The Brain on Trial

Advances in brain science are calling into question the volition behind many criminal acts. A leading neuroscientist describes how the foundations of our criminal-justice system are beginning to crumble, and proposes a new way forward for law and order.

At the same time, Alex was complaining of worsening headaches. The night before he was to report for prison sentencing, he couldn’t stand the pain anymore, and took himself to the emergency room. He underwent a brain scan, which revealed a massive tumor in his orbitofrontal cortex. Neurosurgeons removed the tumor. Alex’s sexual appetite returned to normal.

The year after the brain surgery, his pedophilic behavior began to return. The neuroradiologist discovered that a portion of the tumor had been missed in the surgery and was regrowing -- and Alex went back under the knife. After the removal of the remaining tumor, his behavior again returned to normal.

When your biology changes, so can your decision-making and your desires. The drives you take for granted depend on the intricate details of your neural machinery. Although acting on such drives is popularly thought to be a free choice, the most cursory examination of the evidence demonstrates the limits of that assumption.


This puts us in a strange situation. After all, a just legal system cannot define culpability simply by the limitations of current technology. Expert medical testimony generally reflects only whether we yet have names and measurements for a problem, not whether a problem exists. A legal system that declares a person culpable at the beginning of a decade and not culpable at the end is one in which culpability carries no clear meaning.

The crux of the problem is that it no longer makes sense to ask, “To what extent was it his biology, and to what extent was it him?,” because we now understand that there is no meaningful distinction between a person’s biology and his decision-making. They are inseparable.

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