Neuroscience and the Law

04 September 2014

This week, our topic is neuroscience and the law. Neuroscience is revolutionizing our understanding of how the brain works. In the process it is challenging ago-old ways of thinking about crime and punishment. Some neuroscientists even say that it’s time to completely rethink our judicial system in light of their discoveries. That’s because our current legal system presupposes a certain picture of how the mind works that many neuroscientist now believe is almost entirely wrong. Common sense counts a person morally responsible for a wrongful action only if the action results from their free, conscious, deliberate choice. Pretty much the same idea is expressed in the law via the concept of a guilty mind or mens rea. Under the law, an act can’t make you guilty unless your mind is guilty too. 

There are, of course, exceptions to this last claim, since, to be precise, the law distinguishes several different modes of culpability -- strict liability, negligence, recklessness…   A wrong doer doesn’t have to make a free, conscious, deliberate choice to be culpable in these lesser ways. But the main point still stands. The law sharply differentiates between actions we freely, consciously, and deliberately choose and actions that we don’t so choose. It holds us most responsible and punishes us most severely for actions of the former sort.  

Modern neuroscience purports to throw cold water on the idea that we freely choose our actions. And neuroscience teaches us that most of what the brain does to cause behavior happens without the benefit of conscious deliberation at all. Conscious deliberation is at best the small tip of a really huge iceberg. And the stories we tell ourselves about the causes of our behavior, according to some neuroscientists, are just after the fact confabulations, with no real basis in the neural facts of the matter.

I have to admit, though, that I’m not quite sure the story is as simple as I’ve just suggested or that there is really such a direct conflict between common sense and the law, on the one hand, and the deliverances of neuroscience, on the other.  That’s because all that the law really needs is the distinction between doing something on purpose, in full awareness of the consequences of the action, on the one hand, or doing something out non-culpable ignorance or doing something because your neuronal circuitry is misfiring, on the other. As long as we can make such distinctions, the law has all it needs in the way of freedom, consciousness and criminal culpability. Think of the difference between me – a relatively normal person with a relatively intact brain – and, say, a paranoid schizophrenic. Surely, neuroscience doesn’t show that, as far as the law is concerned, we all might as well be paranoid schizophrenics.  

The problem with this approach, though, is that neuroscience simply refuses to draw sharp lines.  As far as neuroscience is concerned, it’s all on a continuum. Take a supposedly normal, law abiding citizen, upset their dopamine or serotonin balance just a teeny-tiny bit, or make a tiny little lesion in just the right place in their neural circuitry and presto-chango you’ve turned your upstanding law-abiding citizen into a viscous criminal.

This is not to suggest that all criminal behavior is the result of bad neural chemistry and circuitry and is, therefore, excusable. To be sure, all human behavior –- every bit of it -- is the result of our neural chemistry and circuitry. The point is that relatively small differences in our brains can make huge differences in our behavior. And since we don’t have much direct, conscious control over our neural chemistry and circuitry, we have less much direct conscious control over our behavior than the law imagines.  

Even so, it doesn’t directly follow that we should necessarily excuse criminal behavior. Think of we do we with other sorts of bad outcomes that are caused by chemical imbalances or bad wiring?  We treat them with medication or therapy or surgery. One day soon we’ll be able to do the same when bad brain chemistry leads someone to perform criminal acts.  And punishment need not be ruled out altogether either – though it probably needs a new basis. Typically with think of punishment is retribution. But if there is no such thing is freedom, if conscious, purposeful deliberation is just an epiphenomenon and not where our behavior is really and truly generated, then perhaps nobody really intrinsically deserves to be punishment. 

But there is another possible basis for punishment – one that may be of more neurologically sound. Punishment provides negative feedback. And the brain sometimes changes itself in respond to negative feedback. Perhaps neuroscience can help us learn which forms of punishment provide effective feedback and which don’t.

