Neuroscience and the Law

04 September 2014

This week, our topic is neuroscience and the law. Neuroscience is revolutionizing our understanding of how the brain works. In the process it is challenging ago-old ways of thinking about crime and punishment. Some neuroscientists even say that it’s time to completely rethink our judicial system in light of their discoveries. That’s because our current legal system presupposes a certain picture of how the mind works that many neuroscientist now believe is almost entirely wrong. Common sense counts a person morally responsible for a wrongful action only if the action results from their free, conscious, deliberate choice. Pretty much the same idea is expressed in the law via the concept of a guilty mind ormens rea. Under the law, an act can’t make you guilty unless your mind is guilty too.

当然,对于最后一种说法也有例外,因为,准确地说,法律区分了几种不同的罪责模式——严格责任、疏忽、鲁莽……一个做错事的人不必自由地、有意识地、深思熟虑地选择以这些较次要的方式受到惩罚。但主要观点仍然成立。法律把我们自由、有意识、故意选择的行为和我们不这么选择的行为明显地区分开来。对于前一种行为,它让我们承担最大的责任,并给予我们最严厉的惩罚。

Modern neuroscience purports to throw cold water on the idea that we freely choose our actions. And neuroscience teaches us that most of what the brain does to cause behavior happens without the benefit of conscious deliberation at all. Conscious deliberation is at best the small tip of a really huge iceberg. And the stories we tell ourselves about the causes of our behavior, according to some neuroscientists, are just after the fact confabulations, with no real basis in the neural facts of the matter.

但我必须承认,我不太确定这个故事是否像我刚才说的那么简单,或者说,在常识和法律之间,一方面,和神经科学的理论之间,真的存在着直接的冲突。这是因为法律真正需要区分的是,一方面,在完全意识到行为后果的情况下故意做某事,另一方面,做一些没有罪责的无知的事情,或者做一些因为你的神经回路失灵而做的事情。只要我们能够作出这样的区分,法律在自由、意识和刑事责任方面就具备了它所需要的一切。想想我——一个大脑相对完整的相对正常的人——和一个偏执的精神分裂症患者之间的区别。当然,神经科学并没有表明,就法律而言,我们都可能是偏执型精神分裂症患者。

The problem with this approach, though, is that neuroscience simply refuses to draw sharp lines. As far as neuroscience is concerned, it’s all on a continuum. Take a supposedly normal, law abiding citizen, upset their dopamine or serotonin balance just a teeny-tiny bit, or make a tiny little lesion in just the right place in their neural circuitry and presto-chango you’ve turned your upstanding law-abiding citizen into a viscous criminal.

这并不是说,所有的犯罪行为都是不良神经化学和神经回路的结果,因此是可以原谅的。可以肯定的是,人类所有的行为——每一点——都是我们神经化学和神经回路的结果。关键是,我们大脑中相对较小的差异可以对我们的行为产生巨大的影响。由于我们对我们的神经化学和神经回路没有太多直接的、有意识的控制,我们对我们行为的直接有意识控制比法律想象的要少。

Even so, it doesn’t directly follow that we should necessarily excuse criminal behavior. Think of we do we with other sorts of bad outcomes that are caused by chemical imbalances or bad wiring? We treat them with medication or therapy or surgery. One day soon we’ll be able to do the same when bad brain chemistry leads someone to perform criminal acts. And punishment need not be ruled out altogether either – though it probably needs a new basis. Typically with think of punishment is retribution. But if there is no such thing is freedom, if conscious, purposeful deliberation is just an epiphenomenon and not where our behavior is really and truly generated, then perhaps nobody really intrinsically deserves to be punishment.

But there is another possible basis for punishment – one that may be of more neurologically sound. Punishment provides negative feedback. And the brain sometimes changes itself in respond to negative feedback. Perhaps neuroscience can help us learn which forms of punishment provide effective feedback and which don’t.

