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If the damage to a defendant’s brain is so severe as to prevent culpability, there is no justice in remanding that person to the same custody with people without these conditions, particularly since the average prison isn’t well equipped to handle inmates who suffer from head trauma.
Traumatic brain injuries among people in the criminal justice system are a public health problem that deserves more attention than it has received.
The effects of head trauma — increased aggression and violence, diminished judgment and understanding — cut across all of the minor distinctions between states that allow an affirmative defense based on mental impairment.
In short, some of the people with brain injuries who are living in America’s prisons probably wouldn’t be there if someone had bothered to diagnose them earlier.
A study about perceptions of traumatic brain injury patients published in the journal Neurorehabilitation last year found that people perceive the criminal acts of an individual with a traumatic brain injury as more excusable.
Participants in the study understood that the morality of such individuals was changed by their injury and their crimes should be understood within that context and receive a reduced penalty.
Moving the CDC’s screening recommendation earlier in the prosecutorial process — say when an individual is formally indicted — would help defendants get the health care they need.The public’s biggest objection to expanding the use of a diminished capacity defense is usually that people can feign illness and lack of understanding, especially when they’re enticed to do so by a heavy punishment for an extreme and violent crime.But in that respect, head injuries are different than organic mental illness.There’s another reason why it’s important to know if incarcerated individuals have brain trauma.Such injuries are a complicating factor in how to rehabilitate prisoners, since the effects of a head injury can make it harder for an inmate to understand and follow rules.
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One study using the Traumatic Brain Injury Questionnaire conducted among 998 incarcerated men in Minnesota found that 83 percent of them had sustained one or more head injuries during their lifetimes.