Michael—or Mr. Oft, as we will refer to him here—was pretty much your everyday, run-of-the-mill middle-aged American guy. In his early career he worked as a correctional officer, later earning a master’s degree and becoming a schoolteacher in Charlottesville, Virginia. He liked teaching, and he liked kids. By all accounts he genuinely loved and cared for both his second wife, Anne, and his twelve-year-old stepdaughter, Christina, whom he had known since she was seven years old. He got on fabulously well with her. Oft had no prior psychiatric history, nor any history of deviant behavior. He was not much different from you or me—until the clock moved toward the turn of the century in late 1999.
At the age of forty, his behavior slowly but surely changed. He’d never previously been interested in massages, but now he began to frequent massage parlors. He also began to avidly collect child pornography. Then the once-innocent act of putting his stepdaughter to bed changed in an unspeakable way.
As Christina recollects, Mr. Oft used to sing her lullabies before he tucked her in. But after his wife took a part-time job that kept her out of the house until ten p.m. two evenings a week, the usual bedtime practices became a little more sultry and sordid. Oft began to get into bed with Christina, and began to touch and fondle her.
Like many children suffering from abuse at the hands of a trusted relative, Christina was very confused. She knew that she loved her stepfather—but she also knew that what he was doing was wrong. She would argue with him over it, and it increasingly bothered her. But Michael’s changes were growing. Normally engaging and likeable, he was becoming more short-tempered. On Thanksgiving Day in 1999 he pulled out some of his wife’s hair in a fight. Oft was clearly a man in decline.
Finally, the tearful Christina spoke to a counselor about her stepfather’s pedophilia. The counselor in turn spoke to her incredulous mother. Anne was shocked, horrified, and furious. She found “barely legal” child pornography in his possession—pictures of women supposedly of legal age but who looked thirteen or fourteen. She reported his behavior to the police.
Mr. Oft was legally removed from the home and duly charged with sexual assault. Diagnosed as a pedophile, he was found guilty of child molestation and given the option of either completing a treatment program for pedophiles or going to prison.
Naturally, Mr. Oft opted for the treatment program. But even during treatment Oft could not resist soliciting sexual favors from the female staff and other clients at the rehabilitation center. He was thrown out of the program. That was it. He now had to go to prison.
The very night before he was due to start the prison sentence, Mr. Oft went to the University of Virginia’s hospital complaining of a headache. Unconvinced, the hospital turned him away, but as he was about to be discharged, he claimed he would kill himself if released, slipping in a threat to rape his landlady. The medical staff could not let someone go in those circumstances, so Mr. Oft was admitted to the hospital’s psychiatry ward under the medical diagnosis of pedophilia. Naturally, one of the first things he did was to come on to the female hospital staff and request carnal medical attention.
That probably would have been his undoing if he had not also urinated on himself. The odd thing was that he did not seem concerned. He also began to walk a little unsteadily. A very astute neurologist—Dr. Russell Swerdlow—put two and two together and ordered a brain scan. The scan showed that Mr. Oft had a massive tumor growing at the base of his orbitofrontal cortex, compressing the right prefrontal region of his brain.1 Brain surgeons resected the tumor, and a most remarkable change came about. Mr. Oft’s emotion, cognition, and sexual activity returned to normal. The pangs of guilt and remorse at what he had done to his stepdaughter at last set in. He no longer sexually propositioned female staff members. He no longer felt the urge to rape his landlady or to commit suicide.
Mr. Oft was a changed man.2 He was released from the hospital and went back to therapy. This time he successfully completed the twelve-step Sexaholics Anonymous program that he had previously failed so spectacularly. His behavior was now entirely appropriate. Seven months later he returned home to be reunited with his wife and stepdaughter to once more lead a normal life. It was a near-miraculous recovery—and it should have been a case of living happily ever after. But what appeared to be a medical miracle was a mirage. The headaches came back.
After several months of normal behavior, Mr. Oft again began to collect child pornography. Suspecting a relapse, one night his wife checked his computer and found the offending material—and once again Mr. Oft was in hot water. Yet thanks to a foresightful re-scan of his brain, his neurologist, Dr. Swerdlow, found that the tumor had grown back. In 2002 the tumor was resected for the second time.3 Once again Mr. Oft made a complete recovery, and this time for six years after the second resection of his tumor his sexual urges and general behavior have been totally appropriate.
The case of Michael Oft is remarkable because it comes as close as one can get to demonstrating a causal link between brain dysfunction and deviant behavior. A double reversal of fortune over time. Going from normality to a growing tumor to the development of pedophilic urges then back to normality after the tumor is resected—with the pendulum swinging back yet again to repeat this tumor to pedophilia to resection to normality progression. The temporal ordering of events is very telling. But the powerful evidence suggesting that this man’s antisocial behavior was due to an uncontrollable growth in his skull also raises a profound legal question: Was Mr. Oft legally responsible for his deviant behavior?
Some of the debates in life seem ancient and eternally fixed in time, like the frozen figures encircling a Grecian urn. Here we have such a debate. On one side of the urn we have Themis, the Greek goddess of law and justice. Themis wants no sob stories—she wants no excuses. Justice and retribution reign, and criminals have to be held responsible for their actions.
On the other side of the urn, we have the pleading figure of Mr. Oft and others like him, victims, in ways we are still trying to understand, of complex biosocial forces—forces frequently beyond our control.
In this penultimate chapter we will take a critical look at how research on the biology of violence is not just affecting the judicial system—but is also raising questions about core human values including free will. The new subdiscipline of “neurolaw” is playing a critical role in shaping our perspectives on this issue. Within this context we’ll take a focused look at criminal responsibility, and, as one would expect in a legal context, we’ll evaluate the cases for and against the relevance of neuroscience research on violence. Finally, we’ll return to the question of Mr. Oft’s responsibility—and examine the credibility of the current legal response.
We have been witnessing so far a myriad of biological, genetic, and brain factors that conspire together to create violence and crime. A number occur even before a child is born. A child does not ask to be born with birth complications or a shrunken amygdala, or to have the gene for low levels of MAOA. So if these factors predispose some innocent babies to a life of crime, can we really hold them responsible for what they eventually do—no matter how heinous the crime? Do they have free will in the strict sense of the word? That’s the key question we must address.
