ACQUIRED BRAIN INJURY AND CRIMINAL BEHAVIOR

(DAÑO CEREBRAL Y COMPORTAMIENTO CRIMINAL)

 
CONFERENCES
TOPIC: HEAD-INJURY

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Abstract

In most modern societies there are laws and guidelines that recognize mental conditions which reduce criminal responsibility. A century ago the limited knowledge in mental illness led to few mental conditions meriting forensic recognition, mainly florid psychosis or advanced dementia; both conditions easily recognized by lay people as affecting the social functioning of the defendant. Nowadays society in general is ready to accept that when certain areas of the brain are damaged  certain functions are affected (left temporal area and language; right parietal lobe and spatial disorientation; traumatic brain injury and deficits in memory.) In spite of the recognition that in all its complexity the brain rules automatic and voluntary behaviors, it seems difficult to take the step to connect the clinical knowledge and its forensic application. In part perhaps it is due to the loved tradition of "free will,"  without which the foundations of social responsibly and even morality would tremble. Nevertheless, the more the neurosciences move forward, the less clear that the dichotomy becomes between voluntary and involuntary behavior. In this presentation brain syndromes will be presented and their possible effect on criminal behavior. Various cases will be presented of defendants evaluated by the author that presented with neuropsychological deficits congruent with organic diagnoses. Explicit connections between the neuropsychological deficits and the criminal behaviors, as well as with the pertinent forensic issues in various countries will be explored.
 
 

Resumen

En la mayoría de las sociedades modernas existen leyes y reglas que reconocen la existencia de condiciones mentales que reducen la responsabilidad criminal de un individuo. Hace unos cien años un conocimiento de las enfermedades mentales bastante rudimentario resultaba en que las condiciones mentales que se aceptaran como pertinentes en el campo forense eran casi exclusivamente la psicosis florida, o la demencia avanzada; ambas condiciones que cualquier individuo pudiera reconocer como impedimentos en el funcionamiento social del criminal. Hoy en día la sociedad en general ya acepta que cuando ciertas áreas del cerebro se dañan  correspondiente funciones se pierden (temporal izquierdo y lenguaje; parietal derecho y desorientación espacial; trauma craneo-cerebrales y déficits de memoria).  Aunque se acepta en general que el cerebro en su complejidad rige el comportamiento automático y voluntario,  parece ser difícil dar el paso desde el conocimiento clínico hasta la aplicación legal. En parte esto probablemente se deba a la entrañable tradición del "libre albedrío", ya que si un individuo careciera la opción de no cometer un crimen,  esto atacaría los mismos cimientos del pensamiento, creencias, y leyes de la sociedad occidental. Y sin embargo, contra mas avanzan las neurociencias menos clara  la dicotomía tradicional entre el  comportamiento voluntario e involuntario. En esta conferencia se presentaran varios síndromes cerebrales y como estos pueden afectar el comportamiento. Se presentaran varios casos de individuos acusados de crímenes quienes fueron evaluados por la autora, que presentaron déficits neuropsicológicos congruentes con diagnosis orgánicas. Se explorara las conexiones entre los déficits neuropsicológicos, el comportamiento criminal, los aspectos legales pertinentes en varios paises.

INTRODUCTION

The need for societies of any size to maintain order and the safety of their members have resulted in rules for accepted conduct that in turn became codified formally. Whether it be the Ten Commandments or the code of Hammurabi, actions against persons and property break the rules of the community, and the community punishes the transgressors. Sketched in this manner the matter is clear-cut: Transgressions against the rules of society will be punished for the common good. However, criminal behavior does not exist outside of the criminal and of his/her circumstances. Justice requires that the motives for a crime be considered as an integral part of the deed.

The existence of mental illness or mental disorder is as old as humanity.  In the courts as in society, only grossly observable behavior was recognized as of import. Thus a  psychotic individual with florid symptoms, or with severe intellectual and adaptive deficits may have alerted the judicial system to issues of criminal responsibility.  Assessment and  diagnosis had to be done mostly by the courts. Thus other conditions with more subtle signs, or illnesses with intermittent effects would not be acknowledged.

