Neurobiology and Criminal Justice

Brain scan from gawkerassets
Criminal minds indeed!

At about 30 minutes into the most recent episode with Pat Churchland, the discussion touched on how the neurochemistry of people who are well socialized differs from those who aren't.   More specifically, there was a point made about how people who are well socialized and have the Humean (as we will soon discover, actually Smithian) moral sentiment have different brains than people who don't.  Representative of that latter group are criminals.  Dylan made a point mentioning that this poses a challenge - or at least something to think about - relative to our notions of justice and punishment.

At one level, we want to hold someone accountable for their actions, regardless of whether we think they were made to do what they did by virtue of their brain chemistry.  At another level, if someone's brain chemistry affects how they act, it doesn't make sense to punish them for it.  Punishing a criminal who was not properly socialized and doesn't have the same moral sentiment as most others won't engender that moral sentiment in him/her.   If it's true that criminals don't have or have a weakened moral sentiment and this is evidenced in their brain chemistry, we might consider as a society trying to socialize and address the brain chemistry, rather than simply punishing them.  Additionally, there is the thorny issue of testing for this pre-disposition:  doing tests on children to determine their proclivity for anti-social and criminal behavior, for example.

All interesting topics that made me recall a recent episode of Philosophy Bites, where Nigel interviewed David Eagleman, a neuroscientist.  Eagleman's understanding of philosophy has the typical scientific naivete, but he didn't make outrageous and unfounded moral claims, as many scientists do.  Instead, he seemed genuinely interested in how discoveries in neuroscience would complicate our understanding of criminal justice and punishment.  Worth both a listen and a read of the comments to the podcast, which seem to mirror the tone and content on our site (but I still like all of you better).  Or you can go read this article about an Indian court using a brain scan to determine guilt...



  1. says

    Criminal justice isn’t the only moral issue. For one, people who are different socially are able to look at our society in certain ways in which other people can’t. We’ll not only be shutting off an important feedback mechanism for our society but we’ll also effectively be eradicating a breed of rationalities; yes, every person’s rationality is somewhat different but maybe we’ll be targeting a certain spectrum.
    So, it’s a moral issue in the question of whether it’s okay to tamper with someone’s rationality, and also in whether this constitutes some sort of eradicatory discrimination.

    (I didn’t listen to the podcasts, so forgive myself if I repeated something that had already been said.)

  2. Profile photo of Tom McDonald says

    So what do we do as a society if we do accumulate convincing scientific evidence for a model of brain patterns indicating a greater disposition to criminal activity? Should we force test people or allow them to choose to test themselves?

    There seems to be an element of science fantasy in such scenarios, a shadow that continues to be cast by the Newtonian mechanical-deterministic picture of the universe. Think of the film Minority Report. What will we do if we can predict our own behavior? But of course putting it that way begs the question.

    We could now say Strict Determinism is Dead in the same way we once said God is Dead. After the turn from Newtonian necessity to quantum probability science is now firmly in the realm of tendencies and probabilities without any way to make certain predictions, despite the lingering fantasy of determinism in scientific imaginations.

    It may seem trite to grant a substantive point to a Spielberg film (I’m not a huge fan), but the lesson of Minority Report does seem to draw what I think is the right philosophical conclusion, and a Hegelian, anti-postmodern point. Science and knowledge, in particular retrospective self-knowledge, are interdependent with the growth of freedom.

    The right thing to do with persons who may exhibit said brain pattern and disposition will be to respect the rationality they do possess (if they do) and to present choices for how to deal with a possibly problematic biological disposition. Contra monist/naturalist/materialist reductionists, these dilemmas seem just new (if more complicated) forms of dialectical tension between having-a-nature and having-a-history with reflective knowledge, that has always made for the dramatic interest in human existence.

  3. Charles Myro says

    Hi Charles Myro here,
    The insane murderer (murder =killing from other than self-defense) is held responsible, guilty, just as the sane murderer is– in that both are confined.
    But the standards for assessing their potential for future killing differs.
    It is difficult to determine with certainty whether the killer will kill again and so, insane or not, he will be confined.
    I think such confinement would happen even if all murders come to be considered a form of insanity: some involuntary action (perhaps from too many Twinkies) or temporary or permanent detachment from reality (whatever -that- is) or something else.
    It is the threat that is the bottom line.
    If all murders were considered insanity I think the only distinction would be whether the murderer killed out of temporary insanity or out of a more permanent dysfunction.
    The temporary would be confined in one place and the permanent in another, and different standards would be applied to a temporary versus a permanent insanity in determining whether the threat to other lives is likely gone (but really, not this is not much more than a guess ) and release is justified.
    In other words, it would not be much different than it is now.
    The threat is still the bottom line.
    But what if it was possible to determine with certainty the murderer was not capable of murdering again –would we then confine him just to punish him for killing though he is not a threat? In other words, would we confine him–taking away years of his life– as justified recompense for taking years from the murdered?
    I will tell you this: if my brother was murdered by someone and it was found he was no longer a threat–I should want him to be required to earn money out in the world and give me a good portion of it in recompense for my loss. To furnish blood money seems to me a better recompense, better justice than simple prison.
    I cannot deny though that I might be so angry that I want the murderer hung instead.
    In any case, I think murder as insanity or involuntary action or some such will not bring the end of responsibility.

