0:00:09.444,0:00:11.211
All right.

0:00:12.091,0:00:15.726
So, my name's Carl Fisher [br]and I'm a forensic psychiatrist.

0:00:15.726,0:00:18.206
That means I work [br]in the kind of psychiatry

0:00:18.206,0:00:19.760
that deals with the court system,

0:00:19.760,0:00:22.425
the kind of evidence people [br]bring about neuroscience,

0:00:22.425,0:00:25.019
mental health, psychiatric diagnosis

0:00:25.019,0:00:28.299
and the way that impacts [br]the way we think about law.

0:00:28.299,0:00:31.169
So, today I wanted [br]to talk about punishment,

0:00:31.169,0:00:33.315
because one thing [br]I've become interested in

0:00:33.315,0:00:37.011
is, a new trend, people are actually [br]using neuroscience itself --

0:00:37.011,0:00:40.613
brain scans, brain images -- in the court [br]to make certain arguments

0:00:40.613,0:00:42.932
about the way we punish individuals,

0:00:42.932,0:00:46.036
or even about the way our legal system [br]should function overall.

0:00:46.036,0:00:47.901
In its most simple form,

0:00:47.901,0:00:52.110
this takes the shape, [br]"It wasn't me, it was my brain."

0:00:52.110,0:00:55.165
So, it sounds a little sketchy [br]when you see it at first, right?

0:00:55.165,0:00:57.273
It doesn't make total intuitive sense.

0:00:57.273,0:00:59.546
If my brain is the thing [br]that produces my mind,

0:00:59.546,0:01:01.851
if that's where my experiences, [br]and my thoughts,

0:01:01.851,0:01:04.219
and all of my feelings [br]and motivations are stored,

0:01:04.219,0:01:06.343
then how could a reference to my brain

0:01:06.343,0:01:09.640
mean that I'm not responsible [br]for a crime that I commit?

0:01:09.640,0:01:11.336
Let me tell you a story

0:01:11.336,0:01:13.268
that might help to set the scene

0:01:13.268,0:01:16.441
and understand some of the issues here.

0:01:16.441,0:01:18.044
So, this is a real story.

0:01:18.044,0:01:20.633
It happened not too long ago in Virginia,

0:01:20.633,0:01:26.312
where this mild-mannered, [br]middle aged guy, early 40's, stable life,

0:01:26.312,0:01:28.253
had a wife, kids, picket fence.

0:01:28.253,0:01:30.630
Then, all of a sudden, [br]he develops this interest --

0:01:30.630,0:01:32.203
brand-new, he hides it at first --

0:01:32.203,0:01:33.880
in child pornography.

0:01:33.880,0:01:35.966
He starts collecting it,

0:01:35.966,0:01:38.111
he starts secretly gathering it.

0:01:38.111,0:01:39.702
And then, it starts to get worse:

0:01:39.702,0:01:41.665
he gets interested in massage parlors.

0:01:41.665,0:01:43.971
He starts propositioning people for sex.

0:01:43.971,0:01:45.781
And then, eventually, saddly,

0:01:45.781,0:01:47.929
his wife catches him [br]making sexual advances

0:01:47.929,0:01:49.610
toward his twelve-year-old kid.

0:01:49.610,0:01:51.838
So, he's brought before court

0:01:51.838,0:01:54.779
and he's convicted of child molestation.

0:01:54.779,0:01:57.384
And, as a first-time offender, [br]he gets the opportunity

0:01:57.384,0:01:58.999
to engage in a treatment program.

0:01:58.999,0:02:00.807
So, he goes to treatment groups,

0:02:00.807,0:02:02.619
he gets some sort of therapy,

0:02:02.619,0:02:05.530
but he fails miserably, [br]because he can't stop propositioning

0:02:05.530,0:02:07.245
the other people in the groups.

0:02:07.245,0:02:09.162
So, he's scheduled to go back to court,

0:02:09.162,0:02:10.708
and this time he's getting sentenced.

0:02:10.708,0:02:13.758
This time, everyone knows [br]that he's going to get some jail time.

0:02:13.758,0:02:16.322
The night before the court,

0:02:16.322,0:02:17.959
he goes to the emergency room,

0:02:17.959,0:02:20.574
and he's complaining [br]of the worst headache of his life.

0:02:20.574,0:02:22.307
Once people get [br]the full story, they think,

0:02:22.307,0:02:25.768
"Hey, maybe this is... he's trying [br]to get out of his punishment.

