Brain states trump abuse as criminal excuse?

It’s hard to imagine a case that could bring the questions about moral and legal responsibility that are raised by neuroscience any more front and centre than the upcoming investigation of the motives and culpability of Aurora mass murderer James Holmes.

We now know that Holmes was seeing a psychiatrist before his rampage. And his dazed behaviour during his first court appearance suggests that he may be so seriously unhinged that it will be very difficult to hold him criminally responsible for his actions.

Many people suspect that the neuroscience student’s “insanity” is a carefully and cynically planned “get out of jail free” card. They worry that he’ll get away with it, avoiding the harshest versions of the retribution that his crime deserves.

There have been several posts here on whether and to what extent neuroscience should mitigate criminal responsibility, most recently “But it’s the other guy in my brain who’s guilty.”

Many experts, among them Michael Gazzaniga (article here), have argued that brain science is nowhere near complete nor definitive enough to inform decisions about criminal guilt. One of the most recent forays into this contentious legal arena is a New York Times piece by psychologists John Monterosso and Barry Schwartz.

In “Did Your Brain Make You Do It?” the authors argue that some people’s readiness to allow brain states (“state of mind”) to  excuse behaviour is the result of “naïve dualism,” an unjustified category distinction between “brain characteristics” and “psychological factors.”

This distinction is unwarranted, they argue, because “as a general matter, it is always true that our brains ‘made us do it.’”

Each of our behaviors is always associated with a brain state. If we view every new scientific finding about brain involvement in human behavior as a sign that the behavior was not under the individual’s control, the very notion of responsibility will be threatened. So it is imperative that we think clearly about when brain science frees someone from blame — and when it doesn’t.

Thinking clearly about criminal responsibility isn’t always easy. In a study conducted several years ago by the authors and others, participants were asked to evaluate a fictional individual’s behaviour that caused harm, including violence.

In some cases, participants were told that the individual had suffered a severe psychological trauma, like child abuse. In others, the individual had a structural brain defect, such as a deficiency of neurotransmitters. The severity and intensity of the disabling circumstance was varied from case to case.

Results were consistent — brain defects were seen as mitigating more often and more strongly than were psychological factors.

Individuals with brain defects were seen to have acted “automatically.” Their behaviour wasn’t “motivated” and did not reflect their “true” character. In contrast, individuals with backgrounds of psychological trauma were seen as responsible for their actions. Their behaviour was a choice, even if often an understandable choice, and their harmful behaviour was considered to have originated in the intentions of the person, not just the states of the brain.

Of course, this result highlights the persistent view that “I” am more than my brain, more than the action of my brain. “I” am something separate from my brain functions. If my brain is defective, that damages “me,” but that isn’t what “I” am.

If “I” am damaged by an “outside” entity, like my brain, the resulting harmful behaviour isn’t “my fault.” If “I” am unable to resist or recover from a negative experience, the resulting harmful behaviour is something I’ve chosen and is “my fault.”

The authors explain this “naïve dualism” as “the belief that acts are brought about either by intentions or by the physical laws that govern our brains and that those two types of causes — psychological and biological — are categorically distinct.” As a result of this distinction, “people are responsible for actions resulting from one but not the other.”

Monterosso and Schwartz argue that this distinction is false.

Naïve dualism is misguided. “Was the cause psychological or biological?” is the wrong question when assigning responsibility for an action. All psychological states are also biological ones.

Based on their research, Monterosso and Schwartz warn that there is a real danger that as neuroscience progresses, more and more criminal behaviour will be excused, explained away, by our disproportionate willingness to accept “scientific” over “social” justifications.

They warn, “It’s important that we don’t succumb to the allure of neuroscientific explanations and let everyone off the hook.”

Fair enough. But what’s the alternative?

Taking the authors’ argument in the other direction could result, in the extreme, in a rejection of all mental and psychological mitigation. This might please some “eye for an eye” extremists, but it wouldn’t do as an enlightened approach to criminal justice.

Monterosso and Schwartz suggest that we look at relative frequency for guidance. What fraction of people with brain defect A or psychological profile B do harm? If everyone with condition A becomes violent, it makes little sense to speak of “voluntary” or “intentional” action when someone with condition A acts violently. On the other hand, if only 1% of people with condition B becomes violent, it makes more sense to talk about “volition” and “self-control” when someone with condition B acts violently.

There might well be some merit to this approach, with the caveat that we don’t yet know enough about why we act the way we do to base our entire criminal justice system on today’s neuroscience.


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