The Geek Defense

Do criminals with Asperger’s syndrome deserve special treatment?

Gary McKinnon 

Some time in the 1990s, during the heyday of the X-Files television show, a British computer enthusiast named Gary McKinnon became obsessed with the idea that the U.S. government had covered up evidence of UFO landings. As an unemployed contract worker, he had plenty of time to pursue his theory: Between 2001 and 2002, McKinnon hacked into nearly 100 U.S. military and NASA computers to look for documents pertaining to UFOs. Prosecutors say that at one point he shut down 2,000 computers in the Army’s network. Should he ever be convicted in the United States for that crime and others, he’ll face at least six years in federal prison.

Now McKinnon is trying to convince European Court of Human Rights that he just can’t take the stress of being extradited and made to stand trial. That’s because he has Asperger’s syndrome, a developmental disorder related to autism and characterized, in part, by compulsive behavior and a lack of interpersonal skills. His crime was a symptom of this condition, he says, and serving time in an American prison would be the worst kind of torture given the severity of his social impairments.

If (or when) McKinnon does get extradited, his “Asperger’s defense” might still come in handy. Criminal defendants in the United States have been using similar tactics with varying degrees of success in recent years. In fact, it’s not all that rare for criminal defendants with Asperger’s to argue for leniency in cases of computer fraud, sexual misconduct, and murder. Three years ago, the defense even made its way into an episode of Boston Legal.

How does this gambit work? One of the hallmarks of having Asperger’s is a severe difficulty navigating social situations. This awkwardness appears to stem from an inability to detect facial expressions and other social cues; people with autism and Asperger’s display a notable lack of empathy for others. Indeed, a 2004 study (PDF) found that both disorders are associated with low scores on a test designed to measure social awareness and compassion. Defense lawyers have argued that violent criminals with Asperger’s may therefore be incapable of understanding the harm they’re inflicting on another human being.

That was more or less the tactic used by the team representing Robert Durst, a real estate heir who killed and dismembered his neighbor in 2001. Durst was charged with first-degree murder, but a psychiatrist testified that his actions were the result of emotional deficits and impulsive behavior associated with Asperger’s—so the crime could not have been premeditated. The argument worked, and Durst was acquitted.Most judges and juries have been unconvinced that Asperger’s can explain or excuse violent behavior, though. Last month, a judge in the United Kingdom sentenced a 22-year-old woman with Asperger’s to life in prison for beating her mother to death, saying her lack of empathy didn’t reduce the gravity of the crime.

Another, more successful approach to the Asperger’s defense highlights its sufferers’ propensity for obsessive, repetitive behavior. McKinnon says he couldn’t stop hacking into government computers in his search for evidence of alien spacecraft. Is it fair to punish him for the combined impact of 100 separate crimes just because his compulsion played out in so many episodes? A similar argument has been made on behalf of defendants charged with possession of child pornography. In these cases, sentences are typically doled out according to the number of images found on a defendant’s computer. Because people with Asperger’s tend to become narrowly fixated on specific topics, they’re often zealous collectors. Admittedly, child pornography is a strange thing to collect, but defense lawyers have successfully argued that people with Asperger’s may not be in control of their collecting tendencies and could easily find themselves in the maximum sentencing category.

A few recent cases suggest that this line of argument can work well as a sentence mitigation tool. Last month, an Iowa judge reduced a sentence for child pornography possession from 20 years to seven years, after concluding that Asperger’s “might very well explain the number of images” involved in the case. In the United Kingdom, a 21-year-old student with Asperger’s was given only four months of jail time for possession of 922 pornographic images of children. (Not all courts have been so sympathetic.)

The same reasoning applies to cases of computer fraud. In August, a California man faced a minimum of six and a half years in prison for a multimillion-dollar computer scam involving a fake trucking company. He and a colleague would take orders for their nonexistent business. Then, using information obtained by hacking into a Department of Transportation Web site, they would take credit for deliveries made by real truck companies. In this case, the man’s lawyers argued that his Asperger’s disorder drove him to engage in repetitive acts of fraud. They also claimed that his extreme social awkwardness made it impossible for him to have masterminded the conspiracy. (“Some people are more vulnerable than others,” said his attorney.) The judge handed down a reduced sentence of less than five years.

McKinnon’s supporters have taken this one step further: They claim that he shouldn’t be locked up at all, as it would be cruel and unusual to put someone with his social impairments in a conventional prison. In 2007, psychiatrist David Allen published a set of interviews he’d conducted with six British convicts with Asperger’s. He concluded that being imprisoned was exceptionally stressful and confusing for them. Each one found interactions with police and prison guards traumatic, and most reported extreme difficulties interacting with other prisoners. Two of Allen’s interviewees were so intimidated that they spent much of their time hiding in fear. While evidence of Asperger’s defendants experiencing physical abuse in prison is anecdotal, a 2001 report by the National Research Council found that people with developmental disabilities were four to 10 times more likely to be victims of crimes in general.

The problem with this line of reasoning is that it’s not clear where else you might put these vulnerable inmates. Traditionally, defendants found not guilty by reason of insanity would be sent to a mental institution. But the drugs and therapy sessions that are prescribed to adults with psychiatric problems aren’t likely to help people with a condition like Asperger’s, which develops in childhood and never goes away. Andy Thomson, a psychiatrist at the University of Virginia Institute of Law, Psychiatry, and Public Policy, suggests punishing Asperger’s criminals with long, supervised probation periods instead.

That’s largely how the courts have dealt with autism, which first showed up in criminal cases in the 1950s. Still, the legal system isn’t always consistent in its treatment of criminals with developmental disabilities, and the sentences handed down to autistic defendants can vary widely depending on the court. Asperger’s may prove even more challenging than autism, because it lacks the well-defined intellectual deficits that make the latter relatively easy to diagnose. How will a judge determine whether a given diagnosis of Asperger’s is scientifically valid, let alone decide how the disorder relates to a particular crime? These are two of many questions that the criminal justice system faces as the number of children and adults being diagnosed with Asperger’s continues to rise.