In recent years, the legal community has been
eyeing neuroscience tools for scanning the brains of defendants in
serious criminal cases. The basic thesis: “You” are merely your brain,
which is not responsible for wrong actions. A recent book, Incognito, by Baylor neuroscientist David Eagleman, asserts that traditional
beliefs about justice are merely a “desire for revenge”. Indeed, with
respect to an accused defendant, “It no longer makes sense to ask, ‘To
what extent was it biology and to what extent was it him?’ The question
no longer makes sense because we now understand those to be the same
thing. There is no meaningful distinction between his biology and his decision making.” [1]

Described recently by his dean as“a rock star in so many ways”,
Eagleman is not the inventor of these ideas; rather, he is the latest
(and perhaps glitziest) to offer them. In 2009, New York Times commentator David Brooks was writing about
“The Young and the Neuro”, the many brash young neuroscientists eager
to transform society. Back in 2007 Joshua D. Greene, responding to Jeffrey Rosen in “The Brain on the Stand” (New York Times), put it like this:
“To a neuroscientist, you are your brain; nothing causes your behavior
other than the operations of your brain.” If that’s right, it radically
changes the way we think about the law. The official line in the law is
all that matters is whether you are rational, but you can have someone
who is totally rational but whose strings are being pulled by something
beyond his control. [3] Rosen follows up:

In other words, even someone who has the illusion of
making a free and rational choice between soup and salad may be deluding
himself, since the choice of salad over soup is ultimately predestined
by forces hard-wired in his brain. Greene insists that this insight
means that the criminal-justice system should abandon the idea of
retribution — the idea that bad people should be punished because they
have freely chosen to act immorally — which has been the focus of
American criminal law since the 1970s, when rehabilitation went out of
fashion. Instead, Greene says, the law should focus on deterring future
harms. In some cases, he supposes, this might mean lighter punishments.
“If it’s really true that we don’t get any prevention bang from our
punishment buck when we punish that person, then it’s not worth
punishing that person,” he says.

But suddenly we hear a discordant note, placed discreetly by Rosen in brackets:

(On
the other hand, Carter Snead, the Notre Dame scholar, maintains that
capital defendants who are not considered fully blameworthy under
current rules could be executed more readily under a system that focused
on preventing future harms.)

Snead’s question exposes squarely a fact that is apt to be overlooked
in the discussions around Eagleman’s just-published book: This is not a
controversy between the String ‘Em Up Gang and the Prison Reform
Society. All parties want a just and humane system; they differ
fundamentally as to whether they think that personal responsibility is
an illusion.

It’s not clear that people who want to rid the justice system of the
notion of punishment understand what buying into Eagleman’s and Greene’s
approach would mean. Says Eagleman, "Currently, our patterns of
punishment are founded on the concepts of personal volition and the
attendant culpability. But a shift in our understanding of individual
differences suggests a move toward prison sentences tailored to the risk
of recidivism rather than the desire for revenge." [4]

But then the question of guilt or innocence fades in favor of
prophecy based on neuroscience. Penitents become patients, then - to
judge from Eagleman’s and Greene’s language - mere experiments. Here are
two warning flags:

First, brain scanning often doesn’t help the people many hoped it
would. In capital punishment cases, for example, defense lawyers have
lost out when it was used: As Timothy Capp, an Illinois lawyer who takes
such cases, recounts, “The pictures revealed that parts of the brain
that light up in normal people remained cold and dark in Dugan’s brain. …
In short, Dugan was a classic psychopath, and the fMRI helped to prove
it.” So the jury voted for death. Note that the scan, in itself, did not
actually show that Dugan had committed the crime. He could be that sort
of man but never happen to commit any crime. Is he guilty anyway? As
Capp explained to me, “Future dangerousness is a huge factor in giving
the death penalty, and having a broken brain is about as dangerous as it
gets. More useful to the prosecution, who will not have the same access
to the defendant.”

Second, thoughtful people remain skeptical of the basic premises. Atheist philosopher/ physician Raymond Tallis told New Humanist in 2009,

Those who blame the brain should be challenged as to why they stop at
the brain when they seek the causes of bad behaviour. 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. [6]

Meanwhile, less thoughtful people are eager to embrace neurojustice. For example, in The Moral Landscape: How Science Can Determine Human Values (2010),
Sam Harris tells us, regarding concerns about self-incrimination, “the
Fifth Amendment has already succumbed to advances in technology. … It is
not at all clear that there is a distinction between these diverse
sources of information that should be ethically or legally relevant to
us.” [7]

Of course, what is morally relevant to “us” depends on who “we” are,
and whether we are ready to jettison earned punishment for indefinite
preventive detention. Capps thinks it far wiser for opponents of capital
punishment to just lobby to abolish it, not to sign on to causes whose
ultimate basis is not really a concept of justice at all, but social
engineering.

Denyse O'Leary is co-author of The Spiritual Brain.

Notes:

1. Jim Lewis, “Mind Games,” Texas Monthly (June 2011)

2. David Eagleman, “The human brain: turning our minds to the law,” Daily Telegraph (05 Apr 2011): http://tinyurl.com/5ulfgpz

3. See Jeffrey Rosen, “The Brain on the Stand,” New York Times (March 11, 2007): http://tinyurl.com/3ov2279

4. David Eagleman, “The human brain: turning our minds to the law,” Daily Telegraph (05 Apr 2011): http://tinyurl.com/5ulfgpz

5. Timothy Capps, “Neuroimaging debuts in Illinois court”, The Illinois Lifeline (Illinois Capital Trials Defenders Unit), Spring, 2010: http://tinyurl.com/3jdu5ks

6. Raymond Tallis, "Neurotrash," New Humanist, November/December 2009: : http://tinyurl.com/3bjyvol

7. Sam Harris, The Moral Landscape: How Science Can Determine Human Values (Free Press, 2010), p. 135: http://tinyurl.com/26s4ozf