Kurt is joined by Katelyn Mullally, a PhD Candidate in Clinical Child and Adolescent Psychology at the University ofGuelph in Canada, who isresearching youth justice, legal decision-making and FASD. They discuss her research on guilty pleas and plea understanding in youth and young adults with FASD. She found that individuals with FASD had difficulty understanding the terms and consequences of guilty pleas compared to those without FASD. She also emphasises the importance of legal professionals being aware of FASD and adapting their practices to support defendants with FASD.
For more information about FASD, please go to: https://www.nofasd.org.au/
Producers: Kurt Lewis, Louise Gray and Julie Flanagan
Interviewer: Kurt Lewis
Interviewees: Katelyn Mullally
Narrator: Frances Price
The copyright is owned by NOFASD Australia.
All rights reserved – No reproduction or use of this content without written consent of Kurt Lewis and NOFASD Australia. The views expressed in this podcast are those of the interviewee. NOFASD makes every effort to ensure all content is free from judgement and stigma. NOFASD’s mission includes reducing stigma for families and individuals impacted by FASD.
Biography
Katelyn is a PhD candidate in the University of Guelph in Ontario, Canada. Katelyn’s research interests include legal decision making, understanding youth’s psycho-legal abilities, and understanding the risk factors for adverse outcomes among justice-involved youth, including youth with Fetal Alcohol Spectrum Disorder (FASD).
Transcript
Frances Prices (00:02):
How much do you know about the effects of alcohol during pregnancy? The reality may surprise you.
Alcohol exposure while in the womb can damage the brain of the developing baby, causing it to develop Fetal Alcohol Spectrum Disorder or FASD. It may lead to lifelong physical, and/or neuro-developmental impairments, such as problems with memory, attention, cause and effect reasoning, and difficulties in adapting to situations.
For such an impactful disorder it is rarely spoken about in the popular media. NOFASD Australia’s podcast series is designed to raise awareness and understanding of FASD by giving listeners an opportunity to hear from those who have the deepest understanding of the impacts of FASD. This is Pregnancy, Alcohol and FASD – The Surprising Reality.
(01:05):
In this episode our podcast host Kurt Lewis will be interviewing the winner of the “Three-Minute Thesis” prize, presented earlier this year at NOFASD’s online conference, The FASD Forum ’24. For “The Three-Minute Thesis” session, researchers were tasked with presenting a summary of their research in everyday language, explaining the aim of their research, and the implications for those living with FASD – all within the strict time-limit of just three minutes.
Quite a challenge as we’re sure you’ll agree – but one that was embraced successfully by all 12 finalists in this session – professionals from around the globe researching different aspects of this spectrum-based disorder and its impact on the daily life of those who live with this condition. Today’s interview provides the opportunity to delve more deeply into a topic of concern to many affected by FASD – that of engagement with the criminal justice system. It’s now time for me to hand over to our podcast host Kurt Lewis and to let him tell you more and to introduce his special guest.
Kurt Lewis (02:21):
Welcome, welcome to this episode of Pregnancy, Alcohol and FASD: The Surprising Reality. I’m your host, the friendly neighborhood podcaster, Kurt Lewis. Today I’m sitting down with a PhD candidate in clinical child and adolescent psychology at the University of Guelph, researching youth justice, legal decision making, and FASD. My guest is Katelyn Mullally.
Katelyn Mullally (02:49):
Thank you, Kurt. It’s nice to be here.
Kurt Lewis (02:52):
How’s it doing, Katelyn?
Katelyn Mullally (02:53):
Great. It’s the end of my workday here. I know it’s the start of your workday, but
Kurt Lewis (02:58):
Well, I’m glad…
Katelyn Mullally (02:58):
six o’clock on a nice sunny summer afternoon, so I’ll take it.
Kurt Lewis (03:02):
Well, we don’t get that at the moment. It’s winter down here, so six o’clock here. It’s all dark and brisk. I imagine summer weather you are getting all the sun.
Katelyn Mullally (03:13):
Yeah. Not to brag or anything, but it’s quite nice here, although your winters are way better than our winters.
Kurt Lewis (03:18):
Well, I do hear that our winters are like your summer.
