Ideas 2011 July/August 2011

The Brain on Trial

Advances in brain science are calling into question the volition behind many criminal acts. A leading neuroscientist describes how the foundations of our criminal-justice system are beginning to crumble, and proposes a new way forward for law and order.
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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. Instead, we have begun to approach mental problems in the same way we might approach a broken leg. The neuroscientist Robert Sapolsky invites us to contemplate this conceptual shift with a series of questions:

Is a loved one, sunk in a depression so severe that she cannot function, a case of a disease whose biochemical basis is as “real” as is the biochemistry of, say, diabetes, or is she merely indulging herself? Is a child doing poorly at school because he is unmotivated and slow, or because there is a neurobiologically based learning disability? Is a friend, edging towards a serious problem with substance abuse, displaying a simple lack of discipline, or suffering from problems with the neurochemistry of reward?

Acts cannot be understood separately from the biology of the actors—and this recognition has legal implications. Tom Bingham, Britain’s former senior law lord, once put it this way:

In the past, the law has tended to base its approach … on a series of rather crude working assumptions: adults of competent mental capacity are free to choose whether they will act in one way or another; they are presumed to act rationally, and in what they conceive to be their own best interests; they are credited with such foresight of the consequences of their actions as reasonable people in their position could ordinarily be expected to have; they are generally taken to mean what they say.

Whatever the merits or demerits of working assumptions such as these in the ordinary range of cases, it is evident that they do not provide a uniformly accurate guide to human behaviour.

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.

Today, neuroimaging is a crude technology, unable to explain the details of individual behavior. We can detect only large-scale problems, but within the coming decades, 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 point to biological mitigators of guilt, and more juries will place defendants on the not-blameworthy side of the line.

This puts us in a strange situation. After all, a just legal system cannot define culpability simply by the limitations of current technology. Expert medical testimony generally reflects only whether we yet have names and measurements for a problem, not whether a problem exists. A legal system that declares a person culpable at the beginning of a decade and not culpable at the end is one in which culpability carries no clear meaning.

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. They are inseparable.

While our current style of punishment rests on a bedrock of personal volition and blame, our modern understanding of the brain suggests a different approach. Blameworthiness should be removed from the legal argot. It is a backward-looking concept that demands the impossible task of untangling the hopelessly complex web of genetics and environment that constructs the trajectory of a human life.

Instead of debating culpability, we should focus on what to do, moving forward, with an accused lawbreaker. I suggest that the legal system has to become forward-looking, primarily because it can no longer hope to do otherwise. As science complicates the question of culpability, our legal and social policy will need to shift toward a different set of questions: How is a person likely to behave in the future? Are criminal actions likely to be repeated? Can this person be helped toward pro-social behavior? How can incentives be realistically structured to deter crime?

The important change will be in the way we respond to the vast range of criminal acts. Biological explanation will not exculpate criminals; we will still remove from the streets lawbreakers who prove overaggressive, underempathetic, and poor at controlling their impulses. Consider, for example, that the majority of known serial killers were abused as children. Does this make them less blameworthy? Who cares? It’s the wrong question. The knowledge that they were abused encourages us to support social programs to prevent child abuse, but it does nothing to change the way we deal with the particular serial murderer standing in front of the bench. We still need to keep him off the streets, irrespective of his past misfortunes. The child abuse cannot serve as an excuse to let him go; the judge must keep society safe.

Those who break social contracts need to be confined, but in this framework, the future is more important than the past. Deeper biological insight into behavior will foster a better understanding of recidivism—and this offers a basis for empirically based sentencing. Some people will need to be taken off the streets for a longer time (even a lifetime), because their likelihood of reoffense is high; others, because of differences in neural constitution, are less likely to recidivate, and so can be released sooner.

The law is already forward-looking in some respects: consider the leniency 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. Likewise, American law draws a bright line between criminal acts committed by minors and those by adults, punishing the latter more harshly. This approach may be crude, but the intuition behind it is sound: adolescents command lesser skills in decision-making and impulse control than do adults; a teenager’s brain is simply not like an adult’s brain. Lighter sentences are appropriate for those whose impulse control is likely to improve naturally as adolescence gives way to adulthood.

Taking a more scientific approach to sentencing, case by case, could move us beyond these limited examples. For instance, important changes are happening in the sentencing of sex offenders. In the past, researchers have asked psychiatrists and parole-board members how likely specific sex offenders were to relapse when let out of prison. Both groups had experience with sex offenders, so predicting who was going straight and who was coming back seemed simple. But surprisingly, the expert guesses showed almost no correlation with the actual outcomes. The psychiatrists and parole-board members had only slightly better predictive accuracy than coin-flippers. This astounded the legal community.

So researchers tried a more actuarial approach. They set about recording dozens of characteristics of some 23,000 released sex offenders: whether the offender had unstable employment, had been sexually abused as a child, was addicted to drugs, showed remorse, had deviant sexual interests, and so on. Researchers then tracked the offenders for an average of five years after release to see who wound up back in prison. At the end of the study, they computed which factors best explained the reoffense rates, and from these and later data they were able to build actuarial tables to be used in sentencing.

Which factors mattered? Take, for instance, low remorse, denial of the crime, and sexual abuse as a child. You might guess that these factors would correlate with sex offenders’ recidivism. But you would be wrong: those factors offer no predictive power. How about antisocial personality disorder and failure to complete treatment? These offer somewhat more predictive power. But among the strongest predictors of recidivism are prior sexual offenses and sexual interest in children. When you compare the predictive power of the actuarial approach with that of the parole boards and psychiatrists, there is no contest: numbers beat intuition. In courtrooms across the nation, these actuarial tests are now used in presentencing to modulate the length of prison terms.

We will never know with certainty what someone will do upon release from prison, because real life is complicated. But greater predictive power is hidden in the numbers than people generally expect. Statistically based sentencing is imperfect, but it nonetheless allows evidence to trump folk intuition, and it offers customization in place of the blunt guidelines that the legal system typically employs. The current actuarial approaches do not require a deep understanding of genes or brain chemistry, but as we introduce more science into these measures—for example, with neuroimaging studies—the predictive power will only improve. (To make such a system immune to government abuse, the data and equations that compose the sentencing guidelines must be transparent and available online for anyone to verify.)

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