....here to talk about these issues are our next panelists. I'm going to take you on a little tour this morning, a very brief tour of our home. And in order to talk about the family impact so that you really can understand it, I need my children here, and here I am. So they have some things that they wanted you to know, so I'm going to just tell you a little bit about that. You need to know a little context, and that is that my husband and I are professionals. I'm a licensed psychologist, I've been working with kids-child development, attachment, abuse and neglect-for years and years. I've been a registered nurse for 40 years. I've worked in intensive care units, I worked in the jail, I worked in emergency rooms, and I will tell you that every single experience that I have ever had in my life I have needed in order to take care of these children. We can barely make it, my husband and I can barely, barely make it, and we have more resources than anybody I know. So yesterday morning as I was getting ready to leave home, I was having breakfast with Shawn before he goes off to school, and he says, "So Mom, where it is you're going? Who's going to be there? What are you going to talk about?" And I said, "You know, Shawn" -if you're going to talk to kids with fetal alcohol you need to be concrete-so I said, "Shawn, I'm going to go talk to people about being nice to people with brain damage." "Oh, I hope there's a million people there," Shawn said. So I'm here to talk about being nice. I don't have to be the professional because we had all those other people here this morning and what they said is incredible. The other little thing that is a context piece that's important when we study child development is it's said that one of the most important pieces in assessment of the child is their ZIP code. I'm from Minnesota. We have a really good outcome going on in our family and I think that's because we live in Minnesota and we have Susan Carlson and all of the work that she has done. So I'm going to get to tell you today about a lot of things that work, and I hope that they can get replicated everywhere else. The other thing that you need to know is that there's this Benedictine spiritual philosophy called "dialectical." What that means is that opposites exist and they are both true in every situation, in every person, all of the time. As I'm going to talk about solutions, it's really critical that we get that, because we think in black and white and a lot of times we have a construct way of looking at things, and that's how we think it is and will always be. And we feel comfortable if we say there's only one right way, or that there's black and white, but that isn't true. As I talk today, you're probably going to see this horror because I'm going to tell you about that part. And then I'm going to tell you about these most incredible human beings and how we passionately love them. Both those things are true. Let me get started here. I'm going to just talk a little bit about family impact of fetal alcohol, problems and solutions. Families are essential to the development of the human person. We have a lot of evidence right now about brain development and how having a primary caregiver, having your needs met are so important. Families are important. We also need families for the whole survival of our species. So I would like to suggest that, as a society, we really need to be investing in families. They're important. So these are the three children that are still living in our home. We adopted five out of a sibling group of eight. Dawn and Shawn... Are all of them FASD? They were all fetal alcohol exposed. The ones that we raised got a diagnosis. Anyway, on the outer edge are Shawn and Dawn, they're twins, they just had their 18th birthday, and in the middle is Richard, he's 21. So my hope is that as you hear about cases or you're working on cases with clients, or all those kind of things, that you would think about these human beings. This is the face of fetal alcohol. Aren't they beautiful children? They're really beautiful children. When Dawn was 7, she went next door and was introducing herself to the neighbor and she said, "I'm half Indian, you know." And the neighbor said, "Oh, what's the other half?" And she said, "Well, human." (laughter) Anyway, remember the human part. These are humans. Families that live with fetal alcohol spectrum disorder, here's the description of us. We are fragile. We are vulnerable. We are stressed, misunderstood, blamed, criticized, rejected, and isolated. And that includes us and our family. Unbelievable but that's the truth. Everything changes for a family that is affected by fetal alcohol. We are an adoptive family. Words that kind of are with us all the time are "this is challenging," that's okay because I am up for challenge. Overwhelming is not good. Crushing, impossible. We have been brought to our knees. We often have said, "We can't do this." And we're still standing and doing pretty well, and mostly we just remember to breathe and try to get a good night's sleep, because it feels to me like if I get good sleep, I can do almost anything with help. The family experience, so you remember this, is 24 hours a day, 7 days a week, 365 days a year. It's a huge responsibility, especially when the kids aren't sleeping. We're talking 24 hours a day, or in the middle of the night they escape in the middle of Minnesota winter, they don't have the appropriate clothes on, we don't know they're gone. It's a huge responsibility. So, you know, kind of a little bit about what we've experienced. So on first meeting the kids, they were biting, clawing each other, causing bleeding. All four of them when they first came all at once were incontinent, so that was an average of 34 loads of laundry per week. We also work to make money for food, clothing, shelter. Okay, often we got no sleep, 2:00 in the morning the kids are running all over the house, they're yelling and screaming, nobody's getting any sleep. Most important thing for physical and mental health is sleep, so you can imagine what was happening to everybody. If families are going to survive, kids need to sleep so the adults can. Running into strangers' homes, just running in because they don't have any boundaries. Our kids have the adaptive function of a 1- to 3-year-old, and these are 18-year-olds, so that means that we have to do bathing, hair washing, dressing, feeding, cleanup. They can't do any of those things by themselves, those beautiful children I showed you, they can't do it by themselves. One of the-another mother said having a child with fetal alcohol is like having four children. So if I had four of them, that means I had 16 plus one, I don't know. "There was an old woman who lived in a shoe, she had so many children she didn't know what to do." That would be me. Just a symptom of what it was like, I lost 40 pounds in the first 2 months the kids were with us, and I got scared I was going to die because I wasn't dieting. The kids need 100 percent supervision and assistance for health and safety. Now, human beings do have to go to the bathroom every now and then, and then danger will occur, so you know, this is really humanly impossible. Oh