At one extreme, many theologians, philosophers, social scientists—and likely yourself—would argue that barring exceptional circumstances such as severe mental illness, each and every one of us has full control over our actions. Theologians argue that we have a choice as to whether to let God into our soul, that we choose whether to commit sin or not, and consequently our criminal actions—our sins—are a product of a will that is under our full control.
At the other extreme, some scientists eschew the idea of a disembodied soul that has its own free will and take a more reductionist approach. Francis Crick, who won the Nobel Prize for the discovery of the structure of DNA, for example, believed that free will is nothing more than a large assembly of neurons located in the anterior cingulate cortex, and that under a certain set of assumptions it would be possible to build a machine that would believe it has free will.4 Such a view harks back to our discussion of evolutionary perspectives. Perhaps we are indeed merely gene machines that con ourselves into believing we have choices in life.
I might argue for a middle ground between these two extremes. Free will likely lies on a continuum, with some people having almost complete choice in their actions, while others have relatively less. Rather than viewing intent in black-and-white, all-or-nothing terms, as the law does, with a few exceptions, I see shades of gray. Most of us lie between these extremes. Think of the free-will concept like IQ, extraversion, or temperature, which are dimensional in nature. There are degrees of free will, and we all differ on that dimension of agency.
What determines the extent of free will? Early biological and genetic mechanisms alongside social and environmental factors play substantial roles. For some, free will is significantly constrained early in life by forces far beyond their control. Let’s look into the life history of one murderer and rapist I worked with to illustrate my argument. I’ll first present his life circumstances that his defense team argued constrained his free will—but I’ll return to his case later to offer a more retributive perspective from the prosecution.
Donta Page was born on March 28, 1976. His mother, Patricia Page, was only sixteen years old at the time of his birth. She had gonorrhea during her pregnancy. Her own mother was fourteen when she gave birth to Patricia, so Donta’s mother was raised by her aunt and uncle, both of whom physically abused her, forcing her into an eight-year-long incestuous sexual relationship with the uncle that started when Patricia was four. Donta himself did not have a father at home, but he did inherit a family history from his father’s side of crime, drug abuse, and mental illness.
Throughout his early childhood, Donta was a frequent visitor to the local emergency room. He had five recorded admissions before the age of two. When he was just nine months old he was taken there after he supposedly “fell” out of a car window—but in all likelihood the unwanted child was thrown out. A scar on his head as an adult is the only external sign of what likely resulted in a very significant closed-head injury. Due to lack of close parental supervision, he was also knocked unconscious by a swing, and when six months old he fell out of the top of a bunk bed. So before he was even two years old he had a substantial history of head injury—and very likely brain impairment.
When Donta was three he was moved into one of the worst neighborhoods in Washington, D.C. His defense attorney reported that as he walked in the area where Donta grew up, he could see that every fourth or fifth house was burned or abandoned. During this time Donta was bounced around from his mother to his great-aunt and back again, experiencing sustained instability in bonding and a normal family life. Frequently he was left at home alone to fend for himself for the whole day. Things were so bad with his abusive mother that by the time he was ten, Donta often preferred to sleep in an abandoned building rather than face the abuse at home.
Given how Donta’s mother had herself been raised, it was not surprising that she physically abused him. His grandmother testified that as an infant he was vigorously shaken on repeated occasions for crying. At the age of three, he was punched in the head by his mother so hard that it caused him headaches. At six he was being beaten with an electrical cord that caused bleeding. He was beaten for wetting himself. He was beaten for getting bad grades. He was beaten for any minor misbehavior. When his teacher told his mother that she suspected Donta had ADHD, his mother went home to beat him because he had a childhood disorder. It was documented that by age ten he was being hit by his mother with a closed fist. Donta was also burned with cigarettes, leaving him with dark black spots on his arm that remain in adulthood—alongside scars on his thighs, back, flanks, arm, and chest that bear testimony to the bombardment of abuse.
That abuse was dealt out not just by his mother but also by neighboring predators. When he was ten he was violently raped by a next-door neighbor. Back in the local emergency room, it was documented that he had rectal bleeding. It was further suspected that he was also bleeding internally. Despite all the physical evidence of rape, the hospital never referred the matter to child protection agencies. Donta was sent back to live in the same house, across the way from the same rapist, likely to be raped again. He was given neither counseling nor one ounce of understanding. Neither the family nor the hospital cared about the safety of a small, unsupervised boy from predatory neighborhood rapists.
The abuse escalated. By age thirteen, he was yet again back in the ER because his mother had hit him very hard on the side of his head with an iron. The attending physician documented welts on his arm where his mother had struck him with an electrical cord and the swelling to his temple where he had been hit with the iron. This was clear documentation of child abuse,5 but no action was taken, and Donta was ultimately returned back home to his mother.
As one might have predicted, Donta was committing property crimes by the age of sixteen and was duly sent to a juvenile detention center. When he was later on trial as an adult for homicide, his attorney carefully pointed out that by the age of eighteen, Donta had been referred by teachers and probation officers for psychological treatment an amazing nineteen times. Astonishingly, he never received even one treatment session. Eight of these attempted referrals were before he had committed a single criminal act.
Given the complete absence of any form of intervention, it is unsurprising that Donta quickly fell into a criminal lifestyle, committing robberies and burglaries that when he was eighteen resulted in a sentence of twenty years in prison and ten suspended sentences. He’d only served four years, however, before being let out on parole and sent to a halfway house on Stout Street in Denver, Colorado, in October 1998. The respite from prison did not last long. He assaulted one of the other residents, and on February 23, 1999, he was told he would be sent back to Maryland to serve the rest of his sentence. It was on the following day, when he was due to be returned to prison, that he robbed and killed Peyton Tuthill in Denver.
Before the trial began I had been contacted by James Castle, Donta’s defense attorney, who had heard of my brain-imaging work on murderers. He believed that Page’s abominable social history would likely have consequences for brain functioning, and that this in turn would have consequences for behavioral control. I frequently get requests of this sort and usually turn them down, but after considering the details Jim Castle presented me with, I believed Page’s case deserved a closer look.
