The brain on trial

July 19, 2011

This one's a must-read, and likely will make you think--and squirm--more than anything you've read in a while.

I've long struggled with where to come down punitively on certain crimes, especially those where the person clearly is not in his right mind. For example, do you think most serial killers want to be a person who kills other people for no reason? Very likely not. They are compelled to be. Do they maybe enjoy it? Does it give them some sort of rush? Sure. But what's the impetus for seeking out that rush? Why did it have to come to this?

The fact is, through genetics or circumstance, or a combination of both, their brains simply aren't wired correctly.

While the author's all-but-stated conclusion that "free will" likely is a fiction doesn't sit too well with me (in fact, I think it's just plain wrong), I concede openly that science eventually may force me--force all of us--to accept it, or at the very least, accept that there are very real socio-biological mitigators of guilt that need to be accounted for as we come to understand them. By no fault of their own, many people simply are not playing on the same field as the rest of society.

(Please forgive me for quoting so liberally, but the article is dense and I just couldn't pare it down any further and still retain the salient points.)

When your biology changes, so can your decision-making and your desires. The drives you take for granted ("I'm a heterosexual/homosexual," "I'm attracted to children/adults," "I'm aggressive/not aggressive," and so on) depend on the intricate details of your neural machinery. Although acting on such drives is popularly thought to be a free choice, the most cursory examination of the evidence demonstrates the limits of that assumption. […]

The lesson from all these stories is the same: human behavior cannot be separated from human biology. If we like to believe that people make free choices about their behavior (as in, "I don't gamble, because I'm strong-willed"), cases like Alex the pedophile, the frontotemporal shoplifters, and the gambling Parkinson's patients may encourage us to examine our views more carefully. Perhaps not everyone is equally "free" to make socially appropriate choices. […]

When modern brain science is laid out clearly, it is difficult to justify how our legal system can continue to function without taking what we've learned into account. […]

When it comes to nature and nurture, the important point is that we choose neither one. We are each constructed from a genetic blueprint, and then born into a world of circumstances that we cannot control in our most-formative years. The complex interactions of genes and environment mean that all citizens--equal before the law--possess different perspectives, dissimilar personalities, and varied capacities for decision-making. The unique patterns of neurobiology inside each of our heads cannot qualify as choices; these are the cards we're dealt. […]

Free will may exist (it may simply be beyond our current science), but one thing seems clear: if free will does exist, it has little room in which to operate. It can at best be a small factor riding on top of vast neural networks shaped by genes and environment. In fact, free will may end up being so small that we eventually think about bad decision-making in the same way we think about any physical process, such as diabetes or lung disease. […]

Today, neuroimaging is a crude technology, unable to explain the details of individual behavior. We can detect only large-scale problems, but within the coming decades, we will be able to detect patterns at unimaginably small levels of the microcircuitry that correlate with behavioral problems. Neuroscience will be better able to say why people are predisposed to act the way they do. As we become more skilled at specifying how behavior results from the microscopic details of the brain, more defense lawyers will point to biological mitigators of guilt, and more juries will place defendants on the not-blameworthy side of the line.

This puts us in a strange situation. After all, a just legal system cannot define culpability simply by the limitations of current technology. Expert medical testimony generally reflects only whether we yet have names and measurements for a problem, not whether a problem exists. A legal system that declares a person culpable at the beginning of a decade and not culpable at the end is one in which culpability carries no clear meaning.

The crux of the problem is that it no longer makes sense to ask, "To what extent was it his biology, and to what extent was it him?," because we now understand that there is no meaningful distinction between a person's biology and his decision-making. They are inseparable. […]

Those who break social contracts need to be confined, but in this framework, the future is more important than the past. Deeper biological insight into behavior will foster a better understanding of recidivism--and this offers a basis for empirically based sentencing. Some people will need to be taken off the streets for a longer time (even a lifetime), because their likelihood of reoffense is high; others, because of differences in neural constitution, are less likely to recidivate, and so can be released sooner. […]

Neuroscience is beginning to touch on questions that were once only in the domain of philosophers and psychologists, questions about how people make decisions and the degree to which those decisions are truly "free." These are not idle questions. Ultimately, they will shape the future of legal theory and create a more biologically informed jurisprudence.

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