fetal acohol syndrome

Criminal minds?
Some say justice system fails inmates with fetal alcohol disorders

Steven Elbow (madison.com)
May 12, 2008

Tyler Mills lost nearly 25 pounds over the course of three weeks, but his jailers didn't see anything alarming about that. It was his choice to stop eating, his choice to stop drinking, his choice to swallow the toothbrush that was lodged in his stomach.
Sauk County Jail officials deemed it a behavior issue, not a medical one. It could be handled with discipline -- solitary confinement, suspension of privileges, physical restraints.
On June 8, 2006, jail staff and human services personnel got the 28-year-old inmate to a Boscobel hospital on a psychological commitment, and medical staff immediately saw they had a medical emergency on their hands.
Even so, jail officials adamantly refused to pay for medical care, according to Mills' medical records. They also wouldn't provide security for medical treatment, leaving Mills to be guarded by a nurse while he was moved to a medical unit for badly needed fluids.
Eventually jail officials relented and accompanied Mills to University Hospital, where the toothbrush was surgically removed.
At the time, Mills was in jail in Sauk County for auto theft and related charges. He was also wanted on an outstanding warrant in Eau Claire County for going into an Internet chat room in 2004 and asking a 14-year-old girl, who turned out to be a 40-year-old cop, to "de-virginize" him.
During his 17 months in the Sauk County Jail and seven months in the Eau Claire County Jail, Mills has stretched the patience of jail officials to the limit, eating pencils and utensils, spreading feces on the wall, throwing tantrums, and demanding psychiatric treatment, which he never received.
Several experts contend that Mills' bizarre behavior stems from fetal alcohol spectrum disorder, or FASD -- brain damage from his mother's consumption of alcohol while he was in the womb.
He's among legions -- some say hundreds of thousands -- of inmates nationwide with fetal alcohol disorders, and jails and prisons are at a loss as to how to deal with their particular brand of misbehavior. Mills was hoping to be the first person in the nation to be found not guilty of a crime because of mental illness caused by fetal alcohol exposure.
But while an Eau Claire jury last week unanimously found that his fetal alcohol defects constituted a mental disease, it also ruled that his defect didn't lead him to commit his crime of child enticement.
But Mills did come close to getting a new trial. He needed 10 of 12 jurors to side with him for a not-guilty verdict, but only three for a hung jury. He got two.
It would have been a landmark case, said Natalie Novick Brown, a clinical psychologist at the University of Washington's Fetal Alcohol and Drug Unit who testified at his trial and offered a written affidavit supporting Mills' claim of having a mental defect.
Now, instead of setting a precedent that would have helped change the way the justice system treats those afflicted with fetal alcohol disorder, Mills faces up to 25 years in prison at his sentencing next month. He would have faced up to 20 more, but the jury failed to make a decision on a charge of attempted sexual assault of a child.
"This would have been a wonderful precedent in terms of the court's awareness that FASD is a mental defect and that it does decrease someone's ability to control their behavior," Novick Brown said.
But she said the case, while tragic for Mills, is a small step getting the courts toward recognizing fetal alcohol spectrum disorder as a mitigating factor in criminal cases.
"We take the victories where we can find them, and in terms of the jury seeing the mental defect, that is a victory," she said. "At last two jury members heard the message this time, and hopefully next time more jurors will hear."

More cases expected
Advocates for people with fetal alcohol spectrum disorder expect a growing number of court cases in coming years contesting the justice system's treatment of people with the disease, who they say often do not understand their legal right to refuse to talk to police without a lawyer or their right to refuse to consent to a search. They say people who suffer from fetal alcohol spectrum disorder also often confess to crimes they didn't commit during police questioning and don't have access to lawyers who are knowledgeable about FASD.
And they see a coming wave of cases to force corrections officials to institute programs to deal with the unique needs of inmates afflicted with the disease.
"FASD is brain damage -- it's a disability," said Jonathan Rudin, who tracks legal issues as program director at Aboriginal Legal Services of Toronto and is co-chair of FASD Stakeholders of Ontario. "It's not going to be possible, I don't think, for people who run corrections systems to ignore this for a long period of time. If they don't voluntarily start moving that way there's going to be more and more cases."
Advocates are pushing reforms that include shorter periods of incarceration and longer supervision, milder sanctions that take into account the behavior problems and mental limitations of those afflicted with FASD, and leniency for parole violations. The objective is to give offenders a structured life in a group home or other facility that helps them overcome their inability to meet day-to-day challenges.
Mills is a prime example of the problems inmates with fetal alcohol disorder pose to their jailers, and his jailers have been prime examples of how poorly corrections officials are responding to these issues.
During his stay at the Sauk County Jail, Mills ate pencils, razors, toothbrushes, even feces, according to medical records compiled by Mills' civil rights attorney and released to The Capital Times with Mills' permission.
He also acted out in other ways. He spread feces on the wall, bashed his head against the wall, overdosed on Tylenol and tried to hang himself.
Sauk County Jail officials responded with threats, restraints and a refusal to provide psychiatric care.
To Todd Winstrom, an advocacy attorney working to get Mills psychiatric care, the cause of Mills actions is unambiguous: "In Tyler's case it's very clear that his behavior is the result of his fetal alcohol disorder."
Mills' case in Sauk County was eventually resolved -- he pleaded no contest to possession of burglary tools, vehicle theft and two counts of identity theft and was sentenced to time he had already served -- and he was taken to Eau Claire County to face charges of attempted child enticement and attempted sexual assault of a child.

