Incognito (28 page)

It will always be impossible to know with precision what someone will do upon release from prison, because real life is complicated. But more predictive power is hidden in the numbers than people customarily expect. Some perpetrators are more dangerous than others, and, despite superficial charm or superficial repugnance, dangerous people share certain patterns of behavior in common. Statistically-based sentencing has its imperfections, but it allows evidence to trump folk-intuition, and it offers sentencing customization in place of the blunt guidelines that the legal system typically employs. As we introduce brain science into these measures—for example, with neuroimaging studies—the predictive power will only improve. Scientists will never be able to foretell with high certainty who will reoffend, because that depends on multiple factors, including circumstance and opportunity. Nonetheless, good guesses are possible, and neuroscience will make those guesses better.
²⁶

Note that the law, even in the absence of detailed neurobiological knowledge, already embeds a bit of forward thinking: consider the lenience afforded a crime of passion versus a premeditated murder. Those who commit the former are less likely to recidivate than those who commit the latter, and their sentences sensibly reflect that.

Now, there’s a critical nuance to appreciate here. Not everyone with a brain tumor undertakes a mass shooting, and not all males commit crimes. Why not? As we will see in the next chapter, it is because genes and environment interact in unimaginably complex patterns.
²⁷
As a result, human behavior will always remain unpredictable. This irreducible complexity has consequences: when a brain is standing in front of the bench, the judge cannot care about the history of the brain. Was there fetal maldevelopment, cocaine use during pregnancy, child abuse, a high level of
in utero
testosterone, any small genetic change that offered a 2 percent higher predisposition to violence if the child was later exposed to mercury? All of these factors and hundreds of others interact, with the upshot that it would be a fruitless endeavor for the judge to try to disentangle them to determine blameworthiness. So the legal system
has
to become forward-looking, primarily because it can no longer hope to do otherwise.

Beyond customized sentencing, a more brain-compatible, forward-looking legal system will allow us to transcend the habit of treating prison as a one-size-fits-all solution.
Prisons have become our de facto mental health care institutions. But there are better approaches.

To begin, a forward-thinking legal system will parlay biological understanding into customized
rehabilitation
, viewing criminal behavior the way we understand other such medical conditions as epilepsy, schizophrenia, and depression—conditions that now allow the seeking and giving of help. These and other brain disorders
have found themselves on the other side of the fault line now, where they rest comfortably as biological, not demonic, issues. So what about other forms of behavior, such as criminal acts? The majority of lawmakers and voters stand in favor of rehabilitating criminals instead of packing them into overcrowded prisons, but the challenge has been the dearth of new ideas about
how
to rehabilitate.

And, of course, we cannot forget the scare that still lives on in the collective consciousness:
frontal
lobotomies. The lobotomy (originally called a leucotomy) was invented by
Egas Moniz, who thought it might make sense to help criminals by scrambling their frontal lobes with a scalpel. The simple operation cuts the connections to and from the prefrontal cortex, often resulting in major personality changes and possible mental retardation.

Moniz tested this out on several criminals and found, to his satisfaction, that it calmed them down. In fact, it flattened their personalities entirely. Moniz’s protégé,
Walter Freeman, noticing that institutional care was hampered by a lack of effective treatments, saw the lobotomy as an expedient tool to liberate large populations from treatment and back into private life.

Unfortunately, it robbed people of their basic neural rights. This problem was brought to its extreme in
Ken Kesey’s novel
One Flew Over the Cuckoo’s Nest
, in which the rebellious institutionalized patient Randle McMurphy is punished for bucking authority: he becomes the unlucky recipient of a lobotomy. McMurphy’s gleeful personality had unlocked the lives of the other patients in the ward, but the lobotomy turns him into a vegetable. Upon seeing McMurphy’s new condition, his docile friend “Chief” Bromden does the favor of suffocating him with a pillow before the other inmates can see the ignominious fate of their leader. Frontal lobotomies, for which Moniz won the Nobel Prize, are no longer considered the proper approach to criminal behavior.
²⁸

But if the lobotomy stops the crimes, why not do it? The ethical problem pivots on how much a state should be able to change its
citizens.
^*
To my mind, this is one of the landmark problems in modern neuroscience: as we come to understand the brain, how can we keep governments from meddling with it? Note that this problem raises its head not just in sensational forms, such as the lobotomy, but in more subtle forms, such as whether second-time sex offenders should be forced to have chemical castration, as they currently are in California and Florida.

But here we propose a new solution, one that can rehabilitate without ethical worries. We call it the prefrontal workout.

To help a citizen reintegrate into society, the ethical goal is to change him
as little as possible
to allow his behavior to come into line with society’s needs. Our proposal springboards off the knowledge that the brain is a team of rivals, a competition among different neural populations. Because it’s a competition, this means the outcome can be tipped.

Poor
impulse control is a hallmark characteristic of the majority of criminals in the prison system.
²⁹
They generally know the difference between right and wrong actions, and they understand the seriousness of the punishment—but they are hamstrung by an inability to control their impulses. They see a woman with an expensive purse walking alone in an alley, and they cannot think but to take advantage of the opportunity. The temptation overrides the concern for their future.

If it seems difficult to empathize with people who have poor impulse control, just think of all the things you succumb to that you don’t want to. Snacks? Alcohol? Chocolate cake? Television? One doesn’t have to look far to find poor impulse control pervading our own landscape of decision making. It’s not that we don’t know
what’s best for us, it’s simply that the frontal lobe circuits representing the long-term considerations can’t win the elections when the temptation is present. It’s like trying to elect a party of moderates in the middle of war and economic meltdown.