Katelyn Mullally (03:20):
Probably pretty close. It’s what? 20 degrees there maybe?
Kurt Lewis (03:24):
Oh, 16, 16. A bit less. A bit less. Okay. So it’s not too bad.
Katelyn Mullally (03:28):
Okay.
Kurt Lewis (03:29):
Katelyn, can you recall when you first became aware of FASD, what drew you to focus on this disability in your research?
Katelyn Mullally (03:40):
Yeah, so back in 2015, I was working as a research assistant in a forensic psychiatric program close to where I am right now in Hamilton, Ontario, and I met my current supervisor there, Dr Kaitlyn McLachlan. She’s wonderful. She was working in a clinical role there, but also conducting research and her research at the time focused on the intersection of FASD and the criminal legal and forensic system. I honestly didn’t know much about FASD before then. I should also add, I know you all, you say FASD. It’s a habit. I’ll probably say F-A-S-D despite my best efforts. So I really didn’t know much about it before then. So we connected there and I learned more about her research working there and started to understand FASD better right in the intersection of FASD in the criminal legal system, and it really was this perfect blend of my interests.
(04:32):
So at the time I was thinking about applying to graduate school in clinical psychology. I really wanted to work with kids and adolescents specifically those with neurodevelopmental disabilities. I also have always been interested in the criminal legal system and forensic systems, and I always had this deep desire to better understand the system, the ways it works and the ways it doesn’t work so well. So like I said, meeting Kaitlyn and learning more about her research, I was like, wow, this is such a perfect blend of my interests. It just so happened she was going to Guelph to the University of Guelph at that time, and I followed her there and the rest is history. That was almost 10 years ago at this point,
Kurt Lewis (05:14):
And it was kind of like this progression, it sounds like, just progression of interest and you just ended up in this kind of area of your interest really.
Katelyn Mullally (05:23):
Exactly, yeah. I knew when I was looking at clinical psychology programs, I knew I wanted to find someone who was in clinical psychology, but also conducting research right, that involved some forensic or criminal legal system component. And the timing was beautiful in that Kaitlyn was just starting in this position as well at the University of Guelph and was an hour from where I was living at the time. It was like, yeah, the stars sort of aligned to set me on this trajectory and I’ve loved it ever since. I’ve loved this work.
Kurt Lewis (05:55):
You recently presented your research, during the “Three-Minute Thesis” session of The FASD Forum ‘24 conference, and you won the “Three-Minute Thesis Prize” for your presentation. How did it feel to learn that a panel of judges had awarded this prize to your presentation? I mean, your research essentially?
Katelyn Mullally (06:16):
It was an honour. I mean, I’m smiling as you say that – I wanted to present my work at the NOFASD conference. I love the work that NOFASD is doing in this area. It seemed like a great venue right to share the project I’ve been working on for the past five years, and kind of a cool challenge right to distill five years of work into three minutes. I did not anticipate winning. I just thought it would be fun to share my work, and I was thrilled. Of course, I actually have to be honest, I missed the live announcement of the three-minute thesis competition because of the time change – I was sleeping. So I watched it the next morning and I watched it back twice because I was like, wait, I actually won. That is awesome. I couldn’t believe it. And I think it was so nice because graduate school is such a long haul, such a long road, and it’s really nice to be reminded that others are interested in, and excited by, the work that I’m doing.
(07:11):
And I think it speaks to how much work on FASD and the criminal legal system is needed and how many are interested in this work. We’re starting to understand, I’m sure we’ll talk more about how people with FASD often come into contact with the legal system. And so with that comes a real thirst to understand what that looks like for them and how to best support them in that context. And so I think this really spoke to, yeah, people are really interested in this kind of work to better understand that looks like for people with FASD who do come into contact with the legal system,
Kurt Lewis (07:45):
It’s an area of interest for a lot of experts as well as like parents, carers who are concerned about their child who may have FASD or has a diagnosis of FASD, coming in contact with the legal system. I know we’ve mentioned those topics. For those who are unfamiliar with your research, could you explain what is it about? What exactly have you been researching about FASD and the legal system?
