The Soul of the Law

The very basis of criminal responsibility is contested as a skeptic about neuroscience seeks to disbar it from the courtroom.

What if we came to grips with the fact that human behavior, like all macro-level natural phenomena, is fully a function of the context it arises in and the circumstances preceding it?  This simple, straightforward claim seems confirmed by everything science tells us about ourselves, yet is resisted mightily by many. Writing in the Times (UK), British doctor Raymond Tallis defends criminal law against the creeping mechanism of neuroscience, saying that it’s a patent absurdity to “put the brain on trial.” After all, people aren’t just their brains, right? People are free, not mere deterministic clockwork; to argue that “my brain made me do it” wrongly supposes that persons are slaves to their neurons. For the law to work, it needs the assumption that people have a strong kind of freedom that transcends neural materialism. What’s at stake, Tallis recognizes, is the very soul of the law as it’s now construed:

If our brains are in charge, and bad behaviour is due to them, our attitude to criminal responsibility, to punishment (the balance between rehabilitation and retribution) and to preventive detention of individuals thought to have criminal tendencies may all have to change.

This is indeed the crux. Were we to give up the idea that something besides the brain is in charge, that we have free wills in command, we’d have to rethink responsibility, blame and punishment. As Joshua Greene and Jonathan Cohen put it in their paper For the law, neuroscience changes nothing, and everything:

Neuroscience is unlikely to tell us anything that will challenge the law's stated assumptions. However, we maintain that advances in neuroscience are likely to change the way people think about human action and criminal responsibility by vividly illustrating lessons that some people appreciated long ago. Free will as we ordinarily understand it is an illusion generated by our cognitive architecture. Retributivist notions of criminal responsibility ultimately depend on this illusion, and, if we are lucky, they will give way to consequentialist ones, thus radically transforming our approach to criminal justice. At this time, the law deals firmly but mercifully with individuals whose behaviour is obviously the product of forces that are ultimately beyond their control. Some day, the law may treat all convicted criminals this way. That is, humanely.

Those wanting to maintain the traditionally punitive bent of criminal justice stemming from the retributive justification for punishment must resist the deterministic and mechanistic implications of neuroscience. Tallis does this by categorically separating the person from the brain. First, he’s skeptical about how much light neuroscience really sheds on behavior and consciousness: “…observations of brain activity in the laboratory can explain very few things about us.” He’s certainly right that we don’t yet have a particularly transparent explanation of how phenomenal consciousness arises from (or is perhaps the same thing as) neural activity, but he’s mistaken to think we don’t have good beginnings of brain-based explanations for such things as sensory perception, the unity of consciousness, the sense of self, and the intuition of another’s mindedness. Research programs in neuroscience are uncovering the neural correlates of such phenomena, and their workings, at an increasing rate. See for instance the voluminous empirical data cited by Thomas Metzinger in his books The Neural Correlates of Consciousness (editor) and Being No One.

Tallis, clearly worried about determinism (see here also), argues that wanton excuse-makers can’t logically stop at the brain:

Since the brain is a physical object, it is wired into nature at large. “My brain made me do it” must mean (ultimately) that “The Big Bang” made me do it. Neuro-determinism quickly slides into determinism tout court

This is exactly right. However, global determinism isn’t a universal excuse or grounds for letting killers go free, as Tallis implies, but simply reminds us that offenders aren’t self-created. This undercuts retributive justifications for punishment, as Greene and Cohen suggest.

Tallis says rightly that “The claim ‘my brain made me do it’ suggests that I am not my brain; even that my brain is some kind of alien force.” Then who are we? On a naturalistic understanding, the person is not something over and above what the brain and body do; we don’t exist as something separate from them “in charge” of their operations. Their operations (and their external packaging, of course) constitute who we are as persons, so in fact we are very much our brains. Alter my brain and you may well alter me, quite directly (more on the person as a neural construction here and here).

Regarding responsibility, this view of personhood suggests that we’re justified in holding people responsible when the mechanisms of their brains and bodies are in normal working order. When they are, people are usually capable of responding to the prospect of being held responsible, and will likely (although not always, of course) adjust their behavior accordingly (see Holding mechanisms responsible).

