Incognito (29 page)

There are more reasons to understand how brains lead to behavior. Along any axis that we measure human beings, we discover a wide-ranging distribution, whether in empathy, intelligence, swimming ability, aggressiveness, or inborn talent at cello or chess.
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People are not created equal. Although this variability is often imagined to be an issue best swept under the rug, it is in fact the engine of evolution. In each generation, nature tries out as many varieties as it can generate, along all available dimensions—and the products best suited for the environment get to reproduce themselves. For the past billion years this has been a tremendously successful
approach, yielding human beings in rocket ships from single self-replicating molecules in pre-biotic soup.

But this variation is also a source of trouble for the legal system, which is built partially upon the premise that humans are all equal before the law. This built-in myth of human equality suggests that all people are equally capable of decision making, impulse control, and comprehending consequences. While admirable, the notion is simply not true.

Some argue that even though the myth may be bullet-riddled, it may still be useful to hold on to. The argument suggests that whether or not the equality is realistic, it yields a “particularly admirable kind of social order, a counterfactual that pays dividends in fairness and stability.”
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In other words, assumptions can be provably wrong and still have utility.

I disagree. As we have seen throughout the book, people do not arrive at the scene with the same capacities. Their genetics and their personal histories mold their brains to quite different end points. In fact, the law partially acknowledges this, because the strain is too great to pretend that
all
brains are equal. Consider age. Adolescents command different skills in decision making and impulse control than do adults; a child’s brain is simply not like an adult’s brain.
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So American law draws a bright line between seventeen years and eighteen years to ham-handedly acknowledge this. And the United States Supreme Court ruled in
Roper v Simmons
that those under the age of eighteen when they committed a crime could not be given the death penalty.
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The law also recognizes that IQ matters. Thus, the Supreme Court made a similar decision that the mentally retarded cannot be executed for capital crimes.

So the law already recognizes that all brains are not created equal. The problem is that the current version of the law uses crude divisions: If you’re eighteen we can kill you; if you’re one day shy of your eighteenth birthday you’re safe. If your IQ is 70, you get the electric chair; if it’s 69, get comfortable on your prison mattress. (Because IQ scores fluctuate on different days and with different
testing conditions, you’d better hope for the right circumstances if you’re near the borderline.)

There’s no point in pretending that all non-minor, non–mentally-retarded citizens are equal to one another, because they’re not. With different genes and experience, people can be as different on the inside as they are on the outside. As neuroscience improves, we will have a better ability to understand people along a spectrum, rather than in crude, binary categories. And this will allow us to tailor sentencing and
rehabilitation for the individual rather than maintain the pretense that all brains respond to the same incentives and deserve the same punishments.

Personalization of the law can go in many directions; I’ll suggest one here. Let’s return to the case of your daughter writing with a crayon on the wall. In one scenario, she’s doing it mischievously; in the other, while she’s
sleepwalking. Your intuition tells you that you would punish only for the awake case and not for the asleep case. But why? I propose that your intuition may incorporate an important insight about the purpose of punishment. In this case, what matters is not so much your intuition about blameworthiness (although she is clearly not blameworthy when she’s asleep), but instead about modifiability. The idea would be to punish only when the behavior is
modifiable
. She cannot modify her behavior in the case of sleepwalking, and therefore punishment would be cruel and fruitless.

I speculate that someday we will be able to base punishment decisions on
neuroplasticity. Some people have brains that are better able to respond to classical conditioning (punishment and reward), while other people—because of psychosis, sociopathy, frontal maldevelopment, or other problems—are refractory to change. Take a punishment such as a harsh sentence of breaking rocks: if this is meant to disincentivize prisoners from returning, there is no
purpose of this punishment where there is not appropriate brain plasticity to receive it. If there is hope of using classical conditioning to effect a change in behavior that would allow social reintegration, then punishment is appropriate. When a convicted criminal is not going to be usefully changed by punishment, he should simply be warehoused.

Some philosophers have suggested that punishment could be based on the number of options that were available to an actor. A fly, say, is neurally incapable of navigating complex choices, whereas a human (and especially a smart human) has many choices and therefore more control. A system of punishment could be devised, then, in which the degree of punishment goes with the degree of options available to the agent. But I don’t think this is the best approach, because someone might have few options but be nonetheless modifiable. Take the non-housetrained puppy. It does not even consider whining and pawing at the door when it has to urinate; the choice was not its to make, because it had not developed the notion of that option. Nonetheless, you scold the dog to modify its central nervous system for appropriate behavior. The same goes for a child who shoplifts. She does not understand the issues of ownership and economics at first. You punish her not because you feel she had plenty of options, but instead because you understand her to be modifiable. You are doing her a favor: you are socializing her.

This proposal seeks to align punishment with
neuroscience. The idea is to replace folk intuitions about blameworthiness with a fairer approach. Although it would be expensive now, societies in the future might experimentally derive an index to measure neuroplasticity—that is, the capacity to modify the circuitry. For those who are modifiable, such as a teenager who still needs further frontal development, a harsh punishment (breaking rocks all summer) would be appropriate. But someone with frontal lobe damage, who will never develop the capacity for socialization, should be incapacitated by the state in a different sort of institution. The same goes for the mentally retarded or schizophrenic;
punitive action may slake bloodlust for some, but there is no point in it for society more broadly.

