Neurodevelopmental Conditions and the NGRI Defense

Abstract

Guina et al. summarize the literature on neurodevelopmental conditions and crime, focusing on the use of the insanity plea for this population. There have been a small number of cases in several jurisdictions, using both cognitive and volitional prongs, generating questions about the use of the defense for people with neurodevelopmental conditions. There are theoretical scenarios in which the defense seems appropriate, such as the argument that higher order moral reasoning is contingent on a series of developmental steps, including the development of theory of mind. Other lines of argument could be based on differences in conceptual thinking, reasoning, language, memory, attention, executive functioning, emotional regulation, and impulsivity. There are multiple barriers, however, to the use of the defense, including its antiquated language, which does not reflect our current conceptualizations of mental conditions and disorders. Another barrier is associated with the implicit stigmatization of defining a different way of being as a disorder, a position at the core of the important and burgeoning neurodiversity movement. It is not clear whether neurodevelopmental conditions will become the basis for an increasing number of insanity pleas, but more information in the form of primary data and good analysis is a critical next step.

Keywords: NGRI/insanity defense; autism spectrum disorder; moral reasoning; neurodevelopmental condition; theory of mind.