The behavior problems resurfaced.
Eau Claire County Assistant Jail Administrator Lt. Patti Salimas said that during his stay at the Eau Claire County Jail Mills has eaten razor blades and pencils. He's still in segregation. He's depressed and he's not getting medications.
"It's just complete isolation," Mills said in a recent phone conversation. "I'm going downhill. The frustration is getting overwhelming."
Winstrom works for Disability Rights Wisconsin, the state-appointed agency to advocate for the disabled, and has spent countless hours documenting Mills' experiences in jail and trying to get him psychiatric care.
Eau Claire County has allowed Mills one visit to a psychiatrist, but the drugs he received caused side effects. Jail staff canceled a subsequent appointment.
"It's a basic legal standard established by the courts that you've got to provide access to psychiatric care, and they just don't do it," Winstrom said.
Meanwhile, as was the case in Sauk County, Winstrom said, Eau Claire County is just warehousing Mills until they can get rid of him.
"Their continued response seems to be, 'We've got to solve this problem by getting this guy out of here -- get him sentenced, get him off to prison, solve the problem by making him someone else's problem.'"
'I end up getting in trouble somehow'
Mills, his supporters say, just doesn't fit in a correctional setting. Yet, because he can't conform to societal norms either, he keeps ending up back in the jail.
Whenever he finds himself on his own, he said, "I end up getting in trouble somehow."
He has been arrested in the states of Washington, Minnesota, Florida and Wisconsin, most often for peeking at women in public restrooms.
On May 9, 2006, he was arrested while stealing a wallet from a woman in a locker room on the UW-Baraboo campus. Caught at the scene, he handed the wallet to a police officer and asked to be let go, explaining that he had made a bad decision, according to a criminal complaint against him.
What he didn't tell police was that a 65-year-old accomplice -- who threatened Mills and his family with harm if he told police of his involvement -- had put him up to the crime. While Mills spoke to police, the accomplice made a quiet getaway on foot, leaving behind a stolen mini-van loaded with burglary tools.
The two had previously traveled to several northern Wisconsin counties, where the man showed Mills how to steal credit cards and draw cash from ATM machines, Mills says. In March and April of 2006, they committed enough petty financial crimes to rack up more than 100 years of potential prison time for Mills. Many of these cases are still pending.
While court documents don't confirm Mills' account, the accomplice, who met Mills at a Minnesota halfway house connected to the federal prison system, admitted during an interview with The Capital Times that he had come to Wisconsin with Mills for something "illegal." But he denied any specific allegations.
It was Mills' last taste of freedom in a life where freedom has been scarce. He and his brother, who also shows signs of fetal alcohol effects but has never been diagnosed, were adopted as babies by a foster mother and grew up in the Wausau area. While Mills' little brother has learning disabilities, he has managed to stay out of trouble. Mills has not been as lucky.
In conversation, Mills appears bright and articulate and has a remarkable memory for names and dates. But it's obvious that something isn't right.
"I've got the book smarts, but the social stupidity," he said.
Since the age of 6, he has lived mostly in institutions -- in mental hospitals as a boy, in jail or prison as an adult.
For years, Mills didn't understand why he kept getting into trouble. Then in 2002 an enlightened parole officer in Minnesota, where he had just served a year and a half in federal prison for writing threatening letters to public officials, noticed that Mills had, among his many psychological diagnoses, fetal alcohol spectrum disorder.
The officer had a doctor confirm the diagnosis, and a light went on in Mills' severely damaged brain.
"That's when I knew what it was," he said.

