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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8 Responses:

  1. Jon says:

    There would be no support whatsoever for somebody who started having such desires (and not already incarcerated) to have an investigation performed into whether there's a medical reason. I think that's sad.

  2. Nick Lamb says:

    As far as I understand it the article is mistaken in saying that Tourette's sufferers lack "free won't". A Tourette's sufferer can will themselves not to react to the urge. But it requires an explicit effort to consciously restrain. And that effort is exhausting so that unless they're incredibly motivated they just can't do it for long.

  3. Tony Finch says:

    This problem basically goes away if you view the sentence as a matter of public protection (rather than punishment). Ideally the system should aim to rehabilitate the perpetrator, and if there is any significant rate of recidivism it has failed.

  4. Thomas Lord says:

    The tags given are entirely right. The article is annoying in the way it tends to paper over and distract attention from what is really at stake -- with a bunch of bullshit about philosophy and the foundations of justice. It makes me have to vent.

    It doesn't make sense to claim that this science is somehow causing the "foundations of the legal system to crumble", or that neuroscience raises any particularly novel questions about justice or police powers. All that is at stake in this article is a petty squabble over which medical regimes should gain or lose power in the medical dominance of criminal prisoners.

    Before the issues in the article we already had cases like: (1) Chemical castration for some sex offenders; (2) Forced administration of anti-psychotic medication to render a prisoner fit to stand trial (or for other reasons); (3) (in the past) forced sterilization; (4) forced electro-shock therapy; (5) various applications of phrenology in law enforcement; (6) administration of strong psychotomimetics (aka psychedelics) for rehabilitation; ..... etc. My god, what do these people think inspired "Clockwork Orange" or, for that matter, "One Flew Over the Cuckoo's Nest"?

    We could go back and find similar interactions between (what we'd now call) law enforcement and medicine throughout the entire history of our present system. One common, steady, theme with a perfectly solid foundation is that to be deemed a criminal is to be stripped of certain freedoms of bodily autonomy -- the jailers, the capitalists, and the medical types are the main players that, throughout the entire history of the system, squabble over who gets to do what, next, to the prisoners. There was, long ago, a shift in the discourse of the squabble to one that included concepts like rehabilitation and restoration. There was, long ago, a (flexible) separation of prisoners into those bound for incarceration and those bound for involuntary clinical confinement. As far as the law is concerned, questions of autonomy of decision making - and their slipperiness under science - are tired old questions that have been strenuously examined under the heading of the "insanity defense" and, more generally, in the parole system. There is nothing new here except that some faction now wants to run scans on prisoners and drum up some new surgery and/or pharma business. To distract attention from that bottom line goal, they hand-wave about navel-gazing free-will questions and pretend there is some pending crisis in jurisprudence. Jerks.

    • mentallill says:

      It's nice if you think it's all innocent, but really, people who go "oh, we should redefine mental illness to automatically include all criminal, antisocial, or dislikable behavior, and then we can finally go back to treating all undesirables the same no matter what kind of undesirable they are" aren't mistaken, they're evil.

      But please don't think that guy represents current psychiatry. Forced administration of antipsychotics still happens (patient comes in with a head injury, enters lucid period, is active and moves about and wants to leave, refusing further treatment. Give them an antipsychotic or let them die of a hemorrhage? If you take more than two minutes to decide, you'll be late in getting to the next patient and she might die on you. Even in merely psychotic patients, antipsychotics are miracle drugs.), but things have tipped over in psychiatry: the problem isn't that everyone's hospitalized, it's that you can't get a bed even for an acutely suicidal patient, or that there's no way to cover the cost of a patent-free antipsychotic that the patient wants to take.

      NAMI's slogan is Save Mental Health Care, and they're not exaggerating: the problem isn't to find new and exciting treatments, it's to find funding for tried-and-proven cost-effective interventions. This isn't curing HIV, it's eradicating measles: boring, cheap, hugely beneficial work that just isn't being done because the War on Mental Health Care sounds great to voters.

  5. mentallill says:

    "This research is just beginning, so the method’s efficacy is not yet known—but if it works well, it will be a game changer. We will be able to take it to the incarcerated population, especially those approaching release, to try to help them avoid coming back through the revolving prison doors."

    That's funny. And how, does he think, will scientific proof of cost-effectiveness translate into funding for mental health care? Because it doesn't today. It's not an exaggeration to say that mental health care could save thousands of lives a year (think suicides, not axe murderers) and pay for itself through future taxes, but it's still considered a perfect target for spending cuts, instead. And that's without involving crime at all, which adds a second layer of stigma. (And, also, is a little offensive: the mentally ill aren't axe murderers, just people with, you know, an illness. Who are less violent than healthy people, because violence is emotionally difficult and we're not good on difficult tasks.)