People v. W.
222 Mich. App. 160, 564 N.W. 2d 903 (Ct. App. 1997)

W. pled nolo contendere to several counts of unlawful sexual contact with a child.

The sentencing judge was aware that W. had FAS. At the initial sentencing hearing, W.'s defense counsel had and referred to several psychological examinations, but evidently did not actually provide the court with copies of at least some of them. The judge initially sentenced W. to 2-15 years in prison.

Thirteen days later, W.'s attorney filed a motion to alter the sentence, and this time attached the psychologist reports that had not been provided earlier. Two weeks later the trial judge granted the motion, and reduced the sentence to 90 days in jail and 5 years of probation. the judge ordered that W. spend 150 days on the "tether program" and undergo outpatient therapy. 222 Mich. App. at 182-83.

The prosecution appealed. The appellate court held that under Michigan law the trial judge had no authority to modify his original 2-15 year sentence.

This case is important, not because of this legal issue, but because it illustrates the impact at sentencing of a more detailed exposition of the significance of FAS/FAE. The trial judge concluded that that exposition warranted a far lower sentence; the appellate court did not disagree, but held only that the trial judge could not change his mind after he handed down the first sentence.

The dissenting opinion in the appellate court quoted extensively from the materials that persuaded the trial judge to impose the lower sentence (later overturned solely on procedural grounds).

Effect of Imprisonment

The materials on which the trial judge relied in reducing the sentence included in particular an affidavit from Dr. Ann Streissguth. That affidavit identified several distinct reasons why imprisonment was an inappropriate sentence.

(1) "The general objective of punishment will not be met because this individual cannot and will not intellectually connect past conduct with present consequences . . . . [I]n all probability, [he] will never have an acceptable understanding of the reasons he is incarcerated." 564 N.W. 2d at 912

(2) "Rehabilitation will be virtually impossible because if therapy is available at all, it would most likely be cognitive-type group therapy. This would almost certainly have little positive impact on Mr. W. and could actually be counterproductive. For an FAS individual, traditional group therapy generally causes additional confusion in a setting which will already be virtually impossible for him to function in." 564 N.W. 2d at 912.

(3) "Persons with FAS become targets for mental, physical, and sexual victimization within the prison population." 564 N.W. 2d at 912.

(4) Despite the FAS, "[W. has] achieved nearly unprecedented life goals such as his regular job as a dishwasher, no previous court intervention, and no observable secondary psychological problems. . . . If he survives prison, . . . the qualities which have caused him to be an example of how well FAS children can function if raised in a structured and affectionate environment, will be lost or severely minimized." 564 N.W. 2d at 912.

(5) "[I]t is very likely that he will learn and internalize deviant sexual behaviors in the prison setting. Incarcerating Mr. W. makes it much more probable that he will be a repeat sex offender than placing him back into his parents' home." 564 N.W. 2d at 912.

Sexual Offenses

There was a sharp disagreement between state probation officials about the appropriate sentence. The probation officer who actually interviewed W. recommended no prison time at all. Another more senior officer urged a sentence of 3 1/2 years, insisting that W. was a pedophile. 564 N.W. 2d at 911.

Two experts disagreed with that characterization. Dr. Streissguth concluded that the "clinical diagnosis of pedophilia is not likely to be supportable in [W.'s] case, given his level and mode of intellectual functioning." 564 N.W. 2d at 912.

Dr. Steven Miller concluded that W. did not have "sufficient emotional maturity and mental ability to be diagnosed as a pedophile." 564 N.W. 2d at 913. Both Streissguth and Miller concluded that the particular type of activity for which W. had been convicted did not support a diagnosis of pedophilia. 564 N.W. 2d at 912-13; see 564 N.W. 2d at 904-05 and n. 1 (describing conduct).

Premeditation

Dr. Miller concluded that "the organic brain damage caused by Fetal Alcohol syndrome excludes the possibility of . . . premeditation and planning." 564 N.W. 2d at 182. This would be important in a case in which an individual with FAS/FAE was charged with a crime in which premeditation was an element.