Our criminal justice system is based on the assumption that people make choices to commit crimes, that they must be punished for making those bad choices and that it’s fair to apply standard punishments to all.
But what if we’re really not in charge of what we do? What if our brains are?
Neuroscientists, using ever more sophisticated imaging technology, are finding out that our brains aren’t created equal, and that our personalities and actions have a lot more to do with genetics, environment and a complicated network of neurons than any notion of free will.
The other night in Santa Fe, Albuquerque native David Eagleman, a neuroscientist, was making the case that a justice system that holds individual responsibility and blame at its core is going to have to adapt as science challenges the concept that we drive our brains — and actually shows that we’re much more often controlled by them.
“Modern neuroscience,” he said, “changes everything going forward.”
Eagleman, lecturing to a packed house as part of a Santa Fe Institute lecture series, paused three times, by my count, to make sure everyone understood he wasn’t arguing that criminals with problems in their brains should be let off the hook.
“It’s not to say that people who are dangerous should not be taken off the streets,” Eagleman said. “If they cross that line, we have to take them off the street, but the question is, is there a way that we can do it in a more rational way than imagining that the same sentence, the same incarceration is appropriate for everyone?”
That he felt compelled to stress that only argues his point: Our justice system is biblical, moral and retributive. We all think we’re in control of our actions, and we don’t want anyone making excuses for others’ bad behavior.
I became acquainted with Eagleman through a profile in the New Yorker in 2011 that began with a description of him plunging through the roof of an unfinished home in the Sandia foothills when he was 8. The experience, a freefall that ended with him landing on his nose on a brick floor, provided the seed for the core of his academic work: Time perception.
Eagleman is a puckish wunderkind. He graduated from Albuquerque Academy in 1989, majored in literature at Rice University and got his Ph.D. in neuroscience at Baylor College of Medicine. He’s a best-selling author in addition to directing Baylor’s Laboratory for Perception and Action, and the Initiative on Neuroscience and the Law.
Under his direction, researchers at Baylor are tackling a host of experiments and launching discussions aimed at the intersection of the brain and the law:
What factors predict whether a sex offender commits the crime again? Can cocaine addicts retrain their brains through repetition to avoid cravings?
Might it be possible to prevent the next mass shooting by better diagnosis and treatment of mental illness?
And what’s going on in the brains of jurors?
I was interested in Eagleman’s presentation, oddly, because of the work of another prominent neuroscientist practicing in New Mexico. Kent Kiehl has been making news lately because of his recent study that looked at the brains of some New Mexico prison inmates during decision-making exercises and then tracked them after release to see which ones were arrested again.
Inmates who had less activity in the portions of their brains that govern motor control and executive functioning reoffended at a much higher rate than those with the highest activity.
Kiehl, who has been employed as a professor at the University of New Mexico and a fellow at the Mind Research Institute since 2007, did his best to tamp down the excited Minority Report-type speculation about whether these findings could lead to people being arrested for crimes we think they will commit in the future.
The data represent only a small sample of inmates, he cautioned, and he hopes his work will lead instead to better therapies for repeat offenders.
Kiehl was the subject of a New Yorker profile in 2008; the anecdote I remember from that piece had Kiehl arriving at Western New Mexico Correctional Facility in Grants, eager to begin running felons through a sophisticated functional MRI machine he kept parked at the prison in a tractor-trailer.
The brains of criminals, especially psychopaths, has been a focus of Keihl’s neuroscience career. Kiehl has found that the brains of psychopaths, people who lack empathy, guilt and remorse, and are heavily represented in prisons, operate differently from others. When psychopaths are shown words pertaining to emotion or images of morally objectionable activities, Kiehl has found, their brains show much less activity in areas associated with attention, emotion and memory than inmates who are not diagnosed with psychopathy.
If psychopaths’ brains prevent them from making correct moral choices, should judges and jurors have access to that information as they consider guilt and punishment?
If we can tell from an inmate’s brain whether he is more or less likely to reoffend, should that information be considered in decisions about his release on probation and parole?
Should we shift our thinking from making moral judgments and meting out punishments toward recognizing disease and administering treatment?
Kiehl and Eagleman are only two neuroscientists exploring the intersection of brain research and the law. It’s a burgeoning new field, and lawyers and the courts are listening. They both were invited speakers last week at the Judicial Conclave, a three-day summer camp for the state’s judiciary.
The judges there might also be interested in another bit of research challenging the concept of free will that Eagleman dropped into his Santa Fe lecture: Judges are much more likely to deny probation requests that come before them just before lunch and more likely to grant them just after lunch.