ON FEBRUARY 19, 1997, A HOUSE PAINTER CALLED 911 IN Tampa, Florida. He had returned unannounced to a client’s house and through a window saw what appeared to be a naked man throttling a naked woman. When the police arrived, a neighbor said that a man “came out of the house staggering. His shirt was unbuttoned, and he had blood all over his chest.”1 The man hadn’t just throttled the woman, he had stabbed her multiple times, killing Roxanne Hayes, a mother of three children, aged three to eleven. His name was Lawrence Singleton; he was seventy years old, and he was notorious in California, where nineteen years before, he had raped a fifteen-year-old hitchhiker, Mary Vincent, hacked off her forearms with an ax, and left her in a culvert beside the road of Del Puerto Canyon to die. Two vacationers came across her the next morning, walking naked toward the interstate, the stumps of her severed arms raised to prevent further blood loss. Vincent’s description of her attacker was so vivid that it resulted in a police artist’s drawing that his neighbor recognized. Singleton was tried, found guilty, and given what was the maximum sentence at the time in California of fourteen years, but was released on parole after eight years of “good behavior,” even though shortly before his release a prison psychiatric evaluation read, “Because he is so out of touch with his hostility and anger, he remains an elevated threat to others’ safety inside and outside prison.”2 Mary’s mother, Lucy Vincent, said that Mary’s father would carry a .45-caliber pistol and often contemplated killing Singleton.3 After his parole, Mary was terrified for two reasons. While in prison Singleton had written letters to her lawyer threatening her; and after she had testified and walked past him in the courtroom he whispered, “I’ll finish this job if it takes me the rest of my life.”4 After his parole, she was afraid to stay in one place too long and had numerous bodyguards.
In 1997 Mary told a St. Petersburg Times reporter, “I’m not paranoid enough.” It wasn’t just Mary who was paranoid. After he was paroled, residents of every California town that prison authorities tried to settle him in staged angry protests. He was finally settled in a mobile home on the grounds of San Quentin prison until his parole was up. Outrage in California over Singleton’s parole led to the Singleton bill, preventing the early release of offenders who have committed a crime involving torture, and changed the sentence for such crimes to a twenty-five-years-to-life sentence.5 In 2001 Singleton died of cancer while on death row in Florida. Mary Vincent told a reporter that the arrest and death of the man responsible had given her a “tremendous feeling of freedom,” but that she still has nightmares and is afraid to go to sleep. “I’ve broken bones thanks to my nightmares. I’ve jumped up and dislocated my shoulder, just trying to get out of bed. I’ve cracked ribs and smashed my nose.”6 Divorced, with prostheses that she has modified with spare parts from broken refrigerators and stereo systems, she is now an artist struggling to support two sons.
While you read this, what were your gut feelings and thoughts about Larry Singleton? Did you want him to be locked up and never released (incapacitation)? If you had been Mary’s father, would you have wanted to kill him (retribution)? Or did you want to forgive him, to tell him that it is too bad his brain was unable to inhibit his naturally aggressive tendencies and perhaps with some treatment he could be more prosocial (rehabilitation)? Incapacitation, retribution, or rehabilitation are the three choices society has for dealing with criminal behavior. When society considers public safety, it is faced with the decision about which perspective those making and enforcing the laws should take: retribution, an approach focused on punishment of the individual and just deserts; or consequentialism, a utilitarian approach that what is right is what has the best consequences for society.
As neuroscience comes to an increasingly physicalist understanding of brain processing, it is beginning to challenge some people’s notions about criminal behavior and what we should do about it. Determinism disputes long-standing beliefs about what it means to be responsible for one’s actions, with some scholars asserting the extreme view that humans are never responsible for any of their actions. These ideas challenge the very foundational rules regulating how we live together in social groups. Should people be held accountable for their behavior? If they aren’t, it seems that it would change behavior for the worse, just as reading about determinism results in increased cheating on tests, as we learned in chapter four and would adversely affect society in general. Is accountability what keeps us civilized? Neuroscience has more and more to say about these questions and is already slowly oozing into the courtroom—prematurely, to the view of most neuroscientists.
Californians thought that Singleton should not have been paroled, that he was still a threat, and they didn’t want him in their communities. They also thought that certain behavior warranted longer incarceration. Unfortunately, in his case, they were right, and the parole board was wrong. More recently, the legal system has been looking to neuroscience to provide answers in several different arenas: predicting a person’s future threat (recidivism), determining for whom treatment is possible, and deciding what level of certainty about these determinations is acceptable. Are some crimes just too horrendous to contemplate release? Neuroscience is also illuminating why we have the emotional reactions that we do to antisocial or criminal behavior. This leads us to the question that if we understand our reactions that have been honed by evolution, can or should we amend them? Are these emotions the sculptors of a civilized society? We have our work cut out for us!
The title of this chapter, “We Are the Law,” was suggested to me by the philosopher Gary Watson, who pointed out the simple fact that as we come to think about ourselves, we shape the rules that we decide to live by. If Michael Tomasello and Brian Hare are correct that we have been domesticating ourselves over thousands of years through ostracizing and killing those who were too aggressive, in essence removing them from the gene pool and modifying our social environment, then we have been making rules for groups to live by and enforcing them throughout our evolutionary history. If, because of the findings of the various branches of neuroscientific research that I have been presenting to you, we come to think differently about ourselves, our behaviors, and motivations from what we had thought two or three hundred years ago, then we may decide to reconstruct our social framework. This comes down to the fact that we are the law because we make the laws. We have a stance balanced by innate views of moral thinking and culturally specific ideas. As we look into issues of how brain enables mind, we are asked to decide if we must come to a different belief about the nature of man, about what we are, and how we should interact. It may follow that inevitably we will consider whether it would be beneficial or not to change our legal structure.
So far we have seen that the mind constrains the brain, and we have come to understand that social process constrains individual minds. In this chapter we are going to see that the views emerging from neuroscience about the human condition are having a cultural impact on law and on our concepts of responsibility and justice. The questions being chewed over are at the very foundation of our legal system: Is our natural inclination for retribution necessary, or is utilitarian accountability sufficient? Is punishment justified? I won’t keep you in suspense. These are questions that haven’t in any way been answered, but they are brought to the fore by research on the brain and what it tells us about who we are. We are going to see that our current legal system has emerged from innate intuitions, honed by evolution, just as our moral systems have been.
Culture and Genes Affect Cognition
The culture to which we belong actually plays a significant role in shaping some of our cognitive processes. This idea was looked into by Richard Nisbett and his colleagues, who posited that East Asians and Westerners actually use different cognitive processes in thinking about certain things, and that the origins of these differences were in their different social systems, one arising out of the civilization of ancient China and the other out of ancient Greece.7 They characterize the ancient Greeks as having no counterpart among the other ancient civilizations, and remarkable in regards to their locating power within the individual. Nisbett, writing about his findings, states, “The Greeks, more than any other ancient peoples, and in fact more than most people on the planet today, had a remarkable sense of personal agency—the sense that they were in charge of their own lives and free to act as they chose. One definition of happiness for the Greeks was that it consisted of being able to exercise their powers in pursuit of excellence in a life free from constraints.”8 Ancient Chinese differed in that their focus was on social obligation or collective agency. “The Chinese counterpart to Greek agency was harmony. Every Chinese was first and foremost a member of a collective, or rather of several collectives—the clan, the village, and especially the family. The individual was not, as for the Greeks, an encapsulated unit who maintained a unique identity across social settings.” With harmony as the goal, confrontation and debate were discouraged.
