By Tom Donaldson

In January 2020, the National Organization on Fetal Alcohol Syndrome (NOFAS) submitted an amicus curiae (friend of the court) brief to the United States Court of Appeals for the Ninth Circuit on behalf of Zane Floyd. Floyd, a former member of the U.S. Marine Corps diagnosed with a fetal alcohol spectrum disorder (FASD), was convicted of several serious crimes in Nevada in 2000 and sentenced to death. As acknowledged by the court, Floyd’s mother used alcohol and other drugs during her pregnancy and Floyd was under the influence of extreme, untreated mental and emotional disturbance when the crimes were committed.

Nearly fifty years of published research has demonstrated that FASD arises in utero and is present at birth, is a permanent and progressive disorder, and constitutes a substantial and well-documented intellectual disability. When untreated, as with Floyd, FASD manifests as profound and broad deficits in neurocognition and neurobehavior including severe and debilitating impairments in executive functioning, the neurologically based skills involving mental control and self-regulation, and adaptive behavior, the ability to manage appropriate social and personal behavior.

In its brief, NOFAS argued that although the court accepted Floyd’s prenatal alcohol exposure and FASD it improperly relied on incorrect and unsupported assumptions about the disorders. NOFAS also argued that contrary to statements in court opinions the neurodevelopmental deficits caused by FASD are different in type and severity from those associated with other developmental conditions such as attention deficit disorder, and that Floyd should be allowed an evidentiary hearing to substantiate his FASD. The Ninth Circuit reviewed arguments from NOFAS, Floyd’s counsel, and other advocates and in February ruled against Floyd thus affirming his conviction and sentence.

NOFAS and other disability and legal advocates strongly assert the Ninth Circuit failed to understand FASD and therefore disregarded its significance, and that Floyd was prejudiced by the lack of testimony from an FASD expert. During its consideration of mitigating factors in Floyd’s sentencing, the court misinterpreted scientific and medical research when it declared a false equivalency between attention deficit disorder/attention deficit hyperactivity disorder (ADD/ADHD) and FASD. In so doing, the court pronounced that FASD could be no more significant or disabling than ADD/ADHD. Since the court presumes ADD/ADHD does not mitigate culpability the judges reasoned that even if Floyd’s FASD had been properly presented it would not have lessened his sentence, writing, “There is no reasonable probability that, had the jury heard from an FASD expert, it would have concluded that mitigating factors outweighed aggravating factors.”

The court also asserted that because Floyd’s defense mentioned his mother’s drinking during pregnancy, added testimony by an FASD expert likely would not have changed any juror’s balancing of mitigating versus aggravating circumstances, arguing, “For Floyd to have been prejudiced by the lack of testimony by an FASD expert, at least one juror would have had to have considered a formal FASD diagnosis more severe and debilitating than ADD/ADHD.”

It is especially troubling that a footnote in the opinion states, “Floyd’s postconviction investigator interviewed one juror who stated that evidence of a ‘serious mental illness’ would have ‘weighed heavily’ in her sentencing-phase deliberations.” However, the judges continued their faulty reasoning by responding, “It does not follow that this juror would have deemed FASD a sufficiently severe condition to mitigate Floyd’s offenses.” The arguments illustrate the Ninth Circuit’s ignorance of FASD. Compounding the panel’s unwillingness to understand the significance of FASD it attributes the same ignorance to members of the jury.

Experts describe significant differences between FASD and ADD/ADHD that refute the court’s concept of equivalency.
1. The etiology and course of the two conditions are very different. FASD has a single etiology which is prenatal exposure to the teratogen alcohol. ADHD does not have a single etiological cause but rather is etiologically multifactorial.
2. FASD has greatly increased mortality risk when compared to ADHD.
3. In most cases FASD is far more complex, severe and requires much higher levels of care when contrasted with ADHD.
4. The annual cost of care is over 10 times higher for FASD compared to ADHD.
5. The expression of the two conditions is dissimilar. FASD has a similar male to female ratio while ADHD is three times more prevalent among males.
6. While FASD is a causal factor for ADHD we have no evidence that ADHD is a causal factor for FASD.
7. ADHD is a classic developmental disorder with a trend of gradually decreasing severity across childhood and adolescence while FASD becomes more complex resulting in more adversity across the lifespan. The neurobehavioral and neurocognitive deficits become worse over time for people who have FASD.
8. Unlike ADHD, FASD is equivalent to Intellectual Disability in terms of everyday adaptive behavior. Therefore, FASD is qualitatively different and much more severe than ADHD.

Unfortunately, the Floyd case is not unusual as many offenders with FASD face broad discrimination in criminal proceedings and their disabilities are rarely considered in sentencing. More often, as in the capital case of Brandy Holmes in Louisiana, a defendant’s FASD is interpreted as an aggravating factor in sentencing because of their seemingly callous demeanor, the absence of expert testimony on their behalf, and the court’s often misunderstanding of FASD, as demonstrated in the Floyd case. In addition to criminal proceedings, children and adults with FASD also could be rejected for federal and state disability aid and services as a result of the Ninth Circuit’s endorsement of ADD/ADHD and FASD equivalence as impairments beneath the standard for criminal mitigation or eligibility for benefits programs.

If Floyd’s FASD had been undiagnosed or otherwise unknown to the court he would have been harmed during sentencing, but because the court accepted his diagnosis yet misunderstood and dismissed its significance, not only has Floyd been harmed other defendants with FASD are more likely to face the same injustice.

William Edwards, Deputy Public Defender, Los Angeles County, California, contributed to this commentary. Natalie Novick Brown, PhD, Edward Riley, PhD, and Larry Burd, PhD, contributed to the description of differences between ADD/ADHD and FASD.