Justice and American Politics

More on Roethlisberger and brain damage? I am not really talking about Roethlisberger anymore. Roethlisberger’s behavior issues, the potential that they could be neurobehavioral issues, got people interested in the topic. But on the spectrum of severe neurobehavioral concerns, a “jock in a bar incident” doesn’t truly engender a lot of societal concern. Why do I continue to blog on this topic? Because it has serious implications for our society and the brain injured community whom I represent.

If you think it isn’t important, read the statistics on the correlation between head injury and crime, from a comprehensive scholarly article on the issue, published in 2009 in the Archives of Clinical Neuropsychology, available online at http://acn.oxfordjournals.org/cgi/reprint/25/1/1

Finally, a history of head trauma and TBI has been linked to violent aggression and criminal behavior, and the prevalence of TBI among violent offenders has consistently been documented as higher than that of the general population. In a sample of 279 veterans who had sustained penetrating brain injuries during military service in Vietnam, Grafman and colleagues (1996) found that veterans with ventromedial frontal lobe lesions had an increased risk of aggressive and violent behavior, relative to veterans with nonfrontal brain lesions and normal controls. However, research on the prevalence of closed head trauma among criminals is often based on the self-report of inmates in correctional facilities (e.g., Schofield et al., 2006). Such studies have documented extremely high rates of self-reported incidents of closed head trauma, including 86% of prison inmates in New Zealand (Barnfield & Leathem, 1998) and 87% of county jail inmates in Washington (Slaughter, Fann, & Ehde, 2003). In a sample of 15 convicted murderers sentenced to death, Lewis and colleagues (1986) found that 100% of this death row sample had a history of severe head injury.

Source: From Archives of Clinical Neuropsychology 25 (2010) 1–13 Neuropsychological Features of Indigent Murder Defendants and Death Row Inmates in Relation to Homicidal Aspects of Their Crimes Robert E. Hanlon, Leah H. Rubin, Marie Jensen, Sarah Daousta

Yes, that study said 100% of a sample of death row inmates had a history of “severe brain injury.” That isn’t concussion, that is the kind of brain injury that involves extended coma. (You don’t guess that someone had a severe brain injury. You reach that conclusion because the medical records and history make it clear that such person was severely injured.) What that means for us is that any time someone suffers significant brain damage there is not just greatly increased risk, but an outright probability that they will have difficulty conforming conduct to the law.

Should society thus excuse everyone with frontal lobe damage from criminal punishment? Of course not. We can’t set all of our criminals free, regardless of what explanation there may be for behavior that threatens society. I am an advocate for the brain injured, but I am not a fool. Yet justice does require a further incorporation of what we know about brain damage into our criminal law. We must define diminished responsibility into categories more than “sane versus insane”. Brain damage can dramatically change the capacity of an individual to behave like an adult. We do not punish children like we do adults. We should not punish the brain injured like adults either. See my comment on brain injury rehabilitation at http://www.subtlebraininjury.com/blog/2010/04/no-twelve-step-program-for-brain-injury-rehabilitation.html

But a modification of the application of the concept of criminal intent isn’t the critical issue here. What is important is that society appreciate the magnitude and nature of abnormal neurobehavior. The first step is of course appreciating the nature of the problem. That is a task that this blog can undertake. The bigger problem of how to make radical change in what treatment and services are provided for brain injured individuals requires a commitment from government, doctors and the entire medical establishment. We must fully understand that if we continue to fail in this objective, that the problem isn’t Roethlisberger type conduct but a staggering level of violence and crime throughout our society. Could we fix all brain damage, we would eliminate far more violent crime than we could by stopping all drugs and crooks at the border.

