“I Saw Guns and Sharp Swords in the Hands of Young Children”: Why Mental Health Courts for Juveniles with Autism Spectrum Disorder and Fetal Alcohol Spectrum/Disorder Are Needed

Perlin, Michael; Cucolo, Heather; & Dorfman, Deborah | April 6, 2024

In this Article, we offer—we believe for the first time in the scholarly literature—a potentially (at least partially) ameliorative solution to the problems faced by persons with autism (ASD) and fetal alcohol disorder (FASD) in the criminal justice system: the creation of (separate sets of) problem-solving juvenile mental health courts specifically to deal with cases of juveniles in the criminal justice system with ASD, and with FASD. There is currently at least one juvenile mental health court that explicitly accepts juveniles with autism, but there are, to the best of our knowledge, no courts set up specifically for these two discrete sets of populations. If mental health courts (or any other sort of problem-solving courts) are to work effectively, they must operate in accordance with therapeutic jurisprudence principles, concluding that law should value psychological health, should strive to avoid imposing anti-therapeutic consequences whenever possible, and when consistent with other values served by law should attempt to bring about healing and wellness. If such courts are created, we believe this will (1) make it less likely that sanism and other forms of bias affect legal decision-making; (2) make it more likely that those aspects of the defendants’ underlying conditions that may have precipitated (or contributed to) their criminal behavior be placed in a context that understands such conditions, and (3) best ensure that therapeutic jurisprudence principles be employed in the dispositions of all cases.