As neuroscientists find out more about the workings of the brain and human behavior, the law -- and society -- are having to rethink our understanding of crime, punishment and human responsibility, says Nita A. Farahany.
“We are in the earliest stages of being able to look into a brain and predict or understand someone’s behavior,” said Farahany, a leading scholar on the ethical, legal and social implications of biosciences and emerging technologies. “We are just getting to the point where we’re starting to make some correlations between different brain states and different behavioral states.”
Although the science is still “very early,” neuroscience evidence is already being introduced in a growing number of criminal cases to help explain a defendant’s behavior. New research findings are putting pressure on how we think about criminal responsibility and punishment, Farahany said.
Farahany is a professor at Duke University, with appointments in the law school, the philosophy department and the Duke Institute for Genome Sciences & Policy, where she is the director of Science & Society. She is also a member of the Presidential Commission for the Study of Bioethical Issues.
She has an A.B. in genetics, cell and developmental biology from Dartmouth College, a J.D., and an M.A. and a Ph.D. in philosophy, from Duke University, and an A.L.M. in biology from Harvard University.
She spoke recently with Faith & Leadership. The following is an edited transcript.
Q: Tell us about your work.
I work at the intersection of law, philosophy, and neuroscience and bioscience. I look at the ways in which the biosciences challenge our existing legal norms.
Science is the lens by which I look at the law, and philosophy is the way in which I unpack the law and try to understand existing commitments of how we protect privacy or investigate individuals or hold people responsible for crimes. I try to figure out if neurosciences or biosciences change any of that or reveal anything to us about our commitments in law.
Q: Neuroscience research is now being submitted as evidence in some trials to help explain a defendant’s state of mind and culpability. What’s the current state of neuroscience research and its ability to provide insight into why people do what they do and whether they’re criminally culpable?
We are in the earliest stages of being able to look into a brain and predict or understand someone’s behavior. We are just getting to the point where we’re starting to make some correlations between different brain states and different behavioral states.
Is it that behavior causes brain changes or that brain changes cause behavioral changes? We don’t know yet. But not knowing doesn’t stop people in the law from using science to try to claim to know or at least to know better than we currently do.
Our existing way of looking at mental states in criminal law is to look at what a person does and, from the circumstances, make inferences about why they did what they did.
Neuroscience takes things a little differently, which is to say we don’t have to look just at their behavior. We can look at their brains and try to understand why a person did what they did, based on neurological differences that they may have in their brain. We’re starting to be able to see some real associations between brain states and behavioral states, but it’s very, very early.
At least 5 percent of all murder cases that go to trial have neuroscience evidence that’s introduced. Ten years ago, that was less than .01 percent of cases.
Q: What does all of this mean for criminal law and notions of criminal responsibility as science gets more insight into why people do what they do?
That’s a complicated question, and there are really two parts.
The first part is, is a person responsible for a crime, and what does that mean? And the second is, if we do hold them accountable for a crime, how do we punish them? What should the societal response be?
Neuroscience is putting pressure on both of those questions.
If we start with the punishment question, let’s assume that we hold people accountable for their actions regardless of what’s happening in their brains. We still have to decide, is the right answer to put them in prison if there’s something abnormal about their brain?
Here’s a real example: There was a woman who was a model citizen, and then over several years she started acting very irrationally and impulsively. She started having violent outbursts and episodes of rage. One day somebody came to her house and she had one of these episodes, and her partner told her to go cool down.
So she went into the backyard and tried to cool down but didn’t, and she ends up killing the person with a cinder block in an incredibly atrocious and horrific way.
She’s arrested, and in the course of preparing for trial, she’s evaluated medically and they discover she has a large tumor in her brain that has been putting pressure on the frontal lobe region, which is essential for judgment and controlling impulse and rage.
They remove the tumor, and suddenly she is her past self again. She is the model citizen. The rage and uncontrollable anger are gone.
You look at somebody like that and you say, “Okay, she killed another human being in the most atrocious and gruesome way, and yet we have at least a partial explanation for her behavior, which is this tumor that clearly had an impact.”
Is the right answer to punish her as severely as somebody else for whom we don’t have an explanation why they did what they did?
In that particular case, the court decided that what she was being charged with -- first-degree murder -- wasn’t appropriate, and that it was better to hold her accountable for second-degree murder.
But do we think that person shouldn’t go to jail? Do we think that that person shouldn’t be held accountable for their crime?
Some people would say yes, that neuroscience shows us that it wasn’t her that did it. It was some abnormality over which she had no control, and now that she’s been treated and the tumor has been removed, we don’t need to put her in prison, and that it serves no purpose.
Other people would say the purpose of putting her in prison is to have vengeance for the loss of that person’s life, in which case neuroscience wouldn’t change what you would do at all. It might change the number of years you put her in prison, but you wouldn’t not put her in prison.
On the first part of the question, is she in fact responsible for the crime at all?
The two basic tenets of how we hold a person responsible in law are, did they have the right mental state, and did they act voluntarily? It really requires us to figure out what we mean by those concepts.
