that."


Even if judges do understand the disorder, many feel their hands are tied. They can't, for example, let a kid go who busts up a house. They have to follow sentencing guidelines.

There are two judges in South Dakota who try to tailor their orders so it's easier on the alcohol-exposed offender. One is Judge Janine Kern, who's based in Rapid City. She makes her conditions of probation a little simpler and easier to understand and follow.

Fetal alcohol syndrome is not listed as a federally recognized disability. That means states and local agencies aren't required to provide programs and services. Judge Kern says that doesn't leave her with many options. She wants policymakers to start talking about FAS as a disability.

"This is a 100 percent preventable defect," says Kern. "We need a strong prevention campaign, then we need the ability to assess those adults and children that are within the system that have it. That'll take funding. Then we need the services within the community, once we have the evaluation, to help people thrive and be successful."

Circuit Court Judge Pat Riepel, based in Sioux Falls, agrees with Kern. But she stresses sometimes she doesn't have a choice, because she still has to make a ruling based on law. Sometimes, she says, that involves separating families.

"Sometimes I have to take them from their parents just for their own safety, because they can't make good choices to keep themselves safe," says Riepel. "The parents have tried everything -- electronic monitoring, all types of house arrests -- and that doesn't work. My problem is, what do I do to keep them safe?"

Riepel says removing kids from their homes happens only after other methods have failed. Her choice is a residential treatment facility or placement with the Department of Corrections.

But once alcohol-exposed offenders become inmates, they are handled as criminals, not as people with a brain disorder.