pageok
pageok
pageok
[Adam Kolber, guest-blogging, February 11, 2008 at 4:36pm] Trackbacks
Neurolaw Generally:

My thanks to Eugene for inviting me to guest blog about law and neuroscience, sometimes referred to as "neurolaw." The neurolaw literature is typically addressed to one of two very different sets of issues. The first set is about responsibility. In particular, scholars ask whether we can justifiably hold people responsible for actions that are caused by activities in their brain for which they are not themselves responsible.

Consider the subject of this medical case study, who had no prior history of unusual sexual behavior. At around age 40, he began to demonstrate pedophilic behaviors (e.g., he made sexual advances toward his prepubescent stepdaughter). The man was found guilty of child molestation and given the opportunity to successfully complete a sexual addiction treatment program in lieu of going to jail. Unfortunately, he made sexual advances toward others in the treatment program and was forced to leave the program. Prior to being sent to jail, he complained of severe headaches and was taken to the hospital. Doctors soon discovered that he had a brain tumor in his orbitofrontal cortex. After the tumor was surgically removed, his sexual behavior returned to normal. You have to read the full case study for all the details. The bottom line, though, is that the study authors think it quite likely that the tumor played a causal role in the subject's inappropriate behavior.

Many of my students have the intuition that the man should not be deemed criminally responsible for his sexual activities while he had the tumor. He is certainly not responsible for having the tumor, and it seems like the crime would not have happened but for the tumor. In most jurisdictions, however, I think the subject would be unlikely to mount a successful insanity defense.

If these issues about responsibility sound familiar, it's because they are. This side of neurolaw often rehashes ancient questions about free will and agency (often without recognizing the questions as such). I do think that neuroscience offers a new perspective from which to explore these issues, and it goes something like this: As an empirical matter, our willingness to attribute responsibility to an actor (like the guy described above) tends to weaken when the person's actions seem to be caused by factors external to the actor. The more that we understand the causal mechanisms of human behavior, many of which will eventually be understood in neuroscientific terms, the less we tend to attribute responsibility to human agency. So, even if we've known for a very long time that our behavior is caused by events and circumstances beyond our control, somehow being made better aware of those causes seems to diminish, again as an empirical matter, our attributions of agency to particular human beings. These are not philosophical claims; they're claims about human psychology. Nevertheless, interesting questions arise about what, if anything, follows from these psychological claims, assuming that they're accurate.

My own work has principally focused on the second set of issues in neurolaw -- namely, issues related to the legal and ethical implications of new neuroscience technologies. In this regard, I plan to blog about: (1) emerging pharmaceuticals to dampen traumatic memories, (2) the use of brain imaging to assess subjective experiences like pain, (3) the importance of subjective experience (esp. suffering) to our theories of punishment, and if time permits (4) the placebo phenomenon and whether we can use deception to obtain it.

My Neuroethics & Law Blog celebrates its three-year anniversary this month. Just over three years ago, I had a conversation with Orin Kerr in Old Town, San Diego about starting a new blog on neuroethics. Orin encouraged me to plunge in, and I'm pleased to thank him on his home turf for doing so.

Wondering Willy:
This is reminiscent of the Texas Bell Tower Sniper, Charles Whitman, who I believe exhibited a similar behavioral pattern: perfectly normal until the growth of a brain tumor.
2.11.2008 4:48pm
FantasiaWHT:
Yeah, but a "but for" condition shouldn't (in my opinion) be legally sufficient in this situation to absolve him of legal responsibility.

Were it not for the tumor, he would not have made those sexual advances. Fine. Were it not for a lot of things, he wouldn't have made those sexual advances- if he didn't live where he did, if he didn't marry a woman with a daughter of her own, if he hadn't been born.

Second, even if the tumor caused that compulsion, so what? Don't we all have compulsions to do bad things, sometimes? Isn't part of living in civilized society the ability to refrain from doing those bad things? Being aware of his behavior, he should have put himself out of any situation where he could act on those urges, or simply chosen not to follow those urges.
2.11.2008 5:04pm
Sean M:
The problem, I think, FantasiaWHT is that you beg the question. You presume that he was ABLE to simply choose not to follow those urges when the question at hand is whether humans so have the power to choose.

For instance, when I feel dizzy and feel the urge to faint, I don't have the power to simply choose not to. My ability to choose what I do is constrained by my physical state.

Perhaps the tumor here is more like being intoxicated -- it ruined his inhibitions and thus made him likely to do what he would do otherwise but for the inhibitions. But it's unlike alcohol in that it's not like he can choose not to get a tumor the way he can choose not to drink.

