Traumatic Brain Injury (TBI) is a mental defect that can cause “a number of deficits in intellectual and adaptive functioning, such as agnosia (failure to recognize or identify objects) and disturbances in executive functioning connected with planning, organizing, sequencing, and abstracting.”

TBI is a more recent phenomenon. As the military armor has improved over the years, soldiers are more likely to survive attacks. However, the armor does not protect a soldier’s brain from hitting the inside of the skull. Because improvised explosive devices (IEDs) are the preferred weapon of insurgents in the War on Terror, this problem has been greatly exacerbated. TBI has in fact become the “signature wound” of the War on Terror. More than 1,800 combat veterans have been diagnosed with service-related TBIs and there are estimates that as many as 300,000 veterans of the wars in Iraq and Afghanistan have suffered some form of TBI.

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Further Reading

Damage to Ventromedial Prefrontal Cortex Impairs Judgment of Harmful Intent

Liane Young, Antoine Bechara, Daniel Tranel, Hanna Damasio, Marc Hauser, & Antonio Damasio, Damage to Ventromedial Prefrontal Cortex Impairs Judgment of Harmful Intent, 65 Neuron 845 (2010).

Abstract: Moral judgments, whether delivered in ordinary experience or in the courtroom, depend on our ability to infer intentions. We forgive unintentional or accidental harms and condemn failed attempts to harm. Prior work demonstrates that patients with damage to the ventromedial prefrontal cortex (VMPC) deliver abnormal judgments in response to moral dilemmas and that these patients are especially impaired in triggering emotional responses to inferred or abstract events (e.g., intentions), as opposed to real or actual outcomes. We therefore predicted that VMPC patients would deliver abnormal moral judgments of harmful intentions in the absence of harmful outcomes, as in failed attempts to harm. This prediction was confirmed in the current study: VMPC patients judged attempted harms, including attempted murder, as more morally permissible relative to controls. These results highlight the critical role of the VMPC in processing harmful intent for moral judgment.

Traumatic Brain Injury and a Divergence Between Moral and Criminal Responsibility

Paul Litton, Traumatic Brain Injury and a Divergence Between Moral and Criminal Responsibility, 56 L. Rev. 35 (2018).

Excerpt: One aim of this essay is to examine the plausibility of each interpretation of his attorney’s claim. In doing so, this essay will discuss the ways in which a traumatic brain injury may be relevant to assessing a person’s responsibility status. In this discussion, I will emphasize a point previously made: The fact that a brain injury caused an agent to commit a criminal or immoral act that he would not have otherwise committed is not, by itself, relevant to criminal responsibility. A corollary to that claim is that neuroscientific findings are irrelevant to responsibility insofar as they are offered to show that one’s brain caused his wrongful act. Traumatic brain injury may be relevant to criminal responsibility depending on the rationality impairments it causes. Rationality impairments, if serious enough, undermine or diminish criminal responsibility.

Athletes, Veterans, and Neuroscience: A Symposium on Traumatic Brain Injury and Law

Jane Campbell Moriarty, Forward Athletes Veterans and Neuroscience: A Symposium on Traumatic Brain Injury and Law, 56 Duq. L. Rev. 1 (2018).

Excerpt: In fact, TBI occurs in the United States with alarming frequency: Between 1.7 and 2.5 million TBIs occur every year, and some estimate that 5 million of those injured individuals will suffer from permanent disability. Scholars have described the rate of TBIs as an “epidemic of concussive brain injuries.” One study tracking data concluded that from 2002-2006, approximately 275,000 hospitalizations and 52,000 deaths from TBI were related to accidents, assaults, and sports-related injuries. Data compiled by the United States government suggest that 12% of Iraq and Afghanistan veterans are diagnosed with TBI from blast exposure, but there is evidence that this number is vastly underreported. Evaluations of veterans returning from Iraq and Afghanistan conclude that TBI is a “pre-eminent injury” of those wars. Sports-related concussions in young athletes and the discovery of chronic traumatic encephalopathy (CTE) in former NFL players have prompted much concern in the public generally6 and in legal/medical fields specifically.

The medical and psychological implications of TBI are profound for individuals with such brain injuries. Over the last decade, TBI has become part a more prevalent aspect of cases moving through the legal system. TBIs are often an element of damage in accident cases, are raised as defenses or mitigation by defendants in criminal cases, and are litigated in both veterans benefit claims and workers disability hearings. State legislatures are grappling with concussion statutes designed to protect young athletes, and the NFL has been involved in a massive concussion settlement program. The criminal and civil litigation issues include how to prove mild TBIs (mTBIs), what types of expertise and imaging is appropriate for court, and whether TBIs can excuse or mitigate a defendant’s liability in criminal cases.