We arranged to have Donta Page brought across state lines from Colorado to California, so he could be brain-scanned in the same PET scanner that I had used in our study of murderers—using the very same methodology. I presented Donta’s brain scan at his trial as an expert witness and compared it to fifty-six normal controls. I gave my opinion to the judge and jury: Donta Page showed clear evidence of reduced functioning in the medial and orbital regions of the prefrontal cortex, as well as the right temporal pole.
You can see Donta’s brain scan alongside the normal controls in Figure 10.1, in the color-plate section. In the top half of the figure you are looking head-on and slightly up at the individual. Look at the normal controls on the right, and you can see a lot of warm red and yellow colors in the top half of the brain—the prefrontal cortex—indicating relatively normal prefrontal activity. If you look at the top left, at Donta Page’s brain, you can see those cooler green patches that indicate reduced glucose metabolism in the frontal poles.
Now look at the lower half of the figure. You are looking down on the brain—a bird’s-eye view of a slice through the ventral part of the brain. At the top of the illustration you are looking at the frontal cortex. You can see that the controls are showing good activation in the medial region of the frontal cortex and at the two sides that make up the orbitofrontal cortex. In contrast, Donta Page demonstrates a distinct lack of medial and orbitofrontal functioning. It’s not far off being a black-and-white difference. Page clearly shows brain functioning that is quite different from that of normal people.
By now you will have picked up on the significance of these brain regions. You’ll recall that the brain regions found to be impaired in Phineas Gage are critically important for cognitive, emotional, and behavioral control. The medial prefrontal cortex—especially the frontal pole—is involved in behavioral control, as well as moral decision-making, empathy, social judgment, and insight into oneself.6 The ventral prefrontal cortex, including the orbitofrontal cortex, is critically involved in emotion regulation and impulse control—as well as fear conditioning, the ability to switch behavioral response strategies, compassion and caring for others, and sensitivity to others’ emotional states.7 Neurological patients with damage to these regions show impulsivity, loss of self-control, immaturity, lack of tact, inability to modify and inhibit inappropriate behavior, poor social judgment, loss of intellectual flexibility, and poor reasoning and problem-solving skills, as well as psychopathic-like personalities and behavior.8 We’ve seen how these processes—when turned off—are important predispositions to violent and antisocial behavior. You will also recall that prefrontal dysfunction is especially characteristic of impulsive killers.9
When you place this scientific knowledge in the context of Donta Page’s behavior, his actions become more explicable. He had not planned to rape and kill Peyton Tuthill—he just wanted to raid her house for any money he could get. It was not too dissimilar from the case of Antonio Bustamante, who impulsively burglarized a home for money and then battered an old man to death. As we saw in chapter 3, Bustamante’s PET scan similarly revealed orbitofrontal dysfunction. When Peyton surprised Page by unexpectedly coming back home, Donta acted impulsively. Once in full control of this beautiful young blond woman in the bedroom, his emotions and sexual instincts overcame him and he perpetrated on her the ugly act that had been perpetrated on him when he was young and vulnerable—rape.10 He lacked self-regulation and emotional control. He also lacked the ability to empathize with his victim or to be sensitive to her fear, and when she fought back, he stabbed her. He was angry at how his life, which had been at the brink of being turned around, had fallen back into old patterns. He was angry that he was being sent back to prison that very day, and he took that blazing anger and frustration out on his victim. Given his lifelong history of serious childhood abuse, it’s quite likely that either at a conscious or unconscious level, this was redirected aggression—dealing out to Peyton the abuse he had been on the receiving end of as a child.
Nobody can deny that Page’s acts were abhorrent—and some would even say evil. But can you deny the predisposing factors that led him down the road to violence?
A significant aspect of Page’s brain scan is that the most salient areas of damage included the orbitofrontal cortex and the temporal pole—the frontal tips of both brain regions. These are the areas that are most susceptible to head injury due to the way they sit in the brain. And this damage can result from events far less insidious than the shocking head injuries that resulted in Page being taken to the hospital in infancy and toddlerhood.
We know from family members’ testimony that Page’s mother would vigorously and repeatedly shake baby Donta—simply because he cried too much. When that occurs, the brain of the baby rocks backward and forward inside the skull, with the orbitofrontal and frontal-temporal pole areas rubbing up against bony protuberances on the inner surfaces of the skull—and getting damaged. So the brain impairments that we saw in his PET scan are quite consistent with the social history of very significant and severe child abuse.
There were more elements of Page’s history that struck me. He was enuretic and encopretic until he was ten—he could not control his bladder and bowels in bed. For that he was beaten by his mother. You might see this in children at age three or four years, but the fact that it went on till the age of ten illustrates the anxiety, fear, and tension that the young Donta Page must have experienced in his unbearably traumatic upbringing. He clearly had a very disturbed and harrowing childhood.
At a neuropsychological level, Page performed poorly on the Wisconsin card-sorting task, a classic measure of executive functions—what we’d expect given the results from the PET scan that showed a lack of regulatory prefrontal functioning. Donta also flunked three grades as a child, a clear indication of learning disability.
At a psychophysiological level, his resting heart rate was 60 beats per minute. I compared that to a demographically matched sample of males his age, and this would place him in the bottom 3 percent of the distribution. We’ve seen earlier that low resting heart rate is one of the best-replicated biological correlates of antisocial behavior—a marker of fearlessness and an indicator of low arousal that can give rise to stimulation-seeking behavior.
At a cognitive level there was a striking difference between his verbal and spatial IQ scores—a gap of 17 IQ points, with the spatial “right hemisphere” score being much lower than the left, suggesting relatively more impairment to the “emotional” right hemisphere. Neuropsychological testing also revealed memory impairments in both auditory and visual modalities, consistent with his history of head injury to the temporal region of the brain.
Three experts documented that Donta suffered from some form of mental illness, likely organic in nature. Given also a familial history of mental illness on his father’s side, to say nothing of the aberrant social family history on his mother’s side, it is likely that genetic factors also played some role in predisposing him to a dysregulated and impulsive lifestyle, including violence.
