The Anatomy of Violence (56 page)

Let’s take another example. I’ll call him
Fred Haltoil. Fred was brought up in an abusive household and, according to his sister, was thrashed by a bad-tempered father who had little if any understanding of his son. His home life was traumatic, with four of his siblings who didn’t survive beyond childhood. The antagonism between father and son was long-standing and bitter. His family moved repeatedly. Like many offenders he failed in school—having been expelled from one—and left education at the age of sixteen without a diploma. He joined the military, where he proved to be a fearless soldier who fought courageously for his country during wartime. Fred took up one of the most dangerous positions—as a message runner—and was gassed in the process. Hospitalized, he was blind for a month and suffered post-traumatic stress disorder for his near-death experience.
²³
Perhaps not surprisingly, like many war veterans his emotional compassion for others was blunted as a result of his traumatic war experiences.

Demobilized, Fred was unemployed and slept part of the time in shelters for the homeless, moving around from place to place.
²⁴
Lacking education and useful life skills, he had no true sense of direction or ambition. His social dysfunction was such that he was never able to develop an intimate physical relationship with another person. His repeated attempts to normalize his life by unrealistic applications for art school and architecture were inevitably unsuccessful, given his lack of training and true talent. He was on a downward spiral. After serving a five-year prison term,
²⁵
he, like Page, went on to become a killer after his release.

Given the same option that the judges of Donta Page had between the death penalty and life in prison without the possibility of parole for this murderer, would you as a juror spare Fred the death penalty? I think many of you would. He had a lot of the risk factors for violence—child
abuse, negative home background, traumatic life events with the early illnesses and deaths of his siblings, school failure and expulsion, unemployment and occupational failure, homelessness, and major trauma
exposure. Like Page, does he not deserve some degree of
clemency?

Perhaps not for Fred Haltoil—alias Adolf Hitler—who was responsible for the deaths of 6 million Jews and many millions more. There’s no question that Hitler was not a good man. His best defense lawyer would have had to admit that he pushed the envelope a bit when it came to social policy. Like Page, he was at best a flawed character, and at worst an inhuman monster. For any other killer, we might show mercy. But could you ever excuse Adolf Hitler?

In case you are willing to show mercy to Hitler and those like him who perpetrated
genocide—
Idi Amin,
Pol Pot,
Joseph Stalin—bear in mind that American society is wired differently than you are.
James Castle, the defense attorney of Donta Page, offered to enter the plea of guilty on all charges and receive a life sentence without the possibility of parole
before
the trial began. Page would never again be free to terrorize anyone outside of prison. Despite this, the prosecution pressed for the death penalty and went to trial—at great expense to you. Clearly this mind-set goes well beyond the protection of society and into the realm of costly retribution.

Are we wired for retribution? I believe that we evolved to have inside us deep-rooted feelings of retribution and rage at those selfish psychopaths who cheat on our civilized rules of social engagement, and who ruthlessly exploit our charity and trust. Without that powerful emotional mechanism to motivate rage and righteous indignation against these offenders, our current-day civilized society would not exist. If we forgave psychopaths we would be overrun by them. We need to hold a grudge. There is surely something to be said for simmering retribution as a mainstay of our society.

You may alternatively have bought into the risk-factors argument for clemency I have given you. You may stand unswayed by the retributive argument. Others will feel differently. I can understand—I used to feel just like you. Why do people differ in their views? If you, unlike others, feel in favor of clemency, perhaps unlike Peyton Tuthill you have not had your throat cut recently.

You’ll recall from the Introduction my own feelings of being a victim of violence and the
Jekyll-and-Hyde debate I have with myself today. That scientifically trained alter ego has spent his life trying to
stop crime by working out what causes it and then developing treatments. He’s spent four years of his life holed up in top-security prisons helping the dregs of society, running the gauntlet of the prison hierarchy from
murderers and bank robbers at the top to pedophiles at the bottom. He’s even argued that recidivistic crime is a clinical disorder and that we should go easier on those that we hit the hardest. And he is resolute in his belief—based on the body of scientific evidence that has been amassed—that early risk factors beyond the individual’s control help launch some into criminal careers. He urges all of us to take a hard look at the scientific evidence, and not to let our instincts and emotions hijack our rational thinking.