Do we mean voluntarily as in you have full control over your choices and there’s a little homunculus in your brain that’s driving all of your decisions? Or do we mean something different, which is that it’s not a reflex or a compulsion but something that is a product of your behavior?
Many people think neuroscience requires that we re-examine those issues.
Q: What about other types of trauma, such as the cumulative effects of poverty and early childhood trauma? Are those also being submitted into courtrooms to explain a defendant’s behavior?
Some of our colleagues here at Duke did a study in the early 2000s about the interactive effect between childhood violence and a gene that encodes a neurotransmitter in the brain that regulates the dopamine and serotonin systems, which are tied with depression and all sorts of behavioral controls.
They found that if you had the low-activity version of the gene and had been subjected to childhood violence and abuse, then you were much more likely to be a violent offender as an adult than if you just had the low-activity gene or just the childhood violence.
There truly was an interaction between these two things, and soon after they published their study, criminal defense attorneys started doing genotyping of defendants and doing neuropsychological interviews with them to figure out if they had been subject to childhood abuse and if they had this low-activity gene, to argue that they were far more likely to be a violent offender as an adult because of this combination of effects.
The more we discover, the more we learn that it’s not just a tumor or a gene or one thing or another. It’s a combination of these different effects that can multiply your risk of some sort of anti-social behavior. So definitely those kinds of claims are coming into the courtroom, but the science is truly in its infancy.
Q: What are the implications beyond the law, just for how we think about human responsibility and agency?
It’s funny. Early on in studying these issues, I took about a two-year detour reading books about free will. I found that the only way that I could really work through these issues was if I had a personal account of what I think agency means and what I think freedom means.
To be a person with free will, to be a person with freedom of action or freedom of choice, does that concept even exist? And if so, in what way?
Neuroscience is very reductionist in many ways. It’s looking for brain states that explain behavior, and there’s no room for a metaphysical self in that model. It’s all a physical kind of self, and if you accept that as a premise, where is there room for freedom of action? If every cause has a prior cause, then how can you pick out any particular state and say, “Aha! That was the free choice that you made”?
It took me a long time to come around to believing that it wasn’t. There are many things outside of our control.
For example, I have a very strong sweet tooth. I’ve had genetic testing done and found that I have a particular gene variant that suggests that I have a predisposition to desire sugar.
But if you put chocolate cake in front of me, do I have any choice over taking a bite of the cake, given that I am predisposed to desire chocolate? And the answer is, I think I do.
The kind of freedom that I think we have, the kind of agency that we have, is agency over our actions. Some people have a harder time controlling their actions. Some people have an easier time controlling their actions.
Q: I read an interview where you said that to some extent, we treat people as responsible because it’s useful to do so. What do you mean?
There have been lots of great studies that show that if you tell a person that they don’t have free will and then you give them some sort of test, then they act as if they don’t have free will. For example, if you give them a test and say, “Look, you’re very susceptible to cheating, and you don’t have any free will,” then they’re more likely to cheat.
But if you tell them that they have free will and that they have the power to resist cheating, then they actually are far less likely to cheat. Or if you do something as simple as put a poster of a pair of eyes above a computer or in an area where you lock up bikes, theft decreases tremendously.
So telling people that you’re going to hold them responsible and treating people as if they’re responsible agents seems to make them behave more like responsible agents.
From a pure utilitarian perspective, if one of our goals is to be able to live in a society where we can know that we’re each going to abide by a set of rules that enable us to coexist peacefully, then treating people as if they’re responsible agents is going to be more likely to yield that result.
Q: What about the religious and theological implications of neuroscience research into brain function and responsibility? Does it underscore what Pope Francis said a few months ago, “Who am I to judge?”
I haven’t thought about it a lot from a religious perspective. It seems to me like a lot of people who adopt a reductionist perspective of behavior don’t leave room for a religious perspective.
But you might think that even from a religious perspective, even from a perspective that we should have compassion and forgiveness rather than judgment and condemnation, there still has to be some way to safeguard society.
So you could think vengeance is the wrong attitude, that it’s very Old Testament and outmoded and outdated. In fact, a lot of people, particularly neuroscientists who are interested in the philosophical implications, believe that the retributive part of criminal law is antiquated and needs to be replaced.
Maybe neuroscience shows us that the idea that we have blamed and stigmatized some people when in fact they may have very little control over their actions should guide us to a different and more compassionate response.
But one of the really challenging questions is, what exactly is that compassionate response?
Q: Are there risks in using neuroscience in the courtroom?
Some people are very concerned about using neuroscience in the courtroom. They think the science doesn’t tell us anything about individual behavior, and that trying to use it to explain a person’s behavior misunderstands the science itself.
But when it’s used to try to lead us to be more compassionate, to me that isn’t a huge danger. If it’s used against a criminal defendant as a sword rather than as a shield, it can become dangerous.
But that’s less of a risk in the U.S. criminal justice system, because the only way that a defendant’s mental capacity can be put at issue is if it’s raised by the defense. It’s more of a risk in other criminal justice systems where the prosecution can introduce evidence about the defendant’s neurobiological status.
I’m less concerned than many people are. Even if it is early, the way it’s being used is to try to improve our compassion, and that doesn’t seem too problematic to me.