This is Your Brain on Punishment

     In 1980s, Benjamin Libet, a physiologist at UCSF, performed a famous experiment that showed activity in the brain's motor regions about 300 miliseconds before the person has made the decision to move--effectively making Libet knowledgeable of the subject's intended action before the subject was. More contemporary studies have allowed scientists to predict whether a subject was going to press a button with their right or left hand up to 10 seconds before they performed the action with a 60% accuracy rate (Soon et. al 2008). These experiments, along with other advancements in the field of Neuroscience point us away from our standard conception of free will: we are not, in a pure sense, consciously aware of what actions we are taking and why we are performing them. It is only after we look back that we interpret them as freely chosen.

     How, then, can we reconcile these ideas with a criminal justice system that relies upon the (somewhat Kantian) notion that each person is a free-willed and autonomous individual. To be sure, there is already some consideration of the development of the brain in the way adolescents are sentenced. In Roper v. Simmons, the Supreme Court of the United States ruled that it was unconstitutional to impose capital punishment for crimes committed by those under 18. Part of the courts decision rested on amicus curiae briefs by psychological organizations, citing that parts of the brain responsible for decision making and impulse control are often not fully developed until one's late twenties. In cases of juvenile offenses, offenders can be argued to have diminished capacity for their actions, as the instrument of the decision-making is not fully formed.

     But where does this leave us in respect to the rest of criminal law? An oft-cited paper by Joshua Greene and Jonathan Cohen, indicating "free will as we normally understand it is an illusion generated by our cognitive architecture", seems to espouse a move away from retributivist notions of punishment toward consequentialist practices. In doing so, we avoid judging the 'soul' of the criminal for forces that he or she cannot control. Greene and Cohen believe this to be a more humane theory of punishment.

     There are other implications and problems that need to be taken into account. Interviews with many death row inmates reveal histories of subjection to child abuse, unstable family life, and inability to make caring connections with parental figures. They can be viewed, in Sam Harris's words, as "poorly calibrated clockwork". And given these early life events are both generally out of the control of the individual and can have a large impact on the development of the individual's brain, how responsible can we truly hold them for their actions? What of sociopaths who are born without the ability to empathize or assess risk? 

     Imagine that, in an experiment, we could take a child with all the genetic risks for criminality and subject him to a life where he lives in poverty, is subject to abusive relationships, and has no parental support. He goes on to commit a crime. Should we be surprised at the result? Probably not. Were many of these factors within his control? Some might say that he still had the choice over whether or not to commit the crime. Others might say that given the events of his life, he had no choice but to commit the crime. 

     A third question comes into play: do we still hold him responsible? To be sure, we can still take the crime seriously as something that has very real consequences and does very real harms to victims and society. But perhaps the blameworthiness of the offender is something that we can reconsider; that instead of judging his soul, whether or not he is a good or bad person, we should instead assess the harm that he or she has done, and make an effort to repair it. Those who go to prison are often faced with public scorn and shaming: they become outcasts and fringe members of society. It becomes much harder to hold gainful employment after being convicted of a crime. In eliminating the judgement of the criminal as having badness inherent to their being, we can reduce a hard distinction between the criminal and the rest of society. This is not to say what he has done is not truly his fault: he should still be held responsible for his action. But to publicly brand him as an outcast is not only a disservice to our findings about decision-making, but also makes it much less likely that he can ever reintegrate into his community.

Other Thoughts and Considerations

•  Foucault speaks a lot about psychiatry and other social sciences as politically-informed knowledge that beget their own forms of violence. Psychiatry can have the mentally-ill committed to carceral institutions and subject to treatments against their will. Foucault even speaks of psychiatry as a way of society 'suiciding certain unwanted elements of society'. This is especially relevant in light of many neuropsychologically-based treatments for criminals. One paper I read this week spoke about the ethics of frontal lobotomies and chemical castrations as forms of treatment in lieu of prison sentences. Another spoke about the possibility of brain-o-typing, a system in which brains with criminal tendencies could be detected long before crimes had been committed and protect society from them. These seem like the exact types of violence that Foucault would advocate against.
• This Wired article talks about the neuropscyhology of revenge. In a series of experiments, it was found that men who observed people getting their just deserts showed activation in the dopamine reward pathway of the brain. If we are to speak about human nature, then, perhaps we can also speak of the inherent desire we have to punish others for their transgressions (and the good feelings we get from it).
• Neuroscience is still an extremely young field in the scientific world. There is still much to be learned and what is en vogue today may be shown to be completely false tomorrow. In our considerations of neuroscience in relation to the justice system, we should be careful in taking supposed evidence as the bottom line for our judgments.
• Next week's topic will focus on the role and relation of religion to punishment.