21/07/01

 Damaged Brains and the Death Penalty 

By LAURA MANSNERUS You don't have to be a psychiatrist, Dr. Dorothy Otnow Lewis says, to know that something was terribly wrong with Ricky Ray Rector, who before his execution in Arkansas ordered his last meal and asked that the pecan pie be set aside so he could have it later.

 But Dr. Lewis is a psychiatrist, and the Ricky Ray Rector story makes a point that she has spent many years documenting: the worst criminals are not a very crafty lot. Almost without exception, Dr.

Lewis has found in evaluating dozens of death-row inmates, they have damaged brains. Most were also the victims of vicious batterings and often sexual abuse as children. Psychotic symptoms, especially paranoia, are common.

A professor of psychiatry at New York University, Dr. Lewis is among a handful of researchers who are rethinking the etiology of violence. Her studies focus on some of the most violent criminals; she has interviewed 150 to 200 murderers, sorting through their medical histories and, as much as it can be done, their brains.

  Dr. Lewis "has revolutionized the way people think about criminal behavior," said Elyn R. Saks, who teaches forensic psychiatry at the University of Southern California Law School.

  And while no revolution is at hand in the criminal justice system, legal scholars say new findings on brain dysfunction are finally gaining attention, at least where they matter most: in death penalty cases. Just this year, 4 states banned executions of the mentally retarded, bringing to 17 the number of the 38 death-penalty states that have made that exception, and the Supreme Court will hear arguments in one such case this fall.

  Some of the stories Dr. Lewis has heard are told in her 1998 book, "Guilty by Reason of Insanity." Other stories emerge through raw data in articles published over 15 years in medical journals. Her latest article, a study of murderers who were adopted, was accepted this month by the Journal of the American Academy of Psychiatry and the Law, though until publication, Dr. Lewis says, she cannot discuss her findings.

  Her longtime collaborator, Dr. Jonathan H. Pincus, the chief of neurology at the Veterans Administration Hospital in Washington, sets out the neurologist's perspective in his book, "Base Instincts: What Makes Killers Kill?," published last month.

  Dr. Pincus administered the neurological examinations, from simple reflex tests to EEG's and brain scans, that supplemented the interviews. The researchers also combed whatever medical records they could find.

  In 1986 Dr. Lewis and Dr. Pincus published a study of 15 death row inmates that found all had suffered severe head injuries in childhood and about half had been injured by assaults. Six were chronically psychotic. Far from invoking an "abuse excuse," Dr.

Lewis said, all but one had minimized or denied their psychiatric disorders, figuring that it was better to be bad than crazy.

  Many, she said, had been so traumatized that they could not remember how they had received their scars. The answers had to come from childhood medical records and interviews with family members.

  In another study, of 14 juveniles sentenced to death, the researchers found that all had suffered head trauma, most in car accidents but many by beatings as well. Twelve had suffered brutal physical abuse, five of those sodomized by relatives.

  No one suggests that abuse or brain damage makes a murderer, but Dr. Lewis says that while most damaged people do not turn into killers, almost every killer is a damaged person. She concludes that most murderers are shaped by the combination of damage to the brain, particularly to the frontal lobes, which control aggression and impulsiveness, and the even more complex damage visited by repeated, violent child abuse.

  These findings, Dr. Lewis says, cast doubt on legal definitions of insanity. Many legal experts agree, while others say the law should be in no hurry to apply new theories in the debate, older than Western thought itself, between free will and determinism. Many psychiatrists and psychologists, too, see evil and con artistry where researchers like Dr. Lewis see disease.

  Barbara R. Kirwin, a forensic psychologist who recounted her examinations of violent murderers in her book, "The Mad, the Bad and the Innocent," questions Dr. Lewis's studies because, like many medical studies with small samples, they are not controlled. And if unusual brain activity can be interpreted, Dr. Kirwin said, "I want to find out what subcortical firing Mother Theresa has."   Dr. Kirwin's findings on the incidence of child abuse among homicide defendants differ wildly from Dr. Lewis's. Dr. Kirwin estimates that of the 300 or so defendants she has studied, 10 percent have been abused, or "about what you'd find in the general population."   One way of stating their differences is that Dr. Lewis says she has never seen a "mere sociopath" - that is, someone with a normally competent brain who simply has a gross lack of empathy - while Dr. Kirwin says she has seen plenty.

  Dr. Lewis has been cited by the Supreme Court at least three times, along with Dr. Pincus and another longtime colleague, Catherine Yeager, a senior research assistant at New York University. Dr. Lewis is most pleased by the citation in a 1991 opinion by Justice Thurgood Marshall, a dissent in the decision allowing the execution of the brain-damaged Ricky Ray Rector.

  The court has ruled out executions of the insane, though critics say the legal standard is low: an inmate who is aware of his pending execution and the reason for it is deemed mentally competent.

  Richard E. Redding, a University of Virginia law professor and associate director of the university's Institute of Law, Psychiatry and Public Policy, said that when courts overturned death sentences they rarely addressed a defendant's mental state directly. But he said they were increasingly receptive to arguments that a defense lawyer's failure to present evidence of brain damage during the sentencing phase can amount to ineffective assistance of counsel, which is a ground for reversing a death sentence.

  In that way, Mr. Redding said, research on brain dysfunction, especially damage to the frontal lobe, "is actually having an effect on real-life cases."   In a 1999 case that overturned the death sentence of an inmate with a history of seizures and paranoia, the Illinois Supreme Court found that his lawyer failed to investigate obvious signs of his irrationality, which the court said was exemplified by his attempt to dispose of a body in a dresser drawer. (The expert witness who pointed that out in court was Dr. Pincus.)   Dr. Lewis and her colleagues study savage and bizarre murders, which she says are almost by definition the most crazed. In capital cases, Dr. Lewis says, the elaborate balancing of aggravating and mitigating factors - those that may be taken into account by judge or jury - actually frustrates the inquiry because "the grisliness of the crime is in proportion to the craziness of the act."   However crazy their acts, very few defendants qualify for the classic insanity defense. For purposes of determining sanity, the test is whether the defendant knew what he was doing and knew it was wrong, although some states also require that the defendant be capable of "conforming his conduct" to the law.

  "Responsibility is so wedded into centuries of tradition," said Deborah W. Denno, a Fordham University law professor who is working on an article about psychological research on consciousness and its influence on defining degrees of culpability.

  Long before anything was known about wayward neurotransmitters and frontal lobe lesions, legal theorists referred to free will as a fiction. The legal scholar Herbert Packer wrote in 1968 that "the law treats man's conduct as autonomous and willed, not because it is, but because it is desirable to proceed as if it were."   To Ms. Denno, such thinking is outdated. "Unconscious thought is more important than we ever thought," she said. "I'm suggesting that the criminal law is way out of line with what constitutes conscious thought. There's this dichotomy in criminal law: either you're responsible or you're not. If you're a sleepwalker or something like that, you're not held responsible at all."   Dr. Lewis, like Ms. Denno, focuses not on guilt but on punishment, and she typically works for defendants who ask only the dispensation of life in prison. "Most of the people I see I would not want running around again," she said.

  Now, in addition to the murderers from adoptive homes, she and her colleagues are studying serial killers, children who killed their parents and capital defendants who represent themselves. "Then," she said, "it's up to the public who they want to kill."