Nisbett and colleagues suggest that social organization affects cognitive processes indirectly by focusing our attention on different parts of the environment and directly by making some social communication patterns more acceptable than others. The idea is if one sees oneself as an interwoven part of a big picture, then one might look at all aspects of the world holistically, whereas if one sees oneself as having individual power, one looks at aspects of the world individually. And that is what has been demonstrated. In tests where Americans or East Asians described simple scenes that were flashed to them and later were tested on what they remembered from the scenes, Americans focused on the main items in a picture, whereas Asian viewers attend to the entire scene. Is this cultural difference evident in brain function?
It seems to be. At MIT, researchers Trey Hedden and John Gabrieli had East Asians and Americans make quick perceptual judgments while having an fMRI scan.9 They were shown a series of differently sized squares and each square had a single line drawn inside of it. The Americans, judging whether the line-to-square-size proportion was the same or different from one square to the next (a relative judgment), showed much more brain activity was needed for sustained attention than when judging if lines were of the same length regardless of the surrounding squares (an absolute judgment of individual objects). For them, absolute judgments about individuals required less work by the brain, but judgments about relationships used more. The exact opposite was true for the East Asians. Their brains had to work overtime on the absolute judgments, but breezed through the relative ones. In addition, the amount of activity for the culturally preferred and nonpreferred tasks also varied according to the degree that the individual identified with his culture. The differences in brain function occurred during the late stage of processing when attention is focused on the judgment, not during the early stage of visual processing. While the same neural systems were used by both groups, they differed in magnitude for the type of task “completely reversing the relation between task and activation across a widespread brain network.”
These different styles of focusing attention are also found within the same geographic region and ethnic group. The fishermen and farmers of the eastern Black Sea region of Turkey, who live in communities based on cooperation, tended more toward holistic attention than the shepherds, who live in communities where individual decisions are constantly being made.10
Easterners and Westerners also vary in their genetic makeup, and Heejung Kim and her colleagues wondered to what extent genetic differences can account for differences in attention. Much research had already shown that serotonin plays a part in attention, cognitive flexibility, and long-term memory, so they decided that looking into a specific serotonin system polymorphism (a DNA sequence variation), which was known to affect an individual’s mode of thinking, could prove fruitful. They looked at different alleles (genes which have different nucleic acid sequences occupying the same position on a paired chromosome that control the same inherited characteristic) of the 5-HTR1A gene that ultimately controls the neurotransmission of serotonin. They found that there was a significant interaction between the type of 5-HTR1A alleles a person had and the culture in which he lived. This interaction affected where that particular person’s attention was directed. Those persons possessing the identical DNA sequences in the matched gene pairs (homozygous) G allele, which is associated with the reduced ability to adapt to changes, more strongly endorse the culturally reinforced mode of thinking than those with the homozygous C allele. Those who possessed one G and one C sequence (heterozygous G/C allele) had a middle-of-the-road opinion! Summarizing their findings, theses researchers concluded, “The same genetic predisposition can result in divergent psychological outcomes, depending on an individual’s cultural context.”11
It is powerful to see that behavior, cognitive stance, and underlying physiology affect and can be affected by the cultural milieu. This strengthens the importance of the idea of the niche construction model that I described in the last chapter, where interactions between organisms and their environment are bidirectional: The organism (or the selectee) actually changes the environment (the selector) somewhat, perhaps affecting the results of future selection. For example, in the case of humans, we have the ability to change the environment, not only physically but socially, and the feedback from these changes produce a changed environment, which selects which humans will survive and reproduce and cause future changes to the environment. Thus the environment and the organism are coupled across time.
These ideas become particularly important when you consider how our legal structures and moral rules affect and shape our social environment, what behaviors they may be selecting for, who will survive and reproduce, and how that will affect future social environments. On the neurophysiological level, we are born with a sense of fairness and some other moral intuitions. These intuitions contribute to our moral judgments on the behavioral level, and, higher up the chain, our moral judgments contribute to the moral and legal laws we construct for our societies. These moral laws and legal laws on the societal scale provide feedback that constrains behavior. The social pressures on the individual at the behavior level affect his survival and reproduction and thus what underlying brain processes are selected for. Over time, these social pressures begin to shape who we are. Thus, it is easy to see that these moral systems become real and very important to understand.
Who Done It, Me or My Brain?
Legal systems serve as a social mediator of dealings between people. We should keep in mind the niche construction dynamic when attempting to characterize the law and our concepts of justice and punishment, formed, as they were, by the human brain, mind, and cultural interactions. Legal systems elaborate rights and responsibilities in a variety of ways. In most modern day societies, the laws made by these systems are enforced through a set of institutions as are the consequences of breaking those laws. When one breaks a law, it is considered to be an offence against the entire society, the state, not an individual. Currently, American law holds one responsible for one’s criminal actions unless one acted under severe duress (a gun pointed at your child’s head for instance) or one suffers a serious defect in rationality (such as not being able to tell right from wrong). In the United States, the consequences for breaking those laws are based on a system of retributive justice, where a person is held accountable for his crime and is meted out punishment in the form of his “just deserts.” After the previous chapters and the evidence for determinism, we are confronted with the question: Who do we blame in a crime, the person or the brain? Do we want to hold the person accountable or do we want to forgive him because of this determinist dimension of brain function? Ironically, this question is treading dualist waters, suggesting that there is a difference between a person and his brain and body.
Neuroscience Oozing into the Courtroom
The law is complicated and takes into consideration more than just the actual crime. For example, the intention of the perpetrator is also part of the equation. Was the act intentional or accidental? In 1963, Lee Harvey Oswald had the intention of killing President Kennedy when he took his concealed rifle to the building along the parade route, waited there until the president’s motorcade was passing, and shot him. In an Australian case the following year, however, Robert Ryan was judged not to have had the intention to murder when he killed the cashier of a store he had just successfully robbed. While leaving the store, he tripped, accidentally pulled the trigger of his gun, and shot the cashier. While movies, books and television portray crimes ending up in a courtroom where intention and many other circumstances are examined, very few criminal cases actually go to trial, only about three percent; most are plea bargained out. Once we step into the court room, the laboratory of judicial proceedings, neuroscience has an enormous amount to say about the goings on. It can provide evidence that there is unconscious bias in the judge, jury, prosecutors and defense attorneys, tell us about the reliability of memory and perception with implications for eyewitness testimony, inform us about the reliability of lie detecting, and is now being asked to determine the presence of diminished responsibility in a defendant, predict future behavior, and determine who will respond to what type of treatment. It can even tell us about our motivations for punishment.
