Mitigation for Morality and Murder

In the modern world, our understanding of science changes rapidly.  Law, at large, does not change so rapidly.  What has changed, in the past 20 years, is that defense lawyers have begun, during the trial and/or sentencing phases of court, to use brain damage/injury as a mitigating factor for criminal acts.

Brain injury was first introduced as a defense in 1966 for Charles Whitman, the so-called Texas Tower Sniper.  (Whitman stabbed his mother and his wife, shot to death 16 people at the University of Texas at Austin and shot and injured 31 others.  An autopsy upon his death found a tumor in his brain.)  Since the start of this century, the exploration into the effects of brain injury on what some may see as moral quandaries for those with neurological deficits has broadened.  Generally, what has been found is that head injury, specifically a brain lesion, can hinder executive functioning, which governs the ability to plan ahead, think things through, manage impulse, etc.  However, this is basic knowledge that applies to all brain injury survivors; tests specifically related to the unique brains of those who commit criminal acts are inconsistent.

In 2015, the NIH published a report, Does TBI Lead to Criminality?.  Their conclusion states, “The results support a modest causal link between traumatic brain injury and criminality.”  Investigations have shown that while brain injury is not a sufficient defense for a criminal act, it may be a mitigating circumstance in the sentencing phase of a trial – treatment versus incarceration.

Since then, brain damage/injury has often been used as a defense, most recently earlier this month: a convicted murderer in Ohio said, during sentencing, “Not everyone is fortunate enough to have a caring family or outside guidance… I am proof [that] a young person – beaten and abused physically, emotionally, and mentally – becomes the abuser.”   Though the defendant now admits to the killing of five women, the testimony of one of two testifying doctors states that because Kirkland MAY have a brain injury, he should not receive the strictest punishment, the death penalty.

Perhaps, though, the “brain injury” defense will relatively soon become a thing of the past.  The above-mentioned NIH report further concludes, “Reducing the rate of TBI… might have benefits in terms of crime reduction.”  (Since this report was released, more defendants have used brain damage as a mitigating factor for criminal acts.)  According to a UK study, approximately 50 to 70% of the incarcerated population has a brain injury.  That percentage is thought to be in the same realm as those imprisoned in America.  Given these astonishing statistics and the continuing government-sponsored and private research on brain injury prevention and recovery, the NIH’s conclusion seems a definite possibility.

(See also Massachusetts General Hospital – Center for Law, Brain & Behavior, “an academic and professional resource for the education, research, and understanding of neuroscience and the law.”)

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Link: Defense and Veterans Brain Injury Center

In the early 1990s, during the Gulf War, advances in weaponry and medical knowledge meant that injury, not death, was of foremost concern – included in this was brain injury, caused by both physical or chemical injury.  In response, in 1992, Congress created the Defense and Veterans Brain Injury Center (DVBIC) – an organization headquartered in Silver Springs, Maryland with 22 other locations around the continental United States of America.  According to their mission, “the Defense and Veterans Brain Injury Center promotes state-of-the-science care from point-of-injury to reintegration for service members, veterans, and their families to prevent and mitigate consequences of mild to severe TBI.”  Throughout its 26 years, their “science care” has extensively investigated, through research and sponsorship, what has been termed the signature wound of modern war.  In response to this, in 2007, “DVBIC [was] designated the primary operational TBI component of the Defense Centers of Excellence for Psychological Health and Traumatic Brain Injury (DCoE).”

(As of today, there will be a link to the DVBIC in the ADDITIONAL RESOURCES bar on the Home Page of this site.)