To understand crime in the brain injury population, we must first understand the frontal lobes, and the role they play in law and order. The frontal lobes not only control what is called executive functioning, but virtually all reasoned behavior. Further they play a large role in modulating emotions, depression, anxiety and stress. The biggest difference between human beings and other mammals is the size of the frontal lobes and how long they take to fully develop. As stated earlier this week: “We learn to become adults in our frontal lobes.” Tragically, it is our frontal lobes and their axonal connections that are most vulnerable to brain injury, especially the type of forces in motor vehicle wrecks and falls. The result of such accidents (even at times concussions that may not appear to involve serious injury to the brain) can be a dramatically changed person and behavior. It can be as if the injured person suddenly reverted to the maturity of a 10 year old.

I ended yesterday’s blog with a quote from the excellent online source written by Inés Monguió, Ph.D. a neuropsychologist from California and I will include further references to her material below. That article can be found at http://www.uninet.edu/union99/congress/confs/hi/03Monguio.html That source is written specifically to the issue of criminal conduct, but in my experience what she says about criminal conduct applies to all neurobehavioral abnormalities, regardless of whether the conduct is criminal. To make that point, Roethlisberger is again useful.

The District Attorney in the Georgia case determined that no crime (at least that he could satisfactorily prove) had been committed. Yet, even if not criminal, the conduct was inappropriate. We learn before we start kindergarten that boys don’t go into the girl’s restroom. We learn somewhere between 15 and 22 to be polite in our courting of members of the opposite sex, especially in public. Perhaps the admitted aspects of this bar incident were not criminal, but they showed staggering immaturity. That immaturity was the basis of the NFL’s suspension and Roethlisberger’s subsequent apology. Neurobehavioral abnormalities not only put the brain injured person at risk for criminal sanctions, they also will wind up with discipline or dismissal in the work place and wreak havoc on interpersonal relations. So as we use Dr. Monguio’s work as a resource, keep in mind that less severe manifestations of the same deficits can still have dire consequences, short of criminal prosecution.

Dr. Monguio begins her treatment of the frontal lobe issues by addressing the issue of whether a criminal defendant has the capacity to understand the charges against him. This can pertain to something called a receptive aphasia, often common in Alzheimer’s disease where the individual is simply unaware that the conduct is illegal. Another problem which impacts whether a defendant can be tried for the conduct is something called “Anosognosia, or the inability to perceive ones own deficits or illness.” This is common, to some degree. after TBI and is one of the reasons that the injured persons themselves may often underreport what is wrong with them.

The article then goes on to address the specific frontal lobe deficits that make the determination of whether there was sufficient “free will” to find “criminal intent.’

Once the defendant has been found competent to stand trial the issue of criminal intent becomes crucial in the presentation of the case to the judge or jury. It is in this area that the issue of free will and therefore responsibility is at its most central.

The criminal defendant must have been able to know and appreciate the nature and consequences of actions for him or her to have formed criminal intent. Brain injury, particularly to the frontal lobes or to the connecting circuits of frontal areas to other brain centers, can affect the ability to form criminal intent. Deficits in executive function result in poor self monitoring, planning, judgment, and forethought. The rigidity or impulsivity often seen in traumatic brain injuries make the formation of criminal intent quite a challenge for the individual. Following are general areas to consider when evaluating a criminal defendant to provide information during the trial. The question of legal insanity will be explored in more detail as neuropsychological data may provide information to the courts regarding a defendant’s state of mind at the time of the commission of the crime.

Dr, Monguio then isolates the following areas of concern: Planning and Executing a Plan; Sequencing and Organizing Ideas and actions; The ability to appreciate the consequences of actions; Prefrontal Damage, i.e. the brain’s operating system; Language Regulation; Impulsivity, Poor Empathy and Socialization. Follow through; and Improper Interpretation of emotions in Oneself and in Others.

All of the deficits interrelate, and while it is useful to isolate them for purposes of describing them, in Dr. Monguio’s own words:

It is rare when neuropsychology can isolate damage to one or another area of the frontal lobes. Barring non-invasive tumors and certain strokes, most causes of damage to the frontal lobe do not isolate one area over another. In general, any cause of possible damage to the frontal lobes needs to be assessed as potentially affecting any or all areas identified above.