Neural Signatures of Third-Party Punishment: Evidence from Penetrating Traumatic Brain Injury

Glass, Leila, Lara Moody, Jordan Grafman, & Frank Krueger, Neural Signatures of Third-Party Punishment: Evidence from Penetrating Traumatic Brain Injury, 11 Soc. Cognitive Affective Neuroscience 253 (2016).

Abstract: The ability to survive within a cooperative society depends on impartial third-party punishment (TPP) of social norm violations. Two cognitive mechanisms have been postulated as necessary for the successful completion of TPP: evaluation of legal responsibility and selection of a suitable punishment given the magnitude of the crime. Converging neuroimaging research suggests two supporting domain-general networks; a mentalizing network for evaluation of legal responsibility and a central-executive network for determination of punishment. A whole-brain voxel-based lesion-symptom mapping approach was used in conjunction with a rank-order TPP task to identify brain regions necessary for TPP in a large sample of patients with penetrating traumatic brain injury. Patients who demonstrated atypical TPP had specific lesions in core regions of the mentalizing (dorsomedial prefrontal cortex [PFC], ventromedial PFC) and central-executive (bilateral dorsolateral PFC, right intraparietal sulcus) networks. Altruism and executive functioning (concept formation skills) were significant predictors of TPP: altruism was uniquely associated with TPP in patients with lesions in right dorsolateral PFC and executive functioning was uniquely associated with TPP in individuals with lesions in left PFC. Our findings contribute to the extant literature to support underlying neural networks associated with TPP, with specific brain-behavior causal relationships confirming recent functional neuroimaging research.

“Combat Veterans, Mental Health Issues, and the Death Penalty: Addressing the Impact of Post-Traumatic Stress Disorder and Traumatic Brain Injury” by Anthony E. Giardino, Fordham Law Review (2009)

Abstract: More than 1.5 million Americans have participated in combat operations in Iraq and Afghanistan over the past seven years. Some of these veterans have subsequently committed capital crimes and found themselves in our nation ‘s criminal justice system. This essay argues that combat veterans suffering from post-traumatic stress disorder or traumatic brain injury at the time of their offenses should not be subject to the death penalty. Offering mitigating evidence regarding military training, post-traumatic stress disorder, and traumatic brain injury presents one means that combat veterans may use to argue for their lives during the sentencing phase of their trials. Alternatively, Atkins v. Virginia and Roper v. Simmons offer a framework for establishing a legislatively or judicially created categorical exclusion for these offenders, exempting them from the death penalty as a matter of law. By understanding how combat service and service-related injuries affect the personal culpability of these offenders, the legal system can avoid the consequences of sentencing to death America’s mentally wounded warriors, ensuring that only the worst offenders are subject to the ultimate punishment. Read the full article.

“Traumatic Brain Injury in Criminal Litigation” by Stacey Wood, and Bhushan S. Agharkar, University of Missouri–Kansas City Law Review (2015)

Abstract: Traumatic brain injury (TBI) is a highly prevalent cause of neurocognitive disorders resulting in approximately 2.5 million emergency department visits per year. As a result, the prevalence rate of traumatic brain injury is remarkably high among criminal defendants as derived from studies of individuals in prisons and jails. The Center for Disease Control (CDC) estimated that twenty-five to eighty-seven percent of individuals in jail and prison report having experienced a TBI. In this review we discuss common referral questions involving individuals with a history of TBI in criminal litigation. We cover competency to proceed, mental state defenses, and mitigation in capital and non-capital cases. Read the full article.

“Understanding TBI in Our Nation’s Military and Veterans: Its Occurrence, Identification and Treatment, and Legal Ramifications” by Stacey-Rae Simcox, Michelle Mattingly, Isis V. Marrero,  University of Missouri–Kansas City Law Review (2015)

Abstract: Department of Defense data reveals that of those who served in the U.S. Military from 2000 through 2011, 235,046 service members (4.2% of the 5,603,720 who served in the Army, Air Force, Navy and Marine Corps) were diagnosed with a Traumatic Brain Injury (TBI). Because of the high prevalence of exposure to explosive devices, TBI has been labeled a “signature injury” of the wars in Iraq and Afghanistan. Adding to the unique nature of combat-induced TBI is the occurrence of commingling posttraumatic stress disorder symptoms (PTSD). Because service members’ exposure to events and comorbidities may differ significantly from civilian experiences of TBI, for instance sports injuries, it is important to understand the ramification of this condition for our military. A failure of the Department of Defense (DoD) or Veterans Affairs (VA) to adequately diagnose or treat this condition can lead to significant concerns for service members, including legal ramifications and a denial of treatment or benefits for TBI.