Lest you think I’ve simply swallowed the neuroscience Kool-aid, I should say that there are still lots of questions we need to address before I’m willing to drink it down gladly.  For example, I worry that everything I’ve been saying so far presupposes a philosophically problematic – I won’t say naïve  -- concept of freedom – what philosophers sometimes call contra-causal freedom. That’s a kind of absolute and total freedom that leaves our actions entirely and exclusively up to the will. I admit we don’t freedom in that sense. And maybe neuroscience can help us to see that. But I strongly doubt that either common sense or our legal system presupposes that we have freedom in that sense. And if we don’t there is no real conflict between our criminal justice system and what neuroscience is telling us about how the brain causes behavior. Is there?

Comments (60)


Guest's picture

Guest

Saturday, August 11, 2012 -- 5:00 PM

I think you overlooking the

I think you overlooking the elephant in the room. Prison is a highly profitable business that relies
on draconian sentences and unfair laws. Nonviolent drug offenders, for instance,
shouldnt be imprisoned as has been proven in more morally
responsible states such as Denmark. Rehabilitation simply isnt profitable. It
naive at best to think that our justice system will listen to the truth of science or change
without considerable revolution.

Guest's picture

Guest

Saturday, August 11, 2012 -- 5:00 PM

I don't think "free will"

I don't think "free will" exists outside of brain chemistry. People don't want to give up the idea for religious or philosophical reasons, because they want to believe that they are "in control" of their lives.
Watch your behavior for a day. Identify those moments when you make, really make, a decision. Why did you make that particular decision vs. another? What guided your choice? You bought the cheap product rather than the expensive one. You can afford both. What in your life caused you to take the former path rather than the latter. What makes you prefer an iPad to a Nexus? Don't just list features. What makes one feature more attractive to you than another?
You are writing a paper on your computer. A second later you are looking at a web page totally disconnected from what you are doing. Why? When did you decide? One moment you are seated at your desk, the next moment you are straightening up books on the overcrowded sofa. Why? When did you decide?
You are attracted to redheads or blondes or tall men or voices. Why? When did you decide? Did you really choose to hate carrots but love tomatoes?
You love going to parties and bars. I don't. Why? You simply decided to be outgoing? I simply decided not to be?
I simply do not understand people who know that, as in the example on your program, a criminal has a brain tumor but continue to assert that the person has free will and full control of his behavior. (I recall a very annoying Oprah interview with a woman suffering from bipolar disorder with Oprah asserting, of course, that the woman was completely responsible for what she did during her manic phase. Absurd.)
Dangerous people need to be separated from society, whatever the reason ("evil", neurological disorder) for the destructive behavior. But we need to treat those who are sick. If we lack the technology today to treat certain disorders, like psychopathy, we should still provide humane methods of incarceration. And even if one can prove that some anti-social or criminal behavior is absolutely the result of free will, we still have an obligation as a civilized people to treat others humanely because when we are cruel to others we corrupt ourselves.
It is distressing that even your neurologist guest uses terms such as "don't let people off the hook". He is still assuming that people are, at bottom, "responsible" for their behavior. I simply do not understand the point. What does that term mean when applied to a man with a brain tumor, or that classic case of the railway man who had a spike driven through his head? It's like blaming Jim Brady for crying at the wrong thing after having been shot. Or blaming somebody for being paralyzed after receiving a bullet in the spine. Or imprisoning somebody with Alzheimer's for driving a car and killing somebody.