yes, try to go to work? Really. It became really clear that we needed to have an adult at home at all times, so my husband and I both had to change our work, so our income went way down and that's okay, we don't need a whole lot, but sometimes it got a little scary. I am system savvy so I know how to go and knock on doors and I need this and I need that, but the paperwork in our system is unbelievable. I feel like I am a full-time CEO for an organization just trying to get the paperwork done. Often I'm up at 2:00 or 3:00 in the morning doing the paperwork so my kids can get the services that they need. It's pretty scary, I'll tell you, when your kids are leaving in the middle of the night and they're freezing and you don't even know that they're gone. In a heartbeat they become explosive, very dangerous, picking up huge oak tables to throw them through windows, ripping out clumps of hair, biting, almost amputating, and it happens in a heartbeat. Often there's no provocation. The kids really are out of their minds. I look in the eyes of these gorgeous children and they are clearly out of their minds, and I know that, so I can react with compassion, but it is scary and sometimes it is really dangerous. Okay, head banging, bleeding, the kids are bullied and threatened and rejected at school cruelly. That's tough to deal with. They have part of the nervous system called the autonomic nervous system that's supposed to control our blood pressure and our pulse and those kinds of things; in our kids that is also damaged so their blood pressure drops and they faint and collapse, and then they break bones and get head injuries and all those kinds of things happen too. They are really confused. Somebody earlier talked about how hard their brain has to work, how much more activity you see on their brain scans. And what I've always thought about my kids as I watched them trying to pay attention to what's going on, they seek to please, they want to, but they just can't, their attention is all over the place. I know that my kids' brains work 10, 20, 50 times harder than mine does to get through one day. They are exhausted and they are overwhelmed, and I need to get the stressors down, and I need to provide calm. They have command hallucinations, they cut themselves up, seizures-my daughter has had about 22,000 now so far, most times she can't get to school at all. I got a phone call at my office one day, "This is an emergency, Dawn quit breathing, she's in a helicopter on her way to Children's Hospital 3 ½ hours away." We lived in orange alert danger. There's lots of grief and loss and isolation. It's tough. Anyway, some other people have spoken about the problems, that it's invisible, that there's lack of information, the language we use makes a difference, our attitude can create calm and a good outcome or threat and then we're going to have a fight/flee response, which is going to be called aggressive behavior and a crime. When that all happens, we have destruction. When there is a physical manifestation of mental retardation, we respond with compassion and a desire to help. In fetal alcohol, often it is invisible; when the brain damage is invisible, we incorrectly assume that the behavior is purposeful and the person is blamed and punished. There is lack of information, and other people have gone through that. We've been told by professionals, "It's not a real diagnosis," that means it's not in the DSM. But anyway, when we make wrong diagnoses we apply wrong interventions. For example, Shawn had all these out-of-control behaviors at school, and so it triggered some behavior evaluation, and then there's going to be a behavior intervention plan. I say okay fine, so they do their thing. And then at the meeting, the psychologist from the school comes with the template, it's a computerized template that just says blah-blah-blah, and now we're just going to do the stop-and-think behavior mod, do what I say, do it now or there's a consequence. And I said, "You know what, that works so awesome in kids whose brains are working, but it causes the explosions in kids with brain damage." And she looked at me and she said, "You're right," and she crossed the whole thing out. So my child ends up getting treated correctly. It shouldn't have to take your mom as a psychologist in order to get good care though. So anyway. Somebody else talked about this-I put this slide up here because it's one of the most helpful things that I've had to educate everybody involved in my kids' lives, and that is when they're about 18 years old they may talk like they're a 20-year-old, and if you don't listen for very long you are going to think they know what they're talking about. But look, comprehension is age 6 years, people. You know, we don't put 6-year-olds in prison as far as I know, we don't do that. So anyway. Just briefly, it is critical the language that we use. When I say the kid has a behavior problem, then it's like the kid's bad and we've got to change the behavior, which means I have to change the child. If instead, I use the word "symptom," now I know that I have to be helpful and I have to change the environment because I can't change the person when it's about brain damage. Everybody says these kids lie. You know what? No. Somebody else here today said they confabulate, they fill in because their brains aren't working. It's the same thing that people do when they get demented. It helps my kids when I say they confabulate, they don't lie. Okay, so the solutions other people have talked about here, too. We need to have complete, accurate information. They need 100 percent supervision, people, their brains are not working, they need somebody whose brain works. We have to change the environment and that has to become pleasant and peaceful. Our goal at home is to provide comfort and joy. And we need public policy changes. So I think everything I have to say really is on pages 43 and 44 in your books. All right, thank you. (applause) Good morning. My name is Amy Gilbrough. I'm an attorney and I focus solely on Social Security cases. I'm in Seattle, Washington, and I'm here to talk to you a little bit today about the scope of my practice. What you can do for your clients who you believe may have FASD in determining whether they may be eligible for Social Security benefits. When I talk about Social Security benefits, I'm not talking about retirement benefits. Social Security is available to individuals who are disabled because of a physical or mental impairment, or a combination of those problems. So what we're talking about are individuals who meet the criteria for disability and may be eligible for benefits through the Social Security program. That can be extremely helpful for individuals with FASD because that stability may provide them with cash benefits, medical insurance. For individuals who are found disabled, they may be able to have greater access to housing, they may be provided with vocational services that will help them. So establishing Social Security doesn't mean an individual is disabled for life or will not be able to go back to work. It does open the door to benefits for them, which may really serve to move them into a more