Katelyn Mullally (08:09):
Sure. It does depend how much detail you’d like. So broadly, my research is looking at guilty pleas, so plea understanding and decision-making in youth and young adults with FASD as well as those without FASD. Now, I can give the longer answer as well with some background if you’d like. You’re opening a can of worms because you’re asking a PhD student to talk about their dissertation, which is all I think about. So happy..
Kurt Lewis (08:36):
Oh, we would’ve invited you if we didn’t want to hear more about it, to be honest.
Katelyn Mullally (08:40):
Sure. I appreciate that.
Kurt Lewis (08:41):
You’re not limited by three minutes this time.
Katelyn Mullally (08:44):
I appreciate that as well. That was a challenge. I won’t spend too much of time, but I love this work. It’s also why I’m here. So, to give you some background, I think there’s three main pieces that sort of led me to this work, and then I’ll talk about my specific research and what I’ve found so far briefly. So the first is recognition of the prevalence and problems of guilty pleas. So, in North American criminal legal systems, when a defendant is charged with a crime, right, they’re going to be asked, do you want to plead guilty or plead not guilty? So they plead guilty, they’re convicted of that crime and all the consequences that come with it. They plead not guilty, they go to trial and fight the charges against themselves, right, and that can result in them either being found guilty or found not guilty.
(09:30):
So it’s a seemingly simple decision, right – do you want to plead guilty or plead not guilty – with significant legal consequences. So it’s a big decision when you really break it down. There’s lots of benefits to the plea system. There’s lots of reasons we have this system in place, and for lots of defendants, for legal professionals as well, it can be really helpful. It’s more efficient than going to trial. It can result in lesser sentences and charges for defendants who are guilty. However, we do know that lots of defendants or many defendants don’t understand the implications of this decision, which in itself is a problem if they don’t understand the decision that they’re making. We also know, and are starting to understand more, that some people plead guilty when they’re innocent, which of course is a big problem as well right, because that would be a wrongful conviction.
(10:18):
So that’s the first piece. The second piece is increasing recognition of the overrepresentation of people with FASD in the criminal legal system. So we’re starting to understand more. We have more and more research looking at this that suggests that compared to the general population where estimates, at least in North America are between two and 5% of people have FASD, based on a limited of the number of studies, that proportion is much, much bigger when we look at criminal, legal and forensic settings. So again, this is based on a small number of studies in really specific settings, but the best estimates we have right now are that between 10 and 36% of youth and young adults in some specific forensic and criminal legal settings have FASD. So much, much bigger than that general population prevalence. This is probably due to a bunch of complex factors. I don’t want to oversimplify it.
(11:13):
We know many people with FASD do not come into contact with the criminal legal system, and those who do, it’s due to this sort of constellation of risk factors that come together to potentially result in this or other adverse outcomes. So a few of those would be the nature of the neurodevelopmental difficulties experienced by people with FASD, so things like impulsivity, difficulty with decision making or poor decision making, difficulty understanding cause and effect. So those kinds of things that can increase risky behaviors. And we also know people with FASD experience high rates of risk factors that have been linked to criminal legal system involvement. So this includes things like mental health difficulties and substance use difficulties, school problems as well, and that they have limited access to supports. So diagnostic and treatment supports that might otherwise mitigate against these adverse outcomes right, which might otherwise sort of set them on a different path.
(12:09):
If they don’t have a diagnosis, or they have a diagnosis but no supports, then that can result in more sort of adverse outcomes such as criminal legal system involvement. So I say that because I really want to emphasise right that this is a subset of people with FASD, due to this constellation of factors. It’s not deterministic that everyone with FASD is going to set down this path. I know, like you said, that’s a worry for a lot of caregivers and parents of people with FASD. The third piece that I’ll add is that although research in this area is super, super limited, there are concerns that people who have FASD might have difficulty navigating the legal system effectively right so that they might not understand legal information and might not always be able to make informed legal decisions. A couple of reasons we suspect this right is many of the challenges we see in people with FASD have been linked with difficulties with legal understanding and decision making, such as impairments in cognitive abilities, language, communication, and memory.
