Brain Injury in the Criminal justice System

Good afternoon everyone. I am delighted today to be able to join you all to talk about my program of research, which really focuses on the role of traumatic brain injury in shaping perceptions and sentencing-related recommendations in the criminal justice system.

We know that there is much evidence to show that traumatic brain injury can, in some cases, lead to a variety of cognitive and behavioral changes, such as impaired judgment, reduced impulse control, and increased aggression, which are all well-established as risk factors for involvement in criminal activity. Consistent with this, we know that the link between TBI and offending is now well-established, with a variety of different types of studies in both adolescent and adult populations indicating that TBI is associated with an increased risk of crime perpetration. We also know that numerous studies have documented a very high prevalence rate of brain injury in offender populations, typically around 50 to 80 percent, which of course far exceeds what you would expect based on general population rates.

We also know that these studies show that offenders with a history of TBI are more likely than those without such a history to be repeat offenders and to have committed crimes involving violence. In incarcerated young people, TBI also appears to be highly prevalent and linked to a greater risk of violence. More recent investigations in this arena have tried to draw our attention to the need to examine offending in women in prison who also report a brain injury, especially thinking about the relationships between head injury, comorbidities, and disability. We know that the needs of those who have offended and who also report a history of brain injury are incredibly complex. For example, we know that elevated rates of mental health problems, suicidality, and drug and alcohol abuse have been documented in these populations. Recent research around women with TBI in prison has also found high rates of prior mental health difficulties, historical sexual abuse, and severe depression.

Most of the research in this area to date has focused on determining the prevalence of brain injury in prison populations, understanding the mechanisms explaining that association, developing and implementing screening tools, and establishing specialist link-worker services or brain injury awareness training for prison staff and probation officers. However, in contrast to that body of work, I would argue that relatively little is known about how defendants with a history of traumatic brain injury are identified and managed earlier on in the criminal justice system, or how societal understanding—or more commonly, misunderstanding—of brain injury may affect offender management and treatment. We also know very little about how jurors and other key decision-makers, such as magistrates and judges, actually perceive TBI-related disability.

In terms of legal decision-making, there have been a number of relatively recent initiatives to raise awareness of ABI among sentencers. For example, the Judicial College includes acquired brain injury in their Equal Treatment Bench Book, suggesting reasonable adjustments like delaying hearings, taking regular breaks, ensuring quiet, distraction-free environments, and speaking slowly and clearly using short sentences. Similarly, the Sentencing Council includes acquired brain injury in its overarching guidance for sentencing offenders with mental disorders, developmental disorders, or neurological impairments. The overarching principle is that if an offender has an impairment, it should always be considered by the court, but it would not necessarily have an impact on sentencing recommendations. While these guidelines include information about acquired brain injury, they do not include evidence about how it may impact offending; it simply draws attention to it.

Therefore, while the guidance recognizes that disability can be considered a mitigating factor, it is unclear how decision-makers view and perceive ABI-related disability, or how they may adjust for it. How jurors and other key legal decision-makers evaluate acquired brain injury is an important consideration, especially as we know significant misconceptions about the long-term psychosocial consequences of brain injury exist in both layperson and non-expert populations. This lack of understanding also extends to healthcare and other professionals working within criminal justice settings. For instance, a 2013 study in the US found that health professionals—including social workers, psychologists, and nurses—working within the prison sector held multiple misconceptions about brain injury. Almost two-thirds reported receiving inadequate training. Similar findings have been found closer to home; for example, an O'Rourke study in 2018 evaluating probation officers in Northern Ireland found that even though 77 percent had worked with someone who had offended and sustained a brain injury, only 7.7 percent had received any training.

Consequently, poor awareness, coupled with inadequate training, lack of screening, and poor access to treatment, likely poses significant barriers for those with brain injury who enter the criminal justice system. We also need to draw the attention of key legal decision-makers to a defendant's brain injury so that TBI-related disability can be fully factored into legal decisions. However, there is a distinction between attending to something and appropriately adjusting for it. Even when attention is drawn to a brain injury, legal decision-makers may be unable to fully account for that information because of common misconceptions, which are further confounded by the hidden nature of the injury. Ultimately, the cognitive, emotional, and behavioral consequences of brain injury can often be invisible to the outside world, meaning behavior is easily misattributed to other causes. Research has shown that the absence of an outward physical marker means the ongoing effects of TBI can be discounted, minimized, or trivialized. There is a risk that non-expert professionals, even when recognizing symptoms, fail to recognize the severity and impact of those symptoms on everyday life.

In addition to the expectation that TBI-related disability is accompanied by a physical marker, observers may expect that recovery from hidden symptoms—like cognitive, behavioral, and personality changes—follows the same trajectory as physical recovery. We know the recovery trajectory is not equivalent; cognitive and social consequences typically persist even after good physical recovery. My research at Swansea has been focusing on the development of robust tools for measuring such misconceptions. We are finding large discrepancies between laypersons and brain injury professionals. Laypersons are much more likely to believe that physical, memory, and social recovery occur at the same rate, or that physical recovery is a good indicator of overall recovery.

My overarching program of work has been focused on trying to think about how a defendant who presents with a history of brain injury is evaluated in the criminal justice system. This has led us to ask how perceptions of a defendant's brain injury influence responses to a magistrate's sentencing verdict, how the invisible nature of the disability impacts understanding, how we can better support fair treatment, and whether we need to contextualize information so that legal decision-makers can not only recognize and attend to the condition but also adjust for the ongoing effects on behavior. I will present the outcomes of two specific studies today to illustrate our approach.