0:02:25.768,0:02:29.128
This doesn't seem [br]like it really hangs together."

0:02:29.128,0:02:32.458
But they give the guy [br]the benefit of the doubt

0:02:32.458,0:02:34.786
and they do a brain scan.

0:02:34.786,0:02:38.383
And they find this. It's a huge tumor [br]in his frontal lobe.

0:02:38.383,0:02:39.867
Luckily for him, it's a benign tumor.

0:02:39.867,0:02:41.340
It's actually just a bone tumor

0:02:41.340,0:02:43.711
that's pressing on [br]his orbital frontal cortex,

0:02:43.711,0:02:46.357
which is the part of the brain [br]that people think governs

0:02:46.357,0:02:48.833
social behavior and social regulation.

0:02:48.833,0:02:51.984
So, they remove the tumor, [br]the guy does all right,

0:02:51.984,0:02:53.882
he goes back to the treatment court

0:02:53.882,0:02:56.141
and he passes with flying colors.

0:02:56.141,0:02:58.622
He's back to his [br]normal mild-mannered self.

0:02:58.622,0:02:59.992
Then, a couple years later,

0:02:59.992,0:03:01.504
he starts to develop these urges again,

0:03:01.504,0:03:03.867
but, thankfully, [br]he's on the lookout for it.

0:03:03.867,0:03:06.551
He goes back. [br]Sure enough, the tumor is back.

0:03:06.551,0:03:09.242
It's removed again and he's fine.

0:03:09.242,0:03:11.767
And, as far as we know, to this day,

0:03:11.767,0:03:13.364
no more problems.

0:03:13.364,0:03:16.129
So, my point here is that this notion,

0:03:16.129,0:03:19.804
"It wasn't me, it was my brain" [br]sounds a little odd at first,

0:03:19.804,0:03:22.540
but maybe there are certain cases [br]where it actually makes sense.

0:03:22.540,0:03:25.293
Maybe there are certain cases [br]where we have to investigate

0:03:25.293,0:03:27.042
a little further.

0:03:27.042,0:03:31.447
This is some research from some [br]Duke University law researchers,

0:03:31.447,0:03:33.179
looking at court cases,

0:03:33.179,0:03:35.378
and how often they say [br]actual neuroscience,

0:03:35.378,0:03:38.512
how often somebody produces brain imaging

0:03:38.512,0:03:39.963
or brain scanning evidence.

0:03:39.963,0:03:43.271
And so, in 2005, we already had [br]about a hundred cases

0:03:43.271,0:03:45.187
where people were doing this.

0:03:45.187,0:03:47.919
This is growing exponentially, though.

0:03:47.919,0:03:50.618
So, in just seven years,

0:03:50.618,0:03:52.307
more than double the number of cases

0:03:52.307,0:03:53.655
have been produced in court.

0:03:53.655,0:03:56.175
So, this is happening, [br]it's already getting traction.

0:03:56.175,0:03:59.255
And these are only the court cases [br]that are reported in opinions.

0:03:59.255,0:04:00.927
There's probably more going on

0:04:00.927,0:04:02.835
in the everyday pratice of courts.

0:04:02.835,0:04:05.560
So, in most cases, [br]this has to do with mitigation,

0:04:05.560,0:04:07.768
it has to do with lowering [br]someone's sentence,

0:04:07.768,0:04:09.981
not getting them off entirely.

0:04:09.981,0:04:13.060
So, I'm going to give a couple [br]of examples about how this works.

0:04:13.060,0:04:14.950
So, in the United States,

0:04:14.950,0:04:18.147
there's a famous case of a serial killer [br]called Brian Dugan.

0:04:18.147,0:04:20.383
And I won't get into [br]the gruesome details,

0:04:20.383,0:04:23.005
but the point is that there's [br]no doubt about his guilt.

0:04:23.005,0:04:25.115
It was very clear [br]that this man was guilty.

0:04:25.115,0:04:27.612
So, the prosecution [br]was going for the death penalty.

0:04:27.612,0:04:30.754
The defense lawyers decided [br]that the strategy would be,

0:04:30.754,0:04:32.660
"Let's get an expert in brain imaging,

0:04:32.660,0:04:34.547
scan his brain and put up some cartoons

0:04:34.547,0:04:36.040
to make a very novel argument."

0:04:36.040,0:04:38.616
It was the first time it happened [br]in American courts.