responsible and stable place as they move forward. We've heard a lot today about the types of problems that individuals with fetal alcohol syndrome spectrum disorders [sic] have, that difficulty tolerating stress and poor executive function. Those make these individuals really good candidates for establishing disability under Social Security; however, they make the Social Security process virtually impossible for these individuals to navigate without assistance. So especially for your clients or for people that you know or you suspect may have FASD or you know they've been diagnosed, it's important to get them in contact, I think, with an advocate. The National Organization for Social Security Claims Representatives has a referral service that can refer you to an attorney in your area. The number is not in my materials, but it's 1-800-431-2804. Once you get this individual connected with a representative, there's even more you can do to help us in obtaining benefits for these individuals. Judge Walker talked earlier about the fact that no one ever seems to know what anyone else is doing. There's a lot of individuals working on the case, but there's very little collaboration sometimes it seems; and from my perspective, when a client comes into my office, I rely upon them to tell me what their problems are. And oftentimes my clients won't even tell me that they're involved in the criminal justice system, they don't think to tell me that they've been diagnosed with FASD or they don't want to tell me that. Sometimes these individuals have been diagnosed with other disorders-personality disorder, bipolar disorder. If I know that FASD is in the picture, I can direct my evaluation of the case and my explanation of the case to Social Security in different ways that make more sense in the context of that person's behavior. Because what Social Security looks at is, "are these individual's limitations a reasonable extension of the diagnosis they have?" So in the Social Security context, in a lot of cases, we have to start with "what's the diagnosis and what in this person's spectrum of problems fits within that diagnosis?" Unfortunately, that's just the way they look at it. If there's no explanation for the limitations, a judge is going to leap to the conclusion that those behaviors are volitional, that they're not the result of a disability. So you can help me by letting me know that this individual, if you know that they're in contact with an attorney, advise the attorney of the diagnosis or even suspicion of FASD. Also, if you're not talking to an attorney that you know knows about FASD, now that you all know about it, tell them what types of limitations can be expected or provide them with resources to learn more about the disorder. One of the great things about being a Social Security lawyer is we're not tied to the federal rules of evidence. So I can provide a lot of things in assisting my clients that other attorneys can't provide in the criminal context. I can provide declarations from just about anybody who observes the individual. The judge will determine what type of weight can be provided. So I like to get creative in how I present my clients' problems, and anything you can tell the Social Security attorney may be helpful to them in presenting the client's case. So don't be worried that you're giving information that's not going to be admissible, because it's admissible. All right, my presentation, the materials I believe are on the flash drive you received, and I did notice that there's a big stack of copies, too, in the back of the room, so let's not let that paper go to waste. If you want to grab a couple of copies of that and take a look at it or distribute it to other folks, I'd be happy to have that happen. The rest of my presentation is going to be a little bit like skipping stones because, as an individual who has practiced Social Security for 14 years, I'm still learning just about every week something new about this process, but I'm going to try to give you a little introduction so that when you meet someone you can provide some information about Social Security and how it works. What I'm going to talk about is how to determine whether an individual is eligible. And what are the benefits available to them? And what is the process like? First of all, a diagnosis of fetal alcohol spectrum disorder is not sufficient to establish disability under Social Security. In most cases, pure diagnosis does not establish that an individual is disabled. There are a few exceptions for compassionate allowances, which include things like some cancers, ALS, somebody who's waiting for a heart transplant. But absent those discreet diagnoses, a diagnosis alone is not going to give you disability benefits. The evidence must show that the impairment or combination of impairments causes significant limitation. It's important to know that it's a combination of impairments, so when you look at an individual, all of their problems come into play in determining whether they're eligible for Social Security. Social Security doesn't just look at what are the limitations caused by FASD; if the individual also has a physical problem, if they have a hearing impairment, if they have a vision impairment, if they have some other mental health diagnosis, all these things are considered together in determining what limitations that person has. I'm going to talk first about how you can establish eligibility for children. The child's program is primarily supplemental security income, which is a needs-based program. So the first thing that Social Security will look at in determining whether a child is eligible for this program is "what is their financial situation?" They look at the income and resources of the parent and child. If the child is living with two parents, they'll consider both parents; if one parent, they'll consider one parent. It's the parent that the child lives with. There is a maximum income, so if your parent and child are earning more than the maximum income, then they cannot receive SSI. So this is a threshold finding in the case, and Social Security will conduct this analysis and they will do it correctly, this is something they get right. So just for an example, in 2009, if you had a one-parent household and one SSI potentially eligible child, the maximum income that that family could have and still receive some SSI was $2,821 a month. So it is not very much. Also, the family can't have resources, so if the family has eligible resources over $3,000, they're not eligible for SSI. So this is a program for people who are in great financial need. Oh, my goodness, I just got the 5-minute warning. Children must establish that they are disabled. Children and adults cannot be working and earning more than about $1,000 a month. That criteria goes up every day. Children must show that their impairments are very significant. This usually means that they meet what is called a listing: Social Security has a set of regulations that identify criteria for disability for different conditions. If you Google Social Security Blue Book, you'll find a list of those conditions and the criteria that fall under those. I'm going to give you an