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Fetal alcohol and felony.

"The child is father to the man" is apparently an adage with limited appeal to California's Governor Pete Wilson. On 16 April, in announcing his rejection of a murderer's petition for clemency, Governor Wilson made it clear that the damage the condemned man had suffered early in life was no grounds for a stay of execution. "As great as my compassion for Robert Harris the child, I cannot excuse or forgive the choice made by Robert Harris the man," the governor declared.

The Harris case has been the focus of intense debate between supporters and opponents of the death penalty, which was restored to use under certain circumstances after a Supreme Court decision in 1976 and which has slowly returned to the nation's penal system. With 329 people on Death Row, California's resumption of the ultimate punishment carries particular symbolic weight. Only Texas, which has executed 46 people in recent years, has more prisoners awaiting execution.

Maternal-Fetal Conflict

The facts of the Harris case dramatically bring into the legal arena a much discussed topic in bioethics--the so-called maternal-fetal conflict. Documents and testimony presented to Governor Wilson on Robert Harris's behalf linked his behavior to fetal alcohol syndrome, brought on by his alcoholic mother's excessive drinking.

Harris was born in 1953, fifteen years before the initial medical report on the unusual features of children of alcoholic parents was published in France and twenty years before Kenneth L. Jones, David W. Smith, and their colleagues first described fetal alcohol syndrome.(1) It is hardly surprising that Harris was not identified as a victim of the syndrome, as it was not widely recognized at the time of his 1978 trial for the murder of two teenagers, and studies then concentrated on young children. Indeed, only within the past year did one of the original researchers, Ann Pytkowicz Streissguth, publish the first systematic follow-up of adolescents and adults with this particular birth defect.(2)

As Dr. Jones explained to Governor Wilson in the clemency petition, Robert Harris's appearance, behavior, brain function, and developmental problems, when coupled with the history of prenatal exposure to alcohol, clearly point to a diagnosis of fetal alcohol syndrome. Harris was born premature and small (under four pounds) and had a small head circumference. Confirming the diagnosis were many characteristic physical signs: midface hypoplasia (flatness across the nasal bridge), long smooth philtrum (little grooving above the upper lip), and short palpebral fissures (small opening below the eyelid).

More significantly, Harris's medical records chronicle his developmental problems: delays in walking and talking, impaired speech, and hyperactivity. School records and the recollections of those who knew him paint the picture of a clumsy, uncoordinated child who had trouble interacting with peers and failed repeated grades. Most of the time young Robert was passive and easily led, but he could also be impulsive and seemed incapable of understanding the consequences of his acts.

In the context of the clemency plea, it is astonishing to think that the jury that sentenced Robert Harris to death did not have this information but instead heard from a prosecution psychiatrist that Harris had an antisocial personality. As Craig Haney, a psychology professor at the Santa Cruz campus of the University of California, wrote to Governor Wilson, the reams of information dating back to the mid-1960s that Harris's advocates recently received from the Federal Bureau of Prisons provide much evidence that correctional officials had for years seen him as "childish" and "unable to handle stress," characterizations that throw serious doubt on the claim that the killings were premeditated--a necessary condition for a charge of murder.

As important as it would have been for the attorney representing Harris at his murder trial to have presented such information to the jury, the underlying question is perhaps even more important and disturbing: what effect should such information have on the determination of criminal responsibility? Fetal alcohol syndrome has been raised successfully in previous cases in an "insanity" or "diminished capacity" defense. Such cases--and the drama of the Harris clemency petition--not only raise troubling questions about the notion of criminal responsibility but may also shape our reactions to actions by pregnant women that give rise to the syndrome.

Fetal Alcohol Syndrome, Drug Abuse, and the Insanity Defense

Most of the attention to "prenatal wrongs" both in the bioethics literature and in the courts has been directed toward maternal abuse of illegal drugs, especially crack cocaine. Combining sympathy and dread, some medical and developmental experts--and reporters who have been fascinated with the tales they have to tell--have conveyed to the public the image of a tidal wave of damaged children born to drug-using mothers who are burdening the medical and social welfare system today and will soon overwhelm the nation's classrooms.

Prosecutors have responded by invoking statutes aimed at child abuse or the dispensing of illegal drugs to minors. Although these attempts have generally not met with success--the fetus is not a "child," and the umbilical cord was not within legislative contemplation as a means of dispensing drugs--prenatal exposure to drugs is commonly cited as grounds for depriving women of custody of their children after birth. And even more punitive measures may be foreseen if the protections now guaranteed to pregnant women in controlling their bodies are further eroded by judicial retrenchment of the right to privacy.

Yet, despite the undeniable problems of children born to drug abusers, much more is known about the deleterious effects of alcohol on the fetus. Indeed, since pregnant women's drug abuse is usually compounded by alcohol consumption, it is problematic to ascribe any impairments their children suffer to drugs alone. Thus, the increased attention that a case like that of Robert Harris may give to the effects in adulthood of maternal behavior during pregnancy will not be confined to the trendy topic of illegal drugs but will extend to alcohol as well.