Through history mental illness has been understood under the existing paradigms of the times.  With the advances of the neurosciences in this century, "mental" conditions are being increasingly recognized as disorders of the brain. Most likely because of this shift in societyís understanding, neuropsychology is being called upon to evaluate criminal defendants.  Unfortunately, it is still very difficult, at least in my experience, to help the judicial system fully understand that  perceptions, thought,  behaviors and consciousness are the result of  brain activity. Concepts such as "personality," "consciousness," and "mind" seems to be closely related to, if not part and parcel of, the concept of "soul." Perhaps this is the reason why the idea is strongly resisted that a personís actions, particularly if appalling , may be beyond the use of "free will."  Even fairly sophisticated individuals will recoil at the idea that healthy, unimpaired human beings can and will behave in a fairly automatic way through the day. Yet in a recent issue of the APA journal American Psychologist (July, 1999) was dedicated in its entirety to changes in our understanding of areas of behavior as it relates to volition versus nolition. If we resist giving up the fantasy of free will in ourselves, how can we look at the criminal actions of another individual and contemplate the possibility of lack of criminal intent? The criminal must have wanted to do the deed, else the crime would not have been committed.  In truth, the concept expressed by the simple verb "want" presents enormous complexity to the neuropsychologist.

The presence of acquired brain injury makes the contemplation of voluntary versus non-voluntary action even more crucial, particularly in the criminal system. Advances in medicine have allowed reduced mortality in brain accidents such as traumatic injury, cardiovascular accidents, and infections. Thus individuals who may not have survived a century ago, are returned to society without follow up support in most cases. In clinical neuropsychology we call these individual "the walking wounded." Many of these unfortunate individuals end up in the courts. Without  thorough consideration of the behavior-regulating function of the brain, criminal behavior will not be fully understood.

 This presentation will first explore how acquired brain injury can affect an individuals capacity to be involved in criminal proceedings from the very beginning of the legal process. Later on issues of responsibility in criminal behaviors for individuals with various organic brain conditions will be presented. Case histories will be presented to illustrate.
 
 

 
English common law required that a criminal be able to enter a reasonable plea, and to be able to make his own defense. Currently in the United States for an individual to stand trial he or she needs to be able to a) Understand the charges, and b) Participate in his or her own defense. Variations on these two conditions exist throughout the western worldís penal code.
 

a)  Understanding the charges.

 Receptive aphasia is the first readily identified organic condition pertinent for this condition to be vacated. However, demented individuals and those with frontal lobe impairment can often lack the ability to fully appreciate the charges. For example, a woman in her late fifties was charged with failure to register as a sex offender, which in the United States is mandatory after convictions for sexual crimes every year and every time that ex-convict changes residence. Her attorney requested an evaluation from a psychologist who after administering intellectual and psychological tests suggested a neuropsychological evaluation. The attorney seemed befuddled by the recommendation, but contacted me to conduct an assessment. The defendant was found to be suffering of  dementia of unknown origin (but possibly of the Alzheimerís type.) She was aware that the charges stemmed from her failure to register after two changes in residence. However she was not able to make the connection between the charges and the request by the district attorney to return her to prison. In court she often expressed impatience to her attorney about how long the proceedings were going to take. Her "attitude" had been perceived by her attorney as "denial," when in fact it is a great deal more likely that her dementia was the cause for her failure to understand the seriousness of the charges.

b)  Ability to participate in own defense.