Let us not forget that the social environment can have profound “biosocial” effects on the brain, and the fact that Donta as a young baby had a rejecting, uncaring, and callous mother who severely neglected her son. In chapter 8 we talked about interaction effects between biological and social factors. We have few details of Donta’s birth, but we do know that his mother had gonorrhea at the time of pregnancy. This can result in obstetric complications, including premature rupture of the membrane that surrounds the baby in the uterus, infection of the amniotic sac and fluid, and early onset of labor. Donta himself could have even contracted a sexually transmitted disease when he passed through the birth canal at the time of delivery.11 We have seen earlier that maternal rejection of the child, when combined with obstetric complications, triples the likelihood of adult violence.12 Given the abject poverty in which he lived, the growing Donta was very likely undernourished as a baby and young infant, another important factor that can negatively influence the developing brain.
We’ve seen how the term “biosocial” can also be viewed in a different light—social factors giving rise to biological risk factors for violence. At the level of environmental toxins, Donta’s great-aunt reported that he ate paint debris in the house as a toddler. The old housing in which Donta lived had lead-based paint, and we’ve seen how lead is neurotoxic, resulting in brain damage. Donta had little in the way of food, and children at any age when hungry will try to eat whatever comes their way—including paint chips—as they crawl around and put their fingers in their mouth. We’ve seen that poor nutrition is associated with later antisocial behavior—a social risk factor that impairs brain functioning. So at both levels, the social adversity that Donta experienced likely produced brain deficits that in turn contributed to his evolution into a violent offender.
All of these processes—social and biological—can shape further risk factors for violence. His first-grade teacher documented “emotional disturbances” when Donta was six and a half years old. She clearly saw that the young Donta was completely out of it, and that something was profoundly wrong with him. Similarly, his grandmother viewed him as seriously troubled and depressed at ages five and six, and also as being distractible, impulsive, and hyperactive. These clinical behavior problems are again well-documented risk factors for later antisocial and violent behavior.13
Let’s summarize the case of Donta Page here. Teenage pregnancy. Potential birth complications combined with uncaring, callous mother. Total absence of father. Impoverished neighborhood. Vigorous shaking as an infant that likely resulted in a disconnection between the frontal cortex and the limbic system. Sustained and severe physical and sexual abuse, including rape resulting in scarring and rectal bleeding. Total neglect. Early head injuries and multiple visits to the emergency hospital in the first two years of life. Neurotoxic lead exposure. Poor nutrition. A complete lack of supervision. Learning disability. A family history of mental illness and signs of depression, ADHD, and conduct disorder as early as elementary school. Impaired executive functioning and memory. Low physiological arousal. Poor functioning of the orbitofrontal and medial prefrontal cortex in addition to reduced temporal-pole functioning.
This shopping list of risk factors looks as if it was freshly plucked from a neurocriminological recipe book for creating a recidivistic violent criminal. Donta Page was a walking time bomb waiting to go off. He was totally unloved and uncared for right from the moment he popped out of his gonorrhea-infected mother’s womb. It was Peyton Tuthill’s dreadful bad luck to be in the wrong place at the wrong time when Page blew up in her face.
Page himself wrote lucidly on his life and the perspective of the jury in a letter read out to the court before sentencing:
All they see is a black man that killed a white woman. Nobody took the time to ask why but rather who. I’ve been asking for help for years. Nobody cares until I hurt someone, then they wanted to give me medicine, but when I went home nothing until I got in trouble again.… I don’t see what I really have to live for. I’m 24 years old. I never had a chance to live. Now it’s over.14
“I never had a chance to live.”15 He was a 300-pound African-American who had raped and killed a pretty young blond woman. This interracial rape and homicide is rare. Most violence—about 90 percent—is intra-racial.16 The racial dynamic must surely have ratcheted up the retribution factor in the minds of the jurors. When they returned after three days, they found him guilty of first-degree deliberate murder and rape—and a prime candidate for the death penalty.
The jury took time to answer the question of “who?” but spent much less time to answer Page’s own more pertinent question of “why?,” a question so childishly simple that it is almost impertinent. Yet we sometimes need to ask an impertinent question to find our way to the pertinent answer. We need to understand the “why”—the causal factors that explain the crime—if we are ever going to prevent horrific crimes like the one poor Peyton Tuthill had to suffer.
Page is also essentially correct on the remainder of his letter. Very early behavioral signs of disturbance flagged him immediately. He was crying out for intervention. Eight documented referrals for treatment before he had even committed a single crime—and heaven knows how many undocumented referrals. He desperately needed an expert to defuse the toxic mix of risk factors that was thrust upon him so early in life. These were life circumstances he had no control over whatsoever.
Looking at the free-will continuum as a totem pole, Donta is down at the bottom, where destiny lies. He was always in the red zone. Anyone could have seen that; indeed, they did see it. If you want to lay the blame on someone, blame his psychopathic-like mother for the wretched life she knowingly and uncaringly thrust on her son. Blame the indolent bystanders who witnessed what was going on and did nothing to intervene. Blame the social services for a complete and abject failure to act in a case that was crying out for intervention. Blame society for not doing more to protect once-innocent lives.
But don’t blame Cain. Donta’s case shows that free will is not as free as law and society would like to believe.
Should we execute Page? He was eventually found guilty and was facing the death penalty. We strongly suspect that brain damage made him significantly more likely to commit violent acts. We have also ascertained that the likely cause of damage occurred early in life for reasons beyond his control. Of course we have to protect society, and unless we can treat this brain dysfunction we may need to keep him in secure conditions for the rest of his life. But does Page deserve more punishment? Should he lose his life, given the early constraints on his free will?
One argument rests on the belief that we all have free will and agency even in the face of risk factors. It’s almost a religious belief. Surely we all have a choice? If I were to ask you to explain why you are reading this book right now, you’d say something like, “Well, I wanted something to read today and decided to pick up your book. I’ve always been fascinated by violence, and these days we’re hearing a lot more about the brain and biology. So here I am now.”
Sounds reasonable, doesn’t it? You can choose. You have free will. I was not standing beside you with a gun to your head coercing you to buy it, was I? Surely this has to be full-bodied proof of free will? No, it’s not.