mirugai's picture

mirugai

Saturday, August 11, 2012 -- 5:00 PM

PUNISHMENT OF CRAZY MURDERERS

PUNISHMENT OF CRAZY MURDERERS
A few weeks ago, I was discussing the crazy murdering of some innocents who were in a movie, with a psychiatrist friend. When I called the killer ?crazy,? my friend said that actually he might not have been ?insane? or crazy, because he might have been acting logically based on some real perception he had, of circumstances or politics, or something. My friend wanted to make taxonomic distinctions because she understood (from her training and practice) that there are various and varying treatment modalities dependent on these distinctions.
I contended that anyone who kills and wounds a whole bunch of people in a movie theater, no matter what his motivation, is ?crazy? as that word is normally used. And that the issue is not what brand of ?crazy? the guy has ?
The only issue is what has your society decided to do with a person who murders a bunch of innocents, like this. The range of possible punishments is as broad as our imagination. From: putting needles in his eyeballs, slowly rolling a steamroller over his body from his feet to his face, tearing down the house he lived in, and confiscating all the assets of his family and friends; To: trying to understand his motivations, correcting them where they are wrong, fixing up his mental state, declaring him cured, and releasing him.
The only issue is what choice, in this spectrum, has whoever is in charge of a society?s rules decided upon. And the most interesting question about the choice, is: what do we learn about the society from the choice made.
The judicial system (judges, juries, prosecutors, at least) do a dance around ?diminished capacity? in order to get the punishment result they want to impose, without any real regard to laws.
Punishments have nothing to do with neural science, and everything to do with social science ? whoever has the power to impose punishment does it, trying to match punishment to their own social outrage. Prison sentences are ALL ridiculously long and inappropriate, and the longest are collective social insanity.
Philosophers should not waste their valuable time on neuroscience ? we have more than enough on our plate just thinking rationally about consciousness. All that happens when the scientists find ?neural centers of consciousness (NCC?s)? is that consciousness itself remains the same mystery it was before its ?origins? were ?discovered.? For example, the ?cost/benefit? analysis of criminal behavior has nothing to do with neural science, and neural science cannot help in understanding it.
The bridge between scientific cause and effect is drama.
The guest said ?? parts of our brain that we have no access to?? This is scientific dual-brain b.s.; the First Question (unanswerable) of philosophy is ?what or who is ?we???

Guest's picture

Guest

Saturday, August 11, 2012 -- 5:00 PM

I recently was dressed down

I recently was dressed down for remarks made on another blog. It appears that the likes of such as Jared Loughner, James Holmes, et. al. have ignited much controversy. Rightly so. Anyway, I was soundly thrashed because of my frustration with and intolerance toward the criminal justice system and its treatment of the "insanity defense." I said that the ID should not be given any consideration at all, suggesting that it is a bogus cop-out---leading to seeming interminable "proceedings, analyses and evaluations" costing millions of dollars, while accused perpetrators are fed and housed at taxpayers' expense. I am NOT SORRY. And although I have dropped my participation on the blog mentioned, I'll just say this about murderers: KTAALGSTO. (or: kill them all and let god sort them out.) It is just another sort of war on terrorism---because these goons ARE terrorists.
Now, I understand that this approach might cut into the profits of certain neuroscientists. Well. It is not much of a science anyway, IMHO. Never thought much of its mother, psychology, either.
A reforming liberal,
TAP.

Guest's picture

Guest

Sunday, August 12, 2012 -- 5:00 PM

Wrong is wrong no matter the

Wrong is wrong no matter the cause,
And right is simply right.
Be right,
Or just be,
=

mirugai's picture

mirugai

Tuesday, August 14, 2012 -- 5:00 PM

xiba t: Thank you for taking

xiba t: Thank you for taking a position on these issues, well considered. In my opinion, "endless speculation" is exactly what philosophy should be about. The only worthwhile concluding position in philosophical dialog, other than "I agree with you," is "Then we agree to disagree," a position I often reach with some of the best philosophical minds I know (Scott the gardener, for instance). Your Buddha quote -- wonderful -- illustrates just what my comment says about the uses of neuro-science, I'm afraid: nothing about neuroscience will give any insight into the truth of the quote; only philosophy, and its endless speculation, and poetry, can connect a man's mind and evil.