 Once again, the aphasias are most readily identified as symptoms of brain conditions that affect a defendantís ability to fulfill this condition for competence.  However there are other disorders that may interfere with appropriate collaboration with the defense attorney in preparing the defense. Anosognosia, or the inability to perceive ones own deficits or illness would make it quite difficult for the defendant to point the defense attorney towards areas necessary for examination in the presentation of the case.  The dementias and other conditions with significant memory problems would affect the individualís capacity to assist counsel with facts relevant to the case. Memory deficits may also interfere with the defendantís ability to track the progress of the case and assist as needed. An illustrative case is that of a mid fifties man charged with two counts of exposure, one of them to children. He was aware of the charges, although he denied them. He appreciated that if he had done the deeds that he was accused of, that he would be guilty of crimes. He was hearing impaired and appropriate hearing aids were provided by the court. On evaluation  it was discovered that he had lost his hearing after encephalitis at age 8. At age 14 he had another brain event of undetermined etiology (possibly cysticircosis) that rendered him delirious for weeks. His functioning had been marginal all his life, but managed through very limited expectations and a simple life.  In neuropsychological tests it was found that his processing of information in all modalities was very poor. He told me that during court proceedings he became so confused, tired, and upset by trying to follow what was being said that he tuned out the voices and thought of other things. Attention was impaired at all levels. His attorney told me of her frustration at having to begin anew providing information to her client every time they met. Throughout the months before the trial the defendant reiterated in every meeting that once he told the judge "the truth" he would be set free.
 
 

Once the defendant has been found competent to stand trial the issue of criminal intent becomes crucial in the presentation of the case to the judge or jury. It is in this area that the issue of free will and therefore responsibility is at its most central. It is also here  where the greatest difficulty arises for the resolution of the conflict between our deeply held belief in the voluntary nature of our actions, and the increasing body of knowledge on the brain-behavior relationship.  The criminal defendant must have been able to know and appreciate the nature and consequences (emphasis added)  of actions for him or her to have formed criminal intent. Brain injury, particularly to the frontal lobes or to the connecting circuits of frontal areas to other brain centers. Deficits in executive functions results in poor self monitoring, planning, judgment, and forethought. The rigidity or impulsivity  often seen in traumatic brain injuries make the formation of criminal intent quite a challenge for the individual.  Following are general areas to consider when evaluating a criminal defendant to provide information during the trial.  The question of legal insanity will be explored in more detail as neuropsychological data may provide information to the courts regarding a defendantís state of mind at the time of the commission of the crime.

Frontal lobe disorders are the most often undiagnosed disorders in medical and forensic cases because the symptoms are subtle and not easily quantifiable. It is rare when neuropsychology can isolate damage to one or another area of the frontal lobes. Barring non-invasive tumors and certain strokes, most causes of damage to the frontal lobe do not isolate one area over another. In general, any cause of possible damage to the frontal lobes needs to be assessed as potentially affecting any or all areas identified above.  If the frontal lobes are identified as the site for "voluntary action" then it is imperative that the functioning of these areas of the brain be assessed in any criminal procedure.  The concept of criminal intent  demands  that a defendant be able to plan,  and execute a crime. It is the requirement of "planning" that is most pertinent to neuropsychology involved in forensic issues. A healthy brain, such as in juries, judges, and attorneys may have problems recognizing the complexity involved in planning. Of course a plan of action requires first motivation to achieve the goal of the planning.  But in a healthy brain the motivation is evaluated against consequences for the action. If the consequences cannot be considered or evaluated reasonably accurately, can we say that planning was done? In addition, planning requires an ability to appreciate an evaluate the sequential  nature of any course of actions.  The right hemisphere regulates a personís ability to attend to and perceive temporal sequences. Can an individual unable to organize events in a sequential manner be capable of planning a crime and therefore have criminal intent?  Criminal intent assumes that a defendant not only can distinguish between right and wrong, but that he/she can appreciate the consequences of his/her actions. This implies that a criminal intent  needs to be able to accurately assess the results of the criminal act. Can an individual with frontal lobe deficits have criminal intent if he or she can only respond to the immediacy of the situation with little or no consideration of consequences beyond the immediate relieve of motivational factors?  The following, although perhaps only an intellectual exercise, will illustrate some of the relevant issues in the determination of criminal responsibility after acquired brain injury.