So maybe the defense should be one of involuntary intoxication in doctrinal terms, not insanity?

I'm not certain, but simply assuming one has the ability to choose otherwise, while valid in most discussion is the very core of the discussion here.
2.11.2008 5:12pm
Mikeyes (mail):
I am looking forward to what Prof. Kolber has to say on these issues. There is a large gap between medicine (the practical side of neuroscience) and the law in many of these cases that is often hard to bridge due to the basic orientation of each discipline. Perhaps there will be a little more understanding from both sides.

The paper in the Vandy law review is a good case in point. Much of what is discussed is speculative predicated on a simplistic view of how "memory damping" drugs might work. Since we really don't have any such drugs that can be used precisely or practically, most of the article is involved in "What If" and does not address thoroughly the usually complex practice and incomplete knowledge that a physician confronts all the time when decisions have to be made. The ethical questions that arise are not black and white (of course, but then they never are) and the answers that come from bodies tasked with answering them are often unsatisfactory (the crux of the article, I think.)

I believe that Prof. Kolber will bring a studied and objective view to these issues, at least as studied and objective as a lawyer can be when discussing broad concepts like these. It should be an interesting time on the Conspiracy judging from the few remarks already made.
2.11.2008 5:17pm
FantasiaWHT:
For the sake of argument, I'll give you the inability to choose not to follow the urges. What then, about the choice to leave yourself in a situation where you had the opportunity to act on those urges?

Your answer might be that the tumor could also make him unable to tell that what he was doing was wrong, so that he wouldn't know he should avoid the temptation. To that I would say that somebody who doesn't understand that that is wrong NEEDS to be locked away where he can't harm anyone.
2.11.2008 5:19pm
Anonymouseducator (mail) (www):
To that I would say that somebody who doesn't understand that that is wrong NEEDS to be locked away where he can't harm anyone.


I could be wrong, but I think that people would agree and that he could be committed so long as he remained a danger (until tumor was gone), without subjecting him to criminal liability.
2.11.2008 5:26pm
FantasiaWHT:
Anonymouseducator - perhaps, but don't you think that having parallel systems like that is wasteful? The ends achieved are the same by both methods.
2.11.2008 5:36pm
Elliot123 (mail):
Adam Kolber: "In particular, scholars ask whether we can justifiably hold people responsible for actions that are caused by activities in their brain for which they are not themselves responsible."

I presume this entire field rests upon an explicit definition and understanding of what the words "they," "themselves," and "their brain" mean in the above quotation. What do they mean? How do you define "they?" Isn't this something we have been struggling with for a few thousand years? What do lawyers contribute?
2.11.2008 5:38pm
Adam J:
FantasiaWHT- I really think you have an uphill argument claiming that the tumor is merely "but for" causation. The tumor here seems to be the "trigger" that directly caused his molestation- hard to argue that this is merely "but for" causation.
2.11.2008 5:52pm
ras (mail):
My slippery slope q's of the day:

1. Do we excuse psychopaths their actions, incl criminal actions, because they lack a conscience?

2. What if we could specifically show that a lifelong psycho is neuro-chemically unable to properly process, for ex, serotonin in his amygdala, and that the resulting imbalance is likely the root cause of his amorality and the resulting crimes he has committed? Do we let him go because it's not his fault? Or do we lock him up till a cure is found?

3. What if he wasn't born that way but, thru incessant narcissism based on choices he has made throughout his life, his brain has now trained itself into the same psychopathic arrangement anyway? Does this make a diff?
2.11.2008 5:52pm
SenatorX (mail):
As an empirical matter, our willingness to attribute responsibility to an actor (like the guy described above) tends to weaken when the person's actions seem to be caused by factors external to the actor. The more that we understand the causal mechanisms of human behavior, many of which will eventually be understood in neuroscientific terms, the less we tend to attribute responsibility to human agency.

This is very true from what I can tell and I have spent quite a bit of time reading and thinking about this. It IS a core philosophical problem and very difficult to resolve. The tumor case is very interesting but you can apply the same problem to "normal" people as well. Basically at any given instant how do we know a person could act any differently? Regardless of our desire for freedom of choice and our desire to be justified in punishing people for their choices, we really don't know.

Until you find something like a "soul" there isn't anything but external factors. The more you know about a person and what led up to an action (or the more you know about the body/brain in this case) the more you are inclined to understand why they acted in such a way. Take knowledge to the nth degree and what randomness or choice is left?

