I recently came across an interesting article which raises interesting questions regarding neuroscience, justice, responsibility, and punishment. I have some thoughts, and I wonder what others think.


 In one recent study, brain scans correctly predicted which inmates in a New Mexico prison were most likely to commit another crime after release.

and another study reports:

children in Denmark who had been adopted from parents with a criminal record were more likely to become criminals in adulthood than were other adopted kids. […] For biological parents who had no offenses, 13% of their sons had been convicted; for biological parents with three or more offenses, 25% of their sons had been convicted.

Finally consider this case: 

Take the case of Donta Page, who in 1999 robbed a young woman in Denver named Peyton Tuthill, then raped her, slit her throat and killed her by plunging a kitchen knife into her chest. Mr. Page was found guilty of first-degree murder and was a prime candidate for the death penalty. Working as an expert witness for Mr. Page’s defense counsel, I brought him to a lab to assess his brain functioning. Scans revealed a distinct lack of activation in the ventral prefrontal cortex—the brain region that helps to regulate our emotions and control our impulses. In testifying, I argued for a deep-rooted biosocial explanation for Mr. Page’s violence. As his files documented, as a child he suffered from poor nutrition, severe parental neglect, sustained physical and sexual abuse, early head injuries, learning disabilities, poor cognitive functioning and lead exposure. He also had a family history of mental illness. By the age of 18, Mr. Page had been referred for psychological treatment 19 times, but he had never once received treatment.

Of course explanations are not excuses. But how should we respond to criminals who, no fault of their own, have biological predispositions to be violent?

 I have a broadly consequentialist view of punishment, therefore see no intrinsic benefit of punishment if it does not lead to a greater good. Therefore the most relevant content of this kind of biological information is how likely is the subject to commit another crime ? But how fair is it to aggravate a criminal’s sentence because of neurological analysis showing any particular test result? How would you feel if after a brain scan, some analysis showed that you a biological predisposition to violence, and therefore it would be better for the community for you to be isolated? On the other hand, consider the case of the murdered above: would it not have been good to have acted before he committed the crime?!

The technology is here. We can decide to use it, or not to use it. Either one is a decision and whatever we end up doing, it needs to be carefully considered.


2 thoughts on “Neuro-blame

  1. These are such a tough questions, great to see this blog about them. If there is a clear biological reason for someone that removes their agency in making a decision, it’s harder to hold them responsible for their actions. So if someone has a a brain injury that you know from testing makes them impulsive and extremely poor at decision-making, you won’t treat them in the same way as someone who’s crime was premeditated.

    Re the brain scans as evidence, they are tough for a few reasons.

    First, people are extremely vulnerable to seeing brain scans as strong evidence for whatever is being said – regardless of the quality of the evidence. That is, they can be seen as evidence when they are not. So you have to be sure to really underhand the quality of the evidence.

    Second, the above statement about Page is confusing on this point – the author had a lot of non brain-scan evidence – particularly the repeated recommended psych Evals that were not completed – which are pretty good evidence independent of the fMRI that he had psych issues. It’s unclear if the fMRI added anything to the picture.

    Finally, the fMRI paradigm itself may or may not show what the person above wants to show. The person writing in the excerpt above is trying to say the fMRI is evidence that the defendant cannot regulate their behavior. For fMRI to be used that way you would need to make sure the method is (a) reliable (if you scan the person 10 times, do you get the same result each time) and (b) valid (each time you see prefrontal activation in someone, it is because they have poor emotion regulation). Good evidence might be multiple peer-reviewed papers on each of these issues.

    Re the value issues you go over, if fMRI could provide evidence someone as at an increased likelihood of committing crimes, then I think we should treat it in the same way as we treat any such evidence. Ie., if someone has been repeatedly sexually abused as a child and is now in an abusive relationship should we preemptively remove them from society or constrain their behavior? That’s an extremely hard call… Because the relationship between these factors and behavior is not absolute. We may end up restricting the liberties of a lot of people who would never break the law if they were simply left to live their lives.

    Interesting blog – thanks for posting!

    • Thanks for the comment.
      I think I agree with everything you say. In some sense perhaps this question of brain scans, as you point out, isn’t that different from other kinds of evidence.

      Where I think we can perceive a difference is that brain-related evidence seems to establish the causal link in a way that say “childhood abuse” doesn’t. So if I had been abused maybe that would put me in a risk category because I may or may not have developed serious problems. But “proven” brain-damage suggests that there is a problem waiting to be manifested (with natural caveats about the unreliable nature of interpreting brain scans etc).

      This is an area where clear thinking by scientists is important to inform the criminal justice system. I don’t know what you think, but in my view the use of “punishment” in our society is only vaguely aligned with the function it should have. Namely there is the use of punishment in an excessively moralized sense for the sake of causing suffering to the guilty part. As opposed to using punishment purely with preventive and deterrent functions.

      The establishment of clearer connections between behavior and uncontrollable circumstances (say brain damage, or indeed childhood abuse) might lead to different and better use of punishment.

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