Fetal Alcohol Spec. Disorder As Mitigator

HB 367 would include Fetal Alcohol Spectrum Disorders (FASD) as impaired brain function under the state's existing definition of mental disease or defect. If HB 367 passed, FASD could apply as a mitigating factor in sentencing. This would allow some flexibility in sentencing for those who are affected by FASD when there is clear and convincing evidence that the defendant has an impaired brain function as defined under mental disease or defect.

HB 367 does not require a judge to use the mitigating factor and it DOES NOT automatically adjust a presumptive sentence. The defense would have to prove that the defendant's disability significantly affected the defendant's conduct and substantially impaired judgment, behavior, and capacity to recognize reality in order to apply the mitigating factor.

Evidence shows that directing people with mental illness and other brain disorders to supported services, both inside and outside of Corrections, significantly reduces the high financial and social costs associated with re-incarceration and recidivism. Felons and repeat offenders with an FASD are more likely to stop committing crimes when they are given the same supports that benefit people with mental illness and other disabilities, which can include Therapeutic Court, housing and employment assistance, case management, counseling and rehabilitation.