Different countries and even states in USA vary in the conditions for and legal results of an insanity plea. A defendant can be found not guilty for reasons of mental incompetence at the time of the commission of the crime, or guilty but legally insane. The disposition after verdict varies from jurisdiction to jurisdiction. It is beyond argument that society cannot allow individuals with or without mental/brain conditions to behave in manners that jeopardy the safety of its members. The crux of the matter is the need to integrate the issue of responsibility within the zeitgeist of the legal system in a more sophisticated manner than merely a defendantís ability to distinguish right from wrong. It is in this area that the functions of the pre-frontal areas of the brain take center stage.

 First neurology and later neuropsychology focused on temporal, parietal, and motor cortex disorders. Its only been in the past twenty years or so that the formerly "silent" frontal lobe has become recognized as the master program for behaviors other than the most basic and philogenetically oldest behaviors in life. Even in these basic functions it is arguable that prefrontal structures may regulate them. For example, regulation of blood pressure, although a brainstem function, can be affected by a personís perception of threat. Perception is highly complex . It involves integration of old knowledge with processing of information in the moment. In turn, what and how information is processed depends upon old knowledge, which is accessed and combined into useable schemata that the individual then uses as blueprints upon which reality is interpreted and new information is manipulated. The best simile I can  think of is that of the ubiquitous Microsoft Windows (trade mark) computer information handling system. Windows itself does not "do" anything; but it allows other applications to be run at a level of efficiency impossible without that master program.

 The frontal lobes have distinct areas which if injured lead to fairly distinct syndromes. For example the left lateral area is involved in subtle but important regulation of language that may not be readily obvious to the non-specialist  mental-health professional, much less to the non-psychologist. These individuals tend to process information in a highly concrete and painstaking fashion, often interfering with "leaps" in the  logical process of analysis.  By contrast, individuals with injuries to the right lateral aspect of the frontal lobe are often impulsive and unaware of antecedents and consequences. Sequencing is often found impaired in the neuropsychological functions of these individuals. Empathy seems impaired or absent. Planning is poor or lacking. The ability to consider, appreciate, and/or understand the complex and subtle cues of social behavior is diminished or absent. Even highly skilled generalists in psychology may diagnose these individuals as narcissistic or antisocial personality disorders. Since personality disorders are not usually consider mental defects, but often aggravating factors in sentencing, the identification of right frontal hemisphere disorders is crucial.  For example, a male defendant in his late twenties was charged with multiple rapes. He had a history of voyeurism and prowling.  In addition he seemed to have been a fairly unsavory individual, with marginal adaptation to societal rules, but no violent behaviors. One year prior to the crimes he had to undergo neurosurgery for brain abscesses. The largest was located in the right temporal lobe. After his illness his behavior became increasingly bold and erratic, until he began entering the houses of the women he had been observing. Eventually this escalated into rapes. In my opinion the increasingly boldness of his crimes was due to the disinhibition of behavior after the self-regulating functions of the right frontal lobe. When the neurosurgeon who performed the procedure was contacted by the defense attorney she wrote a letter expressing her dismay at being questioned for her ability to save a life, and stated forcefully that the areas of the brain on which she had operated had no bearing on behavior or personality. The man was convicted to the maximum penalty in a prison for the general population.

 The medial areas of the frontal lobes are implicated in the ability of a person to maintain cognitive set. What this means in terms of behavior is that the individual will have difficulties sustaining a course of action. Switching from one to another clue as relevant for the purpose of the behavior would be common. Decision making is often poor and ineffective. The person with injuries to the medial areas of the frontal lobe may tend to utilize cognitive or behavioral strategies that have been useful in the past to new situations in which new strategies would be more successful or entirely appropriate. Learning new behaviors is difficult, and perseveration on old patterns of action is common.  Although I do not know if specifically medial areas of the brain where implicated in the following case example, the diagnosis and results of testing strongly point towards that as a possibility. The defendant was a man in his early sixties who had been a pillar of his society for forty years or longer. There was no evidence of antisocial tendencies, reckless behavior, or even a risk-taking disposition. He was charged with multiple charges of arson, at least one of which  resulted in danger to human life. On examination my immediate impression was that he was not competent to stand trial because of memory deficits. But in addition, and more pertinent to the current area in this presentation, he was found to have deficits in executive functions suggestive of impairment in medial areas of the brain when evaluated with a neuropsychological battery. This gentle man had been diagnosed with Parkinsonís disease three years prior to the evaluation. His quiet nature and the characteristics of his work had allowed the progressive degeneration to be ignored or misunderstood by his family and business partner. The incidents that provoked the charges were due to his lighting fires on old pasture lands leased by the company he owned. Cleaning out old pasture allowed for better grass in the next season, and this had been his practice for 50 years or more. Changing laws regarding the lightening of fires in an increasingly urban environment failed to register his consciousness enough to use the new rules to regulate his behavior. Rather, he continued doing what he had done most of his life. When evaluated he became tearful only when being confronted with the possibility that the fires started by him may have harmed a human being,

