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From The Times

October 24, 2007

Why blame me? It was all my brain’s fault

The dubious rise of ‘neurolaw’

Raymond Tallis

Imagine this futuristic courtroom scene. The defence barrister stands up, and pointing to his client in the dock, makes this plea: “The case against Mr X must be dismissed. He cannot be held responsible for smashing Mr Y’s face into a pulp. He is not guilty, it was his brain that did it. Blame not Mr X, but his overactive amygdala.”

The legal profession in America is taking an increasing interest in neuroscience. There is a flourishing academic discipline of “neurolaw” and neurolawyers are penetrating the legal system. Vanderbilt University recently opened a $27 million neuroimaging centre and hopes to enrol students in a programme in the law and neuroscience. In the courts, as in the trial of serial rapist and murderer Bobby Joe Long, brain-scan evidence is being invoked in support of pleas of diminished responsibility. The idea is abroad that developments in neuroscience – in particular the observation of activity in the living brain, using techniques such as functional magnetic resonance imaging – have shown us that we are not as free, or as accountable for our actions, as we traditionally thought.

Defence lawyers are licking their lips at the possibility of (to use law professor Jeffrey Rosen’s succinct phrase) placing “the brain on the stand” to take the rap on behalf of the client. Though they failed to cut much ice in Long’s case, arguments that blame lies not with the defendant but with his overactive amygdala (supposedly responsible for aggressive emotions) or his underactive frontal lobes (supposedly responsible for inhibiting the expression of such emotions) are being deployed with increasing frequency. If our brains are in charge, and bad behaviour is due to them, our attitude to criminal responsibility, to punishment (the balance between rehabilitation and retribution) and to preventive detention of individuals thought to have criminal tendencies may all have to change.

Before we invest millions in “neurolaw” centres, however, we need to remind ourselves that observations of brain activity in the laboratory can explain very few things about us. We have no neural explanation for: sensations; the differences between sensations; the way our consciousness coheres at any particular time and over time; our relationship to an explicit past and an explicit future; our sense of being a self; and our awareness of other people as having minds like ourselves. All of these are involved in ordinary, waking behaviour. The confident assertion that “his brain made him do it”, except in well-attested cases – such as the automatisms associated with certain forms of epilepsy or the disinhibited behaviour that may follow severe brain injury – therefore goes beyond our current knowledge or understanding.

Those who blame the brain should be challenged as to why they stop at the brain when they seek the causes of bad behaviour. Since the brain is a physical object, it is wired into nature at large. “My brain made me do it” must mean (ultimately) that “The Big Bang” made me do it. Neuro-determinism quickly slides into determinism tout court.

And there is a contradiction built into the plea of neuromitigation. The claim “my brain made me do it” suggests that I am not my brain; even that my brain is some kind of alien force. One of the founding notions of neurolaw, however, is that the person is the brain. If I were my brain, then “My brain made me do it” would boil down to “I made me do it” and that would hardly get me off the hook. And yet, if I am not identical with my brain, why should a brain make me do anything? Why should this impersonal bit of matter single me out?

The brain is, of course, the final common pathway of all actions. You can’t do much without a brain. Decapitation is, in most instances, associated with a decline in IQ.

Nevertheless, there is a difference between events that owe their origin to the stand-alone brain – for example the twitching associated with an epileptic fit – and actions that do not. While we do not hold someone responsible for an epileptic fit, we do hold them responsible for driving against medical advice and causing a fatal crash. The global excuse “my brain made me do it” would reduce life to a condition of status epilepticus.

In practice, most brain-blamers are not prepared to deny everyone’s responsibility for anything and everything. While the brain is blamed for actions that attract moral disapprobation or legal sanction, people do not normally pass responsibility on to their brains for good actions or for neutral actions such as pouring a cup of tea or just getting up for a stretch after a long sit down. When asked why he is defending a particular client, a barrister is unlikely to say: “My brain made me do it, your honour.” This pick-and-mix neuro-determinism is grounds for treating a plea of “neuro-mitigation” with caution.