Robert Sapolsky, professor of neurology at Stanford, makes the extremely strong statement: “It’s boggling that the legal system’s gold standard for an insanity defense—M’Naghten—is based on 166-year-old science. Our growing knowledge about the brain makes notions of volition, culpability, and, ultimately, the very premise of a criminal justice system, deeply suspect.”12 The M’Naghten rules arose after the attempted assassination of the British Prime Minister Robert Peel in 1843 and have been used to determine (with a few adjustments) criminal liability in regards to the insanity defense in most common law jurisdictions ever since. The British Supreme Court of Judicature, in answer to one of the questions posed to it by the House of Lords about the insanity law, responded “the jurors ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”13 The question that Sapolsky raises is: Given determinism, given that we are beginning to understand mental states, given we can track down which part of the brain is involved in volitional activity and that it may be impaired, and our growing knowledge that we can be specific about the existence of an impairment and what is causing it, will we view the defendant differently?
At stake in the arguments is the very foundation of our legal system, which holds a person responsible and accountable for his actions. The question is this: Does modern neuroscience deepen our ideas about determinism, and, with more determinism, is there less reason for retribution and punishment? Put differently, with determinism there is no blame, and, with no blame, there should be no retribution and punishment. This is the simmering idea that people are worried about. If we change our mind about these things as a culture, then we are going to change how we deal with this unfortunate aspect of human behavior involving crime and punishment.
Wowed by Science
Common Law is based on the belief that it is unfair to treat similar facts differently on different occasions, so “precedent” or past decisions bind those of the future. Thus, it is the past judgments of judges and juries that make common law, not legislative statutes. Looking back on the history of common law, its roots and many of its traditions were founded during a time when there wasn’t much scientific knowledge available. Even as recently as the 1950s, what was admissible as science in the courtroom was psychoanalytic theory, which was not backed up with empirical data. Why was something with no empirical guts admissible? Because a judge had thought it was good enough and ruled it so. In the last half century things have changed. We have come a long way in our knowledge about brain function and behavior and do have empirical data. Now that we know all these brain mechanisms, the correlates of cognitive states and mental outlooks, brain scans have started to appear in the courtroom, admissible as evidence, to explain why someone acted in a particular way. Can these scans actually do this?
A majority of neuroscientists is not convinced that they can at this point, because when you read a brain scan, you are merely noting that in this particular area, if you average together several brains, such and such occurs in this location. A scan result is not specific for a specific person. This raises the question of why they are in the courtroom. It is hard not to think that there is something about our culture that actually believes more about scans than the scientist does himself. Yet attorneys and neuroscientists both wonder if these scans are more probative or are they prejudicial. Equally controversial is whether a judge or jury, untrained in science, can understand its limitations and the fallibility of interpretive conclusions. Many neuroscientists worry that a scientist who walks into a courtroom, shows a series of brain scans, and says this is why the defendant shouldn’t be held responsible, is overly influential. Recent studies have shown that when adults read the explanations of psychological phenomena, the explanations are more positively evaluated and considered important if a brain scan is shown in the material they read, even when they have nothing to do with the explanations! In fact, bad explanations are more accepted with the presence of a brain scan.14 This certainly seems to raise a red flag that jurors and judges could be primed by what is being presented as scientific certainty, when in reality, what scientists are reading in a brain scan it is a probabilistic calculation of where brain activity is taking place, based on averages of the activity in different individual’s brains. We are going to get to this in a bit, but what is important to understand is one can’t point to a particular spot on a brain scan and state with 100 percent accuracy that a certain thought or behavior arises from activity in that area. In games where students are to impose hypothetical punishments, if they have first read an excerpt about determinism (been primed for determinism), then they give less punishment than those who have not.15 So what we come to believe about brain function is going to influence who we are and what we do.
The three areas of the law that neuroscience is now impacting have to do with responsibility, evidence, and the question of justice for the victim and the offender during sentencing.
Responsibility
In terms of responsibility, the law looks at the brain in this simple pattern: There is what is called a “practical reasoner” that is working freely in a normal brain producing action and behavior. Personal responsibility is a product of a normally functioning brain of the “practical reasoner.” Things can happen to the brain, a lesion, injury, stroke, or neurotransmitter disorder that makes it not function normally, resulting in diminished brain capacity, thus, diminished responsibility, and this is used for exculpability. In criminal cases in particular, the defendant must also have “mens rea” or actual evil intent. One recent case in which brain scans were used to change two separate death sentences was in Pennsylvania. Simon Pirela had received two death sentences for two separate first degree murder convictions in 1983. In 2004, however, twenty-one years later, brain scans, allowed as evidence, convinced one jury in a resentencing hearing (that had been ordered due to prosecutorial misconduct) that Pirela was not eligible for the death penalty because he suffered from aberrations in his frontal lobes, diminishing his capacity to function normally. In an appeal to vacate the second death sentence, the same scans were used to make the different claim that Pirela was mentally retarded, which combined with the neuropsychologists’ testimony were found “quite convincing” by the appellate judge.16 The same scans were accepted as evidence for two different diagnoses.
It is interesting to note such cases are now being decided after the landmark case of Atkins v. Virginia (2002) in which the Supreme Court ruled that it was a violation of the Eighth Amendment of the U.S. Constitution to execute someone with mental retardation, as it would be cruel and unusual punishment. The Atkins case was summarized by Chief Justice Scalia as follows:
After spending the day drinking alcohol and smoking marijuana, petitioner Daryl Renard Atkins and a partner in crime drove to a convenience store, intending to rob a customer. Their victim was Eric Nesbitt, an airman from Langley Air Force Base, whom they abducted, drove to a nearby automated teller machine, and forced to withdraw $200. They then drove him to a deserted area, ignoring his pleas to leave him unharmed. According to the co-conspirator, whose testimony the jury evidently credited, Atkins ordered Nesbitt out of the vehicle and, after he had taken only a few steps, shot him one, two, three, four, five, six, seven, eight times in the thorax, chest, abdomen, arms, and legs.
The jury convicted Atkins of capital murder. At resentencing . . . the jury heard extensive evidence of petitioner’s alleged mental retardation. A psychologist testified that petitioner was mildly mentally retarded with an IQ of 59, that he was a “slow learne[r],” . . . who showed a “lack of success in pretty much every domain of his life,” . . . and that he had an “impaired” capacity to appreciate the criminality of his conduct and to conform his conduct to the law. . . . Petitioner’s family members offered additional evidence in support of his mental retardation claim. . . . The State contested the evidence of retardation and presented testimony of a psychologist who found “absolutely no evidence other than the IQ score . . . indicating that [petitioner] was in the least bit mentally retarded” and concluded that petitioner was “of average intelligence, at least.”