MS: Cause, Effect or Comorbidity

Multiple sclerosis (MS) is presumed to be an autoimmune disorder, but beyond that, is not fully understood.  What is understood is some of the terrible symptoms that can occur with MS, including: blurred or double vision, muscle weakness, lack of coordination, imbalance, impaired walking/standing, speech impediments, tremors, hearing loss, difficulties with concentration, attention, memory, and poor judgement.  To those who read this blog and/or have personal knowledge of brain injury, the symptoms should be apparent, but for the purpose of this article it is necessary to spell out some of the symptoms of moderate to severe brain injuries: dilations of the pupils, seizures, slurred speech, weakness, loss of coordination, restlessness or agitation, chronic headaches, increased confusion, lightheadedness, dizziness, blurred vision, ringing in the ears, fatigue, behavioral or mood changes and trouble with memory, concentration, attention, and thinking.  As can be seen, even in these abbreviated lists, MS and TBI exhibit many of the same symptoms.  For this reason, it is not a surprise to find that the two may have a connection – however, the results of multiple NIH-funded studies on the subject have not, as of yet, been able to determine what exactly is this connection.

In 2006, for example, in a study entitled “Risk of multiple sclerosis after head injury: record linkage study,” the NIH concluded: “There was no significant increase in the risk of MS at either short or long time periods after head injury.”  However, six years later, in 2012, the NIH released a study with the title: “Increased risk of multiple sclerosis after traumatic brain injury: a nationwide population-based study.”  In 2016, a study essentially took the middle-ground, concluding that, “The presence of comorbidities in patients with MS is associated with brain injury.”  (Therefore, they concluded that if someone has another disorder, as well as MS, they may be more likely to have a brain injury.)

The “cause or effect” confusion is recognized by researchers, as in 2017 a scientist at Harvard University remarked, “Some studies suggest that head injuries might be a risk factor for MS… On the other hand, it’s not an easy thing to study because researchers would never intentionally cause head injuries to see if they cause MS.”  However, this Harvard study did find that having a single concussion during childhood gave a person a 22% higher rate of MS and the percent was doubled for those who had more than one concussion.

Whether MS and TBI have a cause-and-effect relationship or not, their similar symptoms may mean that exercise is of particular benefit to those with multiple sclerosis, just as it is to those with brain injury.  To test this hypothesis, the NIH has funded a study at the University of Alabama at Birmingham and at the New Jersey-based Kessler Foundation specifically to determine the benefit of exercise training for cognitive deficits in MS.  The study will see if 3-months of treadmill walking for the participants improves their cognitive processing speed, brain volume, and functional connectivity.  “The study may provide the first Class 1 evidence for the effects of treadmill walking exercise training as a rehabilitative approach to cognitive deficits in people with multiple sclerosis,” says Brain Sandroff, PhD of UAB and principal investigator of the study.

Potential Biomarker of “Bad” Brain Injuries

Rebecca M.

It is often quite hard to determine how bad a brain injury is soon after it has happens, yet speed is needed for the best treatment of the injury, in order to have the best chance of recovery.  No one brain injury it quite like another.  Earlier this year, the National Institutes of Health (NIH) funded an important study about advances in the treatment of brain injuries.  Briefly, the study group identified that the brain lipid molecule, a type of fatty acid in brains, known as lysophosphatidic acid (LPA), significantly increased after a TBI in a preclinical animal model.  In general, fatty acids in the brain are thought to be important in brain function, but in excess, they are not healthy.  Moreover, the researchers found that LPA was elevated in areas associated with cell death and axonal injury, both major hallmarks of moderate and severe TBI.  The study was carried out at the David Geffen School of Medicine at UCLA.

If the results of this study holds for humans, it will give doctors a tool to ID right away if they are dealing with a moderate to severe brain injury, and not a mild one.  Though it has only been studied in animals, LPA could possibly be used as a biomarker of TBI, which could be particularly useful in cases when it is not clear if a brain injury has occurred.  (In some cases, such as a very bad car accidents, it is pretty clear that there has been a moderate to severe injury and cell death.  But that is not always the case, as with ABIs and other TBIs, it might less clear how bad the injury is without using a biomarker tool.)

Monitoring the LPA levels of a brain injury patient may allow neurologists to make smart and fast decisions with as many tools as needed medically, rather than having to guess about the severity, based on one factor – the amount of swelling.

