In the modern world, our understanding of science changes rapidly. Law, at large, does not change so rapidly. What has changed, in the past 20 years, is that defense lawyers have begun, during the trial and/or sentencing phases of court, to use brain damage/injury as a mitigating factor for criminal acts.
Brain injury was first introduced as a defense in 1966 for Charles Whitman, the so-called Texas Tower Sniper. (Whitman stabbed his mother and his wife, shot to death 16 people at the University of Texas at Austin and shot and injured 31 others. An autopsy upon his death found a tumor in his brain.) Since the start of this century, the exploration into the effects of brain injury on what some may see as moral quandaries for those with neurological deficits has broadened. Generally, what has been found is that head injury, specifically a brain lesion, can hinder executive functioning, which governs the ability to plan ahead, think things through, manage impulse, etc. However, this is basic knowledge that applies to all brain injury survivors; tests specifically related to the unique brains of those who commit criminal acts are inconsistent.
In 2015, the NIH published a report, Does TBI Lead to Criminality?. Their conclusion states, “The results support a modest causal link between traumatic brain injury and criminality.” Investigations have shown that while brain injury is not a sufficient defense for a criminal act, it may be a mitigating circumstance in the sentencing phase of a trial – treatment versus incarceration.
Since then, brain damage/injury has often been used as a defense, most recently earlier this month: a convicted murderer in Ohio said, during sentencing, “Not everyone is fortunate enough to have a caring family or outside guidance… I am proof [that] a young person – beaten and abused physically, emotionally, and mentally – becomes the abuser.” Though the defendant now admits to the killing of five women, the testimony of one of two testifying doctors states that because Kirkland MAY have a brain injury, he should not receive the strictest punishment, the death penalty.
Perhaps, though, the “brain injury” defense will relatively soon become a thing of the past. The above-mentioned NIH report further concludes, “Reducing the rate of TBI… might have benefits in terms of crime reduction.” (Since this report was released, more defendants have used brain damage as a mitigating factor for criminal acts.) According to a UK study, approximately 50 to 70% of the incarcerated population has a brain injury. That percentage is thought to be in the same realm as those imprisoned in America. Given these astonishing statistics and the continuing government-sponsored and private research on brain injury prevention and recovery, the NIH’s conclusion seems a definite possibility.
(See also Massachusetts General Hospital – Center for Law, Brain & Behavior, “an academic and professional resource for the education, research, and understanding of neuroscience and the law.”)