The jury also heard testimony about petitioner’s sixteen prior felony convictions for robbery, attempted robbery, abduction, use of a firearm, and maiming. . . . The victims of these offenses provided graphic depictions of petitioner’s violent tendencies: He hit one over the head with a beer bottle . . . ; he slapped a gun across another victim’s face, clubbed her in the head with it, knocked her to the ground, and then helped her up, only to shoot her in the stomach, id. . . . The jury sentenced petitioner to death. The Supreme Court of Virginia affirmed petitioner’s sentence. . . .17
Writing for the majority of the Court, Justice Stevens reasoned that the two main justifications for capital punishment, deterrence and retribution, could not be appreciated by the defendant who suffered mental retardation, and therefore was cruel and unusual punishment. He did not address the third justification of capital punishment, which is incapacitation. In short the legal decision was delivered in terms of existing beliefs about the purpose of punishment in the law. It was not based on the science, namely that the defendant, because of his brain abnormality could or could not form intentions and the like. It also makes the supposition that anyone suffering any degree of “mental retardation” has no capacity for understanding the “just deserts” for a crime or what the society considers right or wrong.
There are other problems with the abnormal brain story, but the biggest one is that the law makes a false assumption. It does not follow that a person with an abnormal brain scan has abnormal behavior, nor is a person with an abnormal brain automatically incapable of responsible behavior. Responsibility is not located in the brain. The brain has no area or network for responsibility. As I said before, the way to think about responsibility is that it is an interaction between people, a social contract. Responsibility reflects a rule that emerges out of one or more agents interacting in a social context, and the hope that we share is that each person will follow certain rules. An abnormal brain does not mean that the person cannot follow rules. Note that in the above case, the perpetrators were able to make a plan, take with them what was necessary to implement the plan, understood that what they were doing was not something that should not be done in public, and were able to inhibit their actions until they were in a deserted area.
In the case of an abnormal neurotransmitter disorder such as schizophrenia, while there is a higher incidence of arrest for drug-related issues, there is no higher incidence of violent behavior in people with schizophrenia while they are taking their medication and only a very small increased incidence of those who are not. They still understand rules and obey them; for instance, they stop at traffic lights and pay cashiers. It is not true that just because you have schizophrenia your base rate of violent behavior goes up and you are vastly more likely to commit a crime. Using the defense of schizophrenia may help the defendant in one case, but it will also improperly liberate one in another case. It may also be used as evidence of a false accusation. Such thinking can also lead to the utilitarian practice of locking up all people with schizophrenia “before they commit a crime.” Diagnosed with schizophrenia after the fact by a psychiatrist for his defense, John Hinckley was found not guilty by reason of insanity for his attempt to assassinate President Reagan. This attempt, however, was premeditated. He had planned it in advance, showing evidence of good executive functioning. He understood that it was against the law and concealed his weapon. He knew that shooting the president would give him notoriety. The same false assumption is also true for people who have acquired left frontal lobe lesions. They can act oddly: They, their family, and friends will notice changed behavior, but their violence rate only increases from the base rate of 3 percent to 11–13 percent. A frontal lobe lesion is not a predictor of violent behavior. There is no lesion in a specified location, no switch that turns on violent behavior. One case cannot generalize to another. If the court system concludes that frontal lobe lesions make a person exculpable for their behavior, then it may be left with people who have such lesions using their injuries as an excuse for things they wouldn’t commit had they not this ready-made excuse (Great, I can knock off that jerk, and I’ll just blame it on my frontal lobe and get off). Or, all people with frontal lobe lesions could be locked up as a prophylactic measure. So in thinking about these things, we have to be careful that our best intentions aren’t used in an inappropriate way.
Evidence
How did psychoanalytic theory, and now brain scans, become admissible in court? In the United States, there are general standards for scientific evidence to be admissible in court. Various states follow either the Frye rule of general acceptance, which states “scientific evidence is admissible when the scientific technique, data, or method has ‘gained general acceptance’ by the relevant community,”18 or the Daubert-Joiner-Kumho “validity” rule,* where trial judges possess “gatekeeping responsibility” in determining validity of scientific evidence and all expert testimony, or a combination of both. Judges use several criteria, such as whether a theory or technique is falsifiable or has been subjected to peer review and so forth, to analyze whether expert testimony is good science, but can a judge, trained in law, reliably judge if scientific evidence is valid?
Brain images, whether they should have been admissible by scientific standards or not, have made their way into the courtroom and we have to deal with them. Functional brain imaging is the basis for the growing tendency to think of the brain in deterministic terms, even though the newer scans are far more statistical in nature, as discussed below. Nonetheless, it seems inevitable that the findings of functional brain imaging examinations will also be introduced as evidence in legal proceedings. Closer inspection of the technique, however, should cast doubt on these interpretations and expectations.
One Brain Fits All? The Problem of Individual Variation
Like fingerprints, everyone’s brain is slightly different, has a unique configuration, and each of us reliably solves problems in different ways. That is not news to anyone, and there is a rich history of individual variation in psychology. This fact was put aside for a while, however, when brain scanning was first being developed. Having a beautiful brain scan is one thing, knowing what you are looking at, what an area’s function is, how it relates to other areas of the brain, how to localize a particular structure from one brain to the next were all unknowns. MRI scans vary greatly from individual to individual because of differences in brain size, shape, and differences in slice orientation due to these variations and also the programming of the scanner, and so forth. In 1988 Jean Talairach and Pierre Tournoux published a three-dimensional proportional grid system to identify and measure brains despite their variability. The system is based on the idea that brain components, deep within its structure that cannot be seen from its surface, can be defined in relation to “two easily identifiable features on the brain’s surface, the anterior and posterior commissures.” Using these standard anatomical landmarks, individual brain images obtained from MRI and PET scans can be morphed on the “standard Talairach space.” Using their atlas, inferences can be drawn about tissue identity at a specific location.
There are limitations to this method and Talairach was quick to point out that the brain he used for reference (the postmortem brain of a sixty-year-old Frenchwoman) to construct the standard space was a smaller-than-average brain and “Because of the variability in brain size, specifically at the level of the telencephalon,** this method is valid with precision [italics added] only for the brain under consideration.”19 That is, he is saying that it is only precise for that particular sixty-year-old Frenchwoman’s brain that was smaller than average. “Normalization software,” which rotates, scales, and perhaps warps the brain to fit the standard template, is used to compare brains, starting out by first smoothing out the sulci (the deep grooves in the cerebral surface) in the brain images, which are widely variable between individuals. In doing so, it loses the detail of sulcal information and does not result in consistent sulcal locations. Thus, the coordinates of where a specific area is located are probabilistic, with variation in the actual location from one individual to the next. In turn, the location in the brain of any particular brain process is also probabilistic and not precise, but is the best that can be currently done without directly examining a brain. Neuroscience’s own little Uncertainty Principle!
In order to establish a standard for the workings of the brain through imaging, the signal to noise ratio, that is the signal of interest amid all the other brain signals, had to be high enough to indicate that a particular response had occurred in a particular location. To do this, Michael Miller and his colleagues at Dartmouth College scanned the brains of twenty people, morphed all the separate brain scans into one, and added all the signals onto that averaged morphed brain. The regions where the signals were consistently present indicated that that area could be reliably identified as being active for that task across individuals. If most of the information about brain work comes from group averages like this, however, how do you get to the individual? How do you get to the defendant in the courtroom? For instance, if you look at the group map for a recognition memory task where you remember something seen previously, the average result of sixteen subjects shows that the left frontal areas are heavily involved in this type of memory task.20 When you look at the individual maps, however, four out of the first nine subjects did not have activation in that area. If you bring each of these subjects back six months later to perform the same task, their particular pattern of response is consistent, but the variation between people remains high. So how can you apply group patterns to an individual?