And yet—can I really forgive? Can I forget? Can I let slip for just once my evolutionary instincts that yearn for revenge and retribution? The
Amish apparently could when
Charles Roberts shot ten of their little girls in a schoolhouse in Lancaster County, down the road from me in Pennsylvania. That community’s response to this despicable act was:

The Amish visited the killer’s family to express their forgiveness and even set up a fund for them. I was brought up a
Catholic and always admired Jesus Christ, so why can’t I have his sense of forgiveness and resolve to turn the other cheek? And if you find it hard to believe the response of the Amish, can you more easily believe that others criticized their response as misguided and tantamount to denying the existence of evil?
^27
,
28

So I argue back and forth with myself on this perspective, first arguing one side, and then the other. It sounds a little crazy, but it’s really all right to talk to yourself—as long as you don’t interrupt! And perhaps there is a bit of Jekyll and Hyde inside many of us. The ultimate challenge arises in how to reconcile these conflicting perspectives within ourselves to develop a compromise position. We’ll return to this issue further when we turn to the future of neurocriminology in the next chapter. But right now let’s return to our starting point—the two case studies that may help shape our perspective and judgment on the Jekyll-and-Hyde debate.

Some of us have felt the double-edged sword that neurocriminology offers up to us.
Peyton
Tuthill forcefully felt the sharp edge of the blade. I felt the same edge, but far more lightly. Tuthill’s mother, Pat, vents against the violence done to her daughter. My Mr. Hyde rages for revenge.

Yet is there a blunter edge to the blade that can soften these retributive feelings, and give us pause for thought on punishment? Perhaps the medical model, with its Hippocratic oath of doing no harm, can help render a more benign judgment on this tortuous issue. Let’s look back both at
Donta Page and also at our point of departure, Mr.
Oft.

The medical information on Donta Page’s early life—as well as his brain scan in adulthood—did not deter the jury from finding him responsible and rendering him guilty of first-degree deliberate murder, first-degree felony murder, first-degree sexual
assault, first-degree
burglary, and aggravated
robbery against Peyton Tuthill. But would it make a difference in deciding whether he should live or die? In Colorado, on February 20, 2001, this question was decided at Page’s sentencing hearing by a panel of three judges who had to weigh the evidence and make a fateful decision. Would Page be held fully responsible for his acts and be executed by
lethal injection? Or would they accept the biosocial argument that factors early in his life, beyond his control, led him down the path to violence? Should these facts mitigate the punishment, resulting in prison without the possibility of parole?

The panel decided not to execute him. They accepted the argument that a toxic mix of biological and social factors mitigated, to a degree, Page’s responsibility. It is what I and the defense team had argued for. But is that the right decision? Or is it nothing more than a slippery slope down to a future lawless society that knows no bounds and where all evil acts have some type of “excuse”? Where no one is responsible for anything?

Retributivists can be reassured that Page was found to be legally responsible for what he did. But what about Mr. Oft?
Should he be held responsible for his actions?
Would
you
hold him responsible? Bear in mind that in Donta Page’s case, we are talking about a correlation—not causation—between brain dysfunction and later violence. Yet in Mr. Oft’s case we come much closer to causality—the dramatic temporal sway of orbitofrontal disturbance with the sexual swing of his
pedophilic
passion. What is your verdict? Take a moment to render your judgment.

I put this very question to an assembly of fourteen federal and state judges in the Federal Courthouse in Philadelphia on a cold November morning in 2011. It was a seminar organized by the AAAS—
American Association for the Advancement of Science—aimed at bringing neuroscientists together with the judiciary.
²⁹
I suggested to them that Mr. Oft
was
legally responsible for his pedophilia. Every one of these judges agreed. It’s not that I have any expertise in law—unlike my good colleague Stephen Morse, at the University of Pennsylvania Law School, who is an international expert on criminal
responsibility and who educated me on the case.