So our new rehabilitative strategy is to give the frontal lobes practice in squelching the short-term circuits. My colleagues
Stephen LaConte and
Pearl Chiu have begun leveraging real-time feedback in brain imaging to allow this to happen.
³⁰
Imagine that you’d like to get better at resisting chocolate cake. In this experiment, you look at pictures of chocolate cake during brain scanning—and the experimenters determine the regions of your brain involved in the craving. Then the activity in those networks is represented by a vertical bar on a computer screen. Your job is to make the bar go down. The bar acts as a thermometer for your craving: If your craving networks are revving high, the bar is high; if you’re suppressing your craving, the bar is low. You stare at the bar and try to make it go down. Perhaps you have insight into what you’re doing to resist the cake; perhaps it is inaccessible. In any case, you try out different mental avenues until the bar begins to slowly sink. When it goes down, it means you’ve successfully recruited frontal circuitry to squelch the activity in the networks involved in impulsive craving. The long term has won over the short. Still looking at pictures of chocolate cake, you practice making the bar go down over and over until you’ve strengthened those frontal circuits. By this method, you’re able to visualize the activity in the parts of your brain that need modulation, and you can witness the effects of different mental approaches you might take.

Returning to the democratic team-of-rivals analogy, the idea is to get a good system of checks and balances into place. This prefrontal workout is designed to level the playing field for debate among the parties, cultivating reflection before action.

And really, that’s all maturation is. The main difference between teenage and adult brains is the development of the frontal lobes.
The human prefrontal cortex does not fully develop until the early twenties, and this underlies the impulsive behavior of teenagers. The frontal lobes are sometimes called the organ of socialization, because becoming socialized is nothing but developing circuitry to squelch our basest impulses.

This explains why damage to the frontal lobes unmasks unsocialized behavior that we would never have thought was fenced in there. Recall the patients with frontotemporal dementia who shoplift, expose themselves, urinate in public, and burst out into song at inappropriate times. Those
zombie systems have been lurking under the surface the whole time, but they’ve been masked by a normally functioning frontal lobe. The same sort of unmasking happens when a person goes out and gets rip-roaring drunk on a Saturday night: they’re disinhibiting normal frontal function and letting the zombies climb onto the main stage.

After training at the prefrontal gym, you might still crave the chocolate cake, but you’ll know how to win over the craving instead of letting it win over you. It’s not that we don’t want to enjoy our impulsive thoughts (
Mmm, cake
), it’s merely that we want to endow the frontal cortex with some control over whether we act upon them (
I’ll pass
). Similarly, if a person considers committing a criminal act, that’s permissible as long as he doesn’t take action. For the pedophile, we cannot hope to control whether he is attracted to children. As long as he never acts on it, that may be the best we can hope for as a society that respects individual rights and freedom of thought. We cannot restrict what people think; nor should a legal system hope to set that as its goal. Social policy can only hope to prevent impulsive thoughts from tipping into behavior until they are reflected upon by a healthy neurodemocracy.

Although real-time feedback involves cutting-edge technology, that should not distract from the simplicity of the goal: to enhance a person’s capacity for long-term decision making. The goal is to give more control to the neural populations that care about long-term consequences. To inhibit impulsivity. To encourage reflection. If a citizen thinks about long-term consequences and
still decides to move forward with an illegal act, then we’ll deal with those consequences accordingly. This approach has ethical importance and libertarian appeal. Unlike a lobotomy, which sometimes leaves the patient with only an infantile mentality, this approach opens an opportunity for a willing person to help himself. Instead of a government mandating a psychosurgery, here a government can offer a helping hand to better
self-reflection and socialization. This approach leaves the brain intact—no drugs or surgery—and leverages the natural mechanisms of brain plasticity to help the brain help itself. It’s a tune-up rather than a product recall.

Not all people who increase their capacity for self-reflection will come to the same sound conclusions, but at least the opportunity to listen to the debate of the neural parties is available. Note also that this approach might restore a bit of the hoped-for power of deterrence, which can work only for people who think about and act upon long-term consequences. For the impulsive, threats of punishment have no real chance to weigh in.

The science of the prefrontal workout is at its very earliest stages, but we have hope that the approach represents the correct model: it is simultaneously well grounded in biology and ethics, and it allows a person to help himself to better long-term decision making. Like any scientific attempt, it could fail for any number of unforeseen reasons. But at least we have reached a point where we can develop new ideas rather than assuming that incarceration is the only practical solution.

One of the challenges to implementing new rehabilitative approaches is winning popular acceptance. Many people (but not all) have a strong retributive impulse: they want to see punishment, not
rehabilitation.
³¹
I understand that impulse, because I have it too. Every time I hear about a criminal committing an odious act, it makes me so angry that I want to take vigilante-style revenge. But just because we have the drive for something doesn’t make it the best approach.

Take xenophobia, the fear of foreigners. It’s completely natural. People prefer people who look and sound like them; although
contemptible, it is common to dislike outsiders. Our social policies work to cement into place the most enlightened ideas of humanity to surmount the basest facets of human nature. And so the United States passed antidiscrimination housing laws in the form of Title VIII of the Civil Rights Act of 1968. It took a long time to get there, but the fact that we did demonstrates that we are a flexible society that can improve our standards based on better understanding.

And so it goes with
vigilantism: despite our understanding of the retributive impulse, we agree to resist it as a society because we know that people can get confused about the facts of a crime, and that everyone deserves the presumption of innocence until proven guilty before a jury of peers. Similarly, as we come to understand more about the biological basis of behavior, it will make sense to subjugate our intuitive notions of blameworthiness in deference to a more constructive approach. We’re capable of learning better ideas, and the job of the legal system is to take the very best ideas and carefully mortar them into place to withstand the forces of changing opinion. While brain-based social policy seems distant today, it may not be for long. And it may not always seem counterintuitive.