A very difficult problem and highly worth the study and discussion, I look forward to reading Mr. Kolber's posts!
2.11.2008 5:54pm
LM (mail):
FantasiaWHT,

What parallel systems, leading to what same ends?
2.11.2008 5:55pm
Adam J:
FantasiaWHT- how is it wasteful when the justifications between the two incarcerations are completely different. One can only be justified on utilitarian motives- and therefore society can only hold the individual so long as he remains a danger. Also, the individual is not being punished, so he should not be placed in conditions that would constitute punishment- he should only be incapacited from harming society. On the other hand, if we are also holding the individual responsible for his actions, then we can include punitive conditions- such as holding the individual even when he is no longer capable of further offenses &keeping subjecting the individual in punative conditions.
2.11.2008 5:57pm
Ben P (mail):

Anonymouseducator - perhaps, but don't you think that having parallel systems like that is wasteful? The ends achieved are the same by both methods.


So someone who has since been "cured," (Assuming a pure medical explanation for the behavior as in the example above) is exactly equivalent to someone who remains a danger to society?


The vast majority of the time even if you succeed on an insanity defense, you still go to "Jail." Now that jail is a psychiatric facility, but you're no less restrained.

The key difference is later

1. You get out not when some semi-arbitrary term of years is over, but when you're "cured" of whatever disorder caused you to act that way.

2. If you do get out, you don't bear the title of "convict" because you weren't convicted. Past mental illness has it's own stigma, but it's of a different, and in many cases less punishing kind.


This is especially relevant in cases such as the above. Assuming as I assumed above, that the explanation for this mans behavior is purely medical. Not only have we sent him to prison, but when he gets out he'll be subjected to sex offender laws that in a great many states border on ridiculous.
2.11.2008 5:58pm
Adam J:
sorry- I got a bit confusing at the end there- been a long day.
2.11.2008 5:59pm
Bill Sommerfeld (www):
Am I the only one who finds it odd that a mass of cancerous cells growing inside someone's skull is described as an "external" factor ? There's got to be a better way to refer to this sort of non-rational, non-willful influence.

See also Larry Niven's 1967 story "The Ethics of Madness" -- if you rationally or negligently opt out of treatment that keeps you sane, is an insanity defense still applicable?
2.11.2008 6:03pm
ras (mail):
if you rationally or negligently opt out of treatment that keeps you sane, is an insanity defense still applicable?

If I drink and take drugs, knowing that they impair my judgment, should a judge consider their presence in my system as a mitigating factor that makes me deserving of more lenient treatment per my crime? Why?

What if I commit to never using them again, on the rationale that if they pushed me over the edge once, so to speak, then they are much more likely to do so again?
2.11.2008 6:16pm
Adam J:
Bill- if you rationally opt out, it would appear that you had a logical reason to not have treatment- it strikes me as unjust to hold someone liable for making a rational decision that reasonable men woulud make. If you negligently opted out, you should be found guilty of negligent homicide- as your only act that you can be found responsible for is act of not seeking treatment- of course this is presuming that the danger was foreseeable. Of course, all these calls tend to be really hard to spot on the field- its hard to say what is really going on in a man's mind.
2.11.2008 6:18pm
alias:
He is certainly not responsible for having the tumor, and it seems like the crime would not have happened but for the tumor

If the guy can prove that the tumor made him more or less completely unable to avoid being a child molester, then that should be a defense. Any failure of proof or anything short of a showing that the tumor took away his free will, and I'd say no.
2.11.2008 6:18pm
Bender (mail):
FantasiaWHT:

The prefrontal cortex is an area directly linked to the ability to control impulsive behaviors. (See the literature on Phineas Gage for some more background on this.) It seems likely that not only did this man develop a paraphilia as the result of his tumor but also at the same time and from the same cause he lost a considerable part of his ability to exercise self-control over his new sexual desires.

I agree with you that many people with impulses to commit evil acts often successfully refrain from doing so and that many evil doers just give in to controllable impulses. But if the very mechanism that allows self-control is damaged it is not unreasonable to suggest that an evil doer with that diminished capacity is less culpable than an evil doer who chooses not to utilize a well-functioning self-control system.
2.11.2008 6:23pm
Steve r (mail):
Even if we are only the the sum of internal and external factors society is perfectly justified in adding some specific and general deterrence to the equation to affect an outcome. As long as there is evidence that deterrence has an effect, punishment is valid. If a specific behavior that is harmful to others is a completely uncontrollable impulse then our only option is to segregate those people from the general population until they are cured.
2.11.2008 6:31pm
Anderson (mail):
I don't see how the tumor's not at least a mitigating factor.