New Technology, Same Problems

Last year, I reported on the secondary danger that can arise from using the shoulder-launched heavy artillery Carl Gustaf.  Carl Gustaf has a twin though – heavy artillery known as SMAW…  and, just like with Carl Gustaf, SMAW is strong enough both to blow up a tank and to cause severe brain injury to the shooter in the process.

Late last month, NPR reported on the effects the use of SMAW had on two former soldiers.  After every shot, you felt a “concussive wave”, one soldier said, before continuing to say “it’s an awesome thing”.  Based on this description, as well as these soldiers’ ongoing support for the military, one can see that “blaming” an institution that they love so much for their current deficits is a difficult thing for these soldiers.  For the same reason, many other soldiers find themselves in a conundrum when it comes to their opinion of the military.  (Statistics show, for example, that though enrollment in the military is at a low, retention is up.)  However, it seems that the military recognizes that, in some way, they, specifically their weaponry, are at fault for some injuries, as they keep putting more money into research (e.g. with animal models).  They also have set up a TBI Recovery Support Program and, as a member of that Program states, “If you talk to us in a year… I think we’re going to have exponential growth in our knowledge.”

However, is some of this concern over brain injury just unnecessary worry?  The soldiers NPR quotes in their article ask that question.  (This is very similar to the responses of some players, coaches and parents regarding brain injury in football.)

(Another interesting subject in the above-linked NPR article is the difficulty soldiers, who acquire a brain injury while not in combat, have in getting healthcare coverage for their recovery.)

Brain Injury to be Revised in ND

To one who has a brain injury and their family and friends, the definition may seem relatively clear – a brain injury is something that disrupts the functioning of the brain.  Nationally, the CDC has only a specific definition of and webpage for traumatic brain injury, whereas the NIH notes that TBI is an acquired brain injury.  To support recovery from all types of brain injury, though, states must first each define what constitutes a brain injury.  In New Jersey, for example, the government-funded Traumatic Brain Injury Fund site states that, “to qualify for the Fund, an individual must have an acquired brain injury; defined as an injury to the brain caused by a blow or jolt to the head or a penetrating head injury/neuro-trauma that disrupts the normal brain function, where continued impairment can be demonstrated.  This definition does not include dysfunction caused by congenital or degenerative disorders, birth trauma, or injuries caused by other circumstances.”  The webpage produced by the New York State government is focused on traumatic brain injury, which they define as, “an injury to the brain or skull caused by an external force, such as a strike or impact.”  One must click further to get a definition of acquired brain injury

As can be seen in New York’s definition, many states define only traumatic brain injury – not acquired brain injury.  While many acquired brain injuries are traumatic, all traumatic brain injuries are acquired.  However, many states do not consider those brain injuries that are not defined as TBIs, such brain insults as strokes, to be a brain injury.  Strokes and other acquired brain injuries, however, often need such things as costly recovery too, which may require government funds.

North Dakota has realized this funding error.  As of last week, “the state legislature’s interim health committee is looking at a draft bill that would change the definition of a brain injury.”  This new definition would change the definition to allow the inclusion of all brain injuries, not only traumatic brain injuries.  Below is the proposed revision, with the crossed-out section noting the old definition:

“‘Brain injury’ meansany injury to the brain which occurs after birth and which is acquired through traumatic or nontraumatic insults. The term does not include hereditary, congenital, nontraumatic encephalopathy, nontraumatic aneurysm, stroke, or degenerative brain disorders or injuries induced by birth trauma an insult from physical force or internal damage to the brain or the coverings of the brain which produces an altered mental state and results in a decrease in cognitive, behavioral, emotional, or physical functioning. The term does not include an insult of a degenerative or congenital nature.”

Since it is important to have a full and clear definition in order to gain support, funding and full care for all those in need, it is critical that the North Dakota government votes on this more inclusive bill soon.

Note: If you are aware of an error regarding what I identified as the states’ definitions of brain injury, please comment and it will be researched and rectified.