So we still retain the distinction between events such as epileptic fits that can be attributed to brain activity and those that we attribute to persons who are more than mere neural activity. Deciding on the boundaries of our responsibility for events in which we are implicated cannot be handed over to neuroscientists examining the activity of the isolated brain in the laboratory. As Stephen Morse, a professor of law, has reminded us, it is people, not brains, who commit crimes and “neuroscience . . . can never identify the mysterious point at which people should be excused responsibility for their actions”. That moral, legal question must be answered not in laboratories but in courtrooms and legislatures.

Meanwhile, the neuromitigation of blame has to be treated with suspicion except in those instances where there is unambiguous evidence of grossly abnormal brain function or abnormal mental function due to clearcut illness that may have its origin in brain disease. Our knowledge of the relationship between brain and consciousness, brain and self, and brain and agency is so weak and so conceptually confused that the appeal to neuroscience in the law courts, the police station or anywhere else is premature and usually inappropriate. And, I would suggest, it will remain both premature and inappropriate. Neurolaw is just another branch of neuromythology.

Professor Raymond Tallis will be debating My Brain Made Me Do It: Biology and Freedom at the Battle of Ideas this Sunday, October 28.

Tell a child the pyramids were built in Texas.Then ask him if they were built in Egypt or Texas. He has freedom of choice but you know which choice he'll make. Freedom of choice â€” yes but did he have any choice over the choice he makes? Now educate him about their location and again give him a choice of many locations. Freedom of choice? Yes indeed but how much choice did he have now with his educated answer? We have freedom to choose only from our data banks. I don't call that "freedom" but it sure calls for education.

Jim, New Hope, PA

Free will is almost certainly an illusion - partly arising because we carry our brains about on legs and can manipulate our bodies, but also the brain starts the electronics and mechanics of the the decision before we become conscious of it. We tend to use the term free will when we are conscious of reaching a point when we appear to choose something. However in the absence of some other evidence we can only choose as in fact we do......a product of our wiring and external factors on a microsecond to microsecond basis. This and increasing understanding of the brain need not affect the operation of the law as in law we are simply being pragmatic - making a decision to deem people responsible for their actions unless other knowledge leads us to a view that the person's responsibility is diminished. This topic
is just really a rehash of old Steven Rose's theme.... and others.

David Bowker, Manchester , UK

This whole subject was dealt with in Michael Gazzaniga's "The Ethical Brain" in 2005.

My personal research turned it up twenty years ago. The problem is that there is a part of the brain, now called the "interpreter," which considers itself to be the ego, and will lie and cheat to preserve it's position. In actual fact, it is only an interpreter of the percieved actions of the organism, and cannot be cosidered to be the motivator.

Since all the information the brain has to work on in making decisions is put into it by intent of the organism, whether it comes from others as education or from others as advice, etc. we have to own all the decidÃ¬sion making material. So when we look at the brain as something apart from ourselves, it is simply a device of the interpreter to preserve it's foremost position in our selves.

Fred Lovett, Linguaglossa, Sicily, Italy.

http://kolber.typepad.com/ethics_law_blog/2007/10/what-neurolaw-i.html

Emily Murphy, Palo Alto, CA, USA

The ultimate goal of neuroscience should not be to exculpate defendants but to identify why people do what they do and try to prevent these unlawful actions.

Shawn Lawsure, Scarborough, ME,

If the lawyers succeed in selling the my-brain-made-me-do-it defense, then the state should quickly pass laws allowing it to take steps to mitigate these effects through surgery, radiation or chemistry -- i.e., going in and rooting out the nasty parts by whatever means are at its disposal. Not a bad idea, actually.

Don Anderson, Oak View, USA/California

Free will versus determinism has been an ongoing debate since Classical times.
If the plea that "His brain made him do it" is upheld then either he and his brain must be separated, or his brain must be put in jail to protect society, and kept there until it has changed. That used to be done within the family, but to day is left to the schools and if they fail, counsellors.
The Vanderbuilt Neuroimaging Centre could help here as counselling is about as effective as soap and water at washing the "sins" out of folk.

John Q., Auckland, N.z.

Total nonsense. We always knew that all human behaviour comes from the brain. Only a religious view could think of something different. You do not need a metaphisycal phylosophy to run courts.