We can counterargue with "life's vicissitudes forced me into a life of crime" examples, but the particularity of the tumor seems to meet a common-sense test that, say, having been insufficiently loved as a child does not.

Determinism itself is not implausible, but I've never seen that it's a reason not to incarcerate people -- "you may've been unable not to do what you did, but all the more reason to lock you up."
2.11.2008 6:36pm
Asher Steinberg (mail):
I think that once you start going down the road of using brain states to explain or excuse behavior, you're potentially inviting a determinism that would undermine all notions of responsibility or mens rea. Now you can say that a brain tumor isn't merely a brain state, it's a foreign body in the brain. But I'm not sure that that's a line that holds any water. So I suggest that once you start using tumors as excuses you may be compelled to admit seretonin levels, funny-looking MRI scans, or genetics as excuses as well, especially if we ever find that certain genes cause a proclivity to do illegal behavior x. So going back to the tumor, if you want to preserve any kind of retributivist punishment, the question must be the question that it's always been, namely, did the tumor make the man irresponsible or insane? If so, he has a defense, but the tumor in and of itself doesn't exculpate him; it just provides some substantiation for his condition.
2.11.2008 6:47pm
LM (mail):
Denying the morally mitigating or exculpatory effect of many abnormal brain conditions is shameful. It will inevitably be considered as such universally, and its present-day defenders viewed as we see the last holdouts for the Monarchy, slavery and segregated public schools.
2.11.2008 6:50pm
frankcross (mail):
The posts are sort of wandering around the theory. I see three main reasons for jailing or otherwise punishing someone.

A. Moral punishment -- it's hard to hold someone morally responsible for a tumor

B. Deterrence -- punishment is not going to deter someone driven by a tumor

C. Incapacitation -- the tumor would seem to make this compelling, he must be incapacitated for protection of society.

But as some have noted, jailing someone for incapacitation purposes is different from jailing someone for deterrence or moral punishment. It would seem to call for a more medically oriented facility in this case.
2.11.2008 6:55pm
Asher Steinberg (mail):
And Anderson, 'life's vicissitudes' may not be sufficiently particular, but what about a childhood experience of molestation? That's pretty particular, and I believe that research has found a pretty significant link between abusing your own children and being abused as a child. Of course, not all victims of child abuse go on to behave in this way; probably only a minority do so. But then, how many people with brain tumors suddenly become pedophiles? The degree of causality is the same. Now maybe they're both mitigating factors, but I don't see how one could be more of an excuse than the other - unless, of course, the tumor patient can show that he didn't know what he was doing was wrong.
2.11.2008 6:57pm
Brian K (mail):
Now you can say that a brain tumor isn't merely a brain state, it's a foreign body in the brain. But I'm not sure that that's a line that holds any water. So I suggest that once you start using tumors as excuses you may be compelled to admit seretonin levels, funny-looking MRI scans, or genetics as excuses as well, especially if we ever find that certain genes cause a proclivity to do illegal behavior x.

I don't think these two situations are exactly analogous. All of the things you list may alter the likelihood of someone committing a crime, but it doesn't guarantee (at least to my knowledge) that the crime will be committing. I've seen studies associating certain genetic traits with increased violence but I've never seen any study that concludes with certainty that everyone with the trait will go around punching people. The claim is that this tumor directly caused the tumor patient's behavior. The former situation implies that person still has the ability to control his actions (at least with our level of knowledge) while the latter situation implies that the person has lost the ability to control his actions.
2.11.2008 7:05pm
Brian K (mail):
I have a serious question for the lawyers out there.

How does the criminal system deal with mentally retarded people? Couldn't people whose actions resulted directly from known mental defects be treated similarly?
2.11.2008 7:14pm
Vivictius (mail):
Bender, since, as you mentioned, the prefrontal cortex regulates impulsive behaviors we can not be sure that the tumor caused his paraphilia or simply prevented him from supressing it. Unfortunitly it is rather dificult to test these things as we generaly cant give someone a tumor to see what it does.
2.11.2008 7:15pm
LM (mail):
We should at least be able to start from the notion that someone compelled by a mental condition to act against his will despite his maximum resistance is no more morally culpable than someone who acts with a gun to his head. That still leaves at least three questions:

1. the problem of proof as to the existence and extent of the compulsion;

2. whether past experience made this event foreseeable by the actor, and if so, what culpability and punishment should follow from his failure to prevent it; and

3. how to merge: (i) any punishment from #2, with (ii) the non-criminal incarceration necessary to protect public safety until the medical condition is cured, with (iii) the treatment to effect the cure.
2.11.2008 7:19pm
Asher Steinberg (mail):
But Brian, this study doesn't say that the tumor necessitated his actions. It just says that, if not for the tumor, he wouldn't have done it. Two totally different claims. Now, if he can prove that the tumor drove him mad, then fine, but that's just the same old insanity defense, except now we know what caused the insanity.
2.11.2008 7:42pm
Visitor Again:
Denying the morally mitigating or exculpatory effect of many abnormal brain conditions is shameful.

