2010 Illinois Fetal Alcohol Spectrum Disorders Conference

1. 2010 Illinois Fetal Alcohol Spectrum Disorders Conference Joe Birkett DuPage County State’s Attorney

2. Public Act 96-1082 - Provides that all sex education courses that discuss sexual intercourse shall teach pupils about the dangers associated with drug and alcohol consumption during pregnancy Currently, the law requires instruction on HIV/AIDS and STDs as well as abstinence, but not FASD. Illinois is the first state in the nation to require FASD instruction in sex education classes. Fetal Alcohol Syndrome & Sex Education

3. The Liquor Control Act [235 ILCS 5/624(a)] requires a sign to be posted at liquor establishments stating: “Government Warning: According to the Surgeon General, women should not drink alcoholic beverages during pregnancy because of the risk of birth defects…” Signs may not be larger than 8.5” x 11.” A second violation becomes punishable by a fine. Fetal Alcohol Syndrome and Illinois Law

4. The Juvenile Court Act (705 ILCS 405/2-18) provides that proof that a minor has a medical diagnosis of fetal alcohol syndrome is prima facia evidence of neglect. Fetal Alcohol Syndrome and Illinois Law

5. The Probate Act of 1975 [755 ILCS 5/11(a)(2)] provides that a disabled person is a person who has been diagnosed with fetal alcohol syndrome or fetal alcohol effects. Amendment effective 1-1-08. Fetal Alcohol Syndrome and Illinois Law

6. The Marriage and Dissolution of Marriage Act [750 ILCS 5/203] provides that with each marriage license the County Clerk shall provide a pamphlet describing the causes and effects of fetal alcohol syndrome. Fetal Alcohol Syndrome and Illinois Law

7. The statute governing the operation of the Department of Human Services [20 ILCS 301/510(b)(3)] provides that the Department may provide educational materials including pamphlets which describe the causes and effects of fetal alcohol syndrome which may be provided free of charge to each county clerk for distribution to recipients of all marriage licenses. Fetal Alcohol Syndrome and Illinois Law

8. The Illinois Sentencing Policy and Advisory Council (SPAC) was created to review policies and practices to examine their impact on the costs and management of the criminal justice system. SPAC is to objectively inform sentencing and corrections policy development, collect and analyze data, and ensure that effective evidence-based practices are used in policy decisions and practices. When its review is complete, SPAC will report in writing to the Governor, General Assembly, and Supreme Court. Current Policy Developments

9. The Crime Reduction Act of 2009 (P.A. 96-0761) in part develops a statewide assessment tool to evaluate the threat that an offender poses to the community. It is intended to lead to policy changes that reduce overcrowding in prisons, but ensure that dangerous offenders remain incarcerated. Current Policy Developments

10. The Illinois Supreme Court Special Advisory Committee for Justice and Mental Health Planning is intended to: Maximize the use of court and community resources in aiding the rehabilitation and treatment of accused offenders with mental health issues. Aid the court system’s capacity to plan and deliver justice interventions that effectively manage this special population. Current Policy Developments

11. The General Assembly by statute [730 ILCS 5/5-5-4.2] has encouraged the Supreme Court to promote uniformity and parity of sentences throughout the state. Effective 2-1-1978. Current Policy Developments

12. In directing the Department of Human Services to prepare a report on FASD, the Illinois legislature noted that: FASD is the leading cause of mental retardation in western civilization and is 100% preventable. The rate of FASD incidence is estimated at one out of every 500 live births. FASD alone can cost between $1 and $5 million per child – not including the societal costs associated with lost productivity, incarceration, and diminished quality of life. Current Policy Developments

13. Recommendations of the Department of Human Services’ Report on FASD dated January 2010: Develop strategy to coordinate existing services (prevention/diagnosis/early intervention/treatment); Explore the development of a statewide training system for all relevant professions; Encourage the improvement of evaluation and diagnostic services; Advocate for the inclusion of FASD in DSM-V; and Identify funding opportunities. Encourage the improvement and expansion of existing FASD services; and Identify funding and methods of increasing public awareness. Current Policy Developments

14. Findings of the Department of Human Services’ Report on FASD dated January 2010: Each year thousands of Illinois children go undiagnosed or misdiagnosed for FASD. 10 babies per 100,000 live births, or 40,000 per year have FASD. FASD is100% preventable. There is a lack of understanding of FASD within the judicial, medical, and education professions. Current Policy Developments

15. On May 12, 2010, the Chicago City Council passed a resolution concerning the health threat of FASD to children. The resolution calls for public hearings as to the causes and prevention of FASD. Current Policy Developments

16. MICAP is intended for persons with mental illness symptoms which contributed to the commission of the crime. The program is not available to those accused of violent crimes or sex offenses. The concept is to provide treatment in lieu of punishment. The duration is 12-30 months and is determined by the nature of the offense, treatment needs, and compliance. After successful completion, criminal charges may be reduced or dismissed. Applicants must be 17 years or older and diagnosed with an Axis I major mental illness. Mental Illness Court Alternative Program (MICAP)