example. Organic mental disorder, listing 112.02. This would be the first place I would look to determine whether a child with FASD qualified for the program. In order to qualify, this individual must have an organic mental disorder: "abnormalities in perception, cognitive, affect, or behavior associated with dysfunction of the brain." This must be-for children under 3, this must be accompanied by functioning at half the chronological age in one of the following areas: gross or fine motor development, social function, and cognitive or communicative function. So this individual needs to be functioning at half the chronological age and have organic mental disorder in order to qualify for the program. Or they can have a two-thirds limitation-two thirds of the level of their chronological age and have a marked impairment in two of those areas. Okay? A child can also establish if they meet the eligibility requirements by establishing functional equivalence. So even if they don't meet one of those listings, if they have a marked limitation in two or more specific areas, they meet the criteria for disability. The areas that Social Security looks at are: acquiring and using information, attending or completion of tasks, interacting and relating with others, moving about, manipulating objects, caring for yourself, and health and physical wellbeing. These are all listed in my materials, and I also enclosed the childhood disability criteria form that Social Security uses to evaluate these impairments. So if a child either meets that first listing, in the list of listings, or functionally equals by having marked limitations in two areas of functioning, and has the financial criteria, they can meet SSI. I'm just about out of time. For adults, the individual cannot be working and they need to have significant physical or mental impairments that essentially either meet or equal the listing-and, again, the same types of listings apply, there are different listings for adults-or they need to not be able to perform any work that exists in significant numbers of the national economy. This is work 8 hours a day, 5 days a week, in a competitive work setting. So if you have a client that cannot work a full-time work schedule or cannot perform competitive work, they need a sheltered work setting, that doesn't count. In order to be found not disabled they need to be able to perform regular competitive work. I'm sorry I'm not going to be able to give you a lot of time with the process for Social Security, but it is a four-step process, the Social Security Administration will develop your client's case, so you just need to have them apply and have them provide all the information about who their medical providers are, where Social Security can go to get information. They should not delay in applying, the application date is the date upon-most times is tied to the date upon which benefits should begin. So there's nothing the individual should do except go to SocialSecurity.gov and file an application, or go into their local Social Security office, or call Social Security's 1-800 number to start the application process, and they should do that as soon as possible. (applause) I'm going to talk about, going back to the criminal justice panel, I'm going to talk a little bit about the reality of actually children not proceeding in court with attorneys. And then also talk a little bit about alternative justice processes and systems and see if maybe, as William said, the paradigm should be really shifted and we should perhaps learn from innovations that are occurring throughout the country, and especially in Indian Country. My office was created in March of 2010 by the Attorney General, and with the support of the President, to address the crisis in both criminal and civil legal aid. And our mission is to help the justice system efficiently deliver outcomes that are fair and accessible to all, regardless of wealth or status. And from the beginning, the issue of children proceeding in court and waiving their right to counsel has been crucial and has been something that we've really focused on, and the reason isn't because we're only looking for ways to find lawyers for individuals or trying lure up individuals, but really because out of any population in this country that really has the most likely or highest chance of being able to proceed in losing their rights and not being able to really understand how to safeguard those is children. And as a result of proceeding without a lawyer, a child might not plead to a lesser offense, might plead to a felony, and that can result in collateral consequences that could have been avoided, such as immigration consequences such as deportation, barred to military service in the future, hindering college opportunities and employment opportunities, unfortunately enhancing sentencing as adults even though that shouldn't necessarily happen, and can lead to further involvement in the criminal justice system. So if waiver is to occur, if the child is to say, "Yes, I'd like to proceed without a lawyer," it needs to be done cautiously and it needs to be done with-it must be voluntary and knowingly, and it requires a certain level of cognitive ability that we know is not really going to be found, of course, amongst the population of FASD children, but generally amongst children. So I'm going to turn just for a moment to the Supreme Court decisions that really have been focusing on, not on FASD because the courts have not been really, you know, they haven't tuned into this issue yet, and hopefully at some point some of the facts of the cases that will be presented will focus on this more directly. But since 2005, the Supreme Court has really recognized consistently that children are not adults and that they do not think as adults do. Starting in Roper v. Simmons, which held the death penalty unconstitutional for juveniles. The court noted three important differences between children and adults. One, a lack of maturity and underdeveloped sense of responsibility. Two, an increased susceptibility to negative influences and outside pressures, including peer pressure. And three, a less well-formed character. And then moving on 2 years later, the court extended this reasoning when finding that life imprisonment without parole for individuals who committed non-homicide offenses was also unconstitutional in Graham v. Florida. Because juveniles have lessened culpability, they are less deserving of the most severe punishments. And they credited scientific research that continues to show fundamental differences between juvenile and adult minds. And then last term in J.D.B. v. North Carolina, which Terence described, the court in finding that age properly informs the Miranda custody analysis, the court again noted that age is far more than a chronological fact, and stated, "We have observed that children generally are less mature and responsible than adults; they often lack the experience, perspective, and judgment to recognize and avoid choices that can be detrimental to them; and that they are more vulnerable or susceptible to outside pressures than adults." So this is an important line of reasoning that's applicable to any child's