Documented damage to brain
An MRI of Mills' brain, analyzed by physicians at the fetal alcohol unit at the University of Minnesota, shows the unmistakable damage associated with alcohol exposure in the womb. His corpus callosum, the neural bridge between the two sides of his brain, is shrunken, limiting his ability to process information. He has little understanding of cause and effect. His brain's executive function, which allows for impulse control, is almost non-existent.
The fact that Mills' mother drank while she was pregnant with him has been documented. The brother he grew up with and two other brothers have developmental problems that also may have been caused by her drinking.
Mills has seen an array of specialists who have identified mental and physical evidence of FASD.
Novick Brown, the psychologist at the University of Washington's Fetal Alcohol and Drug Unit, said that Mills was a prime candidate to get an acquittal on the basis of FASD. While he's not by any means a rarity in having the affliction, his case is unique because it's so well documented.
"Getting all that information is what's difficult," said Novick Brown. "In Tyler's case, we have everything we need."
Novick Brown met Mills in 2002, when, during one of Mills' rare periods of freedom, he showed up at the Fetal Alcohol and Drug Unit after finding the group on the Internet. Founded in the 1970s, the unit has teams of psychiatric specialists, social workers and legal experts that do groundbreaking work on fetal alcohol issues.
The unit has developed ways to identify and help people suffering from fetal alcohol brain damage, who make up a large percentage of the nation's unemployable, homeless and drug-addicted populations. Its work has been cited extensively by the Centers for Disease Control, which in recent years has issued criteria for screening for FASD symptoms.
While fetal alcohol disorder affects people differently, there are some common traits.
About a quarter of those afflicted have tell-tale facial features -- small eye openings, a flat mid-face, a thin upper lip. Mills has some of these features. He also has a number of medical conditions and illnesses related to the disease: cerebral palsey, Marcus Gunn jaw wink syndrome, a drooping left eye, asthma and muscle rigidity that hampered the use of his legs.
Behavioral symptoms include a lack of impulse control, poor judgment, alcohol and drug problems, inability to understand verbal information, inappropriate sexual behavior, explosive episodes, and a tendency to be easily led. People with the disorder lack a capacity to understand cause and effect, and consequently sometimes fail to see the correlation between criminal acts and jail. The crimes they commit tend to lack any kind of planning, and often are ludicrously stupid.
More than half have run-ins with the law, according to the unit's studies, and 35 percent have spent time in jails and prisons.
According to studies done in Canada -- there have been no similar ones in the United States -- nearly 25 percent of that country's incarcerated population may have some form of fetal alcohol spectrum disorder.
Once in prison, they often are victimized by fellow inmates, unable to follow rules, and placed in solitary confinement, either for punishment or for their own protection.
"I've seen them get reduced to despicable states by isolation," said Ann Streissguth, a clinical psychologist who 30 years ago founded the Fetal Alcohol and Drug Unit. "You take away all their normal cues and they just go berserk."
The cost to society is great, says Kay Kelly, who provides legal and advocacy services at the Fetal Alcohol and Drug Unit.
"Virtually all folks with this disability have real problems with judgment," she said. "We need to figure out how to deal with this disability so people can conform. That's the smartest thing to do from a taxpayer's point of view."
Legal aspects
The greatest challenge, experts say, is getting people to realize that fetal alcohol spectrum disorder is brain damage.
While a fetal alcohol spectrum disorder defense has not yet garnered a not-guilty verdict, a Seattle defense attorney has used it to soften up prosecutors.
The attorney, Jonathan Newcomb, said his client tried to commit "suicide by cop" and was facing life in prison because of a three-strikes-you're-out law. Prosecutors agreed to the use of fetal alcohol spectrum disorder as a contributing cause of the man's crime because they felt the sentence outweighed the crime.
Newcomb said images from a brain scan of his client that showed a dramatically withered corpus callosum were key.
"Anybody who has a brain deformity like that, you have to think there's something screwy upstairs, even if you don't know what it is," he said.
Mills says his attorney, state-appointed defense lawyer Peter Thompson, showed a scan of Mills' brain to jurors, but didn't ask one of his expert witnesses, Fred Bookstein of the University of Washington's fetal alcohol unit, to explain the difference between an image of Mills' brain and a normal brain. It was a missed opportunity. Bookstein is an expert in using brain scans to identify fetal alcohol brain damage.
Thompson didn't return a phone call seeking comment on the trial. (After publication Thompson said that Bookstein did explain the differences between Mills' brain and a normal brain.)
Winstrom says Mills' mental health care may be somewhat better in the state prison system than it was in jail because the state has more resources at its disposal than counties. He calls that a "sad commentary" on the jails, since the state system is under federal scrutiny for providing inadequate mental health care.
But, he added, "There's a high probability that because of behaviors associated with his mental illness, Tyler will spend great amounts of time in the hole."
Mills freely admits that he committed the crime that he was convicted of.
In fact, he says, he can't understand why the jury didn't convict him of the second charge, attempted sexual assault of a child.
"It doesn't make sense," he said. "I did it. They had me dead to rights."
It's a candor that's disquieting, delivered with a breezy tone of voice that seems to suggest little understanding of the conviction that would carry such profound implications for his future.
But in another instant his disappointment emerges.
Had he been found not guilty by reason of mental defect, he had hoped to eventually be released to the custody of Westbrook farms near Duluth, Minn., a fetal alcohol disorder treatment program where he was offered a chance to live with others who suffer from the same disorder.
Instead, even when he completes his prison sentence, the state will likely draw upon a long list of sex-related crimes to have him committed, possibly for the rest of his life, as a sexual predator. This is one concept Mills seems to have no problem grasping.
"I'll probably spend the rest of my life in prison."