Mental Impairment as a Mitigating Factor

Mark Bennett recently posted about Traumatic Brain Injury (TBI).  While TBI has not been an issue for my clients recently, it leads me to a very significant factor that has, and is commonly ignored or overlooked.  I have come to realize that many of my clients suffer from mental disease or serious intellectual impairment.

Why does this matter?  Because it impairs their ability to accurately process things happening around them, to analyze the significance of their choices and to control the impulsivity that leads them to make bad choices, i.e., commit crimes.

This will be a factor that, I predict, will increase exponentially in the years ahead, given the statistics on autism and other organically-caused syndromes.  In those people severely affected, they are far more likely to be aware of their problems, although it means nothing as to their (or their parents or schools) having effectively dealt with or mitigated the problem. 

One of the big problems that have come before me is bipolar disorder, leaving defendants incapable of making rational choices or controlling impulsive urges.  They know right from wrong, and often appear quite normal in most regards.  But there are signs which, if you are attuned, smack you in the face.  There are other mental diseases as well, such as  obsessive-compulsive disorder or borderline personality disorder, for example.  The Diagnostic and Statistical Manual of Mental Disorders IV provides a list of disorders, as well as the medical criteria.

Lacking the professional credentials to start to list the identifying symptoms, the basic rule of thumb is this:  When your client’s ability to speak, behave or reason in a rational fashion shows signs of being particularly peculiar, have them evaluated.  For mental disease, a psychiatrist is the appropriate health professional to perform the eval.

A second problem that has come to me with surprising frequency is low intelligence.  We’re not talking about a person who falls within the category of retarded (a word I despise but one that still serves a purpose, unfortunately).  Rather, people who are incapable of analytical or abstract thought because they fall short (for whatever reason) of the level of intelligence of an average person.

Too many lawyers limit their interactions with, and concern for, their clients to the criminal case in front of them.  By doing so, they ignore the person in front of them, with these problems that have caused misery in their lives and, in a very real sense, led to their current problems.  By ignoring this cause/effect piece, a lawyer is only doing half a job.  It is quite likely, given the socio-economic, family and educational worlds in which they functioned, that no one has every bothered to figure out why the client is “a little weird.”  You may be their one and only hope to find someone who cares enough to figure out what causes your client to engage in inappropriate conduct.

This is what I consider the holistic approach to lawyering, looking beyond the criminal case to the cause of the client’s anti-social behaviors.  Be it anger, frustration, inability to distinguish choices in real time sufficient to avoid bad ones, this is a chance to actually do something to really help a client.

And what does it do for the criminal case?  Often, prosecutors will change their attitudes towards a case when you can provide hard medical date to show what drove your client to engage in the underlying conduct, and you’ve gotten your client into treatment.  Suddenly, the defendant is not simply bad, but sick. 

Even if the prosecution continues, it can be used as a critical factor in sentencing.  Notably, these problems do not negate criminal responsibility, as the client is fully capable in a rational moment, to distinguish right from wrong or legal from illegal.  But it does negate the malevolence of the offense, and suggests an alternative to incarceration that will truly provide help to the client instead of merely warehousing him.

The biggest stumbling block is that many prosecutors and judges know and understand so little about mental illness, and their appreciation is so simplistic, that they have a steep learning curve.  They must be taught that all people with mental disease or impairment are not drooling idiots.  They similarly can’t appreciate why, if the client suffers from mental disease or impairment, they don’t fall into the legally incompetent classification. 

To the simple-minded, there is no spectrum of disability.  It’s all or nothing.  We still have a long way to go in our society to learn and appreciate the significance of mental disease and impairment, but it will play a huge role in the future as the problems we are seeing in our youth today manifest as adults tomorrow.  Keep it in mind.

2 comments on “Mental Impairment as a Mitigating Factor

  1. Cindy

    I have bipolar. Last year during an unmedicated manic phase I went to Florida a signed a contract for a $500,000. home. I do not have money to support the contract. I was just very convincing. Now I am being sued. Do I have an out. DAME DISEASE. THANK YOU

  2. SHG

    Unfortunately, this post has to do with criminal responsibility, not bad home purchases.

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