Chapter 2 Neurodisability: a criminal law doctrine that is not pure insanity
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Neurodisability is a useful and dangerous term, with the power to transform criminal law in radical ways. Understanding the features and consequences of neurodisabilities with greater nuance and precision can lay the foundation for practical changes to criminal law practices and doctrines that improve outcomes for many individuals with neurodisabilities across society. This chapter first examines the question of what constitutes neurodisability, before considering several types of neurodisability more closely to demonstrate how they vary on dimensions of transience, meliorability, severity, control, cognitive and perceptual impairment, preservation of moral agency, and risk of harm to others. It then examines the varied purposes and institutions of criminal law, taking as guiding principles that criminal law systems founded on deterrent, retributive, or mixed-theory foundations aim to provide the social goods of safety and justice, balanced against avoidance of unnecessary cost and deprivation of liberty. Finally, the chapter proposes a practical framework for approaching neurodisability in criminal law more effectively than is currently the case. It concludes with a discussion on the social nature of many neurodisabilities, and the need for a greater understanding of our responsibility to the well-being of others.

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