Californians thought that Singleton should not have been paroled, and they didn’t want him in their communities. They also thought that certain behavior warranted longer incarceration. They were right, and the parole board was wrong. More recently, the legal system has been looking to neuroscience to provide answers in several different arenas: predicting a person’s future threat (recidivism), determining for whom treatment is possible, and deciding what level of certainty about these determinations is acceptable. Are some crimes just too horrendous to contemplate release? Neuroscience is also illuminating why we have the emotional reactions that we do to antisocial or criminal behavior.
This leads us to the question that if we understand our reactions that have been honed by evolution, can or should we amend them? Are these emotions the sculptors of a civilized society? We have our work cut out for us!
The philosopher Gary Watson has pointed out the simple fact that as we come to think about ourselves, we shape the rules that we decide to live by. Primatologists Michael Tomasello and Brian Hare have argued that we have been domesticating ourselves over thousands of years through ostracizing and killing those who were too aggressive, in essence removing them from the gene pool and modifying our social environment. If they’re right, then we have been making rules for groups to live by and enforcing them throughout our evolutionary history. If neuroscientific findings lead us to think differently about ourselves, our behaviors, and motivations, about the nature of man, about what we are, and about how we should interact; then we may decide to reconstruct our social framework—and our legal structure.
Is our natural inclination for retribution necessary, or is utilitarian accountability sufficient? Is punishment justified? These are questions that haven’t in any way been answered, but they are brought to the fore by research on the brain and what it tells us about who we are. We are going to see that our current legal system has emerged from innate intuitions, honed by evolution, just as our moral systems have been.
Who Done It: Me or My Brain?
Legal systems serve as a social mediator of dealings between people. We should keep in mind the niche construction dynamic when attempting to characterize the law and our concepts of justice and punishment, formed, as they were, by the human brain, mind, and cultural interactions. Legal systems elaborate rights and responsibilities in a variety of ways. In most modern-day societies, the laws made by these systems are enforced through a set of institutions as are the consequences of breaking those laws. When one breaks a law, it is considered to be an offense against the entire society, the state, not an individual. Currently, American law holds one responsible for one’s criminal actions unless one acted under severe duress (a gun pointed at your child’s head, for instance) or one suffers a serious defect in rationality (such as not being able to tell right from wrong). In the United States, the consequences for breaking those laws are based on a system of retributive justice, where a person is held accountable for his crime and is meted out punishment in the form of his “just desserts.” But new research raises the question: Who do we blame in a crime, the person or the brain? Do we want to hold the person accountable or do we want to forgive him because of this determinist dimension of brain function?
From today’s vantage point: It is all about the brain—what it does and does not do. We are born with an intricate brain slowly developing under genetic control, with refinements being made under the influence of epigenetic factors and activity-dependent learning. It displays structured—not random—complexity, with automatic processing, with particular skill sets, with constraints, and with a capacity to generalize. All of these traits evolved through natural selection and provide the foundation for a myriad of cognitive abilities that are separated and represented in different parts of the brain. These parts feature distinct but interrelated neural networks and systems. In short, the brain has distributed systems running simultaneously and in parallel. It has multiple control systems, not just one. It appears to be a determined, finely tuned biological machine.
Neuroscience Oozing Into the Courtroom
The law is complicated and takes into consideration more than just the actual crime. For example, the intention of the perpetrator is also part of the equation. Was the act intentional or accidental? In 1963, Lee Harvey Oswald had the intention of killing President Kennedy when he took his concealed rifle to the building along the parade route, waited there until the president’s motorcade was passing, and shot him. In an Australian case the following year, however, Robert Ryan was judged not to have had the intention to murder when he killed the cashier of a store he had just successfully robbed. While leaving the store, he tripped, accidentally pulled the trigger of his gun, and shot the cashier.