The Sentencing of Offenders with Fetal Alcohol Syndrome
Larry N. Chartrand and Ella M. Forbes-Chilibeck “The Sentencing of Offenders with Fetal Alcohol Syndrome” (2003) 11 Health Law Journal 35.
36 Pages Posted: 29 Sep 2013
Date Written: 2003
Courts are becoming increasingly aware of Fetal Alcohol Syndrome (FAS)/Alcohol Related Neurodevelopmental Disorders (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. Finally, we examine some of the responses to these problems and we offer a few suggestions for reform.
Keywords: FAS, ARND, Fetal Alcohol Syndrome, alcohol related neurodevelopmental disorders, sentencing, offenders, correctional system, sentencing principles, criminal justice system, Charter of Rights and Freedoms, violations, Human Rights
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