This is something I have been thinking about since being asked for a submission about the health about people with brain injury who go to prison. It strikes me that I have hardly scratched the surface. It would be lovely to hear from anyone who has done work in the area.
The outlook is not good for those people who do not make a good recovery from brain injury, and studies have consistently found high levels of traumatic brain injury among prisoner populations. In an Australian study with 200 participants, Schofield, Butler, Hollis, Smith, Lee & Kelso (2006) found that 82% had a history of at least one traumatic brain injury (TBI). In New Zealand these figures would be approximately the same, at 86.4% (Barnfield & Leathem, 1998). Two US studies of death row inmates found that 75% had a history of brain damage and 100% had a history of TBI (Freedman & Hemenway, 2000; Lewis, Pincus, & Bard, 1986). Fifty per cent of individuals convicted for non-violent crimes had a past history of TBI compared with 5-15% in comparison samples (Sarapata, Herrman, Johnson, & Aycock, 1998). Violent offenders have also been found to be more likely to have experienced TBI than non-violent offenders (Bach-y-rita & Veno, 1974).
The lives of the adults with brain injury tend towards a vicious spiral unless they have the committed care of at least one other person. This is not possible for everyone and so people with brain injury can end up in a variety of more or less unsuitable institutions. These include long stay wards, rest homes, forensic psychiatric units and prisons. Given that many people with brain injury go to prison there are many things that need to be taken into account, including the following:
Epidemiology of brain injury in prisons
The general epidemiology of brain injury is in its infancy. Brain injury is clearly implicated in many of the crimes for which prisoners are incarcerated, although it is difficult to estimate in what way the prison statistics relate to the general community. It seems clear that brain injury is a significant factor in crimes for which people are caught and sent to prison. There is more work needed on the specific epidemiology of brain injury in the prison population. In particular studies are needed that differentiate the severity of the injury and relate this to types of crime and patterns of incarceration.
Brain injury as a (legal) defence
Generally disability (with the exception of mental health conditions) is not considered a defence in our criminal justice system. However, in recent years we have come to a greater understanding of the relationship between executive dysfunction and brain injury. It seems that the judgment of some people with severe brain injury is compromised to the extent that their responsibility for actions must seriously be called into question. There is an argument that brain injury should be a legal defence in these cases. However, at present there is a lack of credible expertise that could provide an assessment in these cases. There are few qualified neuropsychologists and it is outside the area of training of psychiatrists. It is clear from anecdotal evidence that people with severe brain injury are being incarcerated in situations where they are neither realistically defended, nor are they able to advocate for themselves.
There are two subsets of the brain injured population who do not make it into the prison system:
a) those whose families are effective advocates and more research needs to be done on how such families succeed; and
b) those who have a visible disability accompanying the brain injury, which highlights the problematic nature of the invisibility of brain injury.
Those with an invisible brain injury are the “walking wounded” and their behaviour is often labelled “bad”, because this is how it is experienced by others. The brain injured person is perfectly capable of being dominating, browbeating, overtalking, abusive and uninhibited among other things. They can also be gullible, slow thinking, forgetful, lacking in judgment and communication skills, none of which are admirable traits but all of which can be directly caused by brain injury and can lead to hefty judgments on the part of others. The person with a physical disability accompanying the brain injury is often exonerated for similar behaviour because people have a way of understanding the cause.
Executive function disorder makes the person with brain injury particularly vulnerable to being the ‘fall guy’. This is often the reason why they end up in prison and there are stories that circulate in the brain injury community of people who are known for their naivety who get put away for extended periods of time. These are often people who are incapable of lying and cannot comprehend the concept of plea bargaining.
The executive function disorder that makes the person with brain injury vulnerable in the community does not leave them when they enter prison. There is anecdotal evidence of the ways in which this particular group is identified and victimized by other prisoners. The vulnerability of this group needs to be recognized within the prison as well as in the community. They cannot be made completely safe, but a degree of understanding is called for.
The rehabilitative capacity of prison
There are many people with less serious injury, for whom prison can be a way of learning about consequences of actions when everything else has failed. A well planned prison, which has rehabilitation as well as incarceration as a focus, can provide the kind of structured environment that is ideal for the person with brain injury to learn to deal with rules. One of the effects of brain injury is difficulty dealing with rules and a truism of brain injury rehabilitation is that it is easier to change the environment than the person. Further research is needed to establish trajectories of adults with severe brain injury who find themselves in prison. As a first step communication needs to be established between the prison system and ACC.
Anecdotal evidence suggests the structured workshop can be very useful for the person with severe brain injury, who may struggle with the greater freedoms that are given to prisoners at a later stage in their sentence. Rehabilitation efforts should therefore not only focus on the years prior to release, but should also address the early stages of the sentence when the person with brain injury may have become ready to make gains. This may go some way to alleviating the familiar vicious cycle brought about by brain injured types of behaviour.
Management of medication
Medication has an important, but poorly understood, role following brain injury and it requires strict monitoring. A variety of drugs may be used in non conventional ways for pain relief (e.g. methadone) or irregularities in sleep (e.g. anti depressants).
Mismanagement of medication is a human rights issue and there is anecdotal evidence that medication is arbitrarily adjusted on admission to prison and thereafter. These adjustments may happen if the person is labelled as “drug seeking” or because 4.30pm lockup means that night medication has worn off in the early hours of the morning. There is also evidence that medication prescription is not being monitored and people can leave prison with multiple drugs all of which are doing the same thing.