The Future of Crime and Punishment by William R. Kelly

Author:William R. Kelly
Language: eng
Format: epub
ISBN: 9781538135433
Publisher: Rowman & Littlefield Publishers

Mental Illness and Neurodevelopmental and Cognitive Impairment More Broadly

The insanity defense is only a very small fraction of the bigger problem of mentally disabled, compromised, or incompetent defendants being prosecuted, convicted, and punished just like all other defendants. There is a much larger gray area involving many, many more criminal defendants who may not be legally insane but whose behavior and actions are influenced to varying degrees by mental and/or cognitive impairments. There are few provisions in the law regarding the legal responsibility or culpability of those defendants. We treat them essentially as all other defendants, without inquiring about whether or how their mental or cognitive health played a role in their behavior.

Advances in neuroscience have clearly established the fact that abnormalities of the brain have profound impacts on our decision making and our ability to control our behavior. For example, the frontal lobes of the brain are clearly implicated in impulsivity. Circumstances that can impact impulse control include lesions, brain trauma, reduced volume of gray matter in the prefrontal cortex and hippocampus, and reduced prefrontal activity and increased subcortical activity. All of this can be understood in terms of the balance or imbalance between two components of the impulse control system: the amygdala, which provides immediate information about pain and pleasure, and the prefrontal cortex, which considers the longer-term consequences of our actions and behaviors. In effect, the impulsive individual’s behavior is attributed to the inability of the prefrontal cortex, because of trauma or developmental deficits and impairments, to suppress impulsive behavior. Put a different way, the amygdala signals pleasure and the prefrontal cortex is unable to effectively interrupt the pursuit of that pleasure. There is a substantial amount of research documenting impulsivity among criminal offenders, leading to the question of whether we should consider such matters when we convict and punish those with these and other neurodevelopmental disorders. Should we hold such individuals responsible for their crimes and punish them just as we convict and punish others without this behavioral disability?

One possible source of relief for those criminal defendants who are considered legally sane but mentally and cognitively impaired is what is referred to as diminished capacity. Diminished capacity is not really a criminal defense, rather it is designed to reduce or mitigate responsibility and, thus, punishment. The doctrine of diminished capacity exists in either statute or case law in about half of the states and is considerably broader than insanity in terms of the evidence that can be used to prove it.

Diminished capacity has been invoked in a number of specific circumstances involving matters such as post-traumatic stress disorder (PTSD), battered woman syndrome, premenstrual syndrome (PMS), media intoxication, and, more recently, affluenza. These and other applications of diminished capacity arguments vary in terms of their success. Those involving recognized mental illnesses fare better than abuse and neglect arguments. Unfortunately, the sensational cases have led to less than complimentary characterizations of such attempts to prove diminished capacity and have likely harmed more legitimate efforts based on established psychiatric research.

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