There are also variations in how our brains are connected. The white matter in the brain, long neglected by science, is a vast network of fibers connecting neural structures. The way in which the brain processes information is dependent on how these fibers are connected. With diffusion tensor imaging (DTI) we can now look for individual variation in connections and it is proving to be tremendous.21 Using DTI we have found that the way one person’s corpus callosum is hooked up may be very different from someone else. This was first made evident to us by work in our lab in which we were calling on two processes: one, a process we knew was present in the right hemisphere, which rotates an object in space, and another process, in the left hemisphere, which names an object. For example, if I show you an up-side-down boat, before you can name it, you first rotate it right-side-up in your right hemisphere. Next, you send the rotated image to the left hemisphere and the left hemisphere names the object, and then you say it (“Ah, boat”). What we noticed is that some people are fast at this and some are slow at it. We found that people who are fast at naming use one part of their corpus callosum to transfer the information, and the slow people used a totally different part to get the information to their speech center. So then we thought that perhaps anatomical differences could explain this. It turns out that people vary tremendously in the number of fibers present in different parts of their callosum and in what routes are used to process this problem.22 Capturing all this variation against or for a particular case in a legal setting may prove impossible.
Too Little Too Soon but Watch Out!
Currently the case against using scans in the courtroom is quite evident for several reasons: (a) As I described, all brains are different from one another. It becomes impossible to determine if a pattern of activity in an individual is normal or abnormal. (b) The mind, emotions, and the way we think constantly change. What is measured in the brain at the time of scanning doesn’t reflect what was happening at the time of a crime. (c) Brains are sensitive to many factors that can alter scans: caffeine, tobacco, alcohol, drugs, fatigue, strategy, menstrual cycle, concomitant disease, nutritional state, and so forth. (d) Performance is not consistent. people do better or worse at any task from day to day. (e) Images of the brain are prejudicial. A picture creates a bias of clinical certainty, when no such certainty is actually present. There are many firm reasons why in 2010, while I write this, although the science is enormously promising, it currently is not good enough, and it would more likely be misused instead of used properly. What we must remember, however, is things are changing fast in neuroscience and new technology is constantly allowing us to learn more about our brains and behavior. We have to be prepared for what may be coming in the future.
What may be coming has its foundation in the central principle in American criminal and common law, which is Sir Edward Coke’s maxim of mens rea: The act does not make a person guilty unless the mind is also guilty. You need a guilty mind. Mens rea has four major parts that have to be demonstrated: (a) acting with the conscious purpose to engage in specific conduct or to cause a specific result (purposefulness); (b) awareness that one’s conduct is of a particular nature, for instance, good or bad, legal or illegal (knowledge); (c) conscious disregard for a substantial and unjustifiable risk (recklessness); (d) the creation of a substantial or known risk of which one ought to have been aware (negligence). Each of those parts has brain mechanisms that are well studied and are still being studied. Purposefulness involves the brain’s intentional systems; knowledge and awareness involves its emotional systems; recklessness involves the reward systems; and negligence involves joy-seeking systems. Much is already known about these areas, which will be causing problems for the principle of mens rea.
Done Before You Know It?
As I mentioned in an earlier chapter, both the work of Benjamin Libet and Chun Siong Soon reveal that much of the work of the brain is done on the unconscious level and that a decision can be predicted several seconds before a subject consciously decides. The study of intention has become increasingly more interesting and has had some surprising and counter intuitive findings. If you take a normal person and stimulate the right parietal area at a low rate, the subject has the sensation that he has a conscious intention (I will lift my hand). If you stimulate at a higher rate a slightly different area in the parietal lobe, the subject has the awareness of action despite the fact that there has been no muscle action, that is, the subject hasn’t done anything, but he believes that he has (“I have lifted my hand.” Ah . . . no you didn’t).23 If, however, you stimulate the frontal area, he produces a multi-joint movement, but he has no awareness of it! From these studies it seems that it is the unconscious and not the conscious brain that is calling the shots. But hold on! While studies like these have spotlighted the “what” and “when” of intention, Marcel Brass and Patrick Haggard have begun to study one aspect of intention that has been oddly neglected: the “whether”24 to implement the intention, the brakes that can be consciously thrown on that unconscious bubbling up. Their data suggest that a specific area in the dorsal fronto-median cortex (dFMC) is related to a kind of self-control25 and have identified connectivity between it and motor preparation areas, which suggests that this self-control is achieved by modulating brain areas involved in motor preparation.26 Individual differences among people in dFMC activation correlated with the frequency of inhibiting actions, and suggest a trait-like predisposition for self-control. They suggest that this is an example of top-down processing, where one mental state influences the next, and argues against hard determinism.
What we think of as willed activity has various components that can be separated into different brain areas, each of which can be identified. It is now understandable that when a brain scan is brought into the courtroom, if there is a lesion anywhere along the pathway from intention to action, a claim could be made that the person is either functioning normally or not. The scan, however, provides evidence of neither.
Mind Reading
Mental states are important for determining guilt or innocence. In the future, increasing knowledge about mental states is going to lead to tighter claims about them and will have an enormous influence on how we think about ourselves and how the law will deal with this increased knowledge. Mind reading, which is actually detecting mental states, is a hot potato idea. The good old garden variety mind reader, lie detecting, has traditionally employed the notoriously unreliable polygraph test, which is only allowed in New Mexican courts and nowhere else in the United States. There are some new kids on the block that use EEG technology that have been admitted as evidence: Brain Fingerprinting in an Iowa courtroom in 2001† and in 2007 a court in India gave permission for two suspects in a murder to undergo a Brain Electrical Oscillations Signature test after a positive Polygraph Test was done. The positive results of this test were admitted as evidence in a trial in Pune, India, in 2008†† that resulted in a murder conviction. Another new method using fMRI scanning (developed by the companies No Lie MRI and Cephos) has yet to appear in court. Many critics claim that there are not enough data to call any of these methods reliable. No test is infallible, and a certain percentage of falsely positive tests and falsely negative tests are consistently present in any given number of samples and determine how accurate a test result is. One can trust a test more if it is known that out of a thousand tests only 2 will be falsely positive rather than if 200 are falsely positive. For the above tests, the base rate of falsely positive and negative tests is not known. University of Virginia law professor Frederick Schauer27 disagrees that these tests are not ready for prime time, arguing that science assumes the standards for law and science are the same, which they are not. He points out that the law’s goals and science’s goals are quite different: While the prosecution has the heavier burden to prove guilt beyond a reasonable doubt, much like science requires for reliable data, the defense has to offer only reasonable doubt, and that is what some of these tests may provide, even if they don’t have good reliability. He also points out the reliability and credibility of a self-interested witness are not good either. Currently the judge and jury determine when witnesses are telling the truth or lying, but the ordinary person’s ability to spot liars is no better than random chance.28
Another mental state that can come under scrutiny in the courtroom is pain. Good methods of pain detection could separate malingerers from those who are really suffering in tort, disability and workmen’s compensation cases. Detecting the conscious mental state in the absence of outward signs is also an active area of recent research and will determine decisions about withdrawing life support. While no test currently is reliable in detecting these mental states, they are on the horizon.