 The functions of the  orbitofrontal regions are potentially the most difficult to explain, and yet in some cases disruptions of these areas have the most dire consequences for the behavior of human beings. The emotional contexts of memories are disrupted, therefore important bases for learning are not available.  We must realize that basic responses to consequences of action such as "bad" and "good" form the bases of reinforcement. There is no learning without reinforcement. The attachment of the positive or negative emotion to a memory is a sine qua non for effective learning, and injuries to the orbitofrontal lobe seems to prevent the connection between intellectual and emotional information.  Acceleration/deceleration injuries such as those occurring in motor vehicle accidents most often involve orbitofrontal injuries because of the bony ridges of the internal aspect of the skull. In clinical neuropsychology these patients are often described by family members as "changed" since the accident. But when specifics are asked, at most the patient is described as "stubborn," or "not wanting to understand." An example of defendants with likely orbitofrontal injuries (based on the results of neuropsychological testing) was a 27 year old man with a history of motor vehicle accident at age 17 who turned from an easy teenager to an unmanageable young man.  His family eventually stopped attempting to structure his lifestyle. He had a long history of minor violations by the time I evaluated him after he was charged with rape. Most of the confrontations with the legal system had all been relating to poor judgment in his interactions with other individuals. He seemed to lack the ability to appreciate clues in the behaviors of other people that signaled danger to him.  Whether it be manipulative behavior from others, expression of displeasure with the defendantís behavior, or erratic behavior from acquaintances, the defendant seemed to have been unable to learn self-preservation. The victim in the crime had demonstrated emotional instability for months, yet the defendant kept approaching her or supporting her approaches.  Eventually she charged him with rape, much to the young manís dismay and anger. When I confronted the defendant with the multiple documented instances of his failure to heed cues from the environment that should have signaled caution, he seemed oblivious  in making the connection even though he acknowledged that each instance merited reevaluation of assumptions. It is important to note that the charges against this defendant were eventually dropped after he has spent months in jail awaiting trial.
 

In my experience even your best effort at explaining your findings to the defense attorney may fail to present the issue of criminal responsibility clearly enough for the attorney to understand and present during the main phase of the trial,. More often than not, the attorney may adopt the strategy of presenting the findings of the neuropsychologist in the sentencing phase, if available in the system, as diminished capacity argument or exculpatory circumstances. When first entering the area of forensic neuropsychology I realized that I responded to the late admission of my findings into the judicial proceedings as a professional failure in my part. Now I believe that in part the lawyers themselves do not understand the importance of my findings regarding criminal intent, or may decide to fight only the battles they can win. In my personal/professional self I would like to see more attorneys presenting the point of view put forth in this presentation during earlier parts of the trial. Some defense attorneys are doing this to negotiate with district attorneys, but more often than not brain/mental conditions end up being relevant only as exculpatory circumstances.

