Court Cases by South Dakota

State v. Bonner
577 N.W. 2d 575, 1998 S.D. 30 (1998)
Diagnosis and Symptoms

This opinion contains two detailed and useful descriptions of FAS/FAE.

"Fetal Alcohol Syndrome (FAS) is a pattern of mental and physical defects which develop in some unborn babies when the mother ingests alcohol during pregnancy. Those born with FAS may be seriously handicapped and require a lifetime of special care. Impairments include physical birth defects including mental retardation, growth deficiencies, central nervous system dysfunction, craniofacial abnormalities and behavioral maladjustments. Fetal Alcohol Effect (FAE) is a less severe set of the same symptoms. Experts are not in full agreement on the precise distinctions between FAS and FAE. However, behavioral problems of FAE children can be as severe as those of FAS children. FAS/FAE produces irreversible physical, mental and emotional deficits. Many children with FAS/FAE are not able to understand cause and effect relationships and long-term consequences. In 1991, the Journal of the American Medical Association reported that FAS is the leading known cause of mental retardation. At least 5,000 infants are born each year with FAS, or approximately one of every 750 live births. thirty to forty percent of babies whose mothers drink heavily throughout pregnancy have the syndrome. source: United States Department of Health and Human Services"

577 N.W. 2d at 577 n. 1. It is not correct to say that FAE is a "less severe" version of the FAS symptoms. Some FAS symptoms (by definition) are entirely absent (i.e. certain characteristic facial features), but other primary and secondary disabilities may be the same or worse.

"People with FAE lack bonding and social skills, frequently use poor judgment, lack a conscious awareness of maintaining peer relationships, tend to relate better to adults, lack self-esteem, school performance is low, frequently seek attention inappropriately, lack in attention span Development, often act impulsively, tend to be followers, tend to be weak in verbal and auditory learning, and tend to get into social and legal problems due to these deficits."

577 N.W. 2d at 577.


Excessiveness and Inequality of Sentencing

Bonner was one of three young men convicted of a minor burglary, involving the theft of some CDs, cash, and two necklaces. The good stolen appear to have been worth less than $100. 577 N.W. 2d at 582. The other defendants (whom, so far as the opinion reflects, did not have FAS) received sentences of a $750 fine and 160 or 180 days in jail with work release. Bonner, who was 19 and pled guilty, was sentenced to 15 years in prison. He had not prior felony record, and only a few lesser misdemeanors. 577 N.W. 2d at 657.

The South Dakota Supreme Court concluded that the sentence was "grossly out of proportion to the severity of the crime." 577 N.W. 2d at 581. It based its decision on the sentences of the co-defendants, the lack of a serious prior record, and the absence of any violence in the crime.

This may be a case in which an FAS/FAE defendant who went along with a crime involving more sophisticated offenders got the heavy sentence, while the other offenders got off fairly easily. That is certainly a pattern seen in other cases.

Limited Mental Capacity

Bonner's attorney argued that the burglary sentence was excessive because of Bonner's "limited intellectual capacity." 577 N.W. 2d at 581. (It is unclear whether the attorney raised only Bonner's low IQ, or whether this is just an infelicitous turn of phrase in the court's opinion). The court explained that such limitations were not usually a defense, but were relevant to culpability and thus to sentencing.

"People with mental retardation can be held accountable for criminal acts they commit.   Penry v. Lynaugh, 492 U.S. 302 . . . (1989) . . . . On the other hand,
It is clear that mental retardation has long been regarded as a factor that may diminish an individual's culpability for a criminal act . . . .
Lynbaugh, 492 U.S. at 337."

577 N.W. 2d at 581.

Need for Treatment

Bonner's attorney also objected to the sentence on the ground that Bonner needed treatment that could not be obtained in prison.

"Bonner's counsel and a clinical social worker argued at sentencing that the penal system did not lend itself to Bonner's mental disability. They urged the court to give Bonner a suspended imposition of sentence and place him on probation for ten to fifteen years to give him a chance to enter the Black Hills Workshop (an institution serving the developmentally disabled) where, in five to ten years, he will 'probably function fairly independently.'"

577 N.W. 2d at 581. The court did not address this argument.

Rape Sentence

Bonner also received a 15 year sentence for sexual relations with the 14 year old girl who had persuaded him to come to her hometown for the express purpose of being her boyfriend. In upholding that sentence, the court did not engage in any of the analysis which was used with regard to the burglary sentence. For example, with regard to the burglary sentence, the court stressed that the maximum sentence should be reserved for the most serious combinations of offense and background of the offender. 577 N.W. 2d at 582. But in upholding the maximum sentence possible for the sexual contact charge, the court did not assert that the offense or background were unusually serious, but noted only that "[t]here   may be  legitimate and compelling reasons . . . why a sentencing court might believe the maximum sentence appropriate." 577 N.W. 2d at 582-83 (Emphasis added).