Lest you think I’ve simply swallowed the neuroscience Kool-aid, I should say that there are still lots of questions we need to address before I’m willing to drink it down gladly. For example, I worry that everything I’ve been saying so far presupposes a philosophically problematic – I won’t say naïve -- concept of freedom – what philosophers sometimes callcontra-causal freedom. That’s a kind of absolute and total freedom that leaves our actions entirely and exclusively up to the will. I admit we don’t freedom in that sense. And maybe neuroscience can help us to see that. But I strongly doubt that either common sense or our legal system presupposes that we have freedom in that sense. And if we don’t there is no real conflict between our criminal justice system and what neuroscience is telling us about how the brain causes behavior. Is there?


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Comments(60)


Guest's picture

Guest

Saturday, August 11, 2012 -- 5:00 PM

I think you overlooking the

I think you overlooking the elephant in the room. Prison is a highly profitable business that relies
on draconian sentences and unfair laws. Nonviolent drug offenders, for instance,
shouldnt be imprisoned as has been proven in more morally
负责任的国家,比如丹麦。康复根本不赚钱。It
naive at best to think that our justice system will listen to the truth of science or change
without considerable revolution.

Guest's picture

Guest

Saturday, August 11, 2012 -- 5:00 PM

I don't think "free will"

我不认为“自由意志”存在于脑化学之外。人们不想因为宗教或哲学的原因而放弃这个想法,因为他们想要相信他们能“控制”自己的生活。
Watch your behavior for a day. Identify those moments when you make, really make, a decision. Why did you make that particular decision vs. another? What guided your choice? You bought the cheap product rather than the expensive one. You can afford both. What in your life caused you to take the former path rather than the latter. What makes you prefer an iPad to a Nexus? Don't just list features. What makes one feature more attractive to you than another?
You are writing a paper on your computer. A second later you are looking at a web page totally disconnected from what you are doing. Why? When did you decide? One moment you are seated at your desk, the next moment you are straightening up books on the overcrowded sofa. Why? When did you decide?
You are attracted to redheads or blondes or tall men or voices. Why? When did you decide? Did you really choose to hate carrots but love tomatoes?
You love going to parties and bars. I don't. Why? You simply decided to be outgoing? I simply decided not to be?
我就是不理解那些知道,就像你节目里的那个例子,一个罪犯有脑瘤,却继续断言这个人有自由意志,完全控制自己的行为的人。(我记得奥普拉曾经采访过一位患有躁郁症的女性,这让人非常恼火。当然,奥普拉声称,这个女性要为她在狂躁期的行为负全部责任。荒谬的。)
Dangerous people need to be separated from society, whatever the reason ("evil", neurological disorder) for the destructive behavior. But we need to treat those who are sick. If we lack the technology today to treat certain disorders, like psychopathy, we should still provide humane methods of incarceration. And even if one can prove that some anti-social or criminal behavior is absolutely the result of free will, we still have an obligation as a civilized people to treat others humanely because when we are cruel to others we corrupt ourselves.
It is distressing that even your neurologist guest uses terms such as "don't let people off the hook". He is still assuming that people are, at bottom, "responsible" for their behavior. I simply do not understand the point. What does that term mean when applied to a man with a brain tumor, or that classic case of the railway man who had a spike driven through his head? It's like blaming Jim Brady for crying at the wrong thing after having been shot. Or blaming somebody for being paralyzed after receiving a bullet in the spine. Or imprisoning somebody with Alzheimer's for driving a car and killing somebody.

