Traumatic brain injury and the law
October 30, 2019 1:56 PM   Subscribe

The Final Five Percent. "If traumatic brain injuries can impact the parts of the brain responsible for personality, judgment, and impulse control, maybe injury should be a mitigating factor in criminal trials — but one neuroscientist discovers that assigning crime a biological basis creates more issues than it solves."

"A 'biologically informed' legal system as imagined by neuroscientists like Eagleman was the one I had wanted for my brother. It had seemed to me that the law was, at best, slow to adapt to new scientific advances, and, at worst, hopelessly obtuse — and in its ignorance responsible for my brother’s fate. But is it a good idea to reduce all criminal behavior to misfiring neurons? It’s one thing to claim a brain abnormality — such as my brother’s TBI — contributed to criminal behavior. It’s another thing to say that if someone commits a crime, then it must have been the result of a brain abnormality — which is exactly what scientists like Eagleman are saying when they reimagine crime as a form of neurological disease."

Twitter thread by the author.
posted by homunculus (11 comments total) 14 users marked this as a favorite
I don't really see any problem with a 'biologically informed' legal system, so long as it's paired with the concept of rehabilitation and restitution (where possible) instead of the concept of punishment. So long as we remain obsessed with the idea of punishing criminals, we're going to hit all kinds of roadblocks like this when considering how to treat and reduce crime.
posted by Imperfect at 2:23 PM on October 30, 2019 [17 favorites]

I can't help wondering if he ever strapped on a crash helmet and if it matters..
posted by shnarg at 3:57 PM on October 30, 2019

Closely related to the developing legal trends in juvenile justice and brain development, recognized in Supreme Court cases in the last decade. I think we are starting to move that way with 18-20 years old, based on similar concerns about brain development and criminal culpability. I am all for it.
posted by likeatoaster at 4:09 PM on October 30, 2019

Interesting article, but ultimately I don't buy his wariness and I think it's throwing the baby out with the bathwater to say it "creates more issues than it solves." A neorologically-informed criminal legal system does not necessarily mean we would bring back eugenics, nor does it mean people would be pre-screened for propensity to commit crimes (more than they already are by the cops, natch). The law has a long long way to go in considering brain injury and brain development and it is sorely lacking. There is a huge middle ground between not considering it at all/barely (his brother's experience and the experience of many) and a predetermined, Gattica-like society. Just because previous attempts have been super racist - which, hello, prison industrial complex as we now know it - is not a reason not to do it.

So much of the criminal legal system is built on racism and pseudo science (including forensics and tools for measuring criminology used by pretrial agencies and pariole boards, many of which have very little evidence-based foundation); building it instead on neurological science would be a giant improvement, regardless of any additional ethical issues it raises.
posted by likeatoaster at 4:30 PM on October 30, 2019 [7 favorites]

He clearly spent a lot of time thinking about and studying his brother, and neuroscience, and ethics, but I wish he also spent some time talking to defense attorneys in the field -particularly attorneys handling juveniles and capital cases - before writing this piece. Really seems like a limited analysis, missing some key chunks.
posted by likeatoaster at 4:38 PM on October 30, 2019 [3 favorites]

In June 2010, after serving four more months (because of time served in jail), Conway was released on parole; two and a half years after the accident, he seemed more brain-damaged than ever.

For reasons I still can’t grasp, Conway — a brain-damaged burn victim with seven fingers — never could qualify for disability.

The author chooses not to confront that cruelty, and prefers to build up a straw man.

If mitigating biological factors had been given just some more weight in the trial and afterwards, his brother's story would be very different.
posted by haemanu at 5:08 PM on October 30, 2019 [2 favorites]

How is this handled in the world's major legal systems? Does anyone do it better than countries saddled with English customary law do it?
posted by 1adam12 at 5:32 PM on October 30, 2019 [2 favorites]

Studies estimate that anywhere from 25 percent to 87 percent of incarcerated people report having suffered a TBI at some point in their lives, as compared to 8.5 percent of the general population.

I had no idea. My TBI made me calmer; I guess I'm lucky, in that way.
posted by The corpse in the library at 5:41 PM on October 30, 2019 [1 favorite]

People get all weird when they start thinking about the biological basis for personality and behavior, and how that relates to social conventions, culpability, and medical/pharmaceutical intervention.

Then, to feel better, they have a couple of drinks or maybe some weed.
posted by Ivan Fyodorovich at 10:41 AM on October 31, 2019 [1 favorite]

Ultimately, most prison environments are such bad places to be human, psychologically. The author wasn't wrong to try to keep an especially vulnerable human brain from suffering that; I'm sorry to see that he came away feeling like the vague threat of a brain scan-based Minority Report system is bigger than the chance of successfully chipping away at the horrible system we have/helping to build up alternatives that might work so much better for so many people.

:::type, delete, type::: ...
His brother started abusing his wife. Not what he faced charges for, of course... I just want to get that into this thread, I guess, because it isn't yet.
so doesn't the whole "treatment instead of/at least with punishment" question maybe matter there too? when someone you love is abusing you, if you could call the hospital instead of the police (like Caroline drove him to the ER after he tried to kill them both) ... that could matter a lot. I think it would.
posted by Tess of the d'Urkelvilles at 1:01 PM on October 31, 2019 [2 favorites]

It took a few minutes for the total idiocy of "if we could call the hospital instead of the police" to hit me ... I mean, it is the literal same number. But ... I guess I meant, a way to bypass the threat of having the police involved. sorry. stepping away from this now
posted by Tess of the d'Urkelvilles at 1:20 PM on October 31, 2019

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