Guest's picture

Guest

Wednesday, August 15, 2012 -- 5:00 PM

"It is a man's own mind, not

"It is a man's own mind, not his enemy or foe, that lures him to evil ways"
With due respect, All is truly One.
Be One too,
=

Guest's picture

Guest

Wednesday, August 15, 2012 -- 5:00 PM

A former acquaintance, who

A former acquaintance, who might have been a friend, once said that many problems of man could be resolved by talking them through. He has written several books, and is a respected neuroscientist in his own right. Thing is, we have been talking for several millenia. And, the more we talk, the less we agree upon. Others have written books about this, trying to explain on some level why it is we just cannot get along with one another. I have put my own label on it which will not appear here. With respect to MJH, oneness is relative---attainable, perhaps, but dependent upon will: with which we are in woefully short supply...
Go ahead, Michael, say a few "remover of difficulties" prayers, or Hare Krishnas, if those suit you. It is not working yet---near as I can tell. But, I could be missing something. Certainly. No doubt.

Guest's picture

Guest

Thursday, August 16, 2012 -- 5:00 PM

For no particular reason, a

For no particular reason, a poem I ran across several decades ago, now comes to mind. To the best of my recollection:
The first man, having split a hair,
wrote a thesis, then and there.
A second joined it up again,
and said he'd had an addl'd brain.
A third then wrote a book to say,
It was the wrong hair anyway.

Guest's picture

Guest

Thursday, August 16, 2012 -- 5:00 PM

Actions speak louder than

Actions speak louder than prayers Paul.
Rather than a prayer head down to the river and study nature, the solution of absolute certainty abounds there.
And try this experiment:
Throw a stick into the current numerous times in multiple places and tell me what you find, which way does the stick as does the river flow?
Is the rivers' direction measurable? Is nature measurable? Are you, are we?
I found nature as is myself infinite there.
What will you find?
Your own Way,
The Way,
Freedom,
Equality,
Oneness,
or with any luck,
Just is
=

Guest's picture

Guest

Wednesday, September 5, 2012 -- 5:00 PM

Neuroscience and the law--

Neuroscience and the law---neuroscience and the law---neuroscience and the law.....I just keep rolling that over in my mind, and I wonder about the failed "science" of eugenics. I have read enough about eugenics to know that it is false---from Goddard, to Hitler, and way beyond. But, IMHO, there are boundaries---somewhere---that say, summarily: enough is enough. I'm pretty sick and tired of the attempted marriage of science and law; just as I'm tired of the supposed war between religion and science. What did Gould say? NOMA? Non-overlapping magisteria? Hasn't anyone gotten this yet?
Punish killers, or suffer the continuance of killing. If a murderer thinks he may get twenty to life, he will take the roll of the dice---maybe get out, and live to kill again. That is total nonsense. Does anyone get THIS yet?

Guest's picture

Guest

Saturday, October 6, 2012 -- 5:00 PM

This is an old post. Most of

This is an old post. Most of what needed to be said has been said. In one way, or another. But, it seems to me that, as has been stated or inferred, we are now favoring understanding and forgiveness over punishment; rehabilitation over retribution. We want to identify the weakness(es) that lead people to criminal acts, so that we can what?, excuse those criminal acts? If I were to murder anyone for any reason other than self-defense or the defense of a friend or loved one, I would expect to be punished "to the full extent of the law", whatever that might be. No lame excuses about heat of passion; unhappy childhood or other abusive circumstances. Here's how it is: the more we try to understand and excuse, the deeper we are mired in confusion. Civilization, as we have known it, is rotting---largely because of our futile efforts to manipulate it and "make nice" with everyone. Well. That is not working out very well. Elementary, Doctor Watson.

mwsimon's picture

mwsimon

Tuesday, October 14, 2014 -- 5:00 PM

Another frightening way

Another frightening way neuroscience plays into the criminal justice system is with the idea of preventing crime before it happens.  A friend and I were throwing around sci-fi what ifs recently, and we came upon the possibility of looking at people's brains, or genetic sequences, to determine who is inclined to kill.  If the government was able to do this with accuracy, they might see it as in everyone's best interest if these people were locked up.  Perhaps this would prevent a lot of murders.  Worth it?  Most of us will say no.  Having the brain chemistry, without the guilt, doesnt incline us to put someone in jail

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