“Chronic Traumatic Encephalopathy in an Iraqi War Veteran with Posttraumatic Stress Disorder who Committed Suicide” by Bennet Omalu, Jennifer L. Hammers, Julian Bailes, Ronald L. Hamilton,M. Ilyas Kamboh, Garrett Webster, and Robert P. Fitzsimmons, Neurosurgical Focus (2011)

Following his discovery of chronic traumatic encephalopathy (CTE) in football players in 2002, Dr. Bennet Omalu hypothesized that posttraumatic stress disorder (PTSD) in military veterans may belong to the CTE spectrum of diseases. The CTE surveillance at the Brain Injury Research Institute was therefore expanded to include deceased military veterans diagnosed with PTSD. The authors report the case of a 27-year-old United States Marine Corps (USMC) Iraqi war veteran, an amphibious assault vehicle crewman, who committed suicide by hanging after two deployments to Fallujah and Ramadi. He experienced combat and was exposed to mortar blasts and improvised explosive device blasts less than 50 m away. Following his second deployment he developed a progressive history of cognitive impairment, impaired memory, behavioral and mood disorders, and alcohol abuse. Neuropsychiatric assessment revealed a diagnosis of PTSD with hyperarousal (irritability and insomnia) and numbing. He committed suicide approximately 8 months after his honorable discharge from the USMC. His brain at autopsy appeared grossly unremarkable except for congestive brain swelling. There was no atrophy or remote focal traumatic brain injury such as contusional necrosis or hemorrhage. Histochemical and immunohistochemical brain tissue analysis revealed CTE changes comprising multifocal, neocortical, and subcortical neurofibrillary tangles and neuritic threads (ranging from none, to sparse, to frequent) with the skip phenomenon, accentuated in the depths of sulci and in the frontal cortex. The subcortical white matter showed mild rarefaction, sparse perivascular and neuropil infiltration by histiocytes, and mild fibrillary astrogliosis. Apolipoprotein E genotype was 3/4. The authors report this case as a sentinel case of CTE in an Iraqi war veteran diagnosed with PTSD to possibly stimulate new lines of thought and research in the possible pathoetiology and pathogenesis of PTSD in military veterans as part of the CTE spectrum of diseases, and as chronic sequelae and outcomes of repetitive traumatic brain injuries. Read the full article.

“Military-related Traumatic Brain Injury and Neurodegeneration” by Ann C. McKee and Meghan E. Robinson, Alzheimer’s & Dementia (2014)

Abstract: Mild traumatic brain injury (mTBI) includes concussion, subconcussion, and most exposures to explosive blast from improvised explosive devices. mTBI is the most common traumatic brain injury affecting military personnel; however, it is the most difficult to diagnose and the least well understood. It is also recognized that some mTBIs have persistent, and sometimes progressive, long-term debilitating effects. Increasing evidence suggests that a single traumatic brain injury can produce long-term gray and white matter atrophy, precipitate or accelerate age-related neurodegeneration, and increase the risk of developing Alzheimer’s disease, Parkinson’s disease, and motor neuron disease. In addition, repetitive mTBIs can provoke the development of a tauopathy, chronic traumatic encephalopathy. We found early changes of chronic traumatic encephalopathy in four young veterans of the Iraq and Afghanistan conflict who were exposed to explosive blast and in another young veteran who was repetitively concussed. Four of the five veterans with early-stage chronic traumatic encephalopathy were also diagnosed with posttraumatic stress disorder. Advanced chronic traumatic encephalopathy has been found in veterans who experienced repetitive neurotrauma while in service and in others who were accomplished athletes. Clinically, chronic traumatic encephalopathy is associated with behavioral changes, executive dysfunction, memory loss, and cognitive impairments that begin insidiously and progress slowly over decades. Pathologically, chronic traumatic encephalopathy produces atrophy of the frontal and temporal lobes, thalamus, and hypothalamus; septal abnormalities; and abnormal deposits of hyperphosphorylated tau as neurofibrillary tangles and disordered neurites throughout the brain. The incidence and prevalence of chronic traumatic encephalopathy and the genetic risk factors critical to its development are currently unknown. Chronic traumatic encephalopathy has clinical and pathological features that overlap with post-concussion syndrome and posttraumatic stress disorder, suggesting that the three disorders might share some biological underpinnings. Read the full article.

“Could Veterans have Concussion Related CTE?” by Sandee LaMotte, CNN (2015)

This article provides an overview of Traumatic Brain Injury, the “signature injury” of the Iraq and Afghanistan wars. In reviewing the potential brain degeneration that is resulting from the shockwaves caused by explosions, the author covers personal stories of soldiers who are dealing with brain deterioration, finding that individuals are much more willing to accept being diagnosed with a physical injury to their brain, rather than a mental impairment. Watch the full report.

“Veterans and Brain Disease” by Nicholas Kristof, The New York Times (2012)

Veterans of the wars in Iraq and Afghanistan suffering from CTE may be the cause in the sharp rise in suicides among veterans returning home from the wars in Iraq and Afghanistan compared to the suicide rates of the Vietnam War. This opinion editorial also recognizes that what is most troubling about soldiers returning home with brain trauma is the fact that CTE “typically develops in midlife, decades after exposure” and that “we may see much more in the coming years.” Read the full op-ed.