mirugai's picture

mirugai

Saturday, August 11, 2012 -- 5:00 PM

PUNISHMENT OF CRAZY MURDERERS

PUNISHMENT OF CRAZY MURDERERS
A few weeks ago, I was discussing the crazy murdering of some innocents who were in a movie, with a psychiatrist friend. When I called the killer ?crazy,? my friend said that actually he might not have been ?insane? or crazy, because he might have been acting logically based on some real perception he had, of circumstances or politics, or something. My friend wanted to make taxonomic distinctions because she understood (from her training and practice) that there are various and varying treatment modalities dependent on these distinctions.
I contended that anyone who kills and wounds a whole bunch of people in a movie theater, no matter what his motivation, is ?crazy? as that word is normally used. And that the issue is not what brand of ?crazy? the guy has ?
唯一的问题是你们的社会会怎么对待这样一个杀害了一群无辜者的人。惩罚的范围和我们想象的一样广泛。把针扎进他的眼球,用压路机从脚到脸慢慢碾过他的身体,拆掉他住的房子,没收他家人和朋友的所有财产;To:试图了解他的动机,纠正他的错误,修复他的精神状态,宣布他痊愈了,然后释放他。
The only issue is what choice, in this spectrum, has whoever is in charge of a society?s rules decided upon. And the most interesting question about the choice, is: what do we learn about the society from the choice made.
The judicial system (judges, juries, prosecutors, at least) do a dance around ?diminished capacity? in order to get the punishment result they want to impose, without any real regard to laws.
Punishments have nothing to do with neural science, and everything to do with social science ? whoever has the power to impose punishment does it, trying to match punishment to their own social outrage. Prison sentences are ALL ridiculously long and inappropriate, and the longest are collective social insanity.
哲学家不应该把宝贵的时间浪费在神经科学上?我们要做的事情已经够多了,只是理性地思考意识。当科学家发现意识的神经中枢(NCC?s)时,所有这些都发生了。意识本身是否仍然和它的起源之前一样神秘?被发现。?例如,成本/收益?对犯罪行为的分析与神经科学无关,神经科学也不能帮助理解犯罪行为。
The bridge between scientific cause and effect is drama.
The guest said ?? parts of our brain that we have no access to?? This is scientific dual-brain b.s.; the First Question (unanswerable) of philosophy is ?what or who is ?we???

Guest's picture

Guest

Saturday, August 11, 2012 -- 5:00 PM

I recently was dressed down

I recently was dressed down for remarks made on another blog. It appears that the likes of such as Jared Loughner, James Holmes, et. al. have ignited much controversy. Rightly so. Anyway, I was soundly thrashed because of my frustration with and intolerance toward the criminal justice system and its treatment of the "insanity defense." I said that the ID should not be given any consideration at all, suggesting that it is a bogus cop-out---leading to seeming interminable "proceedings, analyses and evaluations" costing millions of dollars, while accused perpetrators are fed and housed at taxpayers' expense. I am NOT SORRY. And although I have dropped my participation on the blog mentioned, I'll just say this about murderers: KTAALGSTO. (or: kill them all and let god sort them out.) It is just another sort of war on terrorism---because these goons ARE terrorists.
Now, I understand that this approach might cut into the profits of certain neuroscientists. Well. It is not much of a science anyway, IMHO. Never thought much of its mother, psychology, either.
A reforming liberal,
TAP.

Guest's picture

Guest

Sunday, August 12, 2012 -- 5:00 PM

Wrong is wrong no matter the

Wrong is wrong no matter the cause,
And right is simply right.
Be right,
Or just be,
=

mirugai's picture

mirugai

Tuesday, August 14, 2012 -- 5:00 PM

xiba t: Thank you for taking

xiba t: Thank you for taking a position on these issues, well considered. In my opinion, "endless speculation" is exactly what philosophy should be about. The only worthwhile concluding position in philosophical dialog, other than "I agree with you," is "Then we agree to disagree," a position I often reach with some of the best philosophical minds I know (Scott the gardener, for instance). Your Buddha quote -- wonderful -- illustrates just what my comment says about the uses of neuro-science, I'm afraid: nothing about neuroscience will give any insight into the truth of the quote; only philosophy, and its endless speculation, and poetry, can connect a man's mind and evil.