Ethical problems and legal problems, of course, are rampant. Is taking such a test equivalent to being a witness against oneself? Can the police get a warrant to read your mind? Is that invasion of privacy? What will the court’s position be on those who refuse? When reliable, should tests be required in cases involving pain evaluation, disputing parties, on all witnesses, and so forth?
Bias in the Courtroom: Judges, Jurors and Attorneys
Supreme Court Justice Anthony Kennedy once said, “The law makes a promise: neutrality. If the promise gets broken, the law as we know it ceases to exist.” Is neutrality even possible?
When a soldier in a war movie describes the enemy as all looking alike, he makes the hackles rise of the politically correct, and also is reflecting two unconscious brain processes, present in everyone including the politically correct, that can bias courtroom proceedings. One, the own-race bias (ORB) phenomenon, involves memory for human faces and has been widely reported in the psychological literature for more than seventy years. people are better able to correctly recognize face exemplars from their own-race compared with those from another racial group, and this phenomenon is not related to the level of prejudice. In a nation of great ethnic multiplicity, our weaker recognition of other-race faces is significant, and in fact, studies during the last twenty years, have revealed an increase in false positives: misidentifying someone as having been previously seen when they had not been.29 This is of prime importance in the courtroom when it leads to the erroneous identification of someone who is not the perpetrator. In 1996 the U.S. Department of Justice reported that 85 percent of convictions that had been later overturned because of subsequent DNA analysis were due to erroneous eyewitness identifications.30 One of the factors affecting the accuracy of other-race identification is “study time;” false alarms increase with shorter study time of the face, and eyewitnesses often only catch a quick glimpse. Accuracy also suffers with increasing time between viewing the crime and viewing a suspect.
This phenomenon has been utilized by expert witnesses and defense attorneys to dispute the efficacy of cross-race identification in the courtroom. While many theories about ORB abound, the simplest is that it is related to the frequency with which the perceiver encounters own-race faces relative to cross-race faces. A white kid growing up in Tokyo is going to be better at identifying Asian faces than a white kid growing up in Kansas. Knowing that development of perceptual expertise has been linked to the right brain, as has facial identification of others, one of my colleagues, David Turk, of the University of Aberdeen, wondered if the right brain too was where own-race processing was superior. He has now identified that while the right hemisphere is better at identifying faces in general, it is also better at own-race identification than other-race identification, whereas there is no difference in the lesser abilities of the left hemisphere. The own-race bias processes are localized to the right brain.31 Now that there is a neurobiological basis to this bias, it can lead to the development of powerful tools for questioning witnesses and prospective jurors, and is another example of how neuroscience is going to be impacting the nature of evidence and ultimately the law.
The other unconscious brain process that may bias proceedings, dehumanizing out-groups, has been studied by Lasana Harris and Susan Fiske.32 They found that, when American subjects view certain social groups, different emotions are elicited depending on what group it is. The emotions of envy (when viewing the rich), pride (seeing American Olympic athletes), and pity (while viewing photos of elderly people) are all associated with activity in the area of the brain (the medial prefrontal cortex, or mPFC) that is activated in social encounters. However, the emotion of disgust (looking at photos of drug addicts) is not. The activation patterns in the mPFC while viewing photos of social groups that elicited disgust were no different when the subjects viewed objects, such as a rock. This suggests that members of groups that elicit disgust, which are extreme out-groups, are dehumanized. This is what occurs during war: the enemy group elicits disgust and is dehumanized and pejoratively labeled. Jurors, judges, and attorneys all have unconscious neural responses to certain people that can powerfully influence their behavior and potentially change how a person will be evaluated. The legal system has heeded the findings of such studies and is not blind to the influences of unconscious bias. Attorneys are constantly looking for bias while selecting jurors, and those who are selected are warned to guard against it, in an appeal for top-down processing by the judge.
Guilty as Charged: To Punish or Not to Punish?
If you had come to me in friendship, then this scum that ruined your daughter would be suffering this very day.
—The Godfather
In the court systems, however, complicated as they may be, proceedings that arrive at a verdict are the easy part. Most of the defendants that get to trial or plead guilty are the agents of the crime. After a defendant has been found guilty, next comes the sentencing. That is the hard part. What do you do with the guilty, who have intentionally committed known, morally wrong actions that harm others? In the United States, if you are an offender in a criminal law case, you face “punishment,” whereas if you fall under the jurisdiction of civil law, the goal is for the offender to compensate the injured party. The judge looks at all the mitigating and contributing factors (age, previous criminal record, severity of the crime, negligence versus intention, unforeseeable versus foreseeable harm, and so forth), sentencing guidelines, and then makes a decision.
That decision is supposed to mete out justice, and therein lies the rub. Justice is a concept of moral rightness, but there has never been an agreement as to what moral rightness is based on: ethics (should the punishment fit the crime, retribution, or be for the greater good of the population, utilitarian?), reason (will punishment or treatment lead to a better outcome?), law (a system of rules that one agrees to live by in order to maintain a place in society), natural law (actions results in consequences), fairness (based on rights? based on equality or merit? based on the individual or society?), religion (based on which one?), or equity (allowing the court to use some discretion over sentencing)? Nonetheless, the judge tries to come up with a just disposition. Should the offender be punished? If so, should the goal of punishment be mindful of individual rights based on retribution, mindful of the good of society with reform and deterrence in mind, or mindful of the victim with compensation? This decision is affected by the judge’s own beliefs of justice, which come in three flavors: retributive justice, utilitarian justice, and the up-and-coming restorative justice.
Retributive justice is backward-looking. One is punished in proportion to the crime that is committed, extending just deserts to the individual, and punishment is the goal. The crucial variable is the degree of moral outrage the crime engenders, not the benefits to society resulting from the punishment. Therefore, one does not get a life sentence for stealing a CD player, nor does one get a month’s probation for murder. One does not get punishment if one is judged insane. The punishment is focused solely on what the individual deserves for his crime, not more or less. It appeals to the intuitive sense of fairness where every individual is equal and is punished equally. You cannot be punished for crimes you have not committed. You don’t get a higher fine because you are rich or a lower fine because you are poor. No matter who you are, you should receive the same punishment. You do not get a harsher sentence because you are or are not famous, because you are black or white or brown. It is not part of a calculation for the general welfare of society as a whole. Retributive justice does not punish as a deterrent to others, to reform the offender, or to compensate the victim. These may result as by-products, but they are not the goal. It punishes to harm the offender, just as the victim was harmed.
