Should People With a Traumatic Brain Injury Be Criminally Culpable?

By now you’ve probably heard about the tragic incident in Afghanistan, where an American soldier went off-base, entered private residences, and shot and killed 16 Afghan civilians, and wounded several more. He then turned himself in to U.S. forces, and is currently being held, awaiting charges. Presumably, he will be charged with murder and tried in a court martial.

There’s no question that this soldier’s actions were appalling, and this whole event is unbelievably tragic. Furthermore, it’s likely to further inflame tensions between the U.S. and Afghan governments, and almost certainly puts the lives of other U.S. troops in danger because of reprisal attacks.

I hope that the person responsible for this is tried, and if the evidence is sufficient, he’s convicted and punished to the fullest extent of the law.

Any murder trial is going to be long and complicated, even more so when there are multiple victims. However, it looks as though yet another complication has been introduced into the mix: the Pentagon has just revealed that the suspect in the shooting suffered a traumatic brain injury in 2010, but was declared fit for duty shortly afterwards.

It’s virtually certain that this is going to be an issue in the suspect’s trial, and his defense attorney is pretty much guaranteed to try and use it to his client’s advantage.

I recently blogged about how our improving understanding of traumatic brain injury may have legal implications in other areas – namely, football. We’re coming to learn that seemingly “minor” brain injuries can have very serious long-term consequences, increasing the patient’s likelihood of suffering from depression, dementia, and a host of other mental disorders.

This raises the question of whether or not a traumatic brain injury will become a basis for the insanity defense. In general, the insanity defense requires that the defendant suffers from a “mental disease or defect,” and that their mental illness prevented them from appreciating the wrongful nature of their conduct, or made them unable to conform their conduct to the law. The insanity defense is, by design, incredibly difficult to employ successfully. Only about 1% of criminal defendants even attempt to use the defense and it only succeeds about 25% of the time it’s attempted. So overall, the insanity defense is successful in around one quarter of one percent of criminal cases in the U.S.

And a verdict of not guilty by reason of insanity doesn’t mean the defendant automatically walks free. Just because someone is found to lack their mental faculties to the point that they can’t be held legally culpable for their actions, they may still be a society. Usually, if a person is found not guilty of a violent crime by reason of insanity, they are committed to a mental hospital.

They can be held in a mental hospital as long as they’re deemed to be a threat to society, or to themselves. This means that, in theory, a person who successfully employs the insanity defense may well end up being confined in a mental institution for a longer period of time than they would have spent in prison if they’d been convicted. If you’ve ever seen a movie that depicts someone trying to use the insanity defense, these facts are probably overlooked.

Obviously, it’s far too early to comment on whether or not the suspect in this case qualifies for the insanity defense.

But, there’s no question that mental illnesses that have been linked to traumatic brain injury are going to become issues in more and more criminal cases, particularly with relation to the insanity defense.

As in most high profile cases where the insanity defense is involved, this particular case will probably lead to a public debate over whether or not the insanity defense should even exist, or what form it should take.

I personally believe that it should exist, and that our current standards are fine. If one of the essential elements of imposing criminal liability for someone’s actions is that they acted intentionally, there comes a point where someone suffers from a mental illness so severe that they can’t actually form intent, or understand what they’re doing. In those cases, I think it’s unfair to blame the defendant in the same way you’d blame a criminal who was perfectly sane.

I hope that this tragic case, whatever its ultimate outcome, does not cause us to lose sight of the fact that having an insanity defense is not mutually exclusive with protecting society from dangerous criminals.

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