The aim of the first experiment was to investigate how a defendant with TBI is evaluated. We wanted to explore how a physical marker of TBI disability alongside the expected time course of physical recovery affected participants' perceptions of a magistrate's sentencing decision. We focused on the Magistrates' Court because most cases start there, and 95 percent of them are adjudicated there in the UK. We used an experimental design where participants from the general population were randomly allocated to one of four conditions. Our first condition was a control where there was an absence of any information about brain injury. In condition two, we presented the defendant as having sustained a TBI and provided a short factual description of hidden cognitive and emotional symptoms. In condition three, we supplemented that by saying physical symptoms had resolved at the point of the offense. In condition four, the physical difficulties were described as ongoing.

We embedded this in a fictional magistrates' case and sentencing portfolio. We sought feedback from a magistrate to ensure our materials reflected the deliberation process. We presented a case description of assault, followed by aggravating and mitigating factors, and presented TBI as an additional mitigating factor for the relevant conditions. We then presented the Sentencing Council guidelines and handed down a 13-week suspended custodial sentence. We then asked participants to rate whether that sentence was too harsh or too lenient, and to make their own recommendations.

We preregistered these studies on the Open Science Framework and recruited 343 participants. We hypothesized that the appropriateness of the sentencing recommendation would vary across the four conditions. In essence, we thought TBI would act as a mitigating factor, and that the mitigation effect would be larger when TBI was more visible, i.e., accompanied by an ongoing physical marker. What we actually found was that participants rated the magistrate's verdicts similarly across all four conditions, irrespective of whether a TBI was present or not, or if there was a physical marker.

However, we also found that participants' perceptions of recovery actually varied. Specifically, the presence or absence of a physical marker impacted how participants perceived the defendant's brain injury. Participants perceived the defendant with resolved physical health issues as having made a better recovery and expected they would achieve a better recovery in the future. The findings showed that participants perceived the impact of the TBI as being more severe when there were ongoing physical issues. The marker and the outward sign were really important. From this, there was evidence that the critical manipulation of brain injury impacted participants' perceptions, but those differences in perceptions of recovery potential were insufficient in impacting the sentencing-related recommendations. In effect, participants showed they had attended to the information, but they then did not make any adjustments for that information.

We then wondered about two possibilities. The first was an anchoring effect, as participants' responses clustered around the midpoint. We wondered if this reflected a deferral to the professional's opinion. The second was whether we needed to add more contextual information to counteract the invisible nature of the injury. We wondered: do we need to increase the salience so information is not only attended to but factored into decision-making? We continued with a second experiment, adapting our protocol to include a decision point before we revealed the magistrate's verdict to explore the anchoring effect. We also investigated the impact of adding further contextual information—basically, education about TBI.

We had three conditions: no TBI, TBI with no education, and TBI with education. We used the same fictional case scenario and presented TBI as an additional mitigating factor. In the third condition, we followed this with a short, animated educational video about brain injury covering causes, consequences, and the invisible and social impacts. Then, we had the new decision point where participants suggested a sentence before the magistrate's verdict was revealed. We then recruited 405 participants. We hypothesized that participants would recommend a more severe sentence in the no-TBI condition, followed by TBI-no-education, and then the TBI-education condition.

We did find a significant main effect of brain injury on sentence severity ratings. There was a significant difference between the TBI-no-education and the no-TBI control groups—replicating the findings from study one. However, we also found a significant difference in sentence severity ratings between the TBI-education versus no-TBI-education conditions; namely, the sentence severity recommendations were significantly lower when TBI was presented alongside the educational video. This emphasizes how education matters: we can draw attention to, and then potentially adjust for, that brain injury. We concluded that increasing the salience of information about brain injury led to an adjustment in sentencing recommendations.

In addition, we found that when participants were asked to rate how influential the TBI was, it was rated as being more influential in the TBI-education condition. Again, education matters. When looking at the outcomes from the other sentencing variables, we replicated the anchoring effect—after we handed down the magistrate's sentence, there was that deferral to saying it was neither too harsh nor too lenient. We also found that perceived dangerousness scores were significantly lower for the defendant who had TBI and where education was provided.

To wrap up our overall conclusions: the research highlights that the invisible nature of TBI-related disability can lead to it being overlooked during sentencing proceedings. Contextual information is key to increasing comprehension and the visibility of the brain injury. The initial work is suggesting that educational interventions are key to ensuring fairer treatment during court proceedings. Without that specialist education, decision-makers may not be able to recognize and appropriately adjust for the ongoing effects of brain injury on an individual's behavior.

We have replicated the findings from that last study in a sample of nearly 700 participants; again, sentence severity ratings are lower for those with TBI when a brief educational package is presented. This inclusion of education about TBI leads to lower sentencing recommendations, or more appropriately, not just attention but developed understanding. We also found that a personal narrative about brain injury does not seem to lead to lower sentencing recommendations compared to a non-narrative story—evidence that education is the most important thing, not necessarily the format of delivery. Without simply presenting information about brain injury, or including it in benchmarks, it doesn't necessarily mean it will be attended to and appropriately adjusted for.