Utilitarian justice (consequentialism) is forward looking and concerned about the greater future good of society resulting from punishing the individual offender. This is accomplished by assigning one of three types of punishment. The first will specifically deter the offender (or others that will learn by example) in the future, perhaps by fines, prison time or community service. The second type will incapacitate him. Incapacitation can be achieved geographically, by long prison sentences or banishment, which includes disbarment for lawyers and other such licensing losses, or by physical means, such as chemical castration for rapists and capital punishment. The third type of utilitarian justice is rehabilitation through treatment or education. The method chosen is decided by the probability of recidivism, degree of impulsiveness, criminal record, ethics (can treatment be forced upon someone who is unwilling to undergo it?) and so forth, or by prescribed sentencing standards. This is another area where neuroscience will have something to contribute. Prediction of future criminal behavior is pertinent to utilitarian sentencing decisions, whether treatment, probation, involuntary commitment or detention is chosen. Neural markers could be used to help identify an individual as a psychopath, sexual predator, impulsive, and so forth, in conjunction with other evidence to make predictions of future behavior. Obviously the reliability of such predictions is important, remembering that and utilitarian justice punishes for uncommitted future crimes, and can result in either decreasing or increasing harmful errors.
Utilitarian justice also may punish one person to deter others, the severity need not relate to the actual offence: A thief of a CD player could receive a harsh sentence to deter others from thieving. Thus, it makes sense to punish a famous person or the perpetrator of a highly publicized crime more harshly, because the publicity may deter many future crimes and benefit society. Arguments have been made from the utilitarian standpoint that it makes sense to have harsh sentences for the more common milder offences to increase the deterrence effect. Prison sentences for first-time speeding and drunk driving offences may save more innocent lives than punishing convicted murders. The extreme case can even be made that the punished need not even be guilty, just thought guilty by the public. An innocent person could be arrested as a scapegoat and their imprisonment could stave off a vigilante effort or riot for the greater good. This is why utilitarian justice can rub people wrong, it can violate an individual’s rights, it may not seem “fair.”
Restorative justice looks at crimes as having been committed against a person rather than against the state. While this focus on persons was common in the ancient cultures of Babylon, Sumer, and Rome, this all changed with the Norman invasion of Great Britain in (wasn’t this date drilled into your head in high school?) 1066. William the Conqueror, in an effort to centralize power, saw crime as an injury to the state, where the victim had no part in the justice system. This viewpoint is also seen to insure neutrality in criminal proceedings, avoiding vengeful and unfair retaliation, and it remained the prominent or dominant view in American law until late in the twentieth century. In 1974, a Mennonite probation officer and a volunteer service director in Kitchener, Ontario, Canada, began a discussion group looking for ways to improve the criminal justice system, and a recent version of restorative justice was born, now with varied versions. It focuses on the needs of both the victim and the offender. It attempts to repair the harm done to the victim and to make the victim whole, and it attempts to make the offender law-abiding in society.
Restorative justice holds the offender directly accountable to the victim and the affected community, requires the offender to make things whole again to the extent that it is possible, allows the victim a say in the corrections process, and encourages the community to hold offenders accountable, to support victims, and to provide opportunities for offenders to reintegrate themselves into the community.33 Victims, offenders, and the community play an active role. Victims of crimes often are enveloped in fear, adversely affecting the rest of their lives, as Mary Vincent was at the beginning of this chapter. This can be true for whole communities also. For crimes of lesser magnitude, often a face to face sincere apology and reparation are enough to relieve the victim of their fear and anger. Restorative justice may not be possible for more serious crimes.
We Are Judge and Jury from Birth
Although judges, juries, and attorneys most likely will attribute their stances to various factors, not the least of which are long years of education, philosophical discussion and the like, as usual, most of the goings on in the courtroom are intuitions that we came with from the baby factory, including a sense of fairness, reciprocity, and punishment. Renee Baillargeon and colleagues have been hard at work with a group of toddlers and have shown that a sense of fairness is present not only in two-and-a-half-year-olds, but also sixteen-month-olds. The older group when asked to distribute treats to animated puppets will do so evenly,34 and the sixteen-month-old infants prefer cartoon characters that divide prizes equally.35 We also come wired for reciprocity, but only within our social group. Toddlers expect members of a group to play and share toys,36 and are surprised when it doesn’t happen. They are not surprised when it doesn’t happen between members of different groups but surprised when it does.
The toddlers in Michael Tomasello’s lab not only recognize moral transgressors, but react negatively to them. One-and-a-half- to two-year-olds help, comfort, and share with a victim of a moral transgression, even in the absence of overt emotional cues. With the perps, it is another story. Moral transgressors incite the infants to vocally protest and they are less inclined to help, comfort, or share with them.37 Young children also understand intentionality and judge intentional violations of rules as “naughty” but not accidental ones.38 While it is well known that adults will willingly suffer to punish others, a yet-to-be-published study of Paul Bloom’s lab has shown that this is even true for four-year-olds.39 We feel these urges all the time; we try to have big theories about them, but we are just born that way.
Not Putting Your Money Where Your Mouth Is
What people say they believe about punishment and what their actual behavior is are two different animals, and they aren’t really able to offer logical explanations why. We have run into this before, haven’t we? The interpreter is back at work trying to explain an intuitive judgment. Psychology graduate student Kevin Carlsmith and his advisor, John Darley, were curious. When people were asked to label themselves as retributivists or deterrists, their answers varied widely, and they divided themselves into either one of the two groups or into a third group and labeled themselves mixed. These individual differences, however, only mildly affected their punitive behavior, which was retributivist for the most part. They found when people are given a task to assign hypothetical punishment for an offense, 97 percent seek out information relevant to a retributive perspective and not to the utilitarian perspective (incapacitation or deterrence).40 They are highly sensitive to the severity of the offense and ignore the likelihood that the person would offend again. They punish for the harm done, not for the harm that might be done in the future (deterrence). When asked to punish only from the utilitarian perspective and to ignore retributive factors, which had carefully been explained to them, they still did not. people still used the severity of the crime to guide their judgments.41 When they are forced to take the utilitarian perspective, they feel less confident in their decisions. When asked to allocate resources for catching offenders or preventing crime, they highly supported the utilitarian approach of preventing crime. So although people endorse the utilitarian theory of reducing crime, they don’t want to do it through unjust punishment. They want to give a person what they deserve, but only after they deserve it. They want to be fair. “[P]eople want punishment to incapacitate and to deter, but their sense of justice requires sentences proportional to the moral severity of the crime.”42 (Even the Catholic Church makes the distinction with the more light weight venal sins being punished by time in purgatory, while mortal sins send you straight to hell.) This appeal to fairness goes along with the finding that people give lighter hypothetical punishments after reading about determinism. If offenders aren’t responsible for their actions, then they don’t deserve harsh punishment.
