Traumatic brain injury (TBI), particularly in severe cases, can have such extraordinary effects on one's psychological capacities that it may be relevant to many kinds of legal claims in criminal proceedings. The focus of this essay is on claims related to an agent's status as a responsible agent. In other words, this essay will discuss the relationship between traumatic brain injury and claims that an individual does not have the capacities required to be fairly held accountable for wrongful actions. The law may hold most adults fully responsible for their crimes, but it may not hold responsible young children and the insane. The insanity claim (which Clayton argued his trial attorneys should have raised) asserts that the defendant lacked the capacities required for the state to hold him responsible for his wrongdoing. Clayton's attorney argued that it was unfair to hold him responsible, maintaining that the accident "left him blameless" for the murder he committed. In a statement released after his execution, she emphasized that "Mr. Clayton was not a 'criminal' before the sawmill accident," arguing that he that accident "left him blameless"11 for the homicide he committed because "20 percent of his frontal lobe [was] removed. '12 Also, during the penalty phase, arguing that his injury was mitigating, Clayton's counsel urged that his capacities required for full responsibility were diminished, and, therefore, he should not receive the harshest sentence that could be justified for a fully responsible individual. In this contribution to a symposium on the important topic of traumatic brain injury and law, I focus on the following question: What is the relationship between traumatic brain injury and responsibility? How does, or how might, a traumatic brain injury affect one's status as a responsible agent?
Paul J. Litton,
Traumatic Brain Injury and a Divergence between Moral and Criminal Responsibility, 56 Duquesne Law Review 35
Available at: https://scholarship.law.missouri.edu/facpubs/718