Paolo, Trento, ITALY

"This is an issue of free will. If the brain causes us to do things then we are not acting freely."
Steve L, St Albans, Herts

Steve: First, perhaps we need to distinguish freedom of the will from freedom of action; furthermore, to make a claim like you have done here (i.e., that causal explanation at the neural level rules of free will, full stop) would require you to considerably unpack what exactly you mean by 'free will' in this context. Very few contemporary philosophers believe that, because an action can be explained fully at the neural level, we are therefore without free will. Even many incompatibilists about free will and determinism (for example, Robert Kane) would not deny that actions can (in principle) be fully explained at the neural level. The question is how one integrates one's conception of the will (and freedom) into this picture. Let us not be so quick to lament the loss of our freedom in the face of advances in neuroscience.

Andrew Cameron, Pittsfield, MA, USA

Two completely wrong concepts:

1. "Me and my brain" as different entities.
2. Jail as punishment. Jail is for the security of the society and also for the individual who broke the law.

Get rid of all of this superstitious crap. Guilt and punishment are useless concepts. Get real!

Lisandro, Buenos Aires, Argentina

I agree with the main thrust here -- "my brain made me do it" implies some sense of "me" that is independent of my brain and its activity. Professor Tallis, however, lapses into implict dualism himself by distinguishing between acts that are the result of brain activity, and those that are "attributed to persons who are more than mere neural activity." On some level this is trivial -- persons are made of all kinds of bone and meat -- but a central tenet of neuroscience (as distinct from both neurolaw and neuromythology) is that behavior is the result of neural activity -- there is nothing extra. While this conclusion may be debated, if it is true then the question is not to distinguish between acts caused by brain activity and those caused by persons, but to distinguish between pathological from normal neural activity, and to determine which neural activity is associated with acting responsibly. This is a very hard question, and neuroscience has a long way to go...

Paul C, Atlanta, GA

We, as a society, will need to come to terms with the fact that true free-will and genuine responsibility in the sense people want it to be true are not scientifically (or philosophially) viable. Instead, our apportioning of blame, or not, to individuals for their actions is based on a blend of culture and evolutionary traits. In general, the meting out retribution (and rewarding good behavior) plays an obvious funcitonal role in society, and it is in the context of this function that any neuropsychological factors should be considered.

Elan , Boca Raton, FL

And what have we to say of repression of anti-socilal behaviour? I repress mine and you gratify yours but we are to be treated equally? Seems unfair. Is it?

Patrick MacKinnon, Victoria BC,

DR. Mark Bugeja. Knowledge of the law and the consequences for the crime are the only thing the brain has to be aware of to make the person committing acts against said law responsible for their actions.
Prison is a far safer place for criminals than the hands of Frankenstein doctors in sanotoriums, forcing inmates to have experimental drugs, ECT, lobotomies etc , who do not know enough about the brain but claim 'crime is an illness'. In the UK crime is becoming more acceptable, murder included, It has nothing to do with a rise in the number of mentaly ill and everything to do with the general decline of morality and the creeping acceptance, in law, of the 'anything but the person responsible is to blame theory'.
People in a position to effect changes in the law and who hold your type of views on crime are directly responsible for the rise in it.

David Thijm, Stourbridge, UK

If criminals want to use the excuse, "It's not my fault that the old lady was smashed in the face and subsequently died of shock because of what my brain made me do to her", fine.

Then they should be prepared to accept a sentence of imprisonment in a secure mental hospital until a proven cure is found.

Anil Chatterjee, Bury, Lancs

There is no Cartesian duality between "me" and "my brain". If my brain did it, I did it. If my brain has a structural fault, my mind has a structural fault. If I punish the person, I punish the brain. If I medically debug the brain, I restore sanity to the person.

We don't yet have the science to address the brain from the inside. We will, soon. In the mean time, punishment is a crude but sometimes effective way to debug the brain from the outside. There is no distinction between "I punished you to fix your brain" and "I punished you because you're responsible". You cannot avoid responsibility.