(13:12):
And then, I know of one study that has looked at this specifically. This was actually a study by my supervisor that looked at legal understanding in youth, with and without FASD, and saw really high rates of difficulties and understanding among those youth with FASD. So they understood less or had more difficulties than those who didn’t have FASD, right, their same aged counterparts. So putting this all together, I wanted to look at how much people with FASD understand about the plea process and how they make plea decisions compared to those without FASD. Now, I mentioned my background. My interest is clinical developmental psychology. So I looked at this in youth and young adults without FASD as well as a small sample. or small samples, of youth and young adults with FASD. So part of my dissertation, and this is the part I presented at the three-minute thesis competition, was looking at plea understanding in these groups.
(14:12):
I found that youth and young adults with FASD, they both presented with gaps in their plea understanding. So they had difficulty understanding terms that are often used in plea hearings or relevant documents. They didn’t always understand the conditions and consequences of entering a guilty plea, right, or what a plea deal entails. And they often scored lower than those without FASD – so than their same ages counterparts. So to say that more clearly – youth with FASD did worse than youth without FASD, and young adults with FASD did worse than young adults without FASD. Another interesting finding was how youth with FASD performed compared to young adults with FASD. So a quick caveat, this study was cross-sectional. So that means I looked at a group of youth compared to a group of young adults as opposed to following one group of youth over time and being able to track changes in their understanding.
Kurt Lewis (15:17):
Sorry to interrupt. When you say youth, what kind of age bracket are we looking here compared to young adults?
Katelyn Mullally (15:24):
Good question. Thank you. So youth were 12 to 17, and that was based on in Canada, our legal system. That’s how they define youth. And then young adults were 18 to 25.
Kurt Lewis (15:37):
Okay, so that’s a very distinct kind of groups right there. One is still developing, one could say, and the other is developed kind of thing if we’re talking about adults who are neurotypical who do not have FASD, but there would be somewhat of a dysmaturity for people with FASD can be sometimes a factor.
Katelyn Mullally (16:00):
Exactly, yes. And in theory, right? The idea was that the young adults should do better than youth, although maybe they’re not fully developed, they’re further along in their development than youth. So we saw that for those who didn’t have FASD that the young adults did better than the youth, as we might expect. We didn’t see that for people with FASD. So the youth and young adults who had FASD, they performed similarly. We didn’t see that necessarily that change with age. I don’t know, did I explain that?
Kurt Lewis (16:34):
Yeah – no, you explained it pretty well. I just wanted to clarify what youth and what young adults are. I’m guessing our listeners are probably not too sure. So I just wanted to clarify that particular point, but I think you covered it pretty well.
Katelyn Mullally (16:48):
Yeah, and I think it’s an important point too, because depending on the legal system, that definition might look a little bit different. So that was based on our legal system. It is really important, right? Because to your point, as soon as someone turns, again, I’ll use 18, then they’re in a completely different system where there is fewer supports available in theory because it’s the adult system. And just last sort of consideration of these issues or questions around how much do they understand, do they really understand? Whereas with youth, there’s more of an understanding that they might have difficulty, that they might need more support. So, this finding that the young adults with FASD performed similarly to youth with FASD was pretty important because it says, “Hey, even though they’re young adults, even though they’re in this separate system, they still might need just as much support as the youth who have FASD”.
Kurt Lewis (17:44):
And the system doesn’t really understand that particular point because they’re not providing the support.
Katelyn Mullally (17:50):
Yes, exactly.
Kurt Lewis (17:51):
Another clarifying question, the criminal justice system, is a long process. There are all different checks and balances all through it, as well as different kind of processes in the judicial system with all the stages of that process. Why did you choose to focus on plea deals, particularly when it comes to FASD justice?
Katelyn Mullally (18:12):
Yeah, so I guess there were a couple of things. So one was, I mentioned this sort of like there’s growing research in this area and increased recognition of the prevalence of guilty pleas and the problems of guilty pleas, right? So the prevalence being we recognize most criminal cases end in a plea instead of actually going to trial. Estimates again vary, but some of them are upwards of 91 to 95% of cases end in a plea deal. And then we’re also acknowledging that, hey, some people falsely plead guilty even though they’re innocent. So again, there’s limited research in this area, but there’s some estimates if we look at documented wrongful convictions in Canada and the UK and the US, between 18 and 24% of those involved an innocent defendant who pled guilty. So we’re starting to recognise, right, similar to wrongful convictions more generally and false confessions that, hey, some people falsely plead guilty even though they’re innocent.