You did not choose to read this book. Your brain made you do it. You likely had “risk factors” for buying this book, whether you are conscious of them or not. You may have been a victim of crime. You may have yourself bordered on committing a crime—and always wondered where the line between offenders and good citizens lay. Alternatively you were born good, giving you the fascination for the bad seed that you are not. You may have been exposed to domestic violence and abuse. If you are a woman, we know you are more attracted to books on crime than men—likely because you have a greater fear of being a victim. These factors produce a causal chain of events that predisposed you to read this book. You saw the bold title and colorful cover. In milliseconds it triggered a chain of past emotional memories and associations that made you pick up the book and start reading its contents.
You want so desperately to believe that you determine things in your life, yet that belief has no true substance. It floats like a ghost in a mind machine forged by ancient evolutionary forces. You were as helpless in deciding to buy this book as I was in writing it.
Even if you decide to put this book down right now to prove me wrong, it wasn’t you that chose to close it. It was your Bolshie brain that was programmed to be oppositional and defiant when challenged. Free will is sadly an illusion—a mirage. I wish it were not, because I too find this perspective unsettling. But there we have it.
Here’s another example. We know that alcoholism is a disease state that has a substantial genetic component. If we sit an alcoholic and a nonalcoholic in front of a glass of beer and tell them not to drink it—then yes, in some sense they do indeed “choose” to drink it or not. But in a probabilistic sense we also know that the alcoholic is going to be less able to resist drinking from the glass. In this situation, the alcoholic’s freedom of will has been constrained in large part by genetic, biological, and, to be sure, environmental forces beyond his control. Offenders like Donta Page are no different.
Okay, you say, so Page has a whole bunch of risk factors for violence. Sure, he got a rough deal in life. But he’s still as responsible as anyone. If an individual possesses characteristics that make him disproportionately more likely to commit violence, then he has to take responsibility for those predisposing factors. Just as an alcoholic knows he has a drinking problem and must seek out treatment, so the person at risk for violence needs to recognize those risk factors and take preventive steps to ensure that he doesn’t harm others. He has a choice, and he needs to act. He is responsible.
This makes good practical sense, but there is a problem with this argument. Responsibility and self-reflection are not disembodied, ethereal processes but are instead rooted firmly in the brain. Functional imaging research has shown that the medial prefrontal cortex is centrally involved in the ability to engage in self-reflection.17 And it is this very area of the brain that has been repeatedly found to be structurally and functionally impaired in antisocial, violent, and psychopathic offenders. Similarly, patients who have damage to the medial prefrontal cortex are known to become irresponsible, to lack self-discipline, and to reflect less on the consequences of their actions. The very mechanisms that subserve the ability to take responsibility for one’s actions were impaired in Donta Page. If you take a look at Figure 10.1 in the color-plate section, you can see very clearly the reduced medial prefrontal cortical functioning. He is less capable than the rest of us to reflect on his behavior, to recognize factors that place him at risk for violence, and to take responsibility for those risk factors and seek treatment.
Let’s step back and consider the counter to my own court testimony. Aren’t we treading into legal quicksand if we accept the biosocial argument for clemency to Donta Page? Let’s concede that genes place the bullets in the gun. I’ll admit that the environment cocks the trigger. But surely it is your choice whether to pull the trigger?
Scientifically, I take a more deterministic—and some would say pessimistic—perspective. If there are people stumbling around with a loaded, cocked gun all the time, somebody for sure is going to get shot. We cannot prove that brain impairments cause violence, but as with Page, we can come close.
But your retort is that these offenders must have some degree of insight into their loaded-gun condition, and must know there’s something just not right with them. Based in part on the four years I worked with prison inmates, I’m not so sure. Most prisoners whom I suspected to have brain dysfunction simply had no idea that anything was wrong with them. This is not entirely surprising when you consider the neurodevelopmental basis to violence, with brain mechanisms not developing normally throughout childhood and adolescence. In many cases these offenders grew up with brain dysfunction, so it has always been an intrinsic part of them. Even when their biological dysfunction is pointed out to them, like many of the general public they believe that the causes of violence nevertheless lie squarely in social factors like poverty, unemployment, bad influences, poor parenting, and child abuse. That’s what they have grown up to believe. I think that these offenders and some of you think that way because poverty and bad parenting can be objectively seen and recognized, and are consequently very salient—whereas biological risk factors are invisible to the naked eye. Yet the neurobiological reality is that many offenders, like Phineas Gage, and individuals with Alzheimer’s disease, have brain impairments and cannot objectively evaluate their own minds.
But even if offenders knew they were at risk for violence, the way society is constructed precludes them from doing anything about it. Even if Donta Page had been able to recognize and comprehend the implications of the many factors that placed him at high risk for impulsive violence, what was he going to do about it? Go to the police and tell them he felt like raping someone?18 We know what the societal response to that would be, and you cannot blame an individual for not wanting to be locked up for a long time in prison. There are no self-help groups for foresightful criminals.
In reading over the case of Donta Page, you may have been reminded of a friend, an acquaintance, or even a family member who might have had some biological and social risk factors for crime, and yet they did not succumb. So you say, surely there must be something profoundly wrong with this actuarial approach of weighing degrees of risk for violence.
The counterargument? The concept of protective factors. That person sticking out in your memory with all those risk factors for crime likely had positive influences on their lives—factors protecting them from future crime in the face of the biosocial bogeymen. For example, positive family functioning can protect a child from antisocial behavior in the face of living in a community with a high level of violence.19 Or, conversely, I have shown that good fear conditioning20 and high levels of arousal21 serve as biological factors that protect a child from adult crime even when that child was antisocial during the teenage years. These protective factors helped them along a different course, but not necessarily because they had exerted “free will.”
There is a side of me that would argue that Page should not have been punished as fully as he could have been in the eyes of the law. There are limitations to his free will that we should take into account when sentencing criminals like him. We are not all the same.
Let’s now argue the other side of the case we have before us. There is a compelling reason that we should be unwilling to let Page off the hook, despite all the risk factors he had against him. Retribution—the mainstay philosophy within the legal system for justifying the punishment of an offender. Peyton Tuthill had her throat cut and died in a pool of her own blood after enduring a horrific rape. Should not the victim’s cries for justice be heard and a pound of flesh rendered?