ability to reason and understand what they're doing. But, of course, now focusing on children with FASD, we already heard presentations on their limited understanding and capacity, and we heard from Dr. Brown that children with FASD are 19 times more likely to end up in the criminal justice system. So if we acknowledge and accept that the way our laws develop today, there is an agreement that children have a lessened cognitive ability than adults, then we must focus more on the idea that of this subset of individuals in our community who are unfortunately getting involved in the criminal justice system, children with FASD have even a more impaired reasoning ability. What's interesting is in preparing for this presentation I went to the cases that deal with general waiver, not Miranda-there's some good cases on Miranda and FASD, but on just the general waiver there's not a lot out there, and I asked some experts why they thought that, and there was some sense that, again, it's not being diagnosed, but also that potentially these kids are not getting caught up in the system. But it's something that we need- it's unlikely that they're not being caught up in the system, and the fact that there's this uncertainty demonstrates that there's a need for more research and understanding as to what's happening. It's interesting because there's been studies over time that say that actually children that proceed in court without attorneys might do better than children with attorneys. There's been a lot of research by Professor Barry Feld, and he's actually pointed not to the fact that attorneys per se are going to be harmful to children, but that incompetent attorneys are what's harmful to children. (laughter) So, court-appointed counsel who fear upsetting judges for fear of losing future appointments, judges who treat juveniles more formally and severely who are represented, and attorneys who don't view their role as adversarial-these are all potential reasons why there's been some of the results that have come out that, even controlling for type of offense and prior record, some children fare worse with attorneys. This is an issue that my office constantly is looking at and examining, and last year we brought together some experts to discuss this, and that also came out in our discussions on improving indigent defense generally and with respect to juveniles, that new attorneys are often assigned to the juvenile docket; there's heavy case loads, inadequate supervision, inadequate training; and of course, with respect to FASD, we'll assume there's probably very limited training on that; and that, again, attorneys cooperating with the courts rather than zealously advocating on behalf of their clients. So children with competent and trained counsel will always be far superior to children without attorneys. Then the question is, "do we need to shift how we're actually viewing all of this and consider alternative approaches for children?" Linda shared with me a story about-and I hope it's okay if I share this-that among all the children in the sibling group, a couple were not adopted, and unfortunately a couple have gone on to jail, and went on to jail before Linda's family became involved with the family. And you look and you see the lives of two brothers: one is in jail, and one-through the support and care of a loving family who can access resources and a system that's willing to understand and work with children who have this disability-it'll be a different outcome. So, really, the difference in that instance isn't the person, it isn't the child necessarily or the conduct they're doing, it's the reaction around that person and that individual. Going, once again, to the court's decision in Graham, I just wanted to note the court pointed out to the four penological justifications for incarcerating individuals, and said those are different from adults, so that helps to support the notion that children shouldn't be sentenced the way adults are. But it's interesting because those justifications- retribution, deterrence, incapacitation, and rehabilitation-they won't even be the same for children who have FASD. For example, incapacitation the court said was muted by a juvenile's ability to reform in the Graham case, so therefore it was okay to say the kid will reform in the future. But if a child with FASD, as we've been hearing from the medical experts, they're not going to necessarily change their behavior because of brain damage; then, generally speaking, the way that the court is reasoning, while it's not incorrect, it's going to be difficult to be applied to a situation where the child is diagnosed or not diagnosed but has FASD. So again, alternative models are important and Indian tribes are really leading the way here. And, of course, it's particularly relevant to discuss Native American communities in a program on FASD because, although we don't have great statistics, we do know that the Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, SAMHSA, they reported that amongst some tribes the rates of children born with FASD can be as high as 1 ½ to 2 ½ per 1,000 live births, as compared with 0.2 to 1 per 1,000. I'm sorry I don't have slides, but that would have been a very effective slide. So 1.5 to 2.5, as compared with 0.2 to 1-so drastically different, drastically a much greater problem in some Native American communities. And in dealing with FASD generally, not just in the criminal justice arena, SAMHSA calls for interventions that incorporate tribal practices; combining mainstream strategies with traditional elements such as talking circles and ceremonies; addressing alcohol issues that occur within a family to break the cycle of alcohol abuse; and to incorporate collaborative, holistic approaches both at home and for people with FASD. So turning to criminal justice, the way that we'll talk often about the traditional processes is the notion of restorative justice, and that's not a recent fad but it's kind of a new way to discuss all these issues. But, of course, for indigenous communities such as Native American communities in this country, as well as Aboriginal communities in Canada and indigenous communities across the country, that's not a new thing. That's traditional processes that are more focused on holistic healing and trying to create a sense of community or trying to pair up the community to really create a sense of healing around a certain grievance that's occurred. The National Institute of Justice at the Department of Justice, about a decade ago, held a series of convenings to try to discuss and define restorative justice. The U.N. Economic and Social Council also has basic principles on restorative justice which attempts to define it. But there's no one definition. But what we know is that, again, the victim and community are essential, communication is key, there's holistic approaches, there's healing. These are all kind of key terms when people talk about this approach. And the positives will be that the victims at the center of reparations can be culturally sensitive; negatives can be that revictimization is possible; and, of course, on the defender side, due process considerations are strong in that offenders