17. What services are currently available under the law for persons with FASD who are accused of crimes? Effective Partnerships

18. Attorneys representing clients who have been diagnosed with or are suspected or having FASD should explore a guilty but mentally ill (G-BMI) disposition. This may seem inconsistent with the traditional approach to obtain the least restrictive disposition. “Mental illness” or “mentally ill” means a substantial disorder of thought, mood, or behavior which afflicted a person at the time of commission of the offense, which impaired that person’s judgment, but not to the extent he is unable to appreciate the wrongfulness of his behavior. A G-BMI disposition is only available upon a specific plea of guilty or after a trial where the defendant raises the defense of insanity. Guilty - But Mentally Ill 720 ILCS 5/6-2(d)

19. There are 13 statutory factors in mitigation. Only one of these factors, the thirteenth, is related to mental illness and it speaks to “mentally retarded” defendants. However, Illinois appellate courts have held that trial courts must give serious consideration to a finding of G-BMI when imposing a sentence. People v. Gurga, 125 Ill.Dec. 650 (1st Dist. 1998). Statutory Factors in Mitigation730 ILCS 5/5-5-3.1

20. A plea of G-BMI requires an examination by a clinical psychiatrist or psychologist. After a hearing, the court must find a factual basis to support the contention that the defendant was mentally ill at the time of the offense. Pleas of Guilty – But Mentally Ill725 ILCS 5/113-4

21. When facts and circumstances justify a reasonable belief of a not guilty by reason of insanity defense or G-BMI plea, the Court, on the State’s motion shall order the defendant to submit to examination by at least one clinical psychologist or psychiatrist to be named by the State. Additional examinations are discretionary. Reports must be made available to the defense. Statements made during the examinations may not be used at trial unless the defendant raises the insanity defense. State-Initiated Mental Health Examinations725 ILCS 5/115-6

22. The same sentencing options are available to G-BMI offenders as are to non G-BMI guilty offenders. Imprisonment Periodic inquiry and examinations required as to the nature, extent, and continuance of treatment. The Department of Corrections must provide counseling and treatment as it determines is necessary. Probation/Conditional Discharge/Supervision The course of treatment shall reasonably assure satisfactory progress in treatment or rehabilitation, the safety of the defendant and others. Terms may include notification and discharge from custody of defendant to community adjustment programs, periodic checks, and outpatient care. Failure to continue treatment except by agreement can lead to revocation. Unified Code of Corrections Sentencing and Treatment of G-BMI Defendants730 ILCS 5/5-2-6

23. For offenders found guilty with no finding of mental illness, but who have FASD, the law provides that sentences can be modified to meet the needs of the offender and society. The conditions of a sentence of probation, conditional discharge, or court supervision can always include requirements that the defendant undergo treatment and counseling as appropriate. Unified Code of Correction Traditional Sentencing with Treatment 730 ILCS 5/5-6-3

24. Special Challenges for Adoptive Parents Foster and adoptive parents often lack preparation for children born with FASD. These parents need support and understanding as their child with FASD navigates society’s systems. Children with FASD are more likely to become involved in the criminal justice system as victims of crime – as well as offenders. Children with FASD are more likely to be bullied and shunned by peers.

25. Walk v. DCFS2010 WL 867161 (Ill. App. 4 Dist.) 2 children, aged 7 and 9, who had been diagnosed with FAS/FAE were periodically locked in a cage by foster parents. DCFS filed an abuse report. Under the facts of the case, the appellate court found that confinement was not unreasonable. “The testimony showed [that the foster parents] used the enclosure on several occasions in brief intervals to protect the children.” “Given…the children’s severe behavioral problems, we find that plaintiffs did not engage in unreasonable close confinement by placing [the children] in a structure for short periods of time to protect them from harming themselves.”

26. In Re Alicia Z. and Zayda Z. 336 Ill.App. 3rd 476 (2nd Dist. 2002) CAUTION: This case represents a good example of what can happen when a child is misdiagnosed with FAS/FAE.

27. People v. Brown236 Ill. 2d. 175. (Ill. 2010) A good example of what happens when defense attorneys do not explore potential fitness issues with a client who may be mentally ill. The court found a number of factors may be considered in determining whether a bona fide doubt of fitness is raised. Failure to request at least an examination can lead to a finding of ineffective assistance of counsel. 4-3 decision with a strongly worded dissent.

28. A Recent International Case The Chicago Tribune recently reported on the story of a mother who sent her 7-year adopted son back to Russia. It sparked international discussion of FAS. As a result, Russia threatened to halt all adoptions to the United States. The adopted mother was roundly ostracized…but also sympathized with.

29. Toward a FASD Task Force A FASD Task Force should assemble professionals from various disciplines who are motivated. A Task Force should work with the Department of Human Services, the Illinois Supreme Court Committee and SPAC. It should continue to promote awareness, education and prevention. It should promote mental health screening for all youthful offenders. It should provide training for professionals

30. Thanks For Your Attention! Any Questions?