The problem is that we don't have the scientific ability to determine what exculpatory effects abnormal brain conditions should carry, and in the absence of that ability, we are unwilling to accept mental defenses to criminal liability except in the most limited and rigidly defined circumstances--the M'Naughten test. The "irresistible impulse" defense once gained a foothold--and was briefly regarded as a huge advance in criminal law--but it has largely been rejected now. We end up presuming mental soundness and it takes a very specific and overwhelming showing to overcome that presumption.

This state of affairs makes us somewhat hypocritical because while we continue to cling to the notion that the basis of criminal liability is free will, we have sufficient evidence to know that the state of free will is not readily determinable, perhaps not readily definable.

Why we err on the side of throwing demonstrably mentally disturbed people in prison as criminals instead of in favor of civilly confining them as dangerous to society is beyond me. Perhaps there isn't much difference in terms of the actual institutional treatment criminally confined prisoners and civilly confined patients actually receive, although, as a moral and legal matter, there should be a world of difference. Perhaps, because civil confinement may be limitless, we're better off going the prison route in questionable cases.
2.11.2008 8:07pm
LM (mail):
Asher,

"Mad" isn't a legal term of art. It's been more than twenty years since I've seen a criminal law casebook, but as of then the predominant definition of legal insanity excused only those defendants who didn't understand the nature and quality of their acts. I think a few states may have still allowed a defense based on an irresistible compulsion to act, but that defense was losing, not gaining favor. I invite anyone who's studied criminal law more recently to correct my understanding if it's out of date. If it isn't, the question remains whether our notions of criminal culpability shouldn't be revisited to take proper account of the obvious impairment to many people's ability to conform their behavior to legal and moral norms despite their maximum effort to do so. I assume this question will be taken up in subsequent posts by this blogger.
2.11.2008 8:15pm
LM (mail):
Visitor Again,

I didn't see your comment before posting mine, so there's some overlap. I agree with everything you said, except your very last point. As a practical matter, you're probably right that criminal confinement is less open-ended than civil, but the stigma of criminal culpability has to go for there to be any chance of the mentally afflicted being treated properly, whether in or out of confinement.
2.11.2008 8:25pm
Thoughtful (mail):
Compare:

"He was perfectly fine around the girl until the tumor developed. Then he began to make unwanted passes at her."

"He voted in a very progressive manner until the tumor developed. Then he began to support Bush and calling for bombing Iran"

Why is it that we never find tumors to explain the latter, only the former?
2.11.2008 8:30pm
Thoughtful (mail):
Compare:

"He was perfectly fine around the girl until the tumor developed. Then he began to make unwanted passes at her."

"He voted in a very progressive manner until the tumor developed. Then he began to support Bush and calling for bombing Iran"

Why is it that we never find tumors to explain the latter, only the former?
2.11.2008 8:30pm
Fub:
frankcross wrote at 2.11.2008 6:55pm:
But as some have noted, jailing someone for incapacitation purposes is different from jailing someone for deterrence or moral punishment. It would seem to call for a more medically oriented facility in this case.
Agreed.

However, one feature of this discussion has been that the crimes are major, and relatively rarer than minor crimes. I think there is a well grown thicket of minor crimes which sometimes can be caused by physiological illness. Some are obvious, others maybe not so.

Disturbing the peace, and variants: how many are convicted of this sort of crime whose behavior is actually caused by a mental disease readily corrected with proper medication? I don't know the answer, but almost everyone has seen an obviously mentally deranged person on the streets at one time or another. But how often is it even raised or considered in criminal prosecutions for these minor crimes? I think not often.

Obviously a prior diagnosis and medicine prescription (presumably not taken) should bear on criminal liability. But in how many cases is that actually a factor, or not?
2.11.2008 8:31pm
Bender (mail):
Vivictius:

That's a good point. It's possible that the paraphilia was always present but the man was able to control his impulses until the functioning of his prefrontal lobe was impaired by the tumor. But it seems to me that if that is the case, then there is an even stronger case for lessened legal and moral culpability: The man clearly behaved in a responsible manner until his ability to control his impulses was badly damaged and returned to his responsible behavior when the organic basis of his impulse control was restored.

