Acquired brain injury and serious criminal offenders: An argument to expand the court's therapeutic jurisdiction

Brain injury is a debilitating mental impairment. It can cause aggression, impulsivity, and other socially challenging behaviours, including criminal offending. This is largely a consequence of damage to the frontal lobes, the part of the brain that facilitates selfregulation and emotional control. Remedying this requires specialist rehabilitation, preferably in dedicated facilities. However, rather than being in such facilities, a disproportionate number of brain injured New Zealanders are in prison, often for violent or sexual offences. By contrast, other mentally impaired offenders, such as the intellectually disabled and mentally ill, are not kept in prison but instead transferred to the health jurisdiction to receive treatment or care. This raises a question as to why brain injured offenders do not receive the same therapeutic response by our criminal justice system. This paper explores that question by examining the current legislative framework for diverting mentally impaired offenders into healthcare through therapeutic dispositions on sentencing. It demonstrates the inadequacy of this framework for violent or sexual offenders with brain injury by showing how the gateway definitions of “intellectual disability” and “mental disorder” exclude that condition. It then explores the appropriateness of imprisoning serious offenders with brain injury by examining whether their detention breaches the state’s statutory obligations, and argues that the status quo violates both the Corrections Act 2004 and the New Zealand Bill of Rights Act 1990. Finally, in recognition of the current exclusion of brain injured offenders from therapeutic dispositions, and the potential illegality of their detention in prison, this paper argues for an expansion of the court’s therapeutic jurisdiction and examines mechanisms to achieve this