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Should head injuries be more closely examined in criminal cases?

Many Americans (Texans not excepted) have a tough-on-crime viewpoint. "Do the crime, do the time" is a well-worn mantra that legions of people across the country readily subscribe to.

Yet many of those same individuals duly appreciate that one or more mitigating factors in a given case can make it both morally and legally wrong to impose a harsh criminal sentence on an individual.

A recent article on criminal justice and sentencing outcomes argues that one mitigating factor that warrants close scrutiny is traumatic brain injury.

Indeed, TBI is something that is already sharply focused upon in prison populations, but the above article notes that much of the attention is tardy and lacking in meaningful follow-up measures.

It is noted, for example, that the national Centers for Disease Control and Prevention recommends inmate testing for head trauma, but only following sentencing and incarceration.

The article' author stresses that such a protocol is simply too late. Diagnostic scanning and other objective-based testing is far more effective at a stage that well precedes lock-up. Indeed, any factors that might reasonably be argued as mitigating should be known well before a trial or plea bargain.

Such proactivity seems well warranted, given the sheer breadth and depth of evidence showing head-trauma issues existing in a high percentage of prisoners locked up in Texas and nationally. One study outcome has concluded that nearly 90% of the country's inmates have experienced some type of brain injury. Another points to many female prisoners who (largely as the result of family violence) have had at least 10 concussions.

Should such a reality play into criminal sentencing outcomes?

Different audiences will respond in varying ways to the question. It is certainly true, though, that most Americans acknowledge fundamental fairness and the related idea that a criminal outcome must reasonably link to a defendant's knowing willfulness and culpability as important.

A traumatic brain injury can arguably reduce that culpability -- even to a material degree -- in a specific case.

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