  4. Breanne says

    This issue of justice and biology generally is sort of more complex than what might be going on at the individual level—there are larger groups and communities that where these issues are also concentrated. Interestingly, sociologists have found (I’m thinking of the Chicago School and so on) that conditions such as insanity, crime, and disease are fairly closely connected geographically and among socio-economic groups—families, communities, and so on.

    One of the newer innovations in the criminal justice system (which is in some ways recycling a lot of ideas that have been around since the 1960s) is the idea that sanctions, particularly community-based sanctions, should be oriented around treating criminogenic needs of the individual rather than on punishment only. But there are some difficulties in selling these types of ideas to policy makers and the public, and I think that has a lot to do with a kind of fundamental conflict between the notion of offenders as people who freely choose to engage in a crime and the notion that offenders have some type of illness that leads them to criminality that ought to be treated to prevent future offending.

    But if you follow a sort of biological/ deterministic perspective on criminal behavior, you can still reach some problematic results—do people who are offenders have the right to refuse ‘treatment’ that is intended to reduce the risk of future offending (for instance, treatment for alcohol abuse)? In a larger sense, does the acknowledgement of neurological and social differences between offenders lead to any less coercion for individuals? Given that crime and many other negative conditions are concentrated in communities and geographic locations, what does this mean for non-offenders who are in those communities? For instance, do we try to increase support to stressed families in socio-economically disadvantaged communities to reduce the risk of abuse or neglect, and what if those families, for whatever reason, don’t want any interference?

    In a larger sense, I wonder how effective any criminal justice system or society is going to be about engaging with issues like varying individual neurobiology and socialization (which, as you discussed, are connected). It seems like it’s much easier to treat the individual as a more or less free agent, particularly from the perspective of the criminal justice system perspective.

  5. Ethan Gach says

    I’m curious, does anyone of have reading recommendations for exploring agency and its relationship to praise and blame?

    In this instance, scientific inquiry casts some doubt on what we might conventionally think of as an individual being responsible for their actions.

    And if a certain criminal isn’t morally responsible, might a certain athlete not be morally praiseworthy, in that they might lack the same authorship that the criminal does?

    My interest is specifically with the traditional linkages classic liberalism bestows upon owner and property.

    If in Locke’s view, a sense of transcendent ownership (rather than just customary/legal) arises from the connection between a laborer and what they create, this wouldn’t seem to hold if we couldn’t establish in a meaningful way that person A had the intention and free will to do so.

    Maybe a clearer example would be with wood working. If I’m just the best wood worker, I’ll accumulate more wealth. But if I’m not the clear author of this wealth, nor is there a clear “I” which could be the author, what remaining justifications exist for something “belonging” to someone in a transcendent way (vs. utilitarian justification that certain systems of ownership are more moral and thus I have a moral right to own something in compliance with that system).

    • David Buchanan says

      Don’t have any reading to recommend but I’ve been discussing the issue elsewhere and I’ve looked at a few basic sources like the Stanford encyclopedia. It seems that the connection between agency and responsibility is something like a logical necessity. This is the central concern with any form of determinism. If our actions are determined or caused, nobody can be blamed or praised for those actions and so moral responsibility goes out the window. The same point can be made in the other direction. A person can only be praised or blamed if they have “free will” or some kind of agency.

      But of course saying that brain chemistry determines or causes behavior is a much stronger claim than saying brain chemistry effects behavior. I think determinism is one of those unequivocal positions in the sense that it admits no agency at all. I’d guess that most people aren’t so strict. The question to ask is not if we are wholly determined or not but to what extent in what ways are we influenced or effected by the various factors. And there must be a gazillion factors to look at before coming to any definitive conclusions. In the meantime we can still lock up the killers and cheer for the rock stars.

