David Eagleman, a researcher at the Baylor College of Medicine and the founder/director of the College’s Initiative on Neuroscience and Law, recently delivered a talk at UW-Madison on the subject. He discussed discoveries and directions in historical, contemporary and future research impacting our legal system.
Before getting into the mind-brain angle on the causes of criminal behavior, Eagleman promoted the application of general scientific approaches to criminality to maximize rational sentencing, customized rehabilitation, and incentive structuring. Citing a number of studies, he demonstrated that when it comes to identifying reformed criminals, “tests are better than testimony.” Further inquiry in the future could certainly shed some light on the biological and psychological causes – perhaps even etiology – of these predictors, but the point remained that right now, statistical/actuarial analysis provides a more accurate tool for rehabilitating criminals.
The science underpinning the conceptual framework of his talk on the origins of and response to criminality could be summarized as “you are your brain.” Beginning with the quintessential example of Phineas Gage, who survived a railroad spike through the front of his brain only to become barbaric and uninhibited, Eagleman presented a series of vignettes from the medical and criminal catalogues which lent increasingly subtle shades to the characterization of the relationship between brain and behavior – in particular, between brain dysfunction and aberrant or criminal behavior.
He asks: can we blame people for their mistakes when we know where, why and how they happened in their brains, and how their brains came to have the characteristics that they do through genetics and environment? And what happens as we gain better understanding of the brain and behavior – do we have to shift the threshold of culpability further and further to the point where nobody’s accountable?
Clearly, Eagleman argued, this isn’t a sustainable, or really a defensible, cycle. If our sense of what is immoral and demands punitive action is flexible and dependent on scientific context, then we are constantly upending all our past decisions on criminals and treating each new crop with a more liberal standard of culpability. Such progress could be good or bad depending on where we draw our lines, but at each stage of the game we’re forced to admit that current criminals are getting a bad deal by comparison to those just a few years later, which undermines any judgment or sentencing. Beyond that, unless we completely abolish the idea of free will – and perhaps even if we do – we can’t simply abolish the justice system and exonerate wrongdoers on the basis that it’s not their fault, because we wouldn’t be able to disincentivize future criminals or prevent recidivism effectively without incarceration as part of our toolkit.
His solution, in its simplest form, is to incarcerate purely based on the probability of recidivism, and otherwise to use rehabilitation whenever possible. Eagleman is developing a treatment known as “neurofeedback,” which uses real-time functional magnetic resonance imaging data to track and display information to subjects about their brain states while inside a scanner. Essentially, the treatment shows subjects how similar their activation signatures are to that of a reactive condition, such as a smoker seeing someone smoke, versus that of a passive condition. The subjects then attempt to “feel” their way to the more desirable state, as though they were practicing the mental expulsion of their addiction or reaction. If the technique shows promise, it could provide a first step to help individuals overcome their weaknesses. But even if it does, it will only be as useful as the legal framework it sits in.
To illustrate the challenges of implementing such technologies in a legal framework, consider the following scenario. Imagine Neurofeedback and other futuristic treatments work perfectly to reform criminals. One could easily imagine a society that does away with punitive measures altogether in favor of such a merciful and ostensibly welfare-promoting treatment. But now consider an individual case: someone commits some horrible atrocity, killing or raping individuals, destroying families, etc. Is it sufficient to simply “fix” this person, without administering some kind of consequences?
Eagleman suggests that perhaps retributivism is a useful instinct, whereas I would argue that it is only useful insofar as it generates certain social incentives to discourage wrongdoing. We could conceivably build legal frameworks designed to preserve the satisfaction of seeing criminals receive their “just deserts,” or we could build them to avoid the indulgence of so base an instinct. Both societies, even though they shared appreciation for preventive and rehabilitative measures, would look and behave very differently. Eagleman argues that there may still be some inherent value to retributivism, and I personally feel that if we can learn to avoid relying on it, our ability to conduct ourselves in accordance with the principles of human rights will improve dramatically. Whether there is a right or wrong answer, or which path societies will choose, remains to be seen.
While not an exhaustive analysis of Eagleman’s lecture and its implications, it’s useful to consider it in light of other questions asked by Kent Kiehl, his colleague and (I believe) collaborator with UW’s Mike Koenigs, with whom I’ll be working in the spring. How would we behave if we could predict that someone had the makings of a psychopath or other criminally inclined individual? And in particular, what would we do about it if, as will likely be the case, our ability to predict such predilections significantly preceded our ability to treat the condition? Do we restrict that individual’s rights ahead of time, or wait to see how the predictions play out? How early would it be ethical to begin attempts to steer ominously developing individuals away from their destinies? And more broadly speaking, if or when we finally could help people improve themselves using biological tools – that reality is already arriving, as many rely on antidepressants, ADHD medication, and anxiolytics to get through their day — what will that mean for our notions of identity as a fixed quality attributable to a person? All these questions and more will become increasingly important as the hypothetical situations described here become much more feasible in coming decades.
C.P. Frost is in the Neuroscience and Public Policy program at UW-Madison.