We’ve spent the first five chapters exploring the degree to which we are not the ones driving the boat. We saw that people have little capacity to choose or explain their actions, motivations, and beliefs, and that the captain’s wheel is steered by the unconscious brain, shaped by innumerable generations of evolutionary selection and a lifetime of experiences. The present chapter has explored the social consequences of that: How does the inaccessibility of the brain matter at the level of society? How does it navigate the way we think about blameworthiness, and what should we do about people who behave very differently?

Currently, when a criminal stands in front of the judge’s bench, the legal system asks,
Is this person blameworthy
? In the case of Whitman or Alex or a Tourette’s patient or a sleepwalker, the system says no. But if you have no obvious biological problem, the system says yes. This cannot be a sensible way to structure a legal system, given the certainty that technology will continue to improve every year and move the position of the “fault” line. It is perhaps too early to say whether every aspect of human behavior will someday be understood as beyond our volition. But in the meantime, the march of science will continue to push the place where we draw our line on the spectrum between volition and non-volition.

As director of Baylor College of Medicine’s Initiative on Neuroscience and Law, I have gone around the world lecturing on these issues. The biggest battle I have to fight is the misperception that an improved biological understanding of people’s behaviors and internal differences means we will forgive criminals and no longer take them off the streets. That’s incorrect. Biological explanation will not exculpate criminals. Brain science will improve the legal system, not impede its function.
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For the smooth operation of
society, we will still remove from the streets those criminals who prove themselves to be over-aggressive, under-empathetic, and poor at controlling their impulses. They will still be taken into the care of the government.

But the important change will be in the
way
we punish the vast range of criminal acts—in terms of rational sentencing and new ideas for rehabilitation. The emphasis will shift from punishment to recognizing problems (both neural and social) and meaningfully addressing them.
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As one example, we learned in this chapter how the team-of-rivals framework can offer new hope in terms of a rehabilitative strategy.

Further, as we come to better understand the brain, we can concentrate on building societal incentives to encourage good behavior and discourage bad behavior. Effective law requires effective behavioral models: understanding not just how we would
like
people to behave, but how they
actually
behave. As we mine the relationships among neuroscience, economics, and decision making, social policy can be better structured to more effectively leverage these findings.
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This will reduce our emphasis on retribution in exchange for proactive, preventative policy making.

My argument in this chapter has not been to redefine blameworthiness; instead it is to remove it from the legal argot. Blameworthiness is a backward-looking concept that demands the impossible task of untangling the hopelessly complex web of genetics and environment that constructs the trajectory of a human life. Consider, for example, that all known serial murderers were abused as children.
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Does this make them less blameworthy? Who cares? It’s the wrong question to ask. The knowledge that they were abused encourages us to prevent child abuse, but it does nothing to change the way we deal with the particular serial murderer standing in front of the bench. We still need to warehouse him. We need to keep him off the streets, irrespective of his past misfortunes. The child abuse cannot serve as a meaningful biological excuse; the judge must take action to keep society safe.

The concept and word to replace
blameworthiness
is
modifiability
, a forward-looking term that asks, What can we do from here? Is rehabilitation available? If so, great. If not, will the punishment of a prison sentence modify future behavior? If so, send him to prison. If punishment won’t help, then take the person under state control for the purposes of incapacitation, not retribution.

My dream is to build an evidence-based, neurally compatible social policy instead of one based on shifting and provably bad intuitions. Some people wonder whether it’s unfair to take a scientific approach to sentencing—after all, where’s the humanity there? But this concern should always be met with a question: what’s the alternative? As it stands now, ugly people receive longer sentences than attractive people; psychiatrists have no capacity to guess which sex offenders will reoffend; and our prisons are overcrowded with drug addicts who could be more usefully dealt with by rehabilitation rather than incarceration. So is current sentencing really better than a scientific, evidence-based approach?

Neuroscience is just beginning to scratch the surface of questions that were once only in the domain of philosophers and psychologists, questions about how people make decisions and whether they are truly “free.” These are not idle questions, but ones that will shape the future of legal theory and the dream of a biologically informed jurisprudence.
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After Galileo discovered the moons of Jupiter in his homemade telescope in 1610, religious critics decried his new sun-centered theory as a dethronement of man. They didn’t suspect that this was only the first dethronement of several. One hundred years later, the study of sedimentary layers by the Scottish farmer
James Hutton toppled the Church’s estimate of the age of the Earth—making it eight hundred thousand times older. Not long afterward,
Charles Darwin relegated humans to just another branch in the swarming animal kingdom. At the beginning of the 1900s,
quantum mechanics irreparably altered our notion of the fabric of reality. In 1953,
Francis Crick and
James Watson deciphered the structure of DNA, replacing the mysterious ghost of life with something that we can write down in sequences of four letters and store in a computer.