Most often acquired brain injury is presented as issues of diminished capacity for sentencing purposes. Success in the presentation of neuropsychological issues at this late stage in the proceedings can sometimes mean the difference between a death and life sentence. All of the information presented during the earlier section on criminal intent are relevant in this section. In order to avoid repetition I will present two cases in which neuropsychological information was pertinent. The first case was that of a young male who had been charged and convicted of murder in the course of a rape. The rape had been committed by two other associates. These  two associates had committed a prior rape during which the defendant had been given the task of being a look out. During the first rape the defendant had attempted to aid the victim. He did not participate in the second rape, but was present. After the rape he was given a gun by one of the three other men involved in the crime. He was told to kill the victim, and he did. Neuropsychological evaluation suggested a generalized brain dysfunction stemming from an injury received in the wounb three weeks before birth due to a physical trauma his mother suffered in a motor vehicle accident. My impressions were sustained by neurological evaluation later on. The defendant had very poor pragmatic skills, aggravated by a father who turned abusive towards the defendant as a child because of his cognitive and behavioral limitations. Regardless of the data, and regardless of the fact that the rapist had pled with the district attorney for a reduced sentence in exchange for his testimony, the brain impaired defendant was sentenced to death.

The second illustrative case has a happier ending. A mid thirties male was charged with killing two people. The district attorney was asking for the death penalty. There was plenty of evidence not only that he had done the deed, but that his car and the victimís car had been used in an "I dare you" confrontation. The defendant had a history of multiple head injuries with loss of consciousness.  In addition he was a victim of and witness of Central American turmoil during the 70ís, including having to flee to the jungle with his wife and small two babies where the "zancudos" (mosquitoes) had to be kept away from the babies all night.  He also witnessed the execution of three young men from his village  who were left in the rain for a day. According to the defendant, the three dead men got pale because the rain washed all the blood from them.  On neuropsychological evaluation the presence of post traumatic stress disorder was found. But in addition  the defendant was found to have significant deficits in executive functions. I presented my impressions that the defendant miss-perceived a fairly mild confrontation and reacted as if in dire danger. There was no evidence of  a "flash back" occurring during the crime. Rather, in my opinion, the defendantís organic brain disorder combined with his traumatic experiences  resulted in his inability to efficiently distinguish real from perceived danger in the situation. The district attorneyís office agreed to a plea that included life without parole rather than death.
 

Some of you may be in agreement with the thinking of the majority of the attorneys involved in criminal proceedings, which seems to reflect the mainstream thought. That is,  brain injury notwithstanding, the actions of individuals are  punishable  regardless of the underlying organic determinants of behavior.  I agree that it is easier intellectually and emotionally to consider brain abnormalities as pertinent only in mitigating circumstances, rather than in contemplating the thornier issue of criminal intent. I encourage you to introspect, for just one week  on the pathways from intent  to behavior. You may experience headaches, mood swings, fatigue, confusion, and irritability.  Imagine what self-regulation of behavior is like for a brain-injured individual. When these people are your patients, struggling to adapt, your empathy and compassion helps you to understand them. I encourage you to use your frontal lobes when you embark in the worthwhile but difficult area of assessment in criminal matters. Utilize all of your knowledge, not just the limbic system mediated reaction to abhorrent behavior. Spend some time and energy separating your rightful fears as a member of society from your knowledge as a neuropsychologist. When a clear balance is achieved we can spearhead  the force to understand, communicate,  and educate society at large on the relationship between brain and behavior.  The coming millennium may not produce significant changes in the way that society in general understands that who we are is what our brain is. But then, it may. In neuropsychology we are at the forefront of the wave to lead to better understanding of all behavior, including criminal behavior.  I wish for all of us to grab the opportunity to bring the light of understanding, and therefore compassion, to damaged individuals who may act in ways abhorrent to society and sometimes to themselves.

 I have mentioned before that it is not my position that brain injured criminals should be released into society. However, it is my strongly held position that if brain injured individuals are saved from death through the advances in medicine, follow up resources need to be made available  to them. It is not fair, just, or responsible for society to go into the emergency or operating room with a "7th Cavalry" mentality. More to the issue is the American Indian concept of your responsibility for the individual whose life you save. We are "my brotherís keeper." We spend resources in preventing death. Lets spend comparable resources in preserving life.
 

I would welcome comments, feedback, and criticism. Please feel free to use my e-mail address.
 

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