605 S.E.2d 740 (N.C. Ct. App. 2004)
Burt had been diagnosed with FAS, mental retardation, conduct disorder, schizo-affective disorder, major depressive disorder with psychotic features, PTSD, impulse control disorder, bipolar affective disorder, and anti-social personality disorder. She had been hospitalized for psychiatric reasons at least 20 times, and was declared mentally incompetent at the age of 18. While being housed in an acute mental health unit, Burt became very agitated and began banging her head. When she was being restrained, she spit in a Sergeant's face, who then immediately and spontaneously hit her twice in the face with a closed fist. Burt suffered injuries and was awarded compensation under the State Tort Claims Act. The Department of Corrections appealed, and the Court of Appeals affirmed the judgment.
577 N.W. 2d 575, 1998 S.D. 30 (1998)
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.
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.
577 N.W. 2d at 581.
Bonner's attorney also objected to the sentence on the ground that Bonner needed treatment that could not be obtained in prison.
577 N.W. 2d at 581. The court did not address this argument.
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).
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.
577 N.W. 2d at 577.
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.
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.
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.
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.