The reasons people give for their punishments, however, do not match what they do. They endorse utilitarian policies in the abstract, but invoke retributivist ones in practice.43 Carlsmith and Darly point out that this lack of insight leads to fickle legislation. For instance, 72 percent of the voters of California enacted the three-strikes law that put a person convicted of a third felony in prison for life, a utilitarian approach. A few years later when people realized that this could mean an “unfair” life sentence for stealing a piece of pizza, support dropped to less than 50 percent, sensing that the law was unfair from a retributivist perspective. Because of this highly intuitive “just deserts” impulse, these authors suggest that when considering the idea of restorative justice, which is appealing, they doubt that citizens will be willing to allow a purely restorative, punishment-absent treatment for serious crimes. In a scenario where people could choose to assign cases to various court systems, restorative only, retributivist only, or a combination, 80 percent were willing to send minor crimes to restorative courts, but only 10 percent elected restorative courts for serious crimes, while 65 percent opted for mixed and 25 percent to retributivist courts. It appears we share the same moral response to punishment. As we saw in the last chapter with other moral systems, the only thing that is different is not our behavior but our theories about why we respond the way we do.
If a judge holds the belief that people are personally responsible for their behavior, then either retributive punishment or restorative justice makes sense; if the judge believes that deterrence is effective, or that punishment can change bad behavior into good, or that some people are irredeemable, then utilitarian punishment makes sense; if the judge has a determinist stance, then there is a decision to be made. Either his focus of concern will be for: (1) the offender’s individual rights and because the offender had no control over his determined behavior, he or she should not be punished but perhaps should be treated (but not against their will?) if possible, or (2) for the victim’s rights of restitution and any deterministic retributive feelings the victim might have, or for (3) the greater good of society (it may not be the offenders’ fault, but get ’em off the streets).
Nothing New Under the Sun
The sun, as it glides over Athens, is no doubt yawning and rolling his (being over Athens we’re talking Apollo here) eyes . . . “Haven’t they got this thing settled yet? I have been hearing this same old argument for century after century.” Aristotle argued that justice based on fair treatment of the individual leads to a fair society, whereas Plato, looking at the big picture, thought fairness to society was of primary importance and individual cases were judged in order to achieve that end. It is back to a version of the dichotomy found between Western and East Asian thought: where should we place our attention, on the individual or the community?
These two ways of thinking also take us back to the trolley problem: the emotional situation and the more abstract situation. Facing the individual offender in a courtroom and deciding whether to punish is an emotional proposition, and elicits an intuitive emotional reaction: “Throw the book at ’em!” or, “Poor guy, he didn’t mean to do it, let him off easy!” In a recent fMRI44 study done while subjects were judging responsibility and assigning punishment in hypothetical cases, brain regions associated with emotion activated during the punishment judgment, the more activity the greater the punishment (as with retribution, the greater the moral outrage, the greater the punishment). The region of the right dorsolateral prefrontal cortex that is recruited when judgments about punishments are made in the ultimatum economic game corresponds to that which was recruited while making third party legal decisions. These researchers suggest that “our modern legal system may have evolved by building on preexisting cognitive mechanisms that support fairness-related behaviors in dyadic interactions.” If an evolutionary link to relations between individuals in socially significant situations (for example, mates) is true, it makes sense that faced with an individual we resort to fairness judgments, rather than consequentialist. Faced, however, with the abstract questions of public policy, then we leave the emotional reaction behind and can resort to the more abstract consequentialist thinking.
Philosopher Janet Radcliffe Richards stated,
. . . many people accept that the arguments about free will and ultimate responsibility really do show that no one can ultimately deserve punishment . . . If so, punishment cannot be justified on the retributivist grounds that it is ultimately deserved, but only on the consequentialist grounds that it is necessary for deterring antisocial behavior.
. . . if we understand that there are good evolutionary reasons for our wanting people to suffer when they have done direct or indirect harm to us, then we can account for our strong feelings about the appropriateness of retribution without presuming they are a guide to moral truth. . . . We may be able to recognize our retributivist feelings as a deep and important aspect of our character—and take them seriously to that extent—without endorsing them as a guide to truth, and start rethinking our attitudes toward punishment on that basis.45
She goes on to say, however, that she has no idea how to go about it.
Delicate Balances: Can a Society Be Civilized and Live with Punishment?
Will the system work without punishment? This is a stance that is advocated by the hard core determinists such as Boalt law professor Sanford Kadish, who has written, “To blame a person is to express moral criticism, and if the person’s action does not deserve criticism, blaming him is a kind of falsehood, and is, to the extent the person is injured by being blamed, unjust to him.” Actually, one can interpret this stance as coming from a retributivist viewpoint. If one has no control over one’s determinist brain then one doesn’t deserve punishment, a retributivist argument. The same can be said for the conclusion reached in the court decision of Holloway vs. U.S. in 1945: “To punish a man who lacks the power to reason is as undignified and unworthy as punishing an inanimate object or animal. A man who cannot reason cannot be subject to blame.” It could just as easily have said it is not fair to punish someone who does not deserve it. Is forgiveness a viable concept? Is it possible to run a society where forgiveness trumps accountability and punishment? Would such a system work?
As I mentioned in the last chapter, unlike any other species, we humans have evolved to cooperate on a massive scale with unrelated others. This has been difficult to explain from the evolutionary standpoint because cooperating individuals incur costs to themselves that benefit non-kin, which doesn’t make sense at the individual level. How can that be a strategy for success? The reason is that it does make sense on the group level. We have seen that in the ultimatum game people will punish noncooperators at personal cost even in one shot games. It turns out that both theoretical models and experimental evidence show that in the absence of punishment, cooperation both in large and small groups cannot sustain itself in the presence of free-riders, and collapses.46 In order for cooperation to survive, free-riders must be punished. If you take accountability out of the network, the whole thing falls apart. Can you have accountability without punishment? Clearly our genome thinks it is important. Can we or should we rise above it or not? Punishing free riders in economic games or those that don’t follow the accepted rules of a social group, brings us back again to Tomasello’s theory of self domestication of humans: Punishment by incapacitation (whether it was by killing or banishment) resulted in temperaments being selected for that made us more cooperative. If we don’t incapacitate the offenders, will the noncooperators take over and society fall apart?
All these issues are being generated by a more physicalist understanding about who we are and that understanding is, in turn, going to influence how we think about the issues. There are problems on both sides.
Social Interactions Makes Us Free to Choose
My contention is that ultimately responsibility is a contract between two people rather than a property of a brain, and determinism has no meaning in this context. Human nature remains constant, but out in the social world behavior can change. Brakes can be put on unconscious intentions. I won’t throw my fork at you because you took a bite of my biscuit. The behavior of one person can affect another person’s behavior. I see the highway patrolman coming down the onramp and I check my speedometer and slow down. As I said in the last chapter, the point is that we now understand that we have to look at the whole picture, a brain in the midst of and interacting with other brains, not just one brain in isolation.
No matter what their condition, however, most humans can follow rules. Criminals can follow the rules. They don’t commit their crimes in front of policemen. They are able to inhibit their intentions when the cop walks by. They have made a choice based on their experience. This is what makes us responsible agents, or not.
* Standards for Fed. Rule Evid. 702.
** The anterior portion of the brain that is comprised of the cerebral cortex, the olfactory bulb, the basal ganglia, and the corpus striatum.
† Harrington v. State, 659NW 2nd 509 (Supreme Court Iowa 2003).
†† http://lawandbiosciences.files.wordpress.com/2008/12/beosruling2.pdf