What would you think if you heard someone who had stolen a car say, “It’s not my fault—my brain made me do it.” While it might sound absurd when phrased that way, that essential argument is one that is being used in more and more criminal defense cases across the country.

We’ve all heard of the insanity plea before—a defendant claims that they are not culpable for the crime they committed because they were legally insane at the time it took place. The insanity plea as we have traditionally understood it is actually only used in about 1% of all felony cases, and only succeeds about a quarter of the time it is used. However, some criminal defenders these days are taking a slightly different approach: they’re using brain scans and neuropsychological tests to argue that brain abnormalities have caused their clients to commit criminal acts.

This defense has become more and more commonplace as we continue to learn about the human brain. In 2005, neuroscience was used as evidence in 30 felony cases that did not involve homicide. In 2012,that number increased to over 100.

The Rise of Neurolaw

Psychology in criminal law is a relatively recent field of study. Recent studies have shown a link between psychopathy and structural brain abnormalities. Brain scans of true psychopaths have revealed that this small subset of people experiences abnormalities in “social” parts of their brains, creating deficits in empathy and potentially leading to criminal behavior.

The intriguing brain scans of psychopaths have led to psychological studies of other individuals who have committed criminal acts, and now some criminal defendants are using data from these studies to suggest that non-psychopaths may commit crimes due to brain abnormalities caused by genetics or trauma,as well. They argue that these brain abnormalities may cause impulsivity and inhibit the decision-making process, leading to criminal acts such as stealing.

A Case for Kleptomania and Other Mental Disorders

When it comes to stealing, there’s another potential psychological catalyst that has gotten a fair amount of coverage (and misrepresentation) in popular culture: kleptomania. In the Diagnostic and Statistical Manual IV, kleptomania is characterized by the repeated stealing of items not needed for personal use or monetary value, an increased sense of tension immediately before committing the theft, and pleasure or relief upon committing the theft. It often coexists with other mental disorders, such as depression,social phobia, anorexia, bulimia, obsessive-compulsive disorder, or a chemical dependence. Having another mental illness or some kind of brain injury or head trauma is considered a risk factor for kleptomania.

Because people who truly have kleptomania are not motivated by financial gain, the items they steal are often not very expensive, and if they are caught they’ll likely face a misdemeanor rather than a felony. But what if someone with this disorder does steal something larger, like a car? Or steals so many little things over a period of time that the value of their thefts gets up into the thousands of dollars? If the monetary value of the stolen items earns them a felony charge, defendants could potentially face significant prison time, and even a misdemeanor carries the possibility of imprisonment. Does someone who is motivated to steal because of a compulsion or brain injury really deserve that kind of a sentence?

Courts Need to Look at the Big Picture

Ultimately, our courts need to look at a whole host of factors when evaluating criminal cases, not just brain scans or a psychological diagnosis. We need to consider other possible motivating factors, influences in the defendant’s life, and other social circumstances that may have played into the crime. Even if evidence from neuroscience is not sufficient to alleviate a defendant of all responsibility, there may be other important factors at play that should be considered when determining their sentence or treatment course.

In an interview with Psychology Today, Pathways Institute for Impulse Control co-founder Elizabeth Corsale argued that even when thefts are not caused by an impulse disorder, there is clearly some kind of problem that is causing the person to commit this divergent act. She suggests thatongoing treatment, such as cognitive-behavioral therapy, as well as group and individual therapy, is the best way to treat people with a stealing problem.

Looking at the big picture in these types of nonviolent cases will help us discover treatment courses thatare much more effective than a prison sentence. We need to treat the whole person—not just the criminal act—and continuing to educate ourselves on the role of neuroscience in criminal behavior is one tool in determining how to do this.

About the Author: Kimberly Diego is a criminal defense attorney in Denver practicing at The Law Office of Kimberly Diego. She obtained her undergraduate degree from Georgetown University and her law degree at the University of Colorado. She was named one of Super Lawyers’ “Rising Stars of 2012” and “Top 100 Trial Lawyers in Colorado” for 2012 and 2013 by The National Trial Lawyers. Both honors are limited to a small percentage of practicing attorneys in each state. She has also been recognized for her work in domestic violence cases.

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