0:04:38.616,0:04:41.128
And they argued that Mr. Dugan [br]had psychopathy.

0:04:41.128,0:04:43.518
Psychopathy [br]is a special medical condition.

0:04:43.518,0:04:46.009
As indicated by his brain scans,

0:04:46.009,0:04:49.479
he can't engage in a normal [br]sort of impulse regulation,

0:04:49.479,0:04:51.352
he can't govern his behavior.

0:04:51.352,0:04:54.304
There's just something wrong [br]with his brain, it's not him.

0:04:54.304,0:04:58.430
And it's always hard to say exactly[br]what causes a particular event,

0:04:58.430,0:05:00.877
what causes the jury to make a decision,

0:05:00.877,0:05:04.328
but, in this case, they actually [br]voided the death penalty.

0:05:04.328,0:05:07.056
So, for an even more stark example,

0:05:07.056,0:05:08.558
let's go over to Italy.

0:05:08.558,0:05:12.790
There is a woman, Stefania Albertani, [br]just a couple of years ago,

0:05:12.790,0:05:15.627
who killed her sister, [br]attempted to murder her parents,

0:05:15.627,0:05:16.944
and got a life sentence.

0:05:16.944,0:05:18.687
But then, the defense got the opportunity

0:05:18.687,0:05:20.188
to present some more evidence.

0:05:20.188,0:05:22.279
They presented some evidence [br]about brain imaging

0:05:22.279,0:05:24.512
and they made the argument [br]that the brain areas

0:05:24.512,0:05:27.301
that govern impulsivity [br]were disfunctional in her.

0:05:27.301,0:05:31.702
So, they managed to reduce her [br]life sentence down to tweny years.

0:05:31.702,0:05:33.773
So, we're already seeing some evidence

0:05:33.773,0:05:35.118
that this stuff is working,

0:05:35.118,0:05:37.241
it's getting traction, it's being used,

0:05:37.241,0:05:39.204
and, in particular cases, brain imaging

0:05:39.204,0:05:42.349
is actually managing to lower [br]particular people's sentences.

0:05:42.349,0:05:45.243
But does it have any impact [br]on the court system at all?

0:05:45.243,0:05:48.529
Can it change the way [br]that we punish people overall?

0:05:48.529,0:05:51.051
So, to answer that question,

0:05:51.051,0:05:53.670
I'm going to turn [br]to the US juvenile justice systems.

0:05:53.670,0:05:57.005
So, if you've had any familiarity[br]or any encounters with this system,

0:05:57.005,0:05:59.104
you'll know that the US [br]can be pretty harsh

0:05:59.104,0:06:01.042
when it comes to punishing kids.

0:06:01.042,0:06:03.531
Until recently, [br]kids could get the death penalty,

0:06:03.531,0:06:05.897
they could be sentenced [br]to life without parole.

0:06:05.897,0:06:08.791
But there's been a series [br]of recent supreme court cases

0:06:08.791,0:06:10.652
that challenged that notion.

0:06:10.652,0:06:14.498
The first was in 2005, [br]Roper versus Simmons,

0:06:14.498,0:06:17.068
and this was a case [br]that challenged the death penalty

0:06:17.068,0:06:19.054
for sixteen and seventeen-year-olds.

0:06:19.054,0:06:22.064
And the majority opinion ruled [br]that that was unconstitutional,

0:06:22.064,0:06:25.247
that you couldn't give [br]the death penalty to juveniles.

0:06:25.247,0:06:27.232
And it's an especially notable case,

0:06:27.232,0:06:28.708
because, for the first time,

0:06:28.708,0:06:31.383
the supreme court actually cited [br]neuroscience data.

0:06:31.383,0:06:34.645
They said not only [br]are adolescents not fully mature,

0:06:34.645,0:06:37.546
that brain imaging and brain scaning [br]actually shows us that.

0:06:37.546,0:06:40.855
They show that the brain is still [br]developing and evolving at that age.

0:06:40.855,0:06:42.811
And that's part of their justification

0:06:42.811,0:06:45.121
for why this is unconstitutional.

0:06:45.121,0:06:47.891
Moving ahead to more recent cases,

0:06:47.891,0:06:49.951
two more cases just very recently

0:06:49.951,0:06:53.027
challenged the possibility [br]of life without parole for juveniles,

0:06:53.027,0:06:54.523
again found unconstitutional.