(19:15):
So this is pretty important to understand why that happens. And so that was part of it for me was seeing this research recognising like how big this concern is, or problem. The other piece, and this is more anecdotal, but my supervisor and I, we stumbled across a news article in 2018 or 2019 when I was first starting my dissertation or thinking about my dissertation, and it talked about a case involving a man with FASD in Canada who had pled guilty to break and enter, and he was sentenced and incarcerated. Only to learn six months later that he couldn’t possibly have committed that break and enter because he was already incarcerated at the time. So he had falsely pled guilty to this charge, and they didn’t realise until months later after he had spent six months in prison for a crime he didn’t commit. So again, we were already thinking about this topic because of the research in this area, but this news article was really a light bulb moment for me, right? Wow, this really does happen. How does this happen? What are the circumstances that led to this situation for this person? And also recognition that perhaps because he had FASD, was he more vulnerable to this outcome, right? To not understanding and to falsely pleading guilty in this situation. So I think that sort of brought it all together. And from there again, we were like, this is it, right? This is where we’re going to go for my dissertation.
Kurt Lewis (20:41):
It’s such a small area of the judicial process, but it’s often underestimated plea deals and the pressures that come to bear when talking about plea deals and the discussion around whether you understand the consequences. It’s a minefield for people who are neurotypical. I mean, adding on the pressures of something like FASD, it’s somewhat of a difficult, even more difficult process.
Katelyn Mullally (21:06):
Exactly. Yeah. I talk about this idea that if we just look at youth in general, they’re navigating a legal system that wasn’t built for them. It’s a system that was built for adults, and we’ve made modifications along the way for youth, but not in all areas. It’s still a work in progress. And then add FASD on top of that, and there’s this sort of like double vulnerability for this group. Now, they might experience difficulties because of their young age and their developmental stage, as well as their disability and the neurodevelopmental difficulties that come alongside that.
Kurt Lewis (21:41):
How important do you think it is for lawyers and people working within the justice system to become aware of FASD?
Katelyn Mullally (21:49):
I mean, I think it’s crucial, right? We’ve been talking about this and we know that legal professionals are very likely to encounter people who have FASD in their work, whether they know it or not. And so I think the more knowledge, the more awareness they have of FASD, the more likely they might be able to support these defendants appropriately. Whether that means modifying their own practice or bringing in someone else to assess understanding, right, or to support these defendants in the process,
Kurt Lewis (22:22):
That might be particularly difficult given that the legal system by its very nature isn’t proactive. It’s coming in after the fact of a situation to help resolve it. Just in regards to that kind of area, how difficult do you think it is?
Katelyn Mullally (22:36):
On the one hand, it feels like a big undertaking. I think on the other hand, we know anecdotally, but also from the research that legal professionals want this information. So there are a few studies that have actually surveyed and interviewed legal professionals, lawyers, judges, forensic clinicians about their knowledge and awareness of FASD. And by and large, I mean they’re often saying, we don’t know enough about this. We know we encounter it, and we don’t know how to manage it, and we want more information. So I mean, I think there’s always barriers to share – to getting information out there into that knowledge translation. But I think that in itself is incredible that they’re asking for this information. There’s enough awareness that they know they’re starting to recognise that there are gaps, and they want to better understand FASD to improve their own practice.
Kurt Lewis (23:28):
Kind of leading on from that question, do you think there is more that the justice system could be doing to assist people with FASD? Do you have any suggestions for how improvements can be enabled?
Katelyn Mullally (23:41):
I’m of the mind I think there’s always something more we can do right?. I think there’s always room to grow and learn and recognise sort of gaps in current knowledge and practices. I think there are many incredible legal professionals, clinicians, advocates, organisations like NOFASD who pushed the system forward, developed some really innovative programs for people with FASD who come into contact with the legal system, and as I said, I think there’s still lots of room to grow. In terms of specific suggestions for improvements, I mean, based on my work I mentioned there’s not a lot of research in this area, so there’s certainly a need for more research looking at broadly the intersection of FASD and the criminal legal system, and then more specifically how they navigate legal decisions like plea decisions. Based on what we know so far a couple of practical suggestions come to mind. One is just asking more questions of defendants and clients.
