Fetal alcohol spectrum disorder (FASD) is a diagnostic term that describes the neurological and physical effects on individuals from prenatal exposure to alcohol. People with FASD face lifelong challenges in their daily living and need support across multiple neurodevelopmental domains, including executive function, learning and memory, emotional regulation and communication.

FASD is found where regular or heavy alcohol consumption is a feature of mainstream culture, as it is in New Zealand. Surveys conducted in New Zealand over the past decade have consistently shown a persistent pattern of maternal drinking during pregnancy.¹ A New Zealand longitudinal study found that 71% of women reported drinking before pregnancy or becoming aware of their pregnancy, 23% reported drinking during the first trimester and 13% after the first trimester.¹ Almost a third of those who reported consuming alcohol during the first trimester reported drinking four or more drinks per week.

Individuals with FASD are likely to be over-represented yet under-detected in the New Zealand prison population. The specialised health services needed to cater to the unique needs of these individuals are also limited. We summarise what is currently known about FASD in the criminal justice system and make the case for research and action in this area.

The Ministry of Health estimates one to three in every 100 live births—approximately 1,800 children annually—are affected by FASD,² but there are no robust prevalence data from population studies. The impacts and costs of FASD are likely to be significant. Easton, in 2016, estimated the annual loss to economic productivity in New Zealand due to FASD to be around NZ$200 million.³ The overall annual cost to New Zealand, including the use of services and support, is estimated at NZ$690 million: around NZ$15,000 for every individual with FASD.³ This excludes the cost of incarcerating individuals with FASD who have offended or have been unable to follow court-imposed conditions of a community-based sentence.

Across a range of jurisdictions, people with FASD have been found to be over-represented in criminal justice facilities. Empirical studies in Canada and Australia estimated the prevalence of FASD in prisons and correctional facilities to range from 10%–36%,⁴ compared to 2%–5% in the general population.⁵ Indigenous peoples are disproportionately over-represented, which is attributable to historical, political and socioeconomic determinants of health inequities and the failure by governments to implement policies aimed at preventing and mitigating alcohol-related harms.⁵ Active-case ascertainment studies have found that the prevalence of FASD is greater in indigenous corrections populations than in non-indigenous corrections populations.^6,7 Rates of incarceration are high in New Zealand compared to other OECD countries, especially for Māori, who experience imprisonment at an alarmingly high rate.⁸

All previous studies of the prevalence of FASD in criminal justice settings have taken place in settings where participants were all male or where the majority were male. However, incarceration rates for women have risen significantly in recent decades (between 2009 and 2019 there was an 15.3% increase in New Zealand, from 5.9% to 6.8%).⁹ FASD research with female prisoners is important, as these women are at higher risk of adverse pregnancy outcomes than the general population¹⁰ and, due to the association between substance use disorders and offending, are also at a higher risk of being mothers to offspring with FASD.¹¹ This information is critical for informing prevention and intervention efforts with this vulnerable population. Despite this need, no research has been undertaken in the criminal justice system on FASD and female prisoners in New Zealand.

Why are people with FASD likely to be over-represented in correctional settings? FASD may affect outcomes at all stages of the criminal justice system, from communication impairments affecting initial contact with police to difficulties participating in rehabilitative programmes due to memory impairments and social-skills deficits.¹² Similarly, adverse outcomes associated with FASD, such as cognitive impairment, substance abuse and mental health disorders, may increase vulnerability of individuals to exploitation and increase the likelihood of adverse criminal justice outcomes.¹³

Current therapeutic practices, such as drug rehabilitation programmes offered in the prisons and probation services, do not adequately account for the multiple, complex needs of individuals with FASD, leading to high rates of relapse and recidivism.^12,13 Programmes that address the neurocognitive, behavioural and support needs associated with FASD are more likely to be effective than those that do not, suggesting that supposed ‘treatment failures’ may be due to undiagnosed disability rather than intractable criminality or wilful misconduct.¹² If left untreated, individuals with FASD often have further problems when released from prison, with an increased likelihood of harm to themselves or others in the community,¹² including their family and whānau.

A diagnosis of FASD in adult prisoners is essential for their effective management in prison, for pre-release planning, for developing strategies to transition care to the community and for ensuring continuity of care for soon-to-be-released individuals. However, diagnostic services for FASD are extremely limited in New Zealand, both generally and within institutions where there is likely to be a concentration of people with FASD, such as prisons. There is also a shortage of clinicians able to diagnose FASD in New Zealand and significant financial and practical barriers to obtaining a diagnosis, including a lack of culturally responsive neuropsychological assessment tools for diagnosing FASD.

Research is urgently needed to inform action on FASD in our prisons. Without good data on the scale of the problem, appropriate assessment and intervention programmes are unlikely to be adequately resourced, and individuals with FASD and their whānau will not receive the support they need to address the many challenges in their daily lives.