You almost certainly have been a victim of crime at some point—a burglary, a robbery, a theft, or an assault. Do you remember the outrage and injustice you felt? The unwillingness to forgive? The instinct to demand an eye for an eye? Justice exists to address a victim’s powerful psychological need for retribution. If we were to take tough retributive justice away and replace it with softer sentencing, would that not leave a bitter aftertaste of injustice in the mouths of the victims?
I’ve presented to you the case for clemency for Donta Page, but now let us go through the hard facts of the rape and murder. This will not be as vivid as it would be were you sitting in the jury box at the trial, facing the photographs and forensic testimony, but perhaps it will give you pause before rendering your verdict—and help you better understand the retributivist’s position.
First and foremost, Peyton Tuthill was a truly wonderful young woman. As an undergraduate at the College of Charleston, in South Carolina, she had been a cheerleader, athlete, lifeguard, and sorority president. She worked as a drug-abuse peer counselor. She volunteered in a convalescent home for the elderly. She had an intense sense of social responsibility toward the less fortunate. She worked selflessly during her studies to help underprivileged minorities—mentoring children from very poor homes and organizing the “adoption” of five of them by her sorority. When she left college she moved out to Denver to eventually attend the Colorado Institute of Art. While she waited, she registered at a temporary employment agency for work—I know all too well what that is like. Ironically, she had even visited the Stout Street Foundation, where Donta Page lived, and spoken to officials there about drug and alcohol rehabilitation. She was considering volunteering for them and perhaps might have even helped in Page’s rehabilitation. More ironically, they had reassured her that where she lived was quite safe, and that if she ever needed help she should get in touch.
On February 24, 1999, she went to an interview with the Cystic Fibrosis Foundation. Meanwhile, Donta Page was back at the Stout Street treatment center waiting for a lift to the bus station for his one-way trip back to prison in Maryland. He had two hours to kill before his ride, and impulsively decided to burglarize a nearby home.
Returning from her interview, Peyton parked her car outside her duplex. When she entered the house she encountered Page. Terrified, she ran upstairs. Page chased after her, catching her at the top of the stairs, where he proceeded to punch her several times in the face. He hit her hard on the head with the butt end of the knife he had taken from the kitchen drawer. Blood splatters on the railing, floor, and wall showed that she was cut here. As her dog barked loudly in one closed upstairs room, Page dragged Peyton into another bedroom. He tied her hands with cord, and asked where her money was. She told him it was in her purse in her car outside.
Page went out for the money. Peyton, meanwhile, got her hands loose and ran downstairs, seemingly free of her ordeal. But she encountered Page for a second time, as he was coming back up the stairs. With no way out, she ran into the bedroom again. Page followed. He stripped her of her blouse and panties, and raped her on the bed. He raped her vaginally, then he raped her anally. Blood marks down the wall indicate that her head, bleeding from the wound she had received on the stairs, was banging up against the wall in what must have been a truly horrendous ordeal for her.
In his confession tape, Page revealed that Peyton’s terrible screams ultimately drove him to kill her.22 He pulled her to the edge of the bed into a sitting position, took the kitchen knife, and cut her throat. Blood gushed from the wound—but she still screamed, desperately fighting for her life. Bravely she struggled against a man more than twice her size. She grabbed the knife, but it severed the webbing between her thumb and forefinger. Page tried to silence her again—this time by plunging the knife twice into her chest.
She still would not give up. Standing up valiantly against her assailant, she suffered two more knife wounds. One ran deep, with the blade plunging eight inches into her chest, cutting major blood vessels around her heart. Peyton staggered forward two or three steps, and then collapsed. The coroner testified that it likely took another minute before her wretched ordeal was over and she died in a pool of her own blood. Page returned to Stout Street just in time to catch his 1:30 p.m. bus.
The mother of Peyton Tuthill would later say that her daughter was not killed, but that she was “butchered”—like an animal. Should we really excuse Page after he slaughtered this wonderful, charitable woman who was only just beginning her life? She had given unceasingly to underprivileged minority children—and, paradoxically, it was an underprivileged minority child who as an adult paid her back with this bestial treatment. Her life was snuffed out in hideous fashion by a vicious thug. Imagine Peyton as your best friend, your girlfriend, your sister, or your daughter. Can you imagine the pain, fear, and humiliation she must have suffered? If a defendant ever deserved what is a justifiable legal punishment under the law, then surely Page deserves it. Even that punishment would be far more humane than what Peyton was forced to undergo.
Let’s take another example. I’ll call him Fred Haltoil. Fred was brought up in an abusive household and, according to his sister, was thrashed by a bad-tempered father who had little if any understanding of his son. His home life was traumatic, with four of his siblings who didn’t survive beyond childhood. The antagonism between father and son was long-standing and bitter. His family moved repeatedly. Like many offenders he failed in school—having been expelled from one—and left education at the age of sixteen without a diploma. He joined the military, where he proved to be a fearless soldier who fought courageously for his country during wartime. Fred took up one of the most dangerous positions—as a message runner—and was gassed in the process. Hospitalized, he was blind for a month and suffered post-traumatic stress disorder for his near-death experience.23 Perhaps not surprisingly, like many war veterans his emotional compassion for others was blunted as a result of his traumatic war experiences.
Demobilized, Fred was unemployed and slept part of the time in shelters for the homeless, moving around from place to place.24 Lacking education and useful life skills, he had no true sense of direction or ambition. His social dysfunction was such that he was never able to develop an intimate physical relationship with another person. His repeated attempts to normalize his life by unrealistic applications for art school and architecture were inevitably unsuccessful, given his lack of training and true talent. He was on a downward spiral. After serving a five-year prison term,25 he, like Page, went on to become a killer after his release.
Given the same option that the judges of Donta Page had between the death penalty and life in prison without the possibility of parole for this murderer, would you as a juror spare Fred the death penalty? I think many of you would. He had a lot of the risk factors for violence—child abuse, negative home background, traumatic life events with the early illnesses and deaths of his siblings, school failure and expulsion, unemployment and occupational failure, homelessness, and major trauma exposure. Like Page, does he not deserve some degree of clemency?
Perhaps not for Fred Haltoil—alias Adolf Hitler—who was responsible for the deaths of 6 million Jews and many millions more. There’s no question that Hitler was not a good man. His best defense lawyer would have had to admit that he pushed the envelope a bit when it came to social policy. Like Page, he was at best a flawed character, and at worst an inhuman monster. For any other killer, we might show mercy. But could you ever excuse Adolf Hitler?
