For example, a study by psychologists Angela Scarpa and Adrian Raine found that there are measurable differences in the brain activity of convicted murderers and control subjects, but these differences are subtle and reveal themselves only in group measurement. Therefore, they have essentially no diagnostic power for an individual. The same goes for neuroimaging studies with psychopaths: measurable differences in brain anatomy apply on a population level but are currently useless for individual diagnosis.21
And this puts us in a strange situation.
THE FAULT LINE: WHY BLAMEWORTHINESS IS THE WRONG QUESTION
Consider a common scenario that plays out in courtrooms around the world: A man commits a criminal act; his legal team detects no obvious neurological problem; the man is jailed or sentenced to death. But something is different about the man’s neurobiology. The underlying cause could be a genetic mutation, a bit of brain damage cause by an undetectably small stroke or tumor, an imbalance in neurotransmitter levels, a hormonal imbalance—or any combination. Any or all of these problems may be undetectable with our current technologies. But they can cause differences in brain function that lead to abnormal behavior.
Again, an approach from the biological view point does not mean that the criminal will be exculpated; it merely underscores the idea that his actions are not divorced from the machinery of his brain, just as we saw with Charles Whitman and Kenneth Parks. We don’t blame the sudden pedophile for his tumor, just as we don’t blame the frontotemporal shoplifter for the degeneration of his frontal cortex.22 In other words, if there is a measurable brain problem, that buys leniency for the defendant. He’s not really to blame.
But we do blame someone if we lack the technology to detect a biological problem. And this gets us to the heart of our argument: that blameworthiness is the wrong question to ask.
Imagine a spectrum of culpability. On one end, you have people like Alex the pedophile, or a patient with frontotemporal dementia who exposes himself to schoolchildren. In the eyes of the judge and jury, these are people who suffered brain damage at the hands of fate and did not choose their neural situation.
On the blameworthy side of the fault line is the common criminal, whose brain receives little study, and about whom our current technology might be able to say very little anyway. The overwhelming majority of criminals are on this side of the line, because they don’t have any obvious biological problems. They are simply thought of as freely choosing actors.
Somewhere in the middle of the spectrum you might find someone like Chris Benoit, a professional wrestler whose doctor conspired with him to provide massive amounts of testosterone under the guise of hormone replacement therapy. In late June 2007, in a fit of anger known as steroid rage, Benoit came home, murdered his son and wife, and then committed suicide by hanging himself with the pulley cord of one of his weight machines. He has the biological mitigator of the hormones controlling his emotional state, but he seems more blameworthy because he chose to ingest them in the first place. Drug addicts in general are typically viewed near the middle of the spectrum: while there is some understanding that addiction is a biological issue and that drugs rewire the brain, it is also the case that addicts are often interpreted as responsible for taking the first hit.
This spectrum captures the common intuition that juries seem to have about blameworthiness. But there is a deep problem with this. Technology will continue to improve, and as we grow better at measuring problems in the brain, the fault line will drift toward the right. Problems that are now opaque will open up to examination by new techniques, and we may someday find that certain types of bad behavior will have a meaningful biological explanation—as has happened with schizophrenia, epilepsy, depression, and mania. Currently we can detect only large brain tumors, but in one hundred years we will be able to detect patterns at unimaginably small levels of the microcircuitry that correlate with behavioral problems. Neuroscience will be better able to say why people are predisposed to act the way they do. As we become more skilled at specifying how behavior results from the microscopic details of the brain, more defense lawyers will appeal to biological mitigators, and more juries will place defendants on the not-blameworthy side of the line.
It cannot make sense for culpability to be determined by the limits of current technology. A legal system that declares a person culpable at the beginning of a decade and not culpable at the end is not one in which culpability carries a clear meaning.
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The heart of the problem is that it no longer makes sense to ask, “To what extent was it his biology and to what extent was it him?” The question no longer makes sense because we now understand those to be the same thing. There is no meaningful distinction between his biology and his decision making. They are inseparable.
As the neuroscientist Wolf Singer recently suggested: even when we cannot measure what is wrong with a criminal’s brain, we can fairly safely assume that something is wrong.23 His actions are sufficient evidence of a brain abnormality, even if we don’t know (and maybe will never know) the details.24 As Singer puts it: “As long as we can’t identify all the causes, which we cannot and will probably never be able to do, we should grant that for everybody there is a neurobiological reason for being abnormal.” Note that most of the time we cannot measure an abnormality in criminals. Take Eric Harris and Dylan Klebold, the shooters at Columbine High School in Colorado, or Seung-Hui Cho, the shooter at Virginia Tech. Was something wrong with their brains? We’ll never know, because they—like most school shooters—were killed at the scene. But we can safely assume there was something abnormal in their brains. It’s a rare behavior; most students don’t do that.
