Neuroscientist David Eagleman poses this question in a provocative new article in The Atlantic. He makes a powerful case that traditional conceptions of free will and culpability in criminal law are misguided, but I’m not as convinced that he has a workable alternative.
According to Eagleman, here’s what’s happening to the science:
The study of brains and behaviors is in the midst of a conceptual shift. Historically, clinicians and lawyers have agreed on an intuitive distinction between neurological disorders (“brain problems”) and psychiatric disorders (“mind problems”). As recently as a century ago, a common approach was to get psychiatric patients to “toughen up,” through deprivation, pleading, or torture. Not surprisingly, this approach was medically fruitless. After all, while psychiatric disorders tend to be the product of more-subtle forms of brain pathology, they, too, are based in the biological details of the brain.
What accounts for the shift from blame to biology? Perhaps the largest driving force is the effectiveness of pharmaceutical treatments. No amount of threatening will chase away depression, but a little pill called fluoxetine often does the trick. Schizophrenic symptoms cannot be overcome by exorcism, but they can be controlled by risperidone. Mania responds not to talk or to ostracism, but to lithium. These successes, most of them introduced in the past 60 years, have underscored the idea that calling some disorders “brain problems” while consigning others to the ineffable realm of “the psychic” does not make sense. . . .
. . .
The more we discover about the circuitry of the brain, the more we tip away from accusations of indulgence, lack of motivation, and poor discipline—and toward the details of biology. The shift from blame to science reflects our modern understanding that our perceptions and behaviors are steered by deeply embedded neural programs.
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.
. . .
The crux 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?,” because we now understand that there is no meaningful distinction between a person’s biology and his decision-making. (119-20)
Eagleman captures some of this sensibility with an image I like: “My colleagues and I are proposing a new approach, one that grows from the understanding that the brain operates like a team of rivals, with different neural populations competing to control the single output channel of behavior.” (122)
All of this resonates not only with my (quite superficial) understanding of neurobiology, but also with my personal reflections about how the mind works. I’m reminded of this post I wrote a couple years ago on the elusiveness of mens rea.
But what we do with these insights? What are their implications for criminal law?
Eagleman himself says that we should remove blameworthiness from the “legal argot.” (120) His proposal is that we abandon such “backward-looking” concepts (which would also presumably include desert, retribution, proportionality, and perhaps justice) in favor of a “forward-looking” approach. This shift seems to involve two components. First, we will do more rigorous risk-based sentencing, making use of scientifically validated actuarial tables that will tell us with increasing accuracy which offenders are most likely to recidivate. Second, we will provide offenders with increasingly effective rehabilitative programming, largely built around the premise that what many or most offenders really need is help with impulse control. ”The basic idea,” as Eagleman puts it, “is to give the frontal lobes practice in squelching the short-term brain circuits.” (122)
But here’s the paradox of Eagleman’s analysis, which he does not address: if he’s correct that people lack free will, then how (at least in a democratic society) do we move the law away from what seems to be a deeply entrenched reliance on blame-related concepts? Rational arguments like Eagleman’s will only get you so far.
Indeed, I’ve blogged previously about clinical research that indicates people will often continue to make moral judgments even when they are conditioned to think that human behavior is determined by physical processes. The blaming urge is deeply rooted in the human psyche, and I have considerable doubt that any amount of scientific evidence can remove it from our criminal-justice processes.
We have, of course, tried this before. The incapacitionist-rehabilitationist approach that Eagleman urges was widely accepted by criminal-justice experts in the mid-twentieth century and was the theoretical basis for the Model Penal Code (albeit without the benefits of current neuroimaging technology and pharmacological insights). But public support waned, and a retributive backlash occurred in the 1970′s and 1980′s. Tellingly, the impulse-control test for insanity, a signature innovation of the MPC and seemingly very much in line with Eagleman’s approach, was discarded in many jurisdictions during this time period. Impulse-control may be a matter of biology, not choice, but the public seems unwilling to incorporate this idea into the law.
For all that, I don’t claim to have a better solution for the dilemma posed by the new brain science. It is true that a great deal of the rhetoric surrounding blame and punishment is built on quicksand. At a minimum, we should try to better modulate our blaming judgments, recognizing that others have much less control over their behavior than we tend to assume.
My sense is that blaming performs some useful social function, even if it is in some way “false.” Blaming seems too intrinsically a part of the social life of human beings for me to see it as a worthless appendage that can be harmlessly amputated. As the criminal-justice system confronts the challenges of brain science, it should also seek a better understanding of why people blame and try to continue to respect the underlying social needs.
Eagleman’s article is “The Brain on Trial,” The Atlantic, July/Aug. 2011, at 112. Hat tip to Tony Cotton for sending me a copy.