0:06:54.523,0:06:58.533
But what's notable is, as we go [br]in progression, case to case,

0:06:58.533,0:07:00.047
the amount of the court opinion [br]

0:07:00.047,0:07:02.375
that's devoted to neuroscience [br]is increasing.

0:07:02.375,0:07:04.673
What was just a footnote [br]in Roper versus Simmons

0:07:04.673,0:07:06.117
is now a whole section

0:07:06.117,0:07:08.721
in the most recent case [br]of Miller versus Alabama.

0:07:08.721,0:07:11.360
So, we see that, [br]in the highest court of the US,

0:07:11.360,0:07:13.464
there's more and more [br]focus on neuroscience.

0:07:13.464,0:07:16.092
It's getting more traction.

0:07:16.092,0:07:19.137
So, this has led some folks, [br]especially in Academia,

0:07:19.137,0:07:21.053
to make some claims [br]about how neuroscience

0:07:21.053,0:07:23.840
should change the way we think [br]about neuroscience overall,

0:07:23.840,0:07:26.661
about how our punishment practices [br]in the US should be changed.

0:07:26.661,0:07:28.300
So, this is David Eagleman.

0:07:28.300,0:07:30.316
He's a neuroscientist down at Baylor

0:07:30.316,0:07:32.186
and he's got a good example.

0:07:32.186,0:07:33.735
He says that criminal activity

0:07:33.735,0:07:35.993
should be taken as evidence [br]of brain abnormality.

0:07:35.993,0:07:37.583
We shouldn't see it as bad behavior.

0:07:37.583,0:07:40.393
We should just see it [br]as some sort of biological disfunction,

0:07:40.393,0:07:43.774
and, furthermore, that we should [br]tailor punishment to individuals,

0:07:43.774,0:07:45.959
it should just be about rehabilitation,

0:07:45.959,0:07:48.193
it should just be about treatment.

0:07:48.193,0:07:50.916
This is becoming a very fashionable idea

0:07:50.916,0:07:53.077
throughout all the halls of Academia.

0:07:53.077,0:07:55.932
Philosophers, law professors, [br]neuroscientists

0:07:55.932,0:07:59.692
are now looking to neuroscience [br]to provide a justification.

0:07:59.692,0:08:02.265
Punishment in the United States [br]right now, they say,

0:08:02.265,0:08:04.762
is too retribution-based.

0:08:04.762,0:08:07.065
We're trying to give people [br]their just deserts.

0:08:07.065,0:08:10.781
What we should be doing [br]is be focusing on rehabilitation,

0:08:10.781,0:08:13.015
about helping people.

0:08:13.015,0:08:15.397
So, it sounds like [br]an attractive concept, right,

0:08:15.397,0:08:18.882
to have a more humane [br]and more just punishment system,

0:08:18.882,0:08:21.520
but I think we need [br]to look to history for some lessons

0:08:21.520,0:08:23.271
about how this might play out.

0:08:23.271,0:08:28.366
So, this is a picture [br]of the Alcatraz jazz band, in the 1950's.

0:08:28.366,0:08:30.682
So, back around this time, [br]the 1950's and 60's,

0:08:30.682,0:08:35.026
in US punishment philosophy [br]and US punishment justifications,

0:08:35.026,0:08:37.594
people were very invested [br]in the rehabilitation model.

0:08:37.594,0:08:41.059
There was a lot of focus on [br]addressing the root causes of crime.

0:08:41.059,0:08:44.578
Maybe if we can provide people [br]with useful opportunities,

0:08:44.578,0:08:48.036
ways to develop themselves [br]as people, we can prevent crime,

0:08:48.036,0:08:49.890
and once people are released,

0:08:49.890,0:08:53.680
we won't get the same rates [br]of recidivism as we do normally.

0:08:53.680,0:08:55.963
The problem with this [br]was that it didn't work.

0:08:55.963,0:08:59.461
The social reformers were [br]overclaiming, overpromising,

0:08:59.461,0:09:01.654
and then, when those results [br]weren't realized,

0:09:01.654,0:09:04.377
it set the stage for a backlash.

0:09:04.377,0:09:06.352
So, by the 1980's,

0:09:06.352,0:09:08.767
we have a totally different retoric.

0:09:08.767,0:09:12.228
We have the war on crime, [br]mandatory minimum sentences,

0:09:12.228,0:09:14.713
determinative sentences [br]that take more of the choice

0:09:14.713,0:09:16.873
out of judges' hands.

