An understanding of traumatic brain injury is, as I’ve said before, important to criminal-defense lawyers. It is important for the sake of the accused, who are more likely to get a raw deal if their lawyers don’t understand how it is that a bang on the head could lead to “criminal” conduct. It is also important to creating a better understanding of the broader ramifications of our criminal “justice” system.
Criminal defense lawyers know that everything we are and do results from factors outside our control — for most of us, our genes and our environment (nature and nurture). That I am a criminal-defense lawyer instead of an accused is an accident of fate — of dumb luck.
Lots of people — especially the fortunate — have difficulty accepting that everything they are is, in the final analysis, the result of factors beyond their control — nature and nurture. “I made good choices,” they say. Each choice, however, was the result of their genes and environment. “But my environment was the result of the good choices I made,” they say.” Yes, and each of those choices resulted from genes and environment at that point, and so on and so forth, until at some point the ability to make the right choice was not itself chosen.
Many people can’t wrap their minds around the idea that, if they had been born in the same situation and with the same genes as the accused, they would be facing judgment for their bad “choices.” It’s easier to be judgmental when you are not compassionate; it’s easier not to be compassionate when you can’t empathize with the object of your judgment; and it’s easier not to empathize when you can’t imagine yourself in someone else’s situation.
If we criminal-defense lawyers, who appreciate how dumb luck can make the difference between the White House and the Big House, could show people how this dumb luck works, the people might be more compassionate. Which is, of course, where TBI comes in.
People who can’t imagine having been born poor, or mentally ill, or otherwise disadvantaged can often imagine getting whacked in the head. If they can then be made to understand the personality changes1 that can be caused by a bad whack to the head, and to understand how these personality changes might lead a formerly law-abiding young man or woman to break society’s rules,2 they might begin to understand that we can never fully comprehend all of the reasons that people do what they do, and reasonably conclude that retribution is not the same as justice.
1 Impaired social perceptiveness; impaired self-control and regulation; stimulus-bound behavior; emotional change; and inability to learn from social experience. Lezak MD: Living with the characterologically altered brain injured patient. J Clin Psychiatry 39:592-598, 1978, from Textbook of Traumatic Brain Injury.
2 How difficult could that possibly be to explain? Behavioral symptoms of TBI include impulsivity, disinhibition, anger dyscontrol, inappropriate sexual behavior, lack of initiative, and “change in personality.” Adapted from Hibbard, MR, Uysal S, Sliwinski M, et al: “Undiagnosed Health Issues in Individuals With Traumatic Brain Injury Living in the Community.” The Journal of Head Trauma Rehabilitation 13:47-57, 1998, from Textbook of Traumatic Brain Injury 61.
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