I found this article in the Ideas section of today's NYT. It concerns the recent work of Dorothy Lewis, who I greatly admire, on childhood abuse and brain damage (often a result of such abuse) found in violent criminals. This new research speaks to culpability and hence punishment, in these kinds of crimes. Bolds are mine:
uly 21, 2001
IDEAS
Damaged Brains and the Death Penalty
By LAURA MANSNERUS
You don't have to be a psychiatrist, Dr.
Dorothy Otnow Lewis says, to know that
something was terribly wrong with Ricky Ray
Rector, who before his execution in Arkansas
ordered his last meal and asked that the pecan pie
be set aside so he could have it later.
But Dr. Lewis is a psychiatrist, and the Ricky Ray
Rector story makes a point that she has spent many
years documenting: the worst criminals are not a
very crafty lot. Almost without exception, Dr. Lewis
has found in evaluating dozens of death-row
inmates, they have damaged brains. Most were also
the victims of vicious batterings and often sexual
abuse as children. Psychotic symptoms, especially
paranoia, are common.
A professor of psychiatry at New York University, Dr. Lewis is among a handful of
researchers who are rethinking the etiology of violence. Her studies focus on some
of the most violent criminals; she has interviewed 150 to 200 murderers, sorting
through their medical histories and, as much as it can be done, their brains.
Dr. Lewis "has revolutionized the way people think about criminal behavior," said
Elyn R. Saks, who teaches forensic psychiatry at the University of Southern
California Law School.
And while no revolution is at hand in the criminal justice system, legal scholars say
new findings on brain dysfunction are finally gaining attention, at least where they
matter most: in death penalty cases. Just this year, 4 states banned executions of the
mentally retarded, bringing to 17 the number of the 38 death-penalty states that have
made that exception, and the Supreme Court will hear arguments in one such case
this fall.
Some of the stories Dr. Lewis has heard are told in her 1998 book, "Guilty by
Reason of Insanity." Other stories emerge through raw data in articles published
over 15 years in medical journals. Her latest article, a study of murderers who were
adopted, was accepted this month by the Journal of the American Academy of
Psychiatry and the Law, though until publication, Dr. Lewis says, she cannot discuss
her findings.
Her longtime collaborator, Dr. Jonathan H. Pincus, the chief of neurology at the
Veterans Administration Hospital in Washington, sets out the neurologist's
perspective in his book, "Base Instincts: What Makes Killers Kill?," published last
month.
Dr. Pincus administered the neurological examinations, from simple reflex tests to
EEG's and brain scans, that supplemented the interviews. The researchers also
combed whatever medical records they could find.
In 1986 Dr. Lewis and Dr. Pincus published a study of 15 death row inmates that
found all had suffered severe head injuries in childhood and about half had been
injured by assaults. Six were chronically psychotic. Far from invoking an "abuse
excuse," Dr. Lewis said, all but one had minimized or denied their psychiatric
disorders, figuring that it was better to be bad than crazy.
Many, she said, had been so traumatized that they could not remember how they
had received their scars. The answers had to come from childhood medical records
and interviews with family members.
In another study, of 14 juveniles sentenced to death, the researchers found that all
had suffered head trauma, most in car accidents but many by beatings as well.
Twelve had suffered brutal physical abuse, five of those sodomized by relatives.
No one suggests that abuse or brain damage makes a murderer, but Dr. Lewis says
that while most damaged people do not turn into killers, almost every killer is a
damaged person. She concludes that most murderers are shaped by the
combination of damage to the brain, particularly to the frontal lobes, which control
aggression and impulsiveness, and the even more complex damage visited by
repeated, violent child abuse.
These findings, Dr. Lewis says, cast doubt on legal definitions of insanity. Many legal
experts agree, while others say the law should be in no hurry to apply new theories
in the debate, older than Western thought itself, between free will and determinism.
Many psychiatrists and psychologists, too, see evil and con artistry where
researchers like Dr. Lewis see disease.