The bottom line of the argument is that criminals should always be treated as incapable of having acted otherwise. The criminal activity itself should be taken as evidence of brain abnormality, regardless whether currently measurable problems can be pinpointed. This means that the burden on neuroscientific expert witnesses should be left out of the loop: their testimony reflects only whether we currently have names and measurements for problems, not whether the problem exists.
So culpability appears to be the wrong question to ask.
Here’s the right question: What do we do, moving forward, with an accused criminal?
The history of a brain in front of the judge’s bench can be very complex—all we ultimately want to know is how a person is likely to behave in the future.
WHAT DO WE DO FROM HERE? A FORWARD-LOOKING, BRAIN-COMPATIBLE LEGAL SYSTEM
While our current style of punishment rests on a bedrock of personal volition and blame, the present line of argument suggests an alternative. Although societies possess deeply ingrained impulses for punishment, a forward-looking legal system would be more concerned with how to best serve the society from this day forward. Those who break the social contracts need to be warehoused, but in this case the future is of more importance than the past.25 Prison terms do not have to be based on a desire for bloodlust, but instead can be calibrated to the risk of reoffending. Deeper biological insight into behavior will allow a better understanding of recidivism—that is, who will go out and commit more crimes. And this offers a basis for rational and evidence-based sentencing: some people need to be taken off the streets for a longer time, because their likelihood of reoffense is high; others, due to a variety of extenuating circumstances, are less likely to recidivate.
But how can we tell who presents a high risk of recidivism? After all, the details of a court trial do not always give a clear indication of the underlying troubles. A better strategy incorporates a more scientific approach.
Consider the important changes that have happened in the sentencing of sex offenders. Several years ago, researchers began to ask psychiatrists and parole board members how likely it was that individual sex offenders would relapse when let out of prison. Both the psychiatrists and the parole board members had experience with the criminals in question, as well as with hundreds before them—so predi
cting who was going to go straight and who would be coming back was not difficult.
Or wasn’t it? The surprise outcome was that their guesses showed almost no correlation with the actual outcomes. The psychiatrists and parole board members had the predictive accuracy of coin-flipping. This result astounded the research community, especially given the expectation of well-refined intuitions among those who work directly with the offenders.
So researchers, in desperation, tried a more actuarial approach. They set about measuring dozens of factors from 22,500 sex offenders who were about to be released: whether the offender had ever been in a relationship for more than one year, had been sexually abused as a child, was addicted to drugs, showed remorse, had deviant sexual interests, and so on. The researchers then tracked the offenders for five years after release to see who ended up back in prison. At the end of the study, they computed which factors best explained the reoffense rates, and from these data they were able to build actuarial tables to be used in sentencing. Some offenders, according to the statistics, appear to be a recipe for disaster—and they are taken away from society for a longer time. Others are less likely to present a future danger to society, and they receive shorter sentences. When you compare the predictive power of the actuarial approach to that of the parole boards and psychiatrists, there is no contest: numbers win over intuitions. These actuarial tests are now used to determine the length of sentencing in courtrooms across the nation.
It will always be impossible to know with precision what someone will do upon release from prison, because real life is complicated. But more predictive power is hidden in the numbers than people customarily expect. Some perpetrators are more dangerous than others, and, despite superficial charm or superficial repugnance, dangerous people share certain patterns of behavior in common. Statistically-based sentencing has its imperfections, but it allows evidence to trump folk-intuition, and it offers sentencing customization in place of the blunt guidelines that the legal system typically employs. As we introduce brain science into these measures—for example, with neuroimaging studies—the predictive power will only improve. Scientists will never be able to foretell with high certainty who will reoffend, because that depends on multiple factors, including circumstance and opportunity. Nonetheless, good guesses are possible, and neuroscience will make those guesses better.26
Note that the law, even in the absence of detailed neurobiological knowledge, already embeds a bit of forward thinking: consider the lenience afforded a crime of passion versus a premeditated murder. Those who commit the former are less likely to recidivate than those who commit the latter, and their sentences sensibly reflect that.
Now, there’s a critical nuance to appreciate here. Not everyone with a brain tumor undertakes a mass shooting, and not all males commit crimes. Why not? As we will see in the next chapter, it is because genes and environment interact in unimaginably complex patterns.27 As a result, human behavior will always remain unpredictable. This irreducible complexity has consequences: when a brain is standing in front of the bench, the judge cannot care about the history of the brain. Was there fetal maldevelopment, cocaine use during pregnancy, child abuse, a high level of in utero testosterone, any small genetic change that offered a 2 percent higher predisposition to violence if the child was later exposed to mercury? All of these factors and hundreds of others interact, with the upshot that it would be a fruitless endeavor for the judge to try to disentangle them to determine blameworthiness. So the legal system has to become forward-looking, primarily because it can no longer hope to do otherwise.