0:09:16.873,0:09:18.834
And what I'd like to suggest

0:09:18.834,0:09:21.966
is that this is, in large part, [br]due to a setup.

0:09:21.966,0:09:25.480
The social reformers [br]of the 50's and 60's, by overpromising,

0:09:25.480,0:09:27.435
set the stage for this sort of backlash,

0:09:27.435,0:09:29.066
when the pendulum swung back

0:09:29.066,0:09:32.544
toward a more [br]retribution-based punishment system.

0:09:32.544,0:09:35.454
This is a graph of incarceration rates [br]in the United States,

0:09:35.454,0:09:36.832
as a function of population.

0:09:36.832,0:09:38.732
So, it's just the proportion of people

0:09:38.732,0:09:40.549
who are locked up at any given time.

0:09:40.549,0:09:43.676
So, what we see here is, [br]dating back to 1925,

0:09:43.676,0:09:46.163
incarceration rates [br]were relatively stable,

0:09:46.163,0:09:48.213
including through the social reform era.

0:09:48.213,0:09:51.720
But then, around this time, [br]in the late 1970's, 1980's,

0:09:51.720,0:09:54.819
where the tough-on-crime retoric [br]starts to pick up speed,

0:09:54.819,0:09:58.063
we see a massive increase [br]in incarceration rates.

0:09:58.063,0:10:02.231
And so, to bring us back to neuroscience,

0:10:02.231,0:10:03.771
the story I want to tell

0:10:03.771,0:10:06.720
is that it has implications for what we do

0:10:06.720,0:10:08.374
with the science that we're using.

0:10:08.374,0:10:10.109
To promote a treatment model sounds good,

0:10:10.109,0:10:13.444
but we have to be careful about[br]what scientific arguments we hitch

0:10:13.444,0:10:15.780
on to our policy argument.

0:10:16.310,0:10:19.333
Neuroscience might have [br]a limited role in the court room.

0:10:19.333,0:10:21.055
In cases where someone has a tumor,

0:10:21.055,0:10:24.334
in cases where someone [br]has a clearly identified abnormality,

0:10:24.334,0:10:26.589
it might be useful [br]to investigate further.

0:10:26.589,0:10:29.198
But, even then, facts are just facts, [br]and that's how science works.

0:10:29.198,0:10:31.193
They give us the facts, but then, [br]in the court of law,

0:10:31.193,0:10:33.709
or in ethics or in any sort [br]of value system,

0:10:33.709,0:10:35.711
then we have to make the active step

0:10:35.711,0:10:38.957
of making a determination [br]about what actually matters.

0:10:38.957,0:10:43.128
I'd like to suggest [br]that the dangerous part of this trend

0:10:43.128,0:10:46.987
is this notion: [br]"It isn't us, it's our brains."

0:10:46.987,0:10:50.219
To argue for a systemwide reform [br]on the basis of neuroscience

0:10:50.219,0:10:52.820
gets in a dangerous territory.

0:10:52.820,0:10:57.171
We've already seen that making [br]overpromises and making overclaims

0:10:57.171,0:10:59.464
might set the stage [br]for a pendular backlash,

0:10:59.464,0:11:01.458
and you can imagine the same sort of data

0:11:01.458,0:11:03.605
being used for the opposite argument:

0:11:03.605,0:11:05.292
if someone's brain is broken

0:11:05.292,0:11:07.571
or if their brain determines [br]that they're a criminal,

0:11:07.571,0:11:09.438
why not lock them up for longer?

0:11:09.438,0:11:11.728
So, I think we have to be careful [br]about these questions.

0:11:11.728,0:11:13.321
There are a lot of questions [br]that are worth asking

0:11:13.321,0:11:14.762
about the US punishment system.

0:11:14.762,0:11:16.888
My point is not to make a political point,

0:11:16.888,0:11:19.894
but just whether we're interested in

0:11:19.894,0:11:23.026
whether the US legal system [br]is punishing people the right way,

0:11:23.026,0:11:25.308
if our penal system [br]is accomplishing the goals

0:11:25.308,0:11:27.183
that it's set out to accomplish.

0:11:27.183,0:11:29.046
These are questions worth asking.

0:11:29.046,0:11:31.855
But we don't need to wait [br]for neuroscience to tell us the answers.

0:11:31.855,0:11:34.456
We don't need to hitch [br]our arguments on to neuroscience.

0:11:34.456,0:11:36.368
That's my talk. Thanks very much.

0:11:36.368,0:11:39.432
(Applause)