Barbara R. Kirwin, a forensic psychologist who recounted her examinations of
violent murderers in her book, "The Mad, the Bad and the Innocent," questions Dr.
Lewis's studies because, like many medical studies with small samples, they are not
controlled. And if unusual brain activity can be interpreted, Dr. Kirwin said, "I want
to find out what subcortical firing Mother Theresa has."
Dr. Kirwin's findings on the incidence of child abuse among homicide defendants
differ wildly from Dr. Lewis's. Dr. Kirwin estimates that of the 300 or so defendants
she has studied, 10 percent have been abused, or "about what you'd find in the
general population."
One way of stating their differences is that Dr. Lewis says she has never seen a
"mere sociopath" — that is, someone with a normally competent brain who simply
has a gross lack of empathy — while Dr. Kirwin says she has seen plenty.
Dr. Lewis has been cited by the Supreme Court at least three times, along with Dr.
Pincus and another longtime colleague, Catherine Yeager, a senior research assistant
at New York University. Dr. Lewis is most pleased by the citation in a 1991 opinion
by Justice Thurgood Marshall, a dissent in the decision allowing the execution of the
brain-damaged Ricky Ray Rector.
The court has ruled out executions of the insane, though critics say the legal standard
is low: an inmate who is aware of his pending execution and the reason for it is
deemed mentally competent.
Richard E. Redding, a University of Virginia law professor and associate director of
the university's Institute of Law, Psychiatry and Public Policy, said that when courts
overturned death sentences they rarely addressed a defendant's mental state
directly. But he said they were increasingly receptive to arguments that a defense
lawyer's failure to present evidence of brain damage during the sentencing phase can
amount to ineffective assistance of counsel, which is a ground for reversing a death
sentence.
In that way, Mr. Redding said, research on brain dysfunction, especially damage to
the frontal lobe, "is actually having an effect on real-life cases."
In a 1999 case that overturned the death sentence of an inmate with a history of
seizures and paranoia, the Illinois Supreme Court found that his lawyer failed to
investigate obvious signs of his irrationality, which the court said was exemplified by
his attempt to dispose of a body in a dresser drawer. (The expert witness who
pointed that out in court was Dr. Pincus.)
Dr. Lewis and her colleagues study savage and bizarre murders, which she says are
almost by definition the most crazed. In capital cases, Dr. Lewis says, the elaborate
balancing of aggravating and mitigating factors — those that may be taken into
account by judge or jury — actually frustrates the inquiry because "the grisliness of
the crime is in proportion to the craziness of the act."
However crazy their acts, very few defendants qualify for the classic insanity
defense. For purposes of determining sanity, the test is whether the defendant knew
what he was doing and knew it was wrong, although some states also require that
the defendant be capable of "conforming his conduct" to the law.
"Responsibility is so wedded into centuries of tradition," said Deborah W. Denno, a
Fordham University law professor who is working on an article about psychological
research on consciousness and its influence on defining degrees of culpability.
Long before anything was known about wayward neurotransmitters and frontal lobe
lesions, legal theorists referred to free will as a fiction. The legal scholar Herbert
Packer wrote in 1968 that "the law treats man's conduct as autonomous and willed,
not because it is, but because it is desirable to proceed as if it were."
To Ms. Denno, such thinking is outdated. "Unconscious thought is more important
than we ever thought," she said. "I'm suggesting that the criminal law is way out of
line with what constitutes conscious thought. There's this dichotomy in criminal law:
either you're responsible or you're not. If you're a sleepwalker or something like
that, you're not held responsible at all."
Dr. Lewis, like Ms. Denno, focuses not on guilt but on punishment, and she typically
works for defendants who ask only the dispensation of life in prison. "Most of the
people I see I would not want running around again," she said.
Now, in addition to the murderers from adoptive homes, she and her colleagues are
studying serial killers, children who killed their parents and capital defendants who
represent themselves. "Then," she said, "it's up to the public who they want to kill." |