  6. says

    If we accept that traditional morality is nothing more than a set of guidelines which evolved to facilitate social life, then there’s no such thing as “guilt which deserves punishment” in the customary sense. But there is a rational basis for sanctions against bad behaviour.
    The ultimate causes of a crime are not the criminal’s “innate wickedness”, but such things as economic and social conditions and mores, the inherited character of the criminal, his family and social background, his history and his environment, for all of which he’s not responsible. To the extent that he’s not responsible, then from the standpoint of traditional morality, it has to be admitted that the punishment of the criminal is unjust. This is just one of the many dilemmas of traditional morality.
    To train a child (or a pet) to behave acceptably and motivate them to continue to do so, punishment (or the threat of punishment) can sometimes be needed as well as rewards. (Though it’s unfashionable to speak of “punishing” a child because the word makes us think of an old-time thrashing rather than more gentle sanctions.) But it’s not appropriate to think of the child or pet as guilty and deserving of punishment. Punishment can only be reasonable when administered for the future benefit of the child or pet, the family, and the community.
    Similarly, there is a rational basis for the sanctions of the Criminal Law. The main objectives of the Criminal Law are to declare and publicise which acts are so contrary to the interests of the community that they will not be tolerated, and to deter people from committing those acts by imposing penalties on those who do.
    Some of the other objectives of criminal justice are:
    • To impose punishment, ie retribution, and thereby satisfy the desire for revenge in victims and the community, and replace private vengeance (which endangers public order)
    • To protect the community from the offender
    • To reform the offender
    • To provide some compensation to victims and/or the community
    • To provide an opportunity for expiation
    • And to achieve these ends at minimum cost to the community
    And it would be desirable that legislated objectives expressly include the care and support of all the victims of crime.
    We can endorse all these objectives except punishment. It no longer makes sense to punish a criminal because he deserves it, because of his guilt.
    If the law was changed to abolish punishment of offenders, criminal penalties would not be tailored to fit the crime and the “degree of guilt”. Mitigating factors would no longer entitle offenders to leniency; considerations of mitigating factors [eg provocation] and “diminished responsibility” [eg due to brain damage or an abusive childhood] would become irrelevant.
    Penalties would instead be designed only to meet the other objectives set out above. The abolition of punishment wouldn’t always imply greater leniency because objectives such as deterrence and community protection can dictate more severe penalties and for more offenders than those based on punishment. For example it can be appropriate to keep an incorrigibly dangerous offender confined for life even though his behaviour is caused by a violently abusive upbringing for which he can’t be held responsible.

  7. rinky says

    I’ve heard David Eagleman on a couple of podcasts now – he was on the Guardian Science Weekly a while ago, as well as Philosophy Bites – but the article that Brent linked to is much better than either.

    Maybe there isn’t an awful lot of philosophy here, but that’s no bad thing in this case. The rich vocabularies of neuroscience & jurisprudence seems more likely to provide good descriptions of what’s going on, compared to the vocabulary of free will / determinism. Certainly we can do much better than binary oppositions of praise & blame, guilt & innocence, rational & irrational.

  8. Nullifidian says

    “(but I still like all of you better)”

    Awww! Group hug! 😀

    I find the issue here overblown a bit. Unless one is still committed to Cartesian dualism or the existence of some “soul” or “spirit”, it’s obvious that everything people think about will have some underlying neurobiological basis, simply because we think with our brains.

    What I think people are actually discussing, though unconsciously, is not what these discoveries have to do with our concepts of guilt and innocence, but whether the imprisonment model is the best approach to dealing with crime. More broadly, it also highlights a tension between the rehabilitation/reconciliation model and the punishment model. For the man in the Atlantic article who became a pedophile because of a brain tumor, the process of rehabilitation is a simple one: get surgery. But if you’re looking at it from a punishment perspective, that seems like it is letting him off too lightly, and yet one’s conscience rebels at locking him up for something that he wasn’t fully responsible for. What to do?

    I think the problem is that despite the lip service paid to rehabilitation, most prison is popularly conceived of as being about punishment and warehousing criminals away from society. This is especially true for crimes that offend the public’s sensibilities like pedophilia. It’s a holdover from puritanical Christian morality that holds that humans are inherently sinful and need to have the sin nature scourged from their shameful selves. And like many religious notions, it’s difficult to reconcile with modern science.

    • Profile photo of Seth Paskin says

      You raise an interesting point Null. Suppose the goal of criminal justice is rehabilitation, where rehabilitation means the prevention of further crimes. You say the answer in the case of the pedophile is surgery – due to the clear connection of his brain damage to the change in his behavior.
      What if I said that, well, we could prevent further crimes by most criminals by performing brain surgery – lobotomies. That would make them incapable of doing what they had been doing. That certainly would be cheaper and easier than keeping them locked up for years. Or less drastically, maybe forcing them to take certain psycho-tropic drugs.
      Somehow that feels wrong too – but I’m not sure what the boundaries are. You are right to point out that our idea of what prisons are meant to do is unclear and most likely archaic, given advances in behavioral and scientific inquiry.

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