Document Type

Article

Publication Date

Fall 2021

Abstract

Individuals with traumatic brain injuries (TBI) have a greater risk of becoming justice-involved due to the role that many TBIs play in impulse control and judgment. Attorneys assigned to represent this cohort may not have encountered individuals with TBI before, and may not be familiar with behavioral manifestations that could be relevant as a defense or as mitigation in individual cases. In this regard, TBI is grossly misunderstood.

A grave example of this point, and a foundation for this article, is the case of Lisa Montgomery, who despite evidence of serious mental illness and significant brain damage, was convicted, sentenced to death, and ultimately executed for the murder of a pregnant woman and the kidnapping of the woman’s unborn child. Her case reflects all that is wrong with the way we treat criminal defendants with traumatic brain injuries.

In this paper, we discuss common ways that individuals with traumatic brain injuries become involved in the criminal justice system, and how attorneys can better prepare an effective defense or mitigation. We consider, in some depth, several of the substantive areas of criminal law and procedure in which an understanding of TBI is especially significant (including, but not limited to, competency status, the insanity defense and the death penalty), and assess the quality of counsel –and experts -- in such cases, again, in some instances, using the Montgomery case as a prism.

We believe that one (at least partial) remedy for the current situation is a turn to therapeutic jurisprudence (TJ) The TJ doctrine emphasizes giving an individual client dignity, voice, validation and voluntariness of action and decision. This is particularly important for an individual with TBI, who will likely have the capacity to make the majority of decisions about his case, but who may still need behavioral treatment or interventions for symptoms of the TBI. We will discuss the ways that TJ plays into these issues, and how TJ must be the grounding of any representation of this population. We conclude with some modest suggestions as to how we can begin to make needed changes in the criminal justice system to take all of these issues into account.

Comments

Rutgers University Law Review, Vol. 74, Issue 1 (Fall 2021), pp. 215-270

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