We all realize that our notion of whether or not we have “free will”—and how we define it if we think we do—has huge ramifications for our ideas of moral responsibility, and therefore for how we want to legally punish offenders. If all choice is freely made, then offenders are morally culpable. If some choices are not “free”, but compelled by things like brain tumors or mental disorders, we have a different notion of responsibility, and this is recognized by laws that either exculpate such people or place them in mental hospitals or rehabilitation facilities.
Most of us agree that regardless of whether we have “free will” in the sense of being able to somehow override the dictates of our genes and environments, offenders (especially repeat offenders) somehow need to be incarcerated. Even if they can’t be rehabilitated, they must be sequestered from society for our own protection. Such incarceration can also serve an an example for others to deter them from crime: that is, we do this as an alteration of the environment that may act on the brains of other to deter them from crime.
David Eagleman, a neuroscientist at Baylor College of Medicine, has an article in the latest Atlantic, “The brain on trial” (free access) arguing that advances in our knowledge of how our brains work have profound implications—even beyond those I’ve mentioned above—for how we treat offenders. (The article is excerpted from his latest book, Incognito: The Secret Lives of the Brain.) It’s well worth reading, for it will make you have a serious think.
Eagleman begins by describing Charles Whitman’s notorious murder of 13 people at the University of Texas in 1966. An autopsy revealed he had a brain tumor—a glioblastoma—that had affected the amygdala region of the brain, and might well have caused his unexpected rampage (he’d previously complained of headaches and sought help). Similar brain damage can cause obsession with child pornography, which is, of course, an illegal act. Ditto for “frontotemporal dementia,” a brain disease that can cause all sorts of antisocial and illegal behavior.
Drugs given to patients can also make them behave erratically: parmipexole, given to Parkinson’s patients, often turn them into compulsive gamblers, probably by acting as a dopamine analog that affects the brain’s notion of risks and rewards. Genes can also condition one toward bad behavior. Eagleman writes that:
if you are a carrier of a particular set of genes, the probability that you will commit a violent crime is four times as high as it would be if you lacked those genes. You’re three times as likely to commit robbery, five times as likely to commit aggravated assault, eight times as likely to be arrested for murder, and 13 times as likely to be arrested for a sexual offense. The overwhelming majority of prisoners carry these genes; 98.1 percent of death-row inmates do. These statistics alone indicate that we cannot presume that everyone is coming to the table equally equipped in terms of drives and behaviors.
(I must admit that I’m not familiar with these genes, but I’ll accept this for the nonce.) Should our genetic endowment, then, be considered when we’re sentenced for crimes? And it’s not just genes that can change our behavior against our “will” (if you believe in such a thing): so can environments. Things like physical abuse or neglect when young can have severe effects at a later age. Are these effects “choices” that deserve as much punishment as if there were less apparent causes for antisocial behavior?
The point Eagleman is trying to make, and one with which I agree is that all behavior is biology.
When it comes to nature and nurture, the important point is that we choose neither one. We are each constructed from a genetic blueprint, and then born into a world of circumstances that we cannot control in our most-formative years. The complex interactions of genes and environment mean that all citizens—equal before the law—possess different perspectives, dissimilar personalities, and varied capacities for decision-making. The unique patterns of neurobiology inside each of our heads cannot qualify as choices; these are the cards we’re dealt.
Because we did not choose the factors that affected the formation and structure of our brain, the concepts of free will and personal responsibility begin to sprout question marks. Is it meaningful to say that Alex made bad choices, even though his brain tumor was not his fault? Is it justifiable to say that the patients with frontotemporal dementia or Parkinson’s should be punished for their bad behavior?
It is problematic to imagine yourself in the shoes of someone breaking the law and conclude, “Well, I wouldn’t have done that”—because if you weren’t exposed to in utero cocaine, lead poisoning, and physical abuse, and he was, then you and he are not directly comparable. You cannot walk a mile in his shoes.
This of course shades into notions of free will, notions that are deeply embedded in Western canons of criminal justice. Some of the rationales for imprisonment and other punishments are based on the idea that the criminal could have chosen to behave otherwise. That idea is also embodied in the lesser punishments, or different kind of punishments, given to people when we think they’ve behaved badly because their cognition is impaired.
This has always been the sticking point for philosophers and scientists alike. After all, there is no spot in the brain that is not densely interconnected with—and driven by—other brain parts. And that suggests that no part is independent and therefore “free.” In modern science, it is difficult to find the gap into which to slip free will—the uncaused causer—because there seems to be no part of the machinery that does not follow in a causal relationship from the other parts.