If the brain damage caused both the paraphilia and the loiss of impulse control, there's an even stronger case for reduced moral and legal culpability.

There is a danger of a slippery slope here. There are a number of psychologists/psychiatrists who get a fair bit of publicity and probably spare change as expert defense witnesses for homicidal and sadistic sexual sociopaths; arguing that these monsters are not responsible for their crimes because of various brain lesions. Perhaps, the only reasonable approach is on a case-by-case basis: If a person has led an otherwise exemplary life and starts committing criminal acts concidentally with an obvious brain damage or illness that can be clearly linked to his misbehavior, then it seems reasonable to reduce the moral and legal culpability of that person.
2.11.2008 8:38pm
Richard Aubrey (mail):
I was, several times, choked out in judo competitions--you shoulda seen the other guy--and so I could start out, at least, with a proposition for diminished capacity or something.
Slippery slope time.
It has been said that ingesting lead as a child reduces impulse control, which might explain some of the crimes which leave the rest of us wondering what the hell the perp was thinking.
Raised in the inner city in old housing...? Gets a break?
It might, as a practical matter, have criminal law presume unfettered agency. Might control the marginal cases better.
2.11.2008 8:52pm
neurodoc:
IIRC, Charles Whitman, the Texas Tower sniper, had a meningioma, which is a tumor external to the brain itself and can sit asymptomatically for years. (Like Ms. Raiche's "inoperable" meningioma.) No reason to think it was other than an incidental finding at autopsy, that is to believe it had anything to do with Whitman's murderous behavior.
2.11.2008 8:55pm
Ken Arromdee:
Why is it that we never find tumors to explain the latter, only the former?

Well, for one thing, tumors explain faults in very basic processes of brain functioning: loss of control, sexuality, violence. Something like supporting a particular politician is a very high level decision that is not directly caused by any one instinct or brain function; it's like having a tumor which forces you to always skip page 20 of the newspaper unless the letter Q appears on it at least three times.

For another, history is full of examples where explaining away politics as mental illness has been horribly abused, ranging from slaveowners blaming runaway slaves on a mental illness which makes them run away, to the psychiatric hospitals used to torture dissenters in the Soviet Union. We should be very skeptical of those, particularly when those diagnosing the illness have a vested interest in claiming that no sane person can hold those beliefs.
2.11.2008 8:55pm
Cactus Jack:

That's a good point. It's possible that the paraphilia was always present but the man was able to control his impulses until the functioning of his prefrontal lobe was impaired by the tumor. But it seems to me that if that is the case, then there is an even stronger case for lessened legal and moral culpability: The man clearly behaved in a responsible manner until his ability to control his impulses was badly damaged and returned to his responsible behavior when the organic basis of his impulse control was restored.


This is a fair point, but perhaps the tumor didn't render impulse control impossible, just more difficult. In other words, if the impulse was preexisting, maybe he used 10 units of control to resist it pre-tumor and he could've resisted the impulse by exerting 20 units of control post-tumor. What if 20 units of control is a normal amount of effort for a person to exert? Of course, maybe it's unreasonable for a person to significantly increase their control in a short period of time. Or maybe the mind doesn't work like this at all. I look forward to hearing more about the science.
2.11.2008 9:08pm
ras (mail):
Ken Arromdee makes a very important pt: once we define socially undesirable behavior, or even just political viewpoints we disagree with, as external and arising from brain chemistry, the temptation for the govt to abuse their power to institutionalize (or lobotomize, both literally and metaphorically) dissenters will be irresistible, or so history says. Will the solution be worse than the problem?
2.11.2008 9:13pm
LM (mail):
Bender,

Perhaps, the only reasonable approach is on a case-by-case basis: If a person has led an otherwise exemplary life and starts committing criminal acts concidentally with an obvious brain damage or illness that can be clearly linked to his misbehavior, then it seems reasonable to reduce the moral and legal culpability of that person.

But if he's had the impairment since birth, he's out of luck?
2.11.2008 10:06pm
OrinKerr:
Adam,

Terrific to have you guest blogging here! I remember that conversation in lovely San Diego, and I'm glad it helped encourage you to jump in.

Orin
2.11.2008 10:28pm
Toby:

Compare:

"He was perfectly fine around the girl until the tumor developed. Then he began to make unwanted passes at her."

"He voted in a very progressive manner until the tumor developed. Then he began to support Bush and calling for bombing Iran"

Why is it that we never find tumors to explain the latter, only the former?