In case you are willing to show mercy to Hitler and those like him who perpetrated genocide—Idi Amin, Pol Pot, Joseph Stalin—bear in mind that American society is wired differently than you are. James Castle, the defense attorney of Donta Page, offered to enter the plea of guilty on all charges and receive a life sentence without the possibility of parole before the trial began. Page would never again be free to terrorize anyone outside of prison. Despite this, the prosecution pressed for the death penalty and went to trial—at great expense to you. Clearly this mind-set goes well beyond the protection of society and into the realm of costly retribution.
Are we wired for retribution? I believe that we evolved to have inside us deep-rooted feelings of retribution and rage at those selfish psychopaths who cheat on our civilized rules of social engagement, and who ruthlessly exploit our charity and trust. Without that powerful emotional mechanism to motivate rage and righteous indignation against these offenders, our current-day civilized society would not exist. If we forgave psychopaths we would be overrun by them. We need to hold a grudge. There is surely something to be said for simmering retribution as a mainstay of our society.
You may alternatively have bought into the risk-factors argument for clemency I have given you. You may stand unswayed by the retributive argument. Others will feel differently. I can understand—I used to feel just like you. Why do people differ in their views? If you, unlike others, feel in favor of clemency, perhaps unlike Peyton Tuthill you have not had your throat cut recently.
You’ll recall from the Introduction my own feelings of being a victim of violence and the Jekyll-and-Hyde debate I have with myself today. That scientifically trained alter ego has spent his life trying to stop crime by working out what causes it and then developing treatments. He’s spent four years of his life holed up in top-security prisons helping the dregs of society, running the gauntlet of the prison hierarchy from murderers and bank robbers at the top to pedophiles at the bottom. He’s even argued that recidivistic crime is a clinical disorder and that we should go easier on those that we hit the hardest. And he is resolute in his belief—based on the body of scientific evidence that has been amassed—that early risk factors beyond the individual’s control help launch some into criminal careers. He urges all of us to take a hard look at the scientific evidence, and not to let our instincts and emotions hijack our rational thinking.
And yet—can I really forgive? Can I forget? Can I let slip for just once my evolutionary instincts that yearn for revenge and retribution? The Amish apparently could when Charles Roberts shot ten of their little girls in a schoolhouse in Lancaster County, down the road from me in Pennsylvania. That community’s response to this despicable act was:
I don’t think there’s anybody here that wants to do anything but forgive and not only reach out to those who have suffered a loss in that way but to reach out to the family of the man who committed these acts.26
The Amish visited the killer’s family to express their forgiveness and even set up a fund for them. I was brought up a Catholic and always admired Jesus Christ, so why can’t I have his sense of forgiveness and resolve to turn the other cheek? And if you find it hard to believe the response of the Amish, can you more easily believe that others criticized their response as misguided and tantamount to denying the existence of evil?27, 28
So I argue back and forth with myself on this perspective, first arguing one side, and then the other. It sounds a little crazy, but it’s really all right to talk to yourself—as long as you don’t interrupt! And perhaps there is a bit of Jekyll and Hyde inside many of us. The ultimate challenge arises in how to reconcile these conflicting perspectives within ourselves to develop a compromise position. We’ll return to this issue further when we turn to the future of neurocriminology in the next chapter. But right now let’s return to our starting point—the two case studies that may help shape our perspective and judgment on the Jekyll-and-Hyde debate.
Some of us have felt the double-edged sword that neurocriminology offers up to us. Peyton Tuthill forcefully felt the sharp edge of the blade. I felt the same edge, but far more lightly. Tuthill’s mother, Pat, vents against the violence done to her daughter. My Mr. Hyde rages for revenge.
Yet is there a blunter edge to the blade that can soften these retributive feelings, and give us pause for thought on punishment? Perhaps the medical model, with its Hippocratic oath of doing no harm, can help render a more benign judgment on this tortuous issue. Let’s look back both at Donta Page and also at our point of departure, Mr. Oft.
The medical information on Donta Page’s early life—as well as his brain scan in adulthood—did not deter the jury from finding him responsible and rendering him guilty of first-degree deliberate murder, first-degree felony murder, first-degree sexual assault, first-degree burglary, and aggravated robbery against Peyton Tuthill. But would it make a difference in deciding whether he should live or die? In Colorado, on February 20, 2001, this question was decided at Page’s sentencing hearing by a panel of three judges who had to weigh the evidence and make a fateful decision. Would Page be held fully responsible for his acts and be executed by lethal injection? Or would they accept the biosocial argument that factors early in his life, beyond his control, led him down the path to violence? Should these facts mitigate the punishment, resulting in prison without the possibility of parole?
The panel decided not to execute him. They accepted the argument that a toxic mix of biological and social factors mitigated, to a degree, Page’s responsibility. It is what I and the defense team had argued for. But is that the right decision? Or is it nothing more than a slippery slope down to a future lawless society that knows no bounds and where all evil acts have some type of “excuse”? Where no one is responsible for anything?
Retributivists can be reassured that Page was found to be legally responsible for what he did. But what about Mr. Oft? Should he be held responsible for his actions? Would you hold him responsible? Bear in mind that in Donta Page’s case, we are talking about a correlation—not causation—between brain dysfunction and later violence. Yet in Mr. Oft’s case we come much closer to causality—the dramatic temporal sway of orbitofrontal disturbance with the sexual swing of his pedophilic passion. What is your verdict? Take a moment to render your judgment.
I put this very question to an assembly of fourteen federal and state judges in the Federal Courthouse in Philadelphia on a cold November morning in 2011. It was a seminar organized by the AAAS—American Association for the Advancement of Science—aimed at bringing neuroscientists together with the judiciary.29 I suggested to them that Mr. Oft was legally responsible for his pedophilia. Every one of these judges agreed. It’s not that I have any expertise in law—unlike my good colleague Stephen Morse, at the University of Pennsylvania Law School, who is an international expert on criminal responsibility and who educated me on the case.
