Scott Greenfield in his post, Mental Impairment as a Mitigating Factor, writes, “To the simple-minded, there is no spectrum of disability. It’s all or nothing.” I’ve written before about traumatic brain injury and criminal defense. Scott’s post discussed bipolar disorder and low intelligence as mitigating factors. At some point, a mitigating factor must become so extreme that it negates moral responsibility.
The law is simpleminded. In the words of Dickens’s Mr. Bumble, “the law is a ass — a idiot.” In Texas and Federal Court, as well as most other jurisdictions, the only mental disability that relieves a person of responsibility for his actions is the inability to tell right from wrong. A person who can tell right from wrong, but can’t conform his conduct to what he knows is right, is held responsible for his actions just as though he could conform.
Robert Sapolsky, a neurobiologist at Stanford, was quoted by Jeffrey Rosen in his March 11, 2007 New York Times Magazine article, The Brain on the Stand:
You can have a horrendously damaged brain where someone knows the difference between right and wrong but nonetheless can’t control their behavior. At that point, you’re dealing with a broken machine, and concepts like punishment and evil and sin become utterly irrelevant.
The study of how the brain works is neuroscience; neurolaw is a neologism for the application of neuroscience to the law. I first encountered the term in Rosen’s article, which was brought to my attention during the Center for American and International Law’s The Mind and Criminal Defense seminar last Thursday and Friday.
The CAIL seminar opened my eyes to the myriad ways that the human brain can be damaged so that a person doesn’t have the “ordinary” ability to tell right from wrong or act in conformance with that ability. Not only TBI, bipolar disorder (I’ve had many clients who got crosswise with the government because they self-medicated their bipolar disorder) and low intelligence, but also maternal alchol and drug use while the person was in utero, birth trauma, early childhood abuse and neglect, and disease either in childhood or after are among the countless things that can hurt a person’s brain so that he does not have the ordinary ability to discern right from wrong or conform his behavior.
While the inability to conform one’s behavior to standards of right and wrong is not a defense in Texas, evidence of mental impairment less than insanity is admissible for three reasons:
1. Because it is relevant to the question of mens rea — whether the accused had the intent required for criminal liability (see Jackson v. State);
2. Because it is relevant to the question of voluntariness; and
3. Because it mitigates punishment.
We lawyers need to know how to recognize the things that might have damaged our clients’ brains — broken the machines — so that we can get them to appropriate doctors for both treatment and expert testimony. To that end, I talked with some of the mitigation experts at the seminar about creating an intake form for criminal-defense lawyers so that we can quickly run through a list of possible causes of poor impulse control, poor judgment, deficient empathy1, and the other characteristics that put many of our clients crosswise with the law.
We defenders also need to be on the lookout for what Plano, Texas criminal-defense lawyer Pam Lakatos called the “attractive defendant” to move public understanding of neurolaw ahead. The attractive defendant, in this case, is the law-abiding ordinary guy who got whacked in the head (for example, while serving his country2) and suffered a personality change that included the commission of one or more crimes. That case, carefully handled, may, for reasons I’ve discussed here, provide the public (as well as prosecutors and judges) with the beginning of understanding. The beginning of understanding is the beginning of compassion, and the beginning of compassion is the beginning of mercy.
1 When a prosecutor says my client has no empathy, is that another occasion of the pot calling the kettle black?
2 Unfortunately and insidiously, the government is discharging some brain-injured soldiers with a “personality disorder” discharge, which prevents them from receiving disability and medical benefits and tags them with an incorrect diagnosis that may be used against them if they ever get in trouble with the law.