Tallis therefore gets it wrong from a naturalistic perspective when he says that “…we still retain the distinction between events such as epileptic fits that can be attributed to brain activity and those that we attribute to persons who are more than mere neural activity” (emphasis added). True, persons are more than “mere” neural activity in the sense that they are embodied, enculturated brains, acting as identifiable individuals in a social context; but there isn’t something non-physical beyond the brain and body that confers personhood, and thus responsibility. All behavior, thought, emotion, personality, and thus personhood itself is either neurally generated or instantiated, and thus depends directly on the brain. The difference between epileptic fits and voluntary behavior for which we can be held responsible is a matter of the type of neural processing that produces fits versus the type that produces voluntary behavior. One type is responsive to moral norms, the other isn’t.

Tallis’ claim that neurolaw will always be “neuromythology” in effect endorses a fundamental dualism between the brain and personhood, a dualism that can’t be sustained in the light of science. In this he follows Michael Gazzaniga, co-director of the recently launched MacArthur Foundation’s Law and Neuroscience Project, who believes that “brains are determined; people are free” (see here). But people don’t transcend the (likely) deterministic mechanisms of their physical instantiation, so are not free in the sense Tallis and Gazzaniga might want, that is, contra-causally, such that we strongly deserve retribution for our crimes.

Tallis quotes law professor Stephen Morse as saying “neuroscience . . . can never identify the mysterious point at which people should be excused responsibility for their actions.” Were this true, it would neatly disbar neuroscience from having much of a say in court. But when the person takes the stand, it’s very much to the point to know what the status of the brain at the time of the crime was, since having a (necessarily) neurally instantiated mental disease or defect is, or should be, a prime excusing condition. Neuroscience manifestly can help dispel mystery on this score. Once we drop brain/person dualism, we can’t any longer say “my brain made me do it,” but we can say that the state of the brain, normal or abnormal, is materially and crucially relevant to ascriptions of responsibility. Moreover, the very conception of responsible agenthood changes, from the essentially supernatural notion of being a freely willing, undetermined agent, to the scientifically tractable notion of having a normally functioning, normatively responsive brain and body. Operating from this standpoint would help greatly to humanize criminal justice. For these reasons, neuroscience has a lot to contribute in the courtroom, if indeed the law will listen to reason.

TWC, November, 2007

Speculative note on mitigation. Skeptics about brain-based mitigation such as Michael Gazzaniga say that just because someone has a tumor, or reduced pre-frontal cortical volume, or schizophrenia, does not mean that the brain defect or mental disorder is the provable cause of his criminal behavior (see his Neuroscience and the Law in Scientific American Mind). We can always suppose that the act in question resulted from normal neural processing that bypassed the defect, such that the person wasn’t compelled to act by virtue of the defect. There’s of course no way to disprove this, which means that in the absence of florid insanity on the part of the defendant, the advocate of neuro-mitigation can only cite data from the accumulating neurological studies that bear on his client’s condition. These might show, for instance, that those with certain sorts of tumors exhibit sexual compulsions more often than normals, or that those with less developed or less active pre-frontal cortices exhibit less impulse control, as psychopathologist Adrian Raine’s work suggests (see here). Such studies, along with the neuro-anatomical understanding of how brain abnormalities affect behavior, might support the proposition that the present offender’s act is the result, at some level of probability, of having the defect in question. The extent to which brain defects or mental disorders mitigate culpability could be concretely expressed as 1 minus that probability times the normal sentence. The higher the probability that the defect accounts for the act, the shorter and less harsh the sentence. But of course in a criminal justice system which recognized that offenders, whether neurally normal or not, are fully determined in their actions, the relevant question wouldn’t be how much to reduce a retributively deserved, punitive sentence, but how to best treat the offender given consequentialist goals of deterrence, rehabilitation, restitution, etc. Those with documented mental disorders and brain dysfunctions will obviously have to be treated differently than those without.