Julian Morrison, Reading, Berkshire

It is well worth remembering that the brain is yet another body tissue susceptible to diseases like those that effect other organs in the body (e.g. infections, tumours, vascular problems, etc) but also to other maladies e.g. epilepsy, neuroses (anxiety; depression) and psychoses that are characteristic to the brain alone and due to hormonal and neurotransmitter imbalances. There is a lot about the brain Medicine has yet to discover which is why capital punishment should never be resorted to and why "criminal" or "antisocial behaviour" should be "punishable" by hospitalisation and treatment and not by imprisonment!

DR. Mark Bugeja MD MMCFD, Pembroke, MALTA

News such as "neurolaw" can usually get big headlines. Implementing it in front of an American jury is another matter. Various impairment defenses such as "legal insanity" for exculpation or diminished capacity, and "twinkie defenses" are rarely invoked, and even more unlikely to be successful (usually around 1% of the time, or so). They are all reliant on "expert testimony" from a psychiatrist or psychologist. If "neurolaw" is a growth industry, then so is "slaughtering experts on the stand in front of the jury". I know, I do it for a living.

Tony Francis, Wichita, KS/USA

The purpose of law is to protect society from anti-social acts. The apportioning of moral blame is secondary to that purpose. If a person of very low IQ commits a crime, we assume that they are incapable of moral reasoning but we don't just set them free to do it again. The "brain made me do it" argument is an admission of impaired moral reasoning, not a free pass from legal consequences.

Geoff, Vancouver, Canada

Clearly, if the brain has committed a criminal act, then the brain needs to be treated to prevent it from committing further criminal acts. If the neurolawyers get their way, then the only logical sentence for a criminal brain must surely be a corrective lobotomy!

Dick, Durham, Uk

We were never asked if we wanted free will.

Russell, Lugano,

If a person's deviant brain is entirely responsible for their actions, then whether or not they deserve to be punished they should definitely be locked up for the safety of others.

Sara, London,

Did the Big Bang cause me to write this? Is matter all there is? Is the human person ultimately nothing but a chain of physical causes? Or is this 'neuromythology'?

Is it possible that ultimate reality is not material but personal? Is it possible that materialist atheism is a mythology - an irrational belief? It must be irrational if it is the product of blind natural forces. The conclusion that God exists seems innevitable if we are to sustain our irrational belief in human persons... Dare we even begin to think this? Do we have any choice?

James, London,

We have to believe in free will. There's no other way.

Andrew Campbell, London,

Utter nonsense. It is akin to saying "don't blame me, I'm just a criminal".

Pete, Bristol, UK

If punishment serves as a deterrence then it doesnt matter whether "it was the brain that done it" as the punishment will prevent the brain or other brains doing it again. Long live determinism!

Andrew , chesterfield,

This is an issue of free will. If the brain causes us to do things then we are not acting freely. We then, rightly do not have the moral responsibilities that people with free will have, and consequently, do not have the rights normally afforded to humans. To use a determinism defence is fine, but leaves the state in a position that it would be morally justified in providing treatment that would usually be considered to infringe someoneâ€™s human rights - such as the forced use of drugs to control future behaviour.

Steve L, St Albans, Herts

So the brain goes on trial and the brain is punished - where's the problem?

Eugene, Chester, England

So send the brain to prison. The body will usually agree to go with it.

Richard Baron, London,

Although it is admittedly difficult to 'pin the blame on the brain' in a court of law, yet a consideration of how the brain is formed in the first three years of life does help with an understanding of why some people grow up to be more aggressive, reckless and lacking in control than others. The brain develops to around 84% of adult size in the first two to three years of infancy and if there is severe emotional neglect during that time, then the orbito frontal cortex in particular fails to develop strongly. This is an important area of the brain that is responsible for empathy, self-control and anger management, stress management, sensitivity, linking cause and effect, concentration, memory and reading social signals. If this area does not function as it should, it is fairly obvious what the consequences will be. How tragic that an innocent child could grow up with such a crippling deficit in its personality through no fault of its own. Some manage to compensate, others don't.

Diana Dean, Cambridge, UK

Oh, great... we've been able to blame things on our genes so far, now we can blame things on our brains, too. Great. The final death knell for personal responsibility and freedom of choice.

Tina, Duesseldorf, Germany

Professor Tallis, my brain thinks that you are brilliant.

C. Hartman, Eugene, Oregon, USA