Free will may exist (it may simply be beyond our current science), but one thing seems clear: if free will does exist, it has little room in which to operate. It can at best be a small factor riding on top of vast neural networks shaped by genes and environment. In fact, free will may end up being so small that we eventually think about bad decision-making in the same way we think about any physical process, such as diabetes or lung disease.
Well, may think that most people act freely, and are responsible for their choices, but how much of what we do—in particular, how many criminal acts—are caused by things that we have no real control over? As Eagleman notes, the more we learn about the brain, the more we understand the causes of behavior, and the more the idea of “choice” seems to dissolve:
Imagine a spectrum of culpability. On one end, we find people like Alex the pedophile, or a patient with frontotemporal dementia who exposes himself in public. 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 other end of the spectrum—the blameworthy side of the “fault” line—we find the common criminal, whose brain receives little study, and about whom our current technology might be able to say little anyway. The overwhelming majority of lawbreakers are on this side of the line, because they don’t have any obvious, measurable biological problems. They are simply thought of as freely choosing actors.
Such a spectrum captures the common intuition that juries hold regarding blameworthiness. But there is a deep problem with this intuition. Technology will continue to improve, and as we grow better at measuring problems in the brain, the fault line will drift into the territory of people we currently hold fully accountable for their crimes. Problems that are now opaque will open up to examination by new techniques, and we may someday find that many types of bad behavior have a basic biological explanation—as has happened with schizophrenia, epilepsy, depression, and mania.
This of course means—and I suspect most of you agree—that how we treat lawbreakers is not a fixed thing, but must depend on social advances, not just in philosophy but in scientific understanding. So what do we do if we want law to be malleable to science? Eagleman suggests what he calls a “forward looking” approach to culpability and the law. His program includes the following:
- Criminals will “still be removed from the street” if they are “overaggressive, underempathetic and poor at controlling their impulses. It doesn’t matter if they are “blameworthy,” for we must protect society from such people.
- The science comes in when we try to figure out what to do with other people. Eagleman suggests that we take a cue from recent advances in treating sex offenders. An “actuarial approach,” based on surveys of released sex offenders tracked for five years, singled out those factors most likely to be involved in relapse. The factors that turned out to correlate strongly with relapse (prior sexual offenses and sexual interests in children) were, surprisingly, very different from predictions made by court psychiatrists and prison officials. Sentencing guidelines, says Eagleman, should be based on the predictability of relapse as judged through such surveys.
- Greater understanding of neuroscience, and its effects on behavior, will allow for “customized rehabilitation,” including new methods of teaching impulse control. Eagleman describes some fascinating experiments—he calls them “prefrontal workouts”—in which people learn to control impulses by real-time brain scanning. People can, for example, control their desire to smoke by simply thinking about things in different ways while their frontal lobes are being scanned. You can actually watch the degree of activity in those lobes as you think, and learn to do things to reduce it. This is, of course, similar to the biofeedback craze that occurred a few decades ago, but it’s more sophisticated. Unfortunately, we don’t yet know how well this works, even for things like smoking.
- Impulse control may be increase by making punishment increasingly swift and sure, like making drug offenders “undergo twice-weekly drug testing, with automatic, immediate consequences for failure—thereby not relying on distant abstraction alone.” (Lindsay Lohan might benefit from this!)
Now these recommendations may seem naive, but remember that it’s early days yet in our understanding of the brain. What is certain is that we should not ignore advance in neuroscience, for they have ramifications for how we mete out justice, how and whether offenders can be rehabilitated (remember that they are not just offenders but human beings), and how well our society can be protected from criminal behavior. No doubt some people will poo-poo the scientific approach, particularly political conservatives. But as Eagleman concludes:
Some people wonder whether it’s unfair to take a scientific approach to sentencing—after all, where’s the humanity in that? But what’s the alternative? As it stands now, ugly people receive longer sentences than attractive people; psychiatrists have no capacity to guess which sex offenders will reoffend; and our prisons are overcrowded with drug addicts and the mentally ill, both of whom could be better helped by rehabilitation. So is current sentencing really superior to a scientifically informed approach?
I had no idea that one’s physical attractiveness determined how long one spends in prison. But of course we have the example of Lindsay Lohan. . . . .
UPDATE: I just remembered that last September I wrote about, and criticized, Eagleman’s views on atheism and his philosophy of “possibilianism.”