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Court, Alaskans Judging FASD Differently

By Austin Baird, Political, Rural Reporter, abaird@ktuu.com
Published On: Nov 20 2013 12:50:00 PM AKST

Reporter Austin Baird and Photographer Scotty Smith travel to Barrow where a judge is changing the way defendants with FASD are treated. 

WASILLA -

Stay on the pavement for five miles – until the road ends – then follow the purple signs to the home on a hill along the edge of a stream that flows even in the depths of winter.

Rozann Kimpton has repeated those directions many times since she moved to a 75-acre property north of Wasilla about a decade ago.

“If you just follow the GPS, you’ll get somewhere—not here,” she said. “Stick with it. It seems like a long way if you haven’t been out here before.”

Kimpton first moved to Alaska from Washington shortly after statehood, and though she has made her way from Anchorage to here, nowhere Outside  has been home.

“This is it,” she said.

Her hair has turned gray, and life carries on without her longtime husband, but she remains full of energy and is busier than many people half her age: She raises two of her great-grandchildren. The point in life where Kimpton has arrived in many ways is tied to her decision decades ago to follow the advice of someone with authority, a professional who seemed to know what they were talking about.

Like many women of her generation, Kimpton's doctors advised her to drink alcohol to strengthen the blood and to avoid stress while she was pregnant.

“At least one glass of red wine every night,” she said. “Two would be better. Now in order to make sure the milk came in good, I needed to be drinking a beer.”

Kimpton’s youngest son is one of many Alaskans living with the effects of prenatal alcohol consumption.

New knowledge about fetal alcohol spectrum disorders has led not only to new advice for women on drinking during pregnancy but also to a new approach in one Alaska court to defendants coping with its effects.

Getting this far took a process.

Rozann Kimpton of Wasilla

A ‘REAL’ PROBLEM                      

"It may not sound like much, but at least now they have a name for it," Kimpton said.

While FASD has a single name, the spectrum of disorders can mean a lot of different things.

Some FASD victims have a series of distinguishable facial features. According to the Mayo Clinic, the tell-tale signs: a thin upper lip, small eyes, a short nose and the skin between the mouth and nose is absolutely flat.

But not everyone affected bears physical signs.

Some simply struggle with a combination of problems with impulse control, short-term memory, attention span and a lack of understanding of cause and effect.

In the early years, people assumed Kimpton’s son was lazy, stubborn, stupid, something like that, or maybe he was not getting enough direction at home, or maybe the direction at home was too harsh.

"Judgment," she said. "Now, I know there are some things he just can’t do, that he learns differently,” she said.

Dime

Doctors are decades removed from recommending alcohol use during pregnancy, but they only recently realized that damage can occur when a fetus is little more than a cluster of cells.

Imagine a dime, but not an entire dime, just Franklin D. Roosevelt’s ear on that dime. When an unborn child is that size, physical defects and brain damage that underlies behavioral problems can occur – long before a woman realizes she is pregnant.

Alcohol and sex often go together, in that order, so women today unknowingly cause damage to their children.

“The college life, the norm is binging on the weekends,” said Trish Smith, an FASD prevention specialist at Volunteers for America. “With that binging, it's not uncommon to have a lot of people having unprotected sex."

JUSTICE CONCERNS

Exact numbers are difficult to measure, but a University of Washington study estimates 35 percent of people with FASD end up incarcerated at sometime in their life.

Judge Michael Jeffery is among those left with the constant, endless flow of defendants affected by FASD who end up in the justice system. Jeffery has been at the helm of the Alaska Superior Court in Barrow since 1982.

He explained why the problem is so difficult to manage from his perspective: “Some people who appear in front of me are obviously impaired, and everybody can relate to that,” he said. "But not everyone."

What about people with subtler, but still pronounced, effects from fetal alcohol damage?

When a defendant with cognitive impairments is in a moment that could be life-defining, how can a judge be sure – absolutely certain – that a defendant comprehends the proceedings?

Who should bear the burden of making sure a defendant understands?

Those are some of the questions Jeffery grapples with, and he is among those trying to come up with solutions: “Realizing that this problem can exist, there’s a different way of doing business that I simply have to do,” he said.

A DIFFERENT APPROACH

Barrow Superior Court Judge Michael Jeffery

A young man from Barrow violated the terms of his probationary release from jail on a felony conviction, and he landed in Judge Jeffery’s courtroom in late October.

The purpose of the hearing was to figure out whether a defendant should go back to jail, permanently add the felony conviction to his record, or if he should remain out of custody.

By all accounts – of the defense lawyer, prosecutor and probation officer – the young man’s mistake was a one-time slip-up after months of progress in turning his life around. The mistake was drinking against court orders.

Similar hearings open and close many times every day across the state, but the approach in Barrow is different: Jeffery spends time explaining what is happening in plain words.

In court, the man struggled to keep his thoughts collected and to stick with the flow of what was going on.

“I had a thought in my mind, but I kind of forgot it already,” he told the judge.

“It’s OK,” Jeffery said. “Do you want to take a break and check in with your attorney a little bit?”

A defendant in the young man’s situation has a constitutional right to confront witnesses against him, and there is a compulsory process for obtaining witnesses in his favor and the assistance of counsel for his defense. Those are some of the ways judges would usually describe his position, but Jeffery explained it differently.

“You guys could bring in more people to talk,” Jeffery said. “You don’t have to say anything, you can keep quiet, but if you want to talk and give your side of stuff, you can.”

Jeffery also checked in along the way, asking, “Do you understand what I’ve gone through so far?”

“Yes,” the man responded.

Instead of handing down a harsh punishment like incarceration, Jeffery followed the recommendation of the lawyers and probation officer Terri Telkamp: put the young man in treatment, and require community service.

"It's so impressive, what officer Telkamp was saying, that when she looked in your book bag she saw your homework and stuff in there, which is just great," he said.

The court forms used in similar hearings are also different: simpler phrases, more white space and the judge walks defendants through step by step to make sure everything is understood.

Another office in Barrow caught on and uses a similar approach.

Telkamp said she uses “plain English conditions” instead of documents used more commonly around the state, which are difficult to understand for people affected by FASD.

“The ‘legalese’ is very important to make sure the conditions are enforceable,” Telkamp said. “But putting it in the first person makes it more understandable for these folks. And this makes it very, very easy for supervisors because it’s easier to explain.”

Jeffery credits a Yukon judge and his relatively small caseload for his ability to get creative. He said logistics of expanding his efforts could prove difficult in higher-traffic courts.

“If I had to go through 60 cases in an hour, I couldn’t do this,” he said.

TIMES CHANGED...CHANGING?

As the system takes a different approach, for people with FASD and many other people, the battle remains constant.

“It’s difficult, and it doesn’t get any easier,” said Rozann Kimpton. “These things just keep repeating and repeating.”

But Kimpton remembers when lazy, stubborn and stupid were the names given to kids with prenatal alcohol damage: when there was no understanding of the effects, and even recently when there was no application of what is known.

Teaching mothers that damage happens early, improving diagnostic efforts and treatment, making sure schools and courts understand how the condition affects their work: those are some of the challenges now.

"Stick with it," Kimpton said. "I’m on the positive side, negative doesn't get you anywhere."