I'd say Lee Atwater was a competent politician until a brain tumor caused him to start being sympathetic to and apologizing to Democrats....
2.11.2008 10:48pm
Joshua:
ras: Ken Arromdee makes a very important pt: once we define socially undesirable behavior, or even just political viewpoints we disagree with, as external and arising from brain chemistry, the temptation for the govt to abuse their power to institutionalize (or lobotomize, both literally and metaphorically) dissenters will be irresistible, or so history says. Will the solution be worse than the problem?

For that matter, what happens in such a scenario when such people resist their institutionalization violently? How would we (and our laws) distinguish those who are justified in their resistance from those who are not, especially when the latter (i.e. those who are actually mentally ill) are utterly convinced that they are the former? Or would we just fall back to KEAALGSEO ("Kill 'Em All And Let God Sort 'Em Out")?
2.11.2008 11:07pm
Asher Steinberg (mail):
LM, from what I understand, the M'Naughton Rules are still (perhaps regrettably) the basic standard. And no, mad isn't a legal term of art. Now, if irresistible compulsion were an excuse, would that mean that a drug addict could use his addiction as an excuse for illegally purchasing or being in possession of a controlled substance? After all, he may feel pretty compelled to break the law. What about addiction to a prescription drug which they steal from a doctor's medicine cabinet? Maybe addiction should be a mitigating factor, but it would seem very odd if one could be found not guilty of these crimes by reason of addiction.
2.11.2008 11:28pm
Elliot123 (mail):
I suspect this is another area where we know just about nothing, but will pretend we know a lot. I hope we continue to do research and learn far more than we know now, but I also hope we don't succumb to the notion that the sum total of what we know now is sufficient to make informed decisions. There's nothing wrong with saying, "I don't know."

Somehow I envision ignorant academics convincing ignorant legislatures to pass laws so ignorant judges can preside over trials where ignorant lawyers call ignorant expert witnesses to get ignorant juries to award ignorant clients money. Didn't we go through something like that with breast implants?
2.12.2008 12:00am
ras (mail):
TGGP,

Link broken. Perhaps you meant this:

For the law, neuroscience changes nothing and everything.
2.12.2008 12:31am
Ricardo (mail):
Neuroscience will definitely raise some pretty uncomfortable questions (and already has) about free will and choice.

As far as law and public policy go, we can preempt at least some of these questions by falling back on the notion of incentives and deterrence. The most relevant question as far as the law is concerned is the question of whether the defendant was intelligent enough to understand that he would go to prison if he was caught and whether or not the person is intelligent or rational enough to respond to such a disincentive in the abstract. Note that this isn't purely theoretical and can be established empirically: do we see people with similar tumors respond at least somewhat to long-term incentives or disincentives? If so, that's enough to justify criminal penalties as some will be deterred.

This is why psychopaths should be punished to the full extent of the law (including 3 strikes laws that were effectively passed mostly to deal with the problem of psychopaths, although it isn't usually framed that way). We know that psychopaths fully appreciate the concept of self-interest and some will choose to live normal lives when the threat of 25-life is dangling over them. The only question is whether the same holds true for people with this kind of tumor.

From this point of view, whether someone has "free will" or not becomes irrelevant. Criminal law is not meant to deal with each individual circumstance differently. It is meant to ensure that those of us who don't prey on others can live in a civilized society.
2.12.2008 12:43am
theobromophile (www):
There is a danger of a slippery slope here. There are a number of psychologists/psychiatrists who get a fair bit of publicity and probably spare change as expert defense witnesses for homicidal and sadistic sexual sociopaths; arguing that these monsters are not responsible for their crimes because of various brain lesions.

Fine. If the brain lesions aren't going away, then the offener still ought to be incarcerated, whether in a traditional jail or a medical facility. Otherwise, you are setting loose upon a society a person with no impulse control.

Many crimes are committed by young men. When they are older, and presumably their hormones and brain chemistry has leveled out, they commit fewer crimes. Does that mean that being young is a mitigating factor? IMHO, no - the person does not miraculously age. Incarcerate until the problem is solved, whether by a punishment sufficient enough to get the person with free will to not act that way again, or to allow him to age sufficiently so as to lose those desires.

The tumor issue is unique because the correlation between its presence and the bad behaviour is perfect. No tumor, nice guy. Tumor appears, sexual predator. (By the way, how many paedophiles molest the people in group therapy?) Tumor removed, nice guy.

