COLUMN: UC professor says it's time for courts to recognize and respond to brain injured warriors

EDITOR'S NOTE: This is part of an ongoing series of opinion editorials written by University of Cincinnati faculty and staff who took part in a seminar by The OpEd Project, which focuses on increasing the range of voices and quality of ideas we hear in the world. It was funded, in part, by the Scripps Howard Foundation.

CINCINNATI -- One fateful day, Iraqi war veteran Andrew Chambers got into a fight with a man over money.

The man pulled a knife. Chambers pulled a gun. During the ensuing struggle, his gun fired a round into the floor. Chambers pleaded guilty to felony assault and was sentenced to 10 years in prison.

In Iraq, Chambers served in the explosive ordnance division. He returned to his home in Ohio with a dozen documented concussions. 

Upon his return, his family immediately noticed that he wasn’t himself. He withdrew from his friends, began drinking and taking drugs and developed a horrible temper. 

Dr. Chrisanne Gordon, a rehabilitation medicine specialist, diagnosed him with a traumatic brain injury (TBI), which can cause memory lapses, trouble focusing and making decisions and problems managing emotions. 

Is it right that Andrew was sent to prison instead of receiving treatment for his broken brain? Is that just?

Not according to Gordon, who claims that our prison system harms people like Chambers.

His “brain is as confused as possible,” she says, and people like him, people with traumatic brain injuries, “fall through the cracks of the legal system.”

The U.S. Centers for Disease Control reports that there are almost two million traumatic brain injuries each year in the United States – that is one brain injury every 15 seconds.

More than a third of the more than 2.6 million Americans who have served in Iraq or Afghanistan, or nearly 900,000 veterans, people like Andrew Chambers, suffer from at least mild TBI, according to estimates.

“Traumatic brain injury is one of the invisible wounds of war, and one of the signature injuries of troops wounded in Afghanistan and Iraq,” according to the Department of Defense Special Report on Traumatic Brain Injury.

It should not be surprising that soldiers on active duty get injured, but the number of TBI among our Iraqi and Afghan veterans is much more than in previous military actions.

In part, that’s because soldiers, clad in military armor and with expert field medical care, can now survive blasts that before would have killed them.

In addition, improvised explosive devices (IEDs) have become a weapon of choice for rebel fighters; explosions caused over half the combat injuries in the Operation Enduring Freedom in Afghanistan and Operation Iraqi Freedom wars. And explosions rattle your brain, which causes the diffuse damage seen in TBI.

And finally, modern veterans see significantly more combat tours than ever before. In Vietnam, for example, one 12-month tour was standard. In our current conflicts, we now have soldiers who have experienced eight, nine, 10 even 11 or 12 tours of duty. 

This is true especially for our elite forces, who are most likely to be engaged in combat.

We know that TBI is associated with social and cognitive difficulties. But can it be tied to criminal behavior? 

The CDC estimates that the lifetime TBI rates for prison inmates are as high as 87 percent—much, much higher than the general population rate of less than 10 percent.

Moreover, the behaviors resulting from TBI, like impulsivity and aggression, parallel incarceration rates. Inmates with a recent traumatic brain injury score significantly worse on tests for anger and aggression.

We find the same trends in our veterans. Veterans with a history of TBI are more violent than those with no such history.

But medical and scientific communities’ understanding of behavior clashes with the justice system.

Medicine, psychiatry, neuropsychology and neurology all hold that diseases, injuries and deformities in the brain influence and even determine a person’s thoughts, desires, impulses and ability to control behavior. 

In contrast, U.S. law assumes that all adults are rational beings who act for specific reasons, and that those actions are based on choice. Our legal system’s underlying theory of human behavior is grossly at odds with the best brain science data.

But there are alternatives. Several regions have created special diversion courts for veterans accused of a variety of crimes. In these courts, district attorneys can send veterans into treatment instead of jail when they commit an offense. 

Cincinnati has such a court, and there are now about 80 such programs scattered throughout the country.

Though these courts are relatively new, defendants who go through this system are more likely to become productive and law-abiding citizens than those who are warehoused in our prisons and jails. 

But there is an inherent injustice with these courts, which require that judges differentiate between returning combat vets with mental disorders and civilians facing the same challenges. 

Should vets be treated differently from other non-combatant defendants with similar brain injuries?

Surely not. If we have discovered a successful way to treat brain disorders, we should use it. Period.

Our court system now occasionally admits that brain abnormalities can mitigate, and, in some cases, even fully explain, a person’s behavior. But aren’t we beyond punishing offenders for behaviors that, in a very real sense, may have been beyond their control?

It is time to go all the way. 

The cognitive dissonance currently in the court system between what we know about the brain and how the law assumes we function has to be resolved.

Until then, our court system will continue to fail those who, like Chambers, suffer from serious brain injuries.

Valerie Gray Hardcastle is a Professor of Philosophy, Psychology and Psychiatry and Behavioral Neuroscience as well as the Scholar-in-Residence of the Weaver Institute for Law and Psychiatry at the University of Cincinnati. She is also an alum of the Op-Ed Project at UC.

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