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Beyond customized sentencing, a more brain-compatible, forward-looking legal system will allow us to transcend the habit of treating prison as a one-size-fits-all solution. Prisons have become our de facto mental health care institutions. But there are better approaches.
To begin, a forward-thinking legal system will parlay biological understanding into customized rehabilitation, viewing criminal behavior the way we understand other such medical conditions as epilepsy, schizophrenia, and depression—conditions that now allow the seeking and giving of help. These and other brain disorders have found themselves on the other side of the fault line now, where they rest comfortably as biological, not demonic, issues. So what about other forms of behavior, such as criminal acts? The majority of lawmakers and voters stand in favor of rehabilitating criminals instead of packing them into overcrowded prisons, but the challenge has been the dearth of new ideas about how to rehabilitate.
And, of course, we cannot forget the scare that still lives on in the collective consciousness: frontal lobotomies. The lobotomy (originally called a leucotomy) was invented by Egas Moniz, who thought it might make sense to help criminals by scrambling their frontal lobes with a scalpel. The simple operation cuts the connections to and from the prefrontal cortex, often resulting in major personality changes and possible mental retardation.
Moniz tested this out on several criminals and found, to his satisfaction, that it calmed them down. In fact, it flattened their personalities entirely. Moniz’s protégé, Walter Freeman, noticing that institutional care was hampered by a lack of effective treatments, saw the lobotomy as an expedient tool to liberate large populations from treatment and back into private life.
Unfortunately, it robbed people of their basic neural rights. This problem was brought to its extreme in Ken Kesey’s novel One Flew Over the Cuckoo’s Nest, in which the rebellious institutionalized patient Randle McMurphy is punished for bucking authority: he becomes the unlucky recipient of a lobotomy. McMurphy’s gleeful personality had unlocked the lives of the other patients in the ward, but the lobotomy turns him into a vegetable. Upon seeing McMurphy’s new condition, his docile friend “Chief” Bromden does the favor of suffocating him with a pillow before the other inmates can see the ignominious fate of their leader. Frontal lobotomies, for which Moniz won the Nobel Prize, are no longer considered the proper approach to criminal behavior.28
But if the lobotomy stops the crimes, why not do it? The ethical problem pivots on how much a state should be able to change its citizens.* To my mind, this is one of the landmark problems in modern neuroscience: as we come to understand the brain, how can we keep governments from meddling with it? Note that this problem raises its head not just in sensational forms, such as the lobotomy, but in more subtle forms, such as whether second-time sex offenders should be forced to have chemical castration, as they currently are in California and Florida.
But here we propose a new solution, one that can rehabilitate without ethical worries. We call it the prefrontal workout.
THE PREFRONTAL WORKOUT
To help a citizen reintegrate into society, the ethical goal is to change him as little as possible to allow his behavior to come into line with society’s needs. Our proposal springboards off the knowledge that the brain is a team of rivals, a competition among different neural populations. Because it’s a competition, this means the outcome can be tipped.
Poor impulse control is a hallmark characteristic of the majority of criminals in the prison system.29 They generally know the difference between right and wrong actions, and they understand the seriousness of the punishment—but they are hamstrung by an inability to control their impulses. They see a woman with an expensive purse walking alone in an alley, and they cannot think but to take advantage of the opportunity. The temptation overrides the concern for their future.
If it seems difficult to empathize with people who have poor impulse control, just think of all the things you succumb to that you don’t want to. Snacks? Alcohol? Chocolate cake? Television? One doesn’t have to look far to find poor impulse control pervading our own landscape of decision making. It’s not that we don’t know what’s best for us, it’s simply that the frontal lobe circuits representing the long-term considerations can’t win the elections when the temptation is present. It’s like trying to elect a party of moderates in the middle of war and economic meltdown.
So our
new rehabilitative strategy is to give the frontal lobes practice in squelching the short-term circuits. My colleagues Stephen LaConte and Pearl Chiu have begun leveraging real-time feedback in brain imaging to allow this to happen.30 Imagine that you’d like to get better at resisting chocolate cake. In this experiment, you look at pictures of chocolate cake during brain scanning—and the experimenters determine the regions of your brain involved in the craving. Then the activity in those networks is represented by a vertical bar on a computer screen. Your job is to make the bar go down. The bar acts as a thermometer for your craving: If your craving networks are revving high, the bar is high; if you’re suppressing your craving, the bar is low. You stare at the bar and try to make it go down. Perhaps you have insight into what you’re doing to resist the cake; perhaps it is inaccessible. In any case, you try out different mental avenues until the bar begins to slowly sink. When it goes down, it means you’ve successfully recruited frontal circuitry to squelch the activity in the networks involved in impulsive craving. The long term has won over the short. Still looking at pictures of chocolate cake, you practice making the bar go down over and over until you’ve strengthened those frontal circuits. By this method, you’re able to visualize the activity in the parts of your brain that need modulation, and you can witness the effects of different mental approaches you might take.