At the crossroads of science and law, Vanderbilt University Professer Owen Jones of law and biology (yes, another Law/Bio Prof) has published an article contending that violence and anti-social behavior is a result of brain dysfunction.  Researching prisoners, he contends that things such as brain damage cause people to engage in criminal conduct.  If the brain damage is repaired, the criminal conduct disappears. 

As with all peer reviewed medical journal type essays, the title tells you the theory and the rest of the article tries to prove it.  If you’re any good a statistical analysis, you can judge for yourself the validity of the theory, but let’s assume the theory is correct.  Then what?

In law, we attribute violene and anti-social behavior to people being evil.  We punish them because they are malevolent, bad people deserving punishment.  What if they’re just sick?  What if some damage to their brain, or some chemistry screw up, causes some wierd action to come out that breaks the law, but they would never engage in this behavior if their brain was not damaged.  The answer, then, would seem that the sentence should be medical treatment, since that’s the cause of the problem and, once cured, they would present no danger or threat to society.  Being sick is not being morally culpable.  We don’t imprison people who have the flu, do we?

Or is this just another try at saying that people bear no responsibility for their conduct?  They appear to appreciate the consequences of their actions.  They know right from wrong.  They are witty at a cocktail party, so why should they get a free ride at committing a crime? 

My anecdotal researh has recently made me believe that Prof. Owen may be on to something.  Neither he (nor I) say that all violent or anti-social activities are brain related.  Indeed, in my opinion, many are decidedly related to the lack of use of the brain.  But I’ve found in the past couple of years that a number of my clients suffered from various psychological disorders.  Undiagnosed when they came to me, I’ve used forensic and neuro psychs to evaluate these clients only to find that they are severely screwed up people.  This is a medical term, so do not use this term at home without an expert standing by.

For instance, I recently represented a 62 year old man, very successful in legitimate business, who just happened to have done a couple of 15 year bits in prison for drug dealing along the way.  Very intelligent in an idiot savant kinda way, he presented (another medical term) with a bizarre grandiosity and a remarkable ability to shift focus without notice when confronted with unpleasant reality.  He had never been evaluated for mental illness, so I had him seen by some really good people.  Suprise!  They tell me he’s a raging bipolar.  He doesn’t meet any definition of insanity, as he fully understands and appreciates the consequences of his acts.   He just lapses into this state of twisted judgment when confronted with criminal opportunity where he punishes himself by making bad decisions.

So we realize his condition after I got him an exceptionally good plea agreement in federal court following a lengthy suppression hearing where he testified.  When it comes time for sentence, we present this to the judge.  She looks at me cross-eyes, asking, “Are you saying that the defendant is not guilty by reason of mental disease or defect?”  Noooooooo, I’m saying that the defendant is quite guilty, but that he is not the evil, morally culpable miscreant that his horrendous criminal history suggests.  I’m saying he is a sick man, and was never diagnosed in all those years in prison, and came out as sick as he went in.  I’m saying that he needs treatment, not a prison cell. 

I have never seen an argument fall upon deaf ears as this one.  Not only was the judge unpersuaded, but she so totally missed the boat as to suggest that the entire psychiatric discipline, organic and otherwise, should suck eggs.  To this judge, there was only two choices:  You’re either totally drooling nuts or just plain evil.  No shades of grey here, thank you very much.

So what can we expect from solid research by folks like Prof. Owen?  A legal system with a history going back to the M’Naghten case of 1843 that can’t quite figure out how to fit mental illness into its paradigm.  The problem for society is that this refusal to understand the problem means that we won’t fix the problem, putting people in jail who don’t need it and cutting them loose to commit new crimes that could have been prevented.  It’s an expensive, wasteful and dangerous way to deal with a problem by denying it.  It makes no one safer and helps no one.  We have a name for this sort of failure:  the criminal justice system.