When the problems caused by fetal alcohol syndrome move from the hospital or classroom to the criminal courtroom, society at large--in the person of Governor Wilson, for example--may pause before embracing persons suffering from the syndrome with the sympathy and understanding extended to them as child victims. The implications of applying the insanity defense in such cases may simply be too daunting, even though the functional abilities of victims of the syndrome conform closely to the Model Penal Code's definition of circumstances that exclude criminal responsibility--namely, when a person "lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law."(3)

Ever since the famous nineteenth-century M'Naughton case in England established the insanity defense, the basic image has been that of madness in the sense of delusions and psychosis. Attention to fetal alcohol syndrome, by contrast, has been in the context of developmental and learning disabilities: stunted and abnormal growth, impaired neuromotor skills, and significantly subaverage cognitive function. Thus, the response has been comparable to that given to other children with such disabilities, in terms of special educational and community services aimed at equipping them with the skills to cope with life and live as independently as possible.

As the vantage point shifts to the question of personal responsibility, differences emerge between these children and others with whom they are often grouped. The "superficial verbal skills" of patients afflicted with fetal alcohol syndrome, as Streissguth notes, often mask their other difficulties with "poor judgment, and generally dys-functional lives," meaning that the behavioral problems that come with increasing age are "different in magnitude and severity, especially compared with patients with Down's syndrome."(4) Thus, the fact that other mentally retarded persons do not fit our image of "the insanity defense" does not necessarily mean that victims of fetal alcohol syndrome would not qualify.

Whom to Blame and How?

But, unlike the highly aberrant personality that we label "insane," the victims of fetal alcohol syndrome are widespread. Fetal alcohol syndrome is now the leading cause of mental retardation in this country. Clearly, there can be no suggestion that all its victims lack any accountability for their conduct. Yet that might be one reaction, as can be seen in the letter Kenneth Jones filed with Governor Wilson. Since such persons "do not understand the consequences of their behavior," he wrote, "society must be protected from them and in the case of Robert Harris, he should, without question, be confined in a structured setting for the rest of his life."

What needs to be understood is that fetal alcohol syndrome creates something like a lump of unusually pliable clay out of which many things can be formed. The damage to the brain and especially to the pathways that seem to allow reasoning about relationships and consequences may well be irreversible. But the environment in which these children are raised and taught is certainly not immutable. Regrettably, without adequate societal intervention, many of them will face environments that are chaotic or nonsupportive, though few, one hopes, will have child-hoods marked by the sort of overwhelming, abominable parental brutality and neglect that Robert Harris suffered.

In future criminal trials, defense attorneys will doubtless be more successful than Robert Harris's clemency advocates in showing that fetal alcohol syndrome precludes criminal responsibility, or at least should lead to mitigation of capital punishment.(5) Victims of the syndrome appear more rational and less delusional than the classically "insane," nor does their mental impairment produce classical mental retardation as viewed by laypeople. Yet their dependency, sweetness, and desire to please, when coupled with an inability to learn from experience and hence to appreciate right and wrong,(6) puts them at risk--whether through their own bad judgment or under the sway of others--of committing criminal acts without appreciating their wrongfulness and without the ability to conform to the law's requirements. Appreciating this risk, we should try to avoid harm to all the potential victims: better to address the problem in the prenatal clinic and the classroom today than confront it in the courtroom tomorrow, for in fathering the man, the child wounded by fetal alcohol syndrome does not act alone.


1. Kenneth L. Jones, David W. Smith, C. N. Ulleland, and Ann P. Streissguth, "Pattern of Malformation in Offspring of Chronic Alcoholic Mothers," Lancet 1 (1973): 1267-71.

2. Ann P. Streissguth, Jon M. Aase, Sterling K. Clarren, et al., "Fetal Alcohol Syndrome in Adolescents and Adults," JAMA 265 (1991): 1961-67.

3. American Law Institute, "Mental Disease or Defect Excluding Responsibility," Model Penal Code [unkeyable] 4.01 (1985).

4. Streissguth et al., "Fetal Alcohol Syndrome," at 1966.

5. See Model Penal Code [unkeyable] 4.02.

6. In adolescents and adults with fetal alcohol syndrome "who technically were not retarded according to IQ scores," the Vineland Adaptive Behavior Scale revealed "failure to consider consequences of action, lack of appropriate initiative, unresponsiveness to subtle social cues, and lack of reciprocal friendships," which resulted in "maladaptive behaviors" such as "impulsivity" and a tendency "to lie, cheat, or steal." Streissguth et al., "Fetal Alcohol Syndrome," at 1965.
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Author:Capron, Alexander Morgan
Publication:The Hastings Center Report
Article Type:Biography
Date:May 1, 1992
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