How can that decision possibly be reached when we have a clear-cut case of a medical condition—far beyond the individual’s control, let alone his wishes—that hijacks his brain control center and turns him into a sexual predator? Pedophilia in itself is so “unnatural” that it smacks of a clinical disorder even if there were no corroborative medical evidence.30 How can you turn a blind eye to the on-off tumor growth and the on-off pedophilia?
The legal answer is relatively simple. In American law, legal responsibility is defined in terms of mental capacity—specifically, the capacity for rational thought.31 Let’s assume that you clearly committed a criminal act. In order not to be held responsible, you need an “affirmative defense.” Here you “affirm” that the crime took place—you did it—but your defense is that you are not culpable or worthy of blame because you lacked “rational capacity.” You could lack rational capacity because you were suffering from a serious mental illness such as schizophrenia, or because you were mentally retarded, or because you were just a young, irresponsible child.32 If you could be shown to lack normal capacity for rational thinking, you would not be held responsible for the crime you committed, even if you freely admit to committing the crime.33 In these cases, you lack substantial capacity to appreciate the wrongfulness of your act.
To translate this legalese into common parlance, rational capacity requires two basic conditions. First, you knew what you were doing. Second, you knew that what you were doing was wrong. How does Mr. Oft’s mental state line up with these two conditions?
On the first condition, Mr. Oft knew what he was doing. He freely admitted to the fact that he knew he was going to bed with his twelve-year-old stepdaughter and molesting her. On the second condition, he knew that what he was doing was wrong. It was almost as if he, like me, had a Dr. Jekyll and a Mr. Hyde inside him, with Mr. Hyde having a more telling influence. In reflecting on his pedophilic action with his stepdaughter he comments: “Somewhere, deep, deep in the back of my head, there was a little voice saying ‘You should not do this.’ But there was a much louder voice saying ‘What the heck? Why not?’ ”34
No matter what you would like to believe—or what you think others should believe—there is no hiding from the legal fact that Mr. Oft is responsible for his pedophilic acts. He was fully aware of his action at a cognitive level.
Yet how in the course of justice would you compare Mr. Oft to a pedophile who did just the same act—but did not have that whopping orbitofrontal tumor clouding his moral sense and propelling him to those under-the-sheets illicit activities? Are they one and the same? If you agree, Mr. Oft would beg to disagree: “Now, whether I should be held as accountable for it as someone without a tumor? No, I don’t think so.”35 Nevertheless, under current law in the United States, they are both viewed as legally responsible for their acts.
Mr. Oft knew what he was doing. Yet, at another level—at the affective, emotional level—there was something amiss in Oft. As his wife, Anne, comments when she discusses how she confronted Mr. Oft on what he did: “It seemed as though he got that what he was doing was wrong, but he just didn’t seem to get it. He just sort of had this look of ‘What?’ ”36
Yes, Mr. Oft knew at a cognitive level that what he was doing was wrong, but did he have the feeling that it was wrong? When he wet his pants after admission to the hospital, he did not experience the secondary emotions of embarrassment and shame. That lack of feelings arises after damage to the ventral orbitofrontal cortex.37 Similarly, he did not experience a sense of shame and remorse when committing acts of pedophilia.
We can place this affective deficit in the context of offenders more broadly. We saw earlier, in chapter 3, how psychopathic offenders fail to show activation of the brain’s emotional circuitry when contemplating moral actions, and we’ve seen how the ventral orbitofrontal cortex is also structurally impaired in offenders. Mr. Oft’s case is just the tip of the iceberg of a much larger group of offenders in whom the brain contributes to crime.
This in turn leads to a broader and perhaps more troubling question. If you agree that Mr. Oft was not responsible for his actions because of his orbitofrontal tumor, what judgment would you render on someone who committed the same act as Mr. Oft but, rather than having a clearly visible tumor, had a subtle prefrontal pathology with a neurodevelopmental origin that was hard to see visually from a PET scan? Because such a pathology consists of a slowly evolving maldevelopment of this self-control region, there is no rapid switching from brain abnormality to behavioral abnormality. An individual with this kind of pathology lacks self-control from an early age and is always viewed by those around him as a “bad egg.” He will grow up to be your archetypal evil monster. How should we view him with respect to responsibility? If you cut Mr. Oft some slack, why not individuals like that? And if, on further reflection, you would not cut them some slack, would their case make you feel differently about how you view Mr. Oft?
Regardless of this latter issue, you might view Mr. Oft as not responsible not just because his tumor “caused” his pedophilia, but also because the tumor could be resected and return him to normality. He could be quickly and convincingly treated, unlike most offenders with more subtle brain impairment. His treatability is making you think differently about his culpability—it’s altering your moral evaluation of his act. And yet you would view today’s untreatable offenders with volume reductions in their prefrontal cortex and amygdala as more responsible and worthy of punishment? How could we ethically condone such a difference in our evaluation? Today’s brain-impaired offenders cannot help the fact that we cannot currently reverse that brain impairment in the way we could with Mr. Oft. Would we call that difference in our opinion “justice”?
Perhaps the majority of you may agree that Mr. Oft was not responsible for his pedophilia. Some will disagree. All I will say for now is that currently the law holds him responsible, standing almost agnosticly to neurocriminology. But what does the future hold for the application of neurocriminology to the law? Stephen Morse has argued that severe psychopaths just do not get the point of morality—just as Mr. Oft could not when questioned by his wife. They are blind to moral concerns and have no capacity for conscience. As such he believes they should be excused from crimes that violate the moral rights of others in society.38
If we were to agree with this leading expert in criminal responsibility, might there be some basis for applying a similar line of thinking to Mr. Oft? Should the law be changed in the light of what we are learning not just in a case like Mr. Oft, not just in severe psychopaths, but also in recidivistic violent offenders who also lack this moral sense and feeling of what is right and wrong? And yet we have seen in chapter 5 there is initial evidence for a neurobiological basis to even white-collar crime. Will there come a day when the Bernie Madoffs of the world plead that it’s not their fault—that they were just as biologically predisposed to white-collar crime as Mr. Oft was predisposed to pedophilia?
This issue on the future applications of neurocriminology brings us to the final chapter, where I will give you my own guarded perspective not just on this issue, but also on other societal values that may have to be reevaluated in the new light of neurocriminology. What does the future hold for us?