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Brandy’s lead attorney noted Harvard Professor Charles Ogletree argues in a petition for a writ of certiorari to the high court that the administration of capital punishment in Louisiana violates the Eighth Amendment’s guarantee against arbitrariness in capital sentencing because the state fails to adequately review death sentences. The petition adds that the Louisiana Supreme Court did not consider Brandy’s profound develo pm ental disabilities caused by Fetal Alcohol Syndrome (FAS) as a mitigating circumstance , or assess her codefendant’s relative culpability, when conducting its required review of her death sentence.
The National Organization on Fetal Alcohol Syndrome (NOFAS) submitted a friend of the court brief arguing that Brandy’s prenatal alcohol induced brain damage and deficits in adaptive behavior and executive functioning should be seen as mitigating factors in keeping with previous court rulings.
NOFAS President Tom Donaldson, “Brandy has a hallmark case of FAS. Her mother testified that she drank throughout her pregnancy, and in fact named her daughter after her favorite drink. Brandy’s capacity to appreciate the criminality of her actions or to conform her conduct to the law is very seriously impaired.”
Neither the petition nor NOFAS argue that those with FAS should be exempt from punishment, or that an FAS diagnosis should necessarily be considered mitigating in criminal cases.
“Thirty-three states and the federal government don’t execute persons with mental retardation—16 more than only ten years ago. Evolving standards of decency place Brandy’s case squarely within the precedent established by the court and society with regard to intellectual disabilities and the ultimate punishment,” said Donaldson.
He emphasizes that NOFAS is not seeking to broaden the interpretation of the law or expand moral standards, “ Louisiana has an established basis for mitigating circumstances for defendants. If Brandy and her functional disabilities don’t meet that standard, I don’t know what does.”
This case is tragic first and foremost for the victim in this case. However, according to NOFAS Vice President Kathy Mitchell, also the birth mother of a daughter with FAS, it’s also tragic for Brandy Holmes and her mother, “Brandy was born with permanent intellectual disabilities. She was raised amid alcoholism and violence and functions like a 10 to 12-year-old. She was raped, and then removed from home at 13 because her mother wasn’t able to respond to her needs. At 15 she was sentenced to juvenile prison. She didn’t really have a chance.”
Mitchell adds, “To this day no one has successfully intervened to ensure that Brandy’s mother’s addiction is appropriately treated. Unfortunately, the stigmatization of FAS birth mothers can be overwhelming and an enormous barrier to treatment.”
Mitchell argues that Health and human service providers, educators and the criminal justice system must be trained to recognize FAS and intervene. “Sadly, our prisons are filled with people with brain damage like Brandy. We just don’t recognize that many have FAS. At some point in their lifetime, more than half of all FAS individuals will be confined to a mental health facility or will be incarcerated for a crime. Responsive systems of care are the best chance to prevent situations like Brandy’s, or better yet, women should completely abstain from alcohol when pregnant.”
Donaldson agrees that there needs to be a renewed emphasis on public health messages about the risk of alcohol during pregnancy, “It’s been nearly 35 years since we understood that alcohol is toxic to a developing baby. The Surgeon General has been advising us since 1981 to abstain from alcohol. It’s time to go beyond the myths that minimize the risk and stop playing Russian roulette when it comes to alcohol and pregnancy.”
The National Organization on Fetal Alcohol Syndrome (“NOFAS”) is a 501 (c)(3) non-profit public health advocacy organization committed to raising the awareness of the risks associated with alcohol consumption during pregnancy and supporting individuals and families living with Fetal Alcohol Syndrome (or “FAS”). NOFAS represents children and adults seeking medical, mental health, education, rehabilitative and other therapeutic services for the spectrum of effects associated with prenatal alcohol exposure.
Prenatal alcohol exposure is the leading known preventable cause of intellectual disabilities and neurobehavioral disorders in the developed world affecting as many as 40,000 newborns each year in the United States alone, more cases annually than autism or other commonly known birth defects such as Downs syndrome, cerebral palsy, cystic fibrosis, spina bifida and sudden infant death syndrome, COMBINED.
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