Posted on December 26, 2012 · Posted in Brain Injury

Many Americans wouldn’t lose any sleep over a brutal murderer being given the death penalty and then swiftly executed.

But some scientists and psychiatrists are questioning how fair that really is, since many killers have traumatic brain injury (TBI), which researchers say has affected their actions, particularly those related to aggression and judgment.

The New York Times took a look at the current research on the subject in a story headlined “Damaged Brains and the Death Penalty,” which focused on the work done by De. Dorothy Otnow Lewis, who is a professor of psychiatry at New York University. She is the author of book called “Guilty by Reason of Insanity.”

Lewis and her cohort, Dr. Jonathan Pincus, head of neurology at the VA hospital in Washington, have made their careers studying murderers, including many who are on death row. They found that the vast majority of their subjects had suffered TBI, either through beatings or car accidents, mostly when they were children, according to The Times. Many of them had been sexually abused.

As the story pointed out, most brain-damaged people do not end up killers. But on the flip side, most murderers do have TBI, typically damage to the front lobes, “which control aggression and impulsiveness,” The Times wrote.

These convicts may know right from wrong, and understand the consequences of their actions, a legal standard for sanity, but can they control their actions? Or is their brain damage making them act in ways they can’t control, unbeknownst to them.

By the way, none of this is directly related to the youth who massacred children, teachers and his own mother in Newtown, Conn., before taking his own life. He did not have brain damage, he has a mental disorder, call it autism or call it Asperger’s. Whether that mitigates his actions is a whole other blog.

Even if you believe killers who have brain damage should be convicted and punished for their actions, shouldn’t the fact that they have brain damage be a mitigating circumstance? I think it would be fairer to jail such men and women, and not subject them to the death penalty.

The Times story pointed out that in some recent cases judges have overturned death sentences because a defendant’s defense attorney never brought up his or her TBI at sentencing. So it should be.



About the Author

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