Posted on September 23, 2016 · Posted in Brain Injury

The findings in one study were striking: out of 15 people on death row, 100 percent of them had a severe brain injury. We wrote a blog last week about whether or not brain injury precludes conviction in a domestic violence case. This question still has no clear answer.

In a court of law, people can be found not guilty by reason of insanity, and the question of insanity is very complicated, containing two different facets. First, it requires assessment of the criminal to see if they are fit to stand trial. Second, it requires that the criminal understood that his actions were wrong and their consequences. Competency is whether or not they are competent to stand trial. Criminal responsibility deals with the condition at the time the crime is committed.

In many brain damaged people, frontal lobe deficits are found. The frontal lobe is a vulnerable area of the brain when it comes to brain damage and motor vehicle accidents, for example. Unfortunately, the frontal lobe is in charge of executive functioning, and this area can see problems when it is damaged.

The frontal lobes don’t fully develop until the age of 25 anyway. From the ages 10 to 20, it is like an empty hard drive. As people mature during these years, they learn what is appropriate and develop into a civilized adult. When the frontal lobe is damaged, people begin to see problems with decision-making. Frontal lobe damage often presents itself as reverting to the maturity of a ten-year-old.

So, is a frontal lobe deficit an excuse for inappropriate, even criminal, behavior? Of course not; however, it might explain some inappropriate behavior. The idea of insanity is not a black and white determination. There exists a spectrum. There have to be levels in between insane and sane. While brain injury is not an excuse for crime, its existence can help explain why the crime happened.

To define insanity, the Model Penal Code is used. It states that the defendant is not responsible for their conduct if at the time of such conduct as a result of his mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

If found to be insane, the defendant is usually destined to be confined to a psychiatric institution. Institutionalization protects people from danger – they would not be institutionalized if they did not pose a danger to themselves or others. It’s just that in a psychiatric institution the insane might get the care for their mental disease that they need as opposed to prison.

This could potentially benefit a brain damaged person. But brain damage is not exactly the same as insanity. Generally, brain damaged people do not belong in a psychiatric institution because the nature of their disease is different than an insane person. If a brain damaged person commits a violent crime, it doesn’t mean they should be released to put other people in danger, but it doesn’t necessarily mean they are insane either. As stated in a previous blog, “Insanity is a form of mental illness; brain injury is caused by organic changes to the way the mind functions.”

The research on crime and traumatic brain injury proves correlation, but not necessarily causation. It could be the brain injury that caused the inappropriate behavior, even violence. It could also be the type of person or type of situations the person finds themselves in that expose them to violence or reckless behavior that lead to brain injury. It is true, according to a study, that homeless people have much higher rates of traumatic brain injury.

The spectrum between sane and insane is complex. There’s no easy answer to whether or not a brain damaged person has criminal responsibility. But there is definitely a strong correlation between traumatic brain injury and criminal behavior. That is not a question. Remember, “in a sample of 15 convicted murderers sentenced to death, Lewis and colleagues (1986) found that 100 percent of this death row sample had a history of severe head injury,” one study finds.

About the Author

Attorney Gordon S. Johnson, Jr.
Past Chair Traumatic Brain Injury Litigation Group, American Association of Justice :: 800-992-9447