Guest's picture

Guest

Wednesday, August 15, 2012 -- 5:00 PM

"It is a man's own mind, not

"It is a man's own mind, not his enemy or foe, that lures him to evil ways"
With due respect, All is truly One.
Be One too,
=

Guest's picture

Guest

Wednesday, August 15, 2012 -- 5:00 PM

A former acquaintance, who

A former acquaintance, who might have been a friend, once said that many problems of man could be resolved by talking them through. He has written several books, and is a respected neuroscientist in his own right. Thing is, we have been talking for several millenia. And, the more we talk, the less we agree upon. Others have written books about this, trying to explain on some level why it is we just cannot get along with one another. I have put my own label on it which will not appear here. With respect to MJH, oneness is relative---attainable, perhaps, but dependent upon will: with which we are in woefully short supply...
Go ahead, Michael, say a few "remover of difficulties" prayers, or Hare Krishnas, if those suit you. It is not working yet---near as I can tell. But, I could be missing something. Certainly. No doubt.

Guest's picture

Guest

Thursday, August 16, 2012 -- 5:00 PM

For no particular reason, a

For no particular reason, a poem I ran across several decades ago, now comes to mind. To the best of my recollection:
The first man, having split a hair,
wrote a thesis, then and there.
A second joined it up again,
and said he'd had an addl'd brain.
A third then wrote a book to say,
反正发型也不对。

Guest's picture

Guest

Thursday, August 16, 2012 -- 5:00 PM

Actions speak louder than

行动胜于祈祷,保罗。
Rather than a prayer head down to the river and study nature, the solution of absolute certainty abounds there.
And try this experiment:
在不同的地方,把一根棍子扔进水流中无数次,然后告诉我你发现了什么,这根棍子和河水一样朝哪个方向流动?
Is the rivers' direction measurable? Is nature measurable? Are you, are we?
I found nature as is myself infinite there.
What will you find?
Your own Way,
The Way,
Freedom,
Equality,
Oneness,
or with any luck,
Just is
=

Guest's picture

Guest

Wednesday, September 5, 2012 -- 5:00 PM

Neuroscience and the law--

神经科学与法律——神经科学与法律——神经科学与法律.....我脑子里一直在想这件事,我在想优生学这门失败的"科学"我读过很多关于优生学的书,知道它是假的——从戈达德,到希特勒,还有很多。但是,恕我直言,总有一些界限——在某个地方——可以概括地说:适可而止。我对科学和法律的企图联姻感到非常厌倦;就像我厌倦了宗教和科学之间的所谓战争一样。古尔德会说什么?诺玛?非重叠magisteria吗?还没人明白吗?
Punish killers, or suffer the continuance of killing. If a murderer thinks he may get twenty to life, he will take the roll of the dice---maybe get out, and live to kill again. That is total nonsense. Does anyone get THIS yet?

Guest's picture

Guest

Saturday, October 6, 2012 -- 5:00 PM

This is an old post. Most of

This is an old post. Most of what needed to be said has been said. In one way, or another. But, it seems to me that, as has been stated or inferred, we are now favoring understanding and forgiveness over punishment; rehabilitation over retribution. We want to identify the weakness(es) that lead people to criminal acts, so that we can what?, excuse those criminal acts? If I were to murder anyone for any reason other than self-defense or the defense of a friend or loved one, I would expect to be punished "to the full extent of the law", whatever that might be. No lame excuses about heat of passion; unhappy childhood or other abusive circumstances. Here's how it is: the more we try to understand and excuse, the deeper we are mired in confusion. Civilization, as we have known it, is rotting---largely because of our futile efforts to manipulate it and "make nice" with everyone. Well. That is not working out very well. Elementary, Doctor Watson.

mwsimon's picture

mwsimon

Tuesday, October 14, 2014 -- 5:00 PM

Another frightening way

Another frightening way neuroscience plays into the criminal justice system is with the idea of preventing crime before it happens. A friend and I were throwing around sci-fi what ifs recently, and we came upon the possibility of looking at people's brains, or genetic sequences, to determine who is inclined to kill. If the government was able to do this with accuracy, they might see it as in everyone's best interest if these people were locked up. Perhaps this would prevent a lot of murders. Worth it? Most of us will say no. Having the brain chemistry, without the guilt, doesnt incline us to put someone in jail

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marcbarber467

Wednesday, July 29, 2015 -- 5:00 PM

Thanks for providing such

谢谢你提供这么有用的信息。我很欣赏你的专业方法。sales training

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