Prior Record

This appears to be a classic case in which an individual with FAS/FAE repeatedly got in trouble with the law, but too little was done to frame sentences that would provide him with treatment and structure until he got into very serious trouble.

"As a juvenile, Bonner was in recurrent trouble with law enforcement in Wyoming who described his violations, though petty, as 'atrocious.' The authorities were happy to see him move out of Wyoming and dismissed pending matters against him. In south Dakota, Bonner's troublesome behaviors continued. While still a juvenile, he was placed on formal indefinite probation twice for first degree petty theft and disturbance of school. He admitted a delinquency petition charging him with threatening or harassing telephone calls. Yet, until the incidents involved in this case, Bonner's entire adult record consisted of first degree petty theft, lighting fireworks within city limits, and no driver's license."

577 N.W. 2d at 577.

The trial judge who imposed the 15 year sentence for a $100 burglary saw in this history not a failure of the criminal justice system, but proof that Bonner was a dangerous career criminal.

"At sentencing, the trial court discussed Bonner's limited intellectual capacity, prior juvenile record which it viewed as 'not good,' the crimes which showed 'little if any respect for other people and other people's property,' as well as prior unsuccessful attempts to address Bonner's problems. The court described him as an 'absolute danger,' and explained 'at some point in time we have to decide what we are going to do with people who have a propensity to violate the law, whether they have a limited capacity to think or perform or not.' The court then concluded, 'he should be separated from society period.'"

577 N.W. 2d at 580-81. This sounds like a decision to impose an exceptionally long sentence precisely because of Bonner's limited capacity, which is precisely the opposite of what the state Supreme Court indicated should be the result of such a limitation.

Sexual Offenses

Bonner had serious difficulties throughout his childhood. He received psychological counseling and was on a regimen of medication to control his behavior. At the age of 17 he finally finished ninth grade, and quit school. He had no significant work experience thereafter.

When Bonner was (apparently) 18, he met a 14 year old girl from another town who told him she was 17. After the girl returned home, she called him every day for a week urging him to come to her town so that they could be boyfriend and girlfriend. "Enraptured, Bonner hastily borrowed money from a friend for a bus ticket," 577 N.W. 2d at 577, and traveled to the girl's town. There he stopped taking his medication, and spent several weeks drinking and partying. During this period he allegedly had sexual intercourse on two occasions with the girl in question.

The police also investigated Bonner with regard to possible sexual contacts with four other girls. There was a rape charge filed with regard to a 13 year old girl, but the only facts in the record consisted of a statement by the girls denying any sexual contact other than a few "hickeys." 577 N.W. 2d at 578.

Police Practices

After Bonner had purchased the bus ticket for the ill fated trip to the girl's hometown, his father attempted to prevent him from leaving.

"At the terminal, his father begged him not to go--he even tried to physically prevent him from leaving--but local law enforcement officers intervened, allowing Bonner to board the bus because he was an adult."

577 N.W. 2d at 577. So far as appears from the record, nothing was done to alert police in the town to which Bonner was headed. It also appears, despite the three prior minor adult offenses, that Bonner was not on probation and therefore not subject to the control of a probation official in these circumstances.

In sum, when he arrived at the bus terminal, Bonner was a disabled and disturbed young man with a long history of minor offenses who was clearly headed for more serious trouble. When his father attempted to intervene, the police responded by facilitating Bonner's departure--and the offenses that inevitably followed. Although it is unclear how much police knew at the time, the events in this case illustrate how police understanding of FAS/FAE could be important in preventing criminal offenses.

Laws v. South Dakota Dept. of Social Services
598 N.W. 2d 554 (S.D. 1999)

Eli was adopted by Ms. Laws (and her then husband) in 1998. The DSS determined that Eli was a special needs child, and DSS agreed with the parents to pay a monthly subsidy of $157. In 1990 the parents learned that Eli's problems were worse than had been known earlier, and negotiated an increase in the subsidy to $187.55, and later to $370.45.

The initial determination that Eli was a special needs child was based on several factors, including "prenatal exposure to alcohol." N. 2. He was later "diagnosed with fetal alcohol exposure." N. 6.

After the level of the monthly subsidy had been raised, Ms. Law sued to obtain retroactive reimbursement at the new, higher rate. The court held that state law did not authorize such retroactive payments. (**9).