For those that may be genetically pre-disposed to violence, brain scans are becoming used more often as evidence in court. Can brain scans keep violent criminals out of prison?
Brain scans are becoming more common for mitigating purposes for either the crime itself to prove intent or for sentencing purposes, says retired Superior Court of California Judge Eugene Hyman. Mitigation would only be for first time offenders and if the victim has done a good job of recovering, he adds.
What the public doesn't realize, Hyman says, is that judges usually don't have the discretion to send someone to a mental hospital as a result of the violent crime. The only way there is a guarantee for someone to go to a mental hospital instead of prison is if they're found to be insane at the time of the event or incompetent to stand trial.
"The largest mental health institutions in the U.S. are called county jails and state prisons," Hyman says. There are huge numbers of people on anti-psychotic meds and under close supervision with regard to their mental health but that doesn't mean they get into a state hospital, however, he notes.
According to Hyman, judges, when faced with these situations, have no choice but to send that person to prison, not because they want to punish that person for having a mental health condition, but their number one priority is about protecting the public. If indicated, the county will usually end up paying for the costs of the brain scan tests but if it's a complex case, it can come from the court's budget and with limited resources available to courts, they are hard-pressed to order tests, says Hyman.
Judge Hyman says that you can have all of the medical evidence in the world but if it doesn't get you reasonable doubt, insanity or incompetency, "it is not going to make a difference with respect to sentencing. An average judge is extremely concerned with public safety and the only option is state prison."
Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network.