(24:39):
So I’m thinking of lawyers and judges in particular when I think about this recommendation, but asking questions about any existing diagnoses. So asking about something like, I mean, whether it’s FASD, which we’re talking about, or another diagnosis like intellectual disability, a learning disability, ADHD, or just generally asking the young person or asking their caregiver or service providers, what do you think are your strengths? What do you think you might struggle with when we meet and talk about this case together? What might be hard for this young person or what might be hard for you? And getting all the information that they can to support that defendant through the process, whether there’s a diagnosis or not. The more information, the better. I think when I say ask questions, the other thing that comes to mind is asking questions of that young person to check their understanding of legal information.
(25:35):
So this one very specifically comes from my research, but this idea that in the plea system right now to check understanding, we ask a lot of yes and no questions. So things like, do you understand the consequences of accepting the plea deal? And we ask questions that rely on just like repetition or one-word answers. So things like, what will your sentence be if you accept this plea deal? So it’s a quick one-word answer. Now these can be super helpful as a starting point, and for a lot of young people that might be what they need to get them comfortable to get at their understanding. However, we also know that lots of people, including those with FASD might be suggestible. They might be easily influenced by other people. They might say yes, just to be agreeable or not recognise they can say no to a person of authority.
(26:26):
They might be able to repeat the information, but not actually understand it and not actually understand the consequences of the decision that they’re making. So it’s so important to also use open-ended questions to assess their understanding. Right? So tell me what might happen if you accept the plea deal. And so in my study, that was one of the things that we really saw was when we asked them, oh, did you understand? They generally reported that they did pretty well, but when we actually asked those open-ended questions and dove into it, it was clear that many didn’t. That was a really important takeaway of this work. And then if they don’t understand, or even if they present with these risk factors that suggest they might have difficulty, right, they’re young, they have FASD or another relevant diagnosis, just modifying language when working with them right, using more simple language, repeating information, presenting information in a couple of different formats right, in writing and verbally asking those questions to assess understanding. I think big picture, I’m sure there’s lots we can do to improve the system, but also in those small interactions with legal professionals, I think that there’s lots they can be doing and that I suspect many already are doing to support these individuals.
Kurt Lewis (27:41):
It’s such a simple idea, asking not leading questions, making, testing, understanding such a simple thing to do that it won’t cost anything at the end of the day, but you’ll be able to understand what they understand at the end of the day. And I think that’s most important. You need to make sure that your client or a judge needs to make sure that the person taking the deal understands what the deal entails. You might lose your liberty, you might lose money, your house, your life, essentially. And I think it’s vital that people who go through plea deals, whether they have FASD or not, have the understanding of what the consequences are.
Katelyn Mullally (28:20):
Exactly.
Kurt Lewis (28:22):
Well, I’d like to thank you so much, Katelyn, for coming on the podcast today and chatting with me about your research. It’s very important and I’m glad you’re pushing it forward.
Katelyn Mullally (28:32):
Absolutely. Thank you for having me. As I said, I love talking about this. I find this work so exciting, and I really want to share it with people. I think on that note that we ended off in terms of those practical implications of this work and those practical suggestions, I think a forum like this is what’s going to get that word out to share this information with the people who are on the ground working with these young people.
Kurt Lewis (28:58):
I definitely hope so. I hope that people listening would’ve pushed this forward. It’s not going to take one person, it’s not going to take one podcast. It’s going to take a lot of different people pushing something simple idea of asking more questions.
Katelyn Mullally (29:10):
Absolutely.
Frances Prices (29:15):
Thank you for listening to this episode of Pregnancy, Alcohol and FASD: The Surprising Reality. If you like this podcast episode, please show your support by leaving a rating and review on iTunes. We appreciate your feedback. All rights reserved. For more information about Fetal Alcohol Spectrum Disorder please visit NOFASD Australia’s website: www.nofasd.org.au