How can that decision possibly be reached when we have a clear-cut case of a medical condition—far beyond the individual’s control, let alone his wishes—that hijacks his brain control center and turns him into a sexual predator? Pedophilia in itself is so “unnatural” that it smacks of a clinical disorder even if there were no corroborative medical evidence.
³⁰
How can you turn a blind eye to the on-off tumor growth and the on-off pedophilia?

The legal answer is relatively simple. In American law, legal responsibility is defined in terms of mental capacity—specifically, the capacity for rational thought.
³¹
Let’s assume that you clearly committed a criminal act. In order not to be held responsible, you need an “
affirmative defense.” Here you “affirm” that the crime took place—you did it—but your defense is that you are not culpable or worthy of blame because you lacked “
rational capacity.” You could lack rational capacity because you were suffering from a serious
mental illness such as
schizophrenia, or because you were mentally retarded, or because you were just a young, irresponsible child.
³²
If you could be shown to lack normal capacity for rational thinking, you would not be held responsible for the crime you committed, even if you freely admit to committing the crime.
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In these cases, you lack substantial capacity to appreciate the wrongfulness of your act.

To translate this legalese into common parlance, rational capacity requires two basic conditions. First, you knew what you were doing. Second, you knew that what you were doing was wrong. How does Mr. Oft’s mental state line up with these two conditions?

On the first condition, Mr. Oft knew what he was doing. He freely admitted to the fact that he knew he was going to bed with his twelve-year-old
stepdaughter and molesting her. On the second condition, he knew that what he was doing was wrong. It was almost as if he, like me, had a Dr.
Jekyll and a Mr. Hyde inside him, with Mr. Hyde having a more telling influence. In reflecting on his pedophilic action with his stepdaughter he comments: “Somewhere, deep, deep in the back of my head, there was a little voice saying ‘You should not do this.’ But there was a much louder voice saying ‘What the heck? Why not?’ ”
³⁴

No matter what you would like to believe—or what you think others should believe—there is no hiding from the legal fact that Mr. Oft is responsible for his pedophilic acts. He was fully aware of his action at a cognitive level.

Yet how in the course of justice would you compare Mr. Oft to a pedophile who did just the same act—but did not have that whopping orbitofrontal
tumor clouding his moral sense and propelling him to those under-the-sheets illicit activities? Are they one and the same? If you agree, Mr. Oft would beg to disagree: “Now, whether I should be held as accountable for it as someone without a tumor? No, I don’t think so.”
³⁵
Nevertheless, under current law in the United States, they are both viewed as legally responsible for their acts.

Mr. Oft knew what he was doing. Yet, at another level—at the affective, emotional level—there was something amiss in Oft. As his wife, Anne, comments when she discusses how she confronted Mr. Oft on what he did: “It seemed as though he got that what he was doing was wrong, but he just didn’t seem to get it. He just sort of had this look of ‘What?’ ”
³⁶

Yes, Mr. Oft knew at a cognitive level that what he was doing was wrong, but did he have the
feeling
that it was wrong? When he wet his pants after admission to the hospital, he did not experience the secondary emotions of embarrassment and
shame. That
lack of feelings arises after damage to the
ventral orbitofrontal cortex.
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Similarly, he did not experience a sense of shame and remorse when committing acts of pedophilia.

We can place this affective deficit in the context of offenders more broadly. We saw earlier, in
chapter 3
, how psychopathic offenders fail to show activation of the
brain’s emotional circuitry when contemplating moral actions, and we’ve seen how the ventral orbitofrontal cortex is also structurally
impaired in offenders. Mr. Oft’s case is just the tip of the iceberg of a much larger group of offenders in whom the brain contributes to crime.