OTOH, the people with broken homes, bad childhoods, or other issues do not have that same correlation between the supposed cause and the effect. Many people with bad childhoods turn out to be wonderful humans. In fact, I would venture to say that the vast majority of people from divorced homes don't end up becoming heinous criminals. Also, you can't excise a bad childhood the same way you can remove a tumor.
2.12.2008 12:43am
LM (mail):
Asher Steinberg:

Maybe addiction should be a mitigating factor, but it would seem very odd if one could be found not guilty of these crimes by reason of addiction.

Yes, I think the law deals with this problem fairly adequately now. No doubt every addict feels compelled to get drugs, but there's no compulsion not to get treatment. I'd certainly feel more compassion for the addict who robs a drug store than for someone whose only compulsion is to avoid gainful employment, but as a general matter the presumption of culpability for foreseeable consequences of addicted behavior seems fair enough. I think harder questions arise when addiction is compounded by other, sometimes dissociative conditions that may call the ability to get treatment into question, without necessarily passing M'Naughten muster at the time of criminal activity.
2.12.2008 5:00am
Public_Defender (mail):

I think the subject would be unlikely to mount a successful insanity defense.

Except for a tiny handful of cases, the only way anyone can win an insanity defense is jury nullification or a plea deal that enforces a legal fiction.

To win insanity, you have to prove an inability to know right from wrong. If you make even the slightest effort to hide an act or show the tiniest shame, you lose.

If your dog has ripped up something he shouldn't have, he will often hide under the table when you come home. So to win an insanity defense, you have to show a literally sub-human consciousness. As I said, jury nullification or legal fiction.

Prisons and jails are our biggest providers of mental health services because it's too hard to get treatment for real, serious mental illness before committing a criminal act. And after a mentally ill person commits a criminal act, too many people automatically believe that the person is faking it.

I know that some problems aren't fixable, but many are. And it's a waste of taxpayer money (as well as a human life), to force a person with a treatable problem to take up a prison bed at HUGE taxpayer expense.
2.12.2008 5:32am
josh bornstein (mail) (www):
Thoughtful,

Compare:

"He was perfectly fine around the girl until the tumor developed. Then he began to make unwanted passes at her."

"He voted in a very progressive manner until the tumor developed. Then he began to support Bush and calling for bombing Iran"

Why is it that we never find tumors to explain the latter, only the former?

Good point. Someone please find Dennis Miller and convince him to get an MRI as soon as possible.
2.12.2008 6:17am
Adam J:
Asher Steinberg - "I think that once you start going down the road of using brain states to explain or excuse behavior, you're potentially inviting a determinism that would undermine all notions of responsibility or mens rea." I boo you and Bender for using a slippery slope argument.

Public_Defender- that seems strange that any effort to hide or any shame would destroy a insanity defense. I would think that for insane individuals their grip on right &wrong waxes and wanes- it's not simply always non-existant. Presumably when they are most lucid they would feel shame and would frequently attempt to hide their actions.
2.12.2008 9:59am
Richard Aubrey (mail):
Adam J.

Do you have any support besides "boo" for presuming it's not going to be a slippery slope?
2.12.2008 10:17am
Adam J:
Richard Aubrey- Only history I guess. We have already begun using brain states to explain or excuse behavior (what do you think intent, knowledge, recklessness,negligence, insanity, etc. are?). Society hasn't shown any signs of collapsing, and I suspect as our views of culpability becomes more nuanced, we will somehow manage to do okay. Come on, do you actually give slippery slope arguments any credibility? They're the refuge of people who cannot make a decent argument based on the present situation. Instead they create some bizarrre straw man argument based on what might possibly happen and how it could possibly lead to catastrophe.
2.12.2008 1:32pm
c.j. ammenheuser:

As painful as it is, pain serves a purpose:
Pain is one way that we learn. Parents and teachers reinforce it. If you burn your hand on the stove and experience pain, it is that memory of pain that stops us from touching the burner again. We evolve by learning from our mistakes. Our memories become the cumulative of who we are- our inherent personality- our own self evolution.
2.12.2008 1:55pm
Richard Aubrey (mail):
Adam J.
I think a better term for "slippery slope", since that seems to have been labeled as silly, is "camel's nose". The latter--as is the former--is a deliberate tactic which allows proponents to make fun of opponents. Until it's too late and then..."too late, chump"
And I never underestimate the zeal of a defense attorney or the mercenary instincts of an expert witness.
We don't need a catastrophe--that's a bullshit argument and you know it--we only need a few people outraged by those who skated because of a new doctrine based on ignorance. Hell, if it didn't make the papers, an entire family's demise wouldn't be a "catastrophe".
2.12.2008 7:23pm