The challenge in understanding abnormal behavior post a TBI is that in smaller doses, all of these behaviors are recognizable as normal variants of human behavior. Jocks tend to get drunk and interact inappropriately with women when they do it. See for example this comment published in yesterday’s NFL Fan House: http://nfl.fanhouse.com/2010/04/28/stop-excuses-before-i-lose-my-mind/?icid=main|netscape|dl8|link3|http%3A%2F%2Fnfl.fanhouse.com%2F2010%2F04%2F28%2Fstop-excuses-before-i-lose-my-mind%2F

I just have a hard time believing they made Roethlisberger seemingly want to sleep with every woman he meets. Years of observing brains of athletes make me conclude other factors played a much larger role.

Arrogance, coddling, groupies, immaturity, booze, a sense of entitlement, a lack of responsibility, the moral code of a hyena. That explains how an NFL quarterback ends up hitting the town in a “Drink Like a Champion” T-shirt a lot more than a few blows to the head.

So then how do we distinguish inappropriate behavior from abnormal neurobehavior? It requires a qualitative assessment by professionals, who because of their years of training and experience can tell the difference between rude and pathology. But the key to understanding frontal lobe deficits is not the administration of a particular neuropsychological test, but the evaluation of the behavior of the individual in the real world laboratory of life. Is there a bright line of demarcation? No. Can certain technological based studies assist in making that determination? Sometimes.

MRI technology improves by significant leaps every five years or so, and we are just coming to the end of such a cycle, with the increased resolution of 3 Tesla scanners and the broad implementation of FMRI, DTI and SWI imaging techniques. It is hoped that what was learned during this huge bubble of imaging research can soon be routinely applied to clinical diagnosis. For more on imaging advances, see my blogs on the topic here:

http://www.tbilaw.com/blog/2010/01/congressional-nfl-hearings-dr-ronald-benson-testifies-about-neuroimaging-advances.html

http://www.tbilaw.com/blog/2010/01/congressional-nfl-hearings-dr-ronald-benson-testifies-about-neuroimaging-advances-diffusion-tensor-imaging.html

http://www.tbilaw.com/blog/2010/01/congressional-nfl-hearings-dr-ronald-benson-testifies-about-neuroimaging-advances-susceptibility-weighted-imaging.html

I actually have even more hope for a break through in EEG technology. I believe that the ability to create super powerful portable computers as small as an Iphone could renew the development of a tool to distinguish abnormalities in the brain’s electrical waves, in real time. The problem is that standard EEG machines aren’t portable (and thus give us no real world data) and the portable EEG machines aren’t very good.  Further, the fundamental technology upon which EEG is based is more than 50 years old.  The brain in operation creates immense force fields that if we applied the kind of technology to it we use in submarines and radio telescopes, we should be able to create intricate patterns of normal versus abnormal.  The key is better listening devices and more computer processing.  We certainly can handle the computer problems now portably.  We just need to get all the fields of science together to reinvent the tool.

Still today and probably for centuries, the ultimate call of “brain damage” is a subjective one that a doctor with years of work with brain injured people can make. We must have more of such people and then respect their subjective call, not insist on some thingamometer to replace the proper diagnosis.

I end this segment by renewing my call for Roethlisberger to get a full state of the art assessment for brain damage, which would include not only DTI and SWI imaging, but also a neuropsychological assessment that would fully consider his behavior. The NFL has taken a true leadership role on sport concussion in the last year and the Roethlisberger case could further focus the public and the medical establishment’s vision with respect on the full neurobehavioral implications of TBI. If we can prove the magnitude of the problem, then treatment should become a priority. Never forget the implications of this study:

In a sample of 15 convicted murderers sentenced to death, Lewis and colleagues (1986) found that 100% of this death row sample had a history of severe head injury.

“Houston, Commissioner Goodell, Congress, I think we have a problem.”