A Therapeutic Jurisprudence Model of Representing Criminal Defendants with Traumatic Brain Injury

• In Event: Environmental Influences on the Development of Behavior and Victimization

Abstract

Individuals with traumatic brain injuries (TBI) have a greater risk of becoming involved in the criminal justice process due to the role that many TBIs play in impulse control and judgment. In such cases, there is often no discussion of diversion opportunities or a need for comprehensive evaluation and treatment. Additionally, assigned attorneys may not have previously encountered such individuals, and may not be familiar with potentially-relevant behaviors in cases involving defense or mitigation.

Therapeutic jurisprudence (TJ) is a field of legal scholarship that encourages its practitioners to use the law as a therapeutic agent, emphasizing giving individual clients dignity, voice, validation and voluntariness of action and decision. This is particularly important for this cohort, who will likely have the capacity to make the majority of decisions about his case, but may still need behavioral treatment or interventions for injury symptoms.

We will discuss common ways that individuals with traumatic brain injuries become involved in the criminal justice system, and how attorneys can seek diversionary programs or prepare effective defenses or mitigation cases, both in the context of TJ, emphasizing the significance of the principles of dignity, voice, validation and voluntariness in such cases.

Authors

• Alison Julia Lynch, Disability Rights New York

• Michael Louis Perlin, New York Law School / Mental Disability Law & Policy Associates