are not necessarily protecting all of their rights when they go through these processes. But in any case, carefully constructed, they can be far more satisfying than just the normal justice system. So I'll give a few examples that we've been learning and following. And I should note that 2 years ago the Tribal Law and Order Act was signed into law by the President, and it requires that the Department of Justice and the Department of Interior's Bureau of Indian Affairs help the tribes have greater guidance on alternative sentencing practices. And which really means learning from the tribes around the country and collecting that information and having it more readily available. So my office is continually doing this sort of thing and, again, unfortunately my contact information is not there but I would love anyone to contact me if they have examples of these sorts of processes in their communities that could be applicable, especially with a tilt that's related to FASD. So in any case, there's sentencing circles where individuals come together, there's usually a mediator rather than any sort of court personnel, and the victim and the offender are present with the family to discuss the problems and the grievances that occurred. There's some concerns, again, on due process and there's been some good studies that have occurred on these sentencing circles in Canada and Australia. And I'll refer you to the CLE materials, there's an excerpt from a report that we prepared that-actually the whole entire report is available on the Access to Justice website-but in any case, the excerpt that's in the materials, you'll see the studies referenced there. Also, we know from Washington State that-and actually Professor Ron Whitener from the University of Washington School of Law is here from the Native American Law Center, and this is some great information that he's shared with us-that there are elder panels where children who are engaging in delinquent behavior are called before to learn and speak with their elders, and there's some great innovations where they've been required to carve out their genealogy and understand how they're connected with the community to have a better sense as to how their behavior impacts the rest of the community. And then turning to Canada, which I know we're going to hear about in just a minute, and that is there's the Gladue Courts, which are these indigenous courts that are-really take the approach of having a comprehensive investigative report through social workers who tend to be from the community but may not be, who will go in and write up a case history. And again with the tremendous advances that Canada has done on FASD, we know that the Gladue Court workers in Toronto include references to whether or not FASD is evident. They don't have a formal diagnosis, but they at least include that in the writeup such that when there is a plan as to what to do next, it's taken into consideration and that's included there. So I'm going to stop here and just note that this is the beginning of a wonderful effort to try to really see what we can do in terms of training individuals to understand this, and we really look to the ABA to lead on this issue and would like to learn more about the resolution. Thank you. (applause) Where the border of your country and mine meet the Pacific Ocean at the 49th parallel there stands a huge, white monument on which are inscribed the words, "Children of a common mother." Our two countries, Canada and the United States, have very much in common: the English language, and in New Orleans, I have to say, "et en fran¨ais;" the federal system; and, of course, the common law. Last summer, when the American Bar Association met in Toronto, and when I was still the President of the Canadian Bar Association, I was pleased to sign a memorandum of understanding with my friend, Steve Zack, who was then the ABA President, committing our two associations to work more closely together on matters of common interest. And so I am very pleased to be here to join with you today in order to continue one of the areas in which we might work together. And I want to tell you about a resolution that's on the screen, that is what I refer to as the "Canadian Bar Association Resolution on FASD and the Criminal Justice System." Let me start by saying very clearly that I am not an expert on FASD and I'm not an expert on criminal law, but it was my privilege to serve as President of the Canadian Bar Association and to start my term at the time that this resolution was adopted. Now, in spite of the fact that our two countries have much in common, I also wanted to acknowledge that we have differences, and that what worked for the Canadian Bar Association and for Canada may not work for the ABA and the United States. So I want to tell you about this resolution a few things. "Where did it come from?" "What does it say?" There are paper copies, I think, at the back that include the background recitals that provide context for this resolution. You have this part of it. And also, "What has the response been?" So where did it come from? From my perspective, it all started with a recognition by people on the front lines-by prosecutors, defense counsel, judges-that the justice system wasn't working for individuals with FASD or for the communities in which they lived. We recognize that people with FASD come into frequent and repeated contact with the justice system. We see them in court more often than the general Canadian population. Too often they start as children in care; progress to become youths in the juvenile justice system; then enter the adult criminal justice system; and, as they have children, as has been mentioned today, too often they go back to the child protection system where their children are taken into care. So we started to ask. We said why is this happening? We came to realize that our criminal justice system has some fundamental problems when it comes to dealing with individuals with FASD. You see, our criminal law is based on certain assumptions. I'm sure yours is, too. The Canadian criminal law assumes that individuals make informed choices-that they decide to commit crimes. That's kind of the underlying assumption. And that they learn from their own behavior and from the behavior of others. Another assumption is that individuals can be rehabilitated. But the reality is that we understand that often with individuals with FASD, these assumptions are not entirely valid because they have a brain injury. I remember it being described in the Whitehorse conference that Judge Jeffery spoke about as "a permanent, organic brain injury," and those words have stuck in my mind. Those individuals often lack impulse control. Even if they know something is wrong, they may not be able to resist the impulse to do it, so therefore, jail sentence isn't necessarily going to work. It doesn't deter and it's not going to rehabilitate, and it certainly is not going to keep individuals from reoffending. So sending someone to jail, yes, it'll give them structure, it will often let them function better for a period of time, but it's not going to rehabilitate them and it certainly won't cure them of FASD. And when they get out-and almost everybody gets out- they're at high risk of reoffending. We recognize that in Canada too many individuals with FASD are caught in a revolving door serving a life sentence in 30 day installments. Put simply, we concluded that what we were doing was not working, and that there's no justice in labeling someone a criminal simply because their disability makes them incapable of meeting the standard of behavior required by the law. So in August of 2010, we persuaded our council-the equivalent of the ABA House of Delegates-to adopt this resolution. The CBA resolution was a call for action heard far and wide. It was a call amplified by unexpected media attention and reporting on the resolution and the disability. Canada's Justice Minister spoke at our meeting 2 days after we passed the resolution. His officials, I'm sure, briefed him fully on our resolution, but he responded to a question, and when he responded he said-and we were surprised-he said, "FASD is a huge problem in the justice system, huge problem." Those were his words, not mine. He put the issue on the agenda for a meeting of federal provincial and territorial justice ministers a few months later, which he had committed to do in response to the question. Those ministers in October of 2010 went on record and affirmed their, and I quote, "strong commitment to dealing with this issue," which incidentally they just reaffirmed the week before last when they met again. And the ministers invited the Canadian Bar Association to engage in a dialogue with them on these issues. As a result, our CBA experts- lawyers who are knowledgeable in the issues of FASD-met with a committee of senior officials from government to begin the dialog. They've started the work; they obviously have more to do, but together they've identified a number of recommendations, and I'm going to touch on three of what I think are the most important. Number one is education. The success of any program for dealing with FASD, offenders will depend on judges and lawyers being more aware of FASD. Training on FASD must be incorporated into legal education and police curricula, and all justice professionals should be provided with training and resources so they understand FASD, what it is, what it does to people, what they can do about it, and what they can't do about it. So we've started it. Last spring, the Canadian Bar Association had an online CLE program, the first one we've ever done dealing with FASD in the justice system. We produce a national magazine every year and with independent editorial control, the cover story, "A Different Kind of Justice," is the story about FASD and the justice system and the lives and experiences of individuals who are involved. And more work is being done. The second recommendation- sentencing alternatives. There's a need to define, develop, and implement sentencing alternatives for judges who are currently frustrated. I recall in my capacity as President speaking to the heads of Canadian provincial court judges, which are at the trial level, and at the end of our discussion of this issue their spokesman said, and I'll always remember, he said, "We are acutely aware of the problems." "Acutely aware"-they see it day to day. If the alternatives to incarceration are unconditional or unstructured release when people have finished their sentence, we will have failed in our duty both to the public and to the individuals with FASD. I've heard people say that individuals with FASD need an external brain. We've talked about that a little bit here, but if we don't have options in the community that the justice system can apply to provide that external brain, then judges and lawyers are not going to be able to fashion appropriate sentences. We need community-based structured solutions. The third area of recommendations is diagnosis and assessments. Yes, there are protocols, but how do judges and lawyers get that information before the courts? In Canada, we don't really have a system for ordering and funding assessments to generate the information the judges need in order to fashion sentences that will accommodate the particular disability we're talking about. So ladies and gentlemen, let me conclude with one final observation. I guess it's personal in some ways. As we know, FASD is totally preventable, and for me that's both the saddest thing and, in some ways, the most hopeful thing about it. And I'm so pleased to be here with you today and it's the reality that we're dealing with that encourages me to be part of what you're doing here today. I want to thank you for having me. I wish you good luck in your discussions. So thank you very much, and as we say in French, merci beaucoup. (applause) I get to wrap up with talking about the ABA resolution on the next six slides. I want to start by publicly acknowledging, if you'll turn to page 5 of your materials, both our outside cosponsors who made the breakfast possible with your generous donations, and our ABA cosponsors, and you'll see a number of ABA entities here and I think this is important because each of them, I hope, are making a commitment to follow through on helping address this issue, so we will be going back to these groups about further steps including online CLE. I also want to thank the Journal of Psychiatry and Law for making two special issues of that journal on FASD available to you and giving the permissions for that. It's a wealth-many of the articles or a number of the articles are written by the faculty and really very, very important scholarly works, and you're just very fortunate to have those two issues available to you. Let me give you a bit of background on this resolution. The principal ABA sponsor, both of this program and of the resolution, will be the Commission on Youth at Risk, which was established in 2006. Many of you met Garry Bevel, who handled the CLE. He's the Staff Director. Since then, the commission has sponsored 19 policy resolutions in support of improved federal and state laws, policies and laureate practices which also urge lawyers as well as state and local bar associations across the country to become better educated on critical child and youth issues. You actually have either on the table here or on the table outside a text of those 19 policy resolutions. We've also reached out through our policies to law schools as key players to help educate the next generation of lawyers on a range of socially relevant topics. Now, the draft of the resolution is on page 47 of your program; and as you can see, as with the Canadian Bar resolution, enhanced awareness is our first priority in this resolution. And also, and this is a key theme, in many of our policies we call for interdisciplinary collaboration; that is essential to any work on this issue and why today this program was conceived as necessitating interdisciplinary expertise. We invited many FASD experts, including many involved with today's programs, to help us draft and revise this resolution, and we'll be continuing to seek input from those experts and others of you who are in this room. As we speak, law students at Hofstra Law School in New York, under the leadership of Laura Damiano. Laura, would you stand? Laura is the student who is working on the background report for this resolution with all of the research and citations that will back up this resolution. They are working to have ample references to support the principles in this. And then the policy resolution and report, which must be completed by April, will be presented to the ABA House of Delegates at its annual meeting in August, which will be in Chicago. Now, going back to the slides here, as with many other ABA resolutions, we call, as you see, for improving legal representation and other advocacy, which we hope will be one outcome of today's program. We really want lawyers to know how to get help on this issue, particularly those lawyers who weren't able to come to this program today. So we have a website that- first of all, you have in your table of contents, you have an outline of what's on our website, and our web address is on page 4. The ABA does have an FASD web page through the Center on Children and the Law. But we're also calling for something that Kay Kelly, who I want to introduce in a moment, director of the FASD Legal Issues Resource Center at the University of Washington, has been working on for many years, and that is the identification of FASD experts across the country. We've already heard from people who ask questions about the need for resources, the need for local resources. Who can be helpful to attorneys seeking to have children or adults screened and assessed for FASD? Well, there's a handout in the materials and on the back table from Kay about what her program offers, and I want Kay to come up and just say a few words about how she can be helpful to you and your legal colleagues around the country in connection with these issues. Thanks to Howard. Thanks to everybody here for being here. It's just terrific. I have a Legal Issues Resource Center, it's at the University of Washington, and I've been doing this for 10 years, working with attorneys and with judges and with those parents who are baffled by the system and what they need to do, and I can be helpful to you too. I am-when you have questions after this is over and you go back to your cases-I am there to answer your phone call or your e-mail or whatever you want to contact me. There's all these options for contact that you see in the handout that's in your materials. And there's one thing about this-these cases raise more questions than you could possibly raise with a case of another kind, so you really need somebody to just talk with pro bono and help you to do it. So let me help. (applause) As you can see, we asserted that persons with a disability of FASD have been over-represented in child and adult cases. One study from Canada found that over 80 percent of children and adolescents with FASD are or have been in foster care, and the Child Welfare League of Canada estimated 50 percent of children in Alberta's foster care system had FAS. One Canadian study found that youth with FASD were 10 times more likely to be imprisoned than nonaffected youth. I don't know of any reported court decision stating that FASD is a defense to an unlawful act, but experts do believe, as do informed judges, that it should be a mitigating factor in sentencing decisions, as reflected in the language here. It's also important for the ABA to speak out on enhancing early intervention, including appropriate treatment that can help reduce the effects of FASD on the individuals' families and society, because prenatal alcohol exposure on unborn children is a very serious global issue and we need laws and policies to reflect this serious concern, which is why you see what's on the slide here. One of the first things we can do is help assure that those children and adults who have this condition fall within the legal definitions of developmental disability so they can receive those government benefits available to those with other severe impediments. Billy Edwards talked about this during his presentation, and I think it's also implied that we need something more specific in terms of definitions to help with the SSI disability issue as well. And because of the ABA's special concern for those already disadvantaged youth who are in foster care or involved in juvenile justice systems, we're calling for special attention to those populations where children are likely already the responsibilities of state and local government agencies. Too often these children leave those systems without their disability being properly identified and a plan for their continuing to receive necessary services and benefits into their adulthood, and that's inexcusable when we, the government, are taking responsibility for these children. Our current policy draft also says we must enhance how we identify those with FASD and then intervene to help them at the same time. There's recognition here that family members and other caregivers, as we heard so eloquently from Linda, those caregivers of those with FASD need to get the support for the heroic work they're doing to aiding their minor and adult children who have this condition. Over the years, my work on issues related to child victims of crime, as I recognized, as does this resolution, that children with disabilities are especially vulnerable to abuse and neglect, including sexual assaults, and we've called attention to this here in encouraging victims service providers to target attention to this group of children. And then finally, I was privileged this summer to participate in a meeting about the implementation of the provision in the first bullet here-a new provision of the federal Child Abuse Prevention and Treatment Act, known as CAPTA, that requires doctors, nurses and hospitals, upon making an FASD diagnosis, to make a referral to a child protection agency, not as a report-and this is very important-not as a report of abuse and neglect, but rather for a proper assessment and family support plan that would assure that the alcohol-impacted infant has what the law calls "a plan for safe care." And also, Peggy Walker mentioned the Part C part of IDEA. This law CAPTA, Child Abuse Prevention and Treatment Act, also requires for every substantiated-child who's been substantiated for abuse and neglect, that there be a Part C referral for an evaluation. That's very widely not implemented. And finally, it would be irresponsible of us if we didn't include in the policy the importance of prevention and increasing public awareness of the importance of preventing alcohol-related birth disorders, thus you see the language in the second bullet. And before I sit down, and we can go over 12:30 if there are questions, I just want to mention for those of you who are interested in some other CLE today on juvenile justice issues, there's a program at 1:00 over at the Royal Sonesta called "Court Caught in the Crosshairs: Crossover Dual Jurisdiction and Multi-system Youth." And then back here, right down the hall at 3:30, a program called "The Legal Lives of Girls in the Juvenile Justice System." We're cosponsoring those two programs, we're not the lead, but they're both CLE programs and they're both today, so you have opportunity for two more programs if you wish. Thank you very much. (applause)