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All right.

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So, my name's Carl Fisher 
and I'm a forensic psychiatrist.

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That means I work 
in the kind of psychiatry

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that deals with the court system,

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the kind of evidence people 
bring about neuroscience,

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mental health, psychiatric diagnosis

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and the way that impacts 
the way we think about law.

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So, today I wanted 
to talk about punishment,

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because one thing 
I've become interested in

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is, a new trend, people are actually 
using neuroscience itself --

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brain scans, brain images -- in the court 
to make certain arguments

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about the way we punish individuals,

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or even about the way our legal system 
should function overall.

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In its most simple form,

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this takes the shape, 
"It wasn't me, it was my brain."

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So, it sounds a little sketchy 
when you see it at first, right?

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It doesn't make total intuitive sense.

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If my brain is the thing 
that produces my mind,

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if that's where my experiences, 
and my thoughts,

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and all of my feelings 
and motivations are stored,

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then how could a reference to my brain

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mean that I'm not responsible 
for a crime that I commit?

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Let me tell you a story

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that might help to set the scene

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and understand some of the issues here.

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So, this is a real story.

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It happened not too long ago in Virginia,

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where this mild-mannered, 
middle aged guy, early 40's, stable life,

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had a wife, kids, picket fence.

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Then, all of a sudden, 
he develops this interest --

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brand-new, he hides it at first --

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in child pornography.

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He starts collecting it,

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he starts secretly gathering it.

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And then, it starts to get worse:

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he gets interested in massage parlors.

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He starts propositioning people for sex.

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And then, eventually, saddly,

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his wife catches him 
making sexual advances

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toward his twelve-year-old kid.

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So, he's brought before court

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and he's convicted of child molestation.

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And, as a first-time offender, 
he gets the opportunity

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to engage in a treatment program.

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So, he goes to treatment groups,

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he gets some sort of therapy,

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but he fails miserably, 
because he can't stop propositioning

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the other people in the groups.

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So, he's scheduled to go back to court,

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and this time he's getting sentenced.

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This time, everyone knows 
that he's going to get some jail time.

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The night before the court,

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he goes to the emergency room,

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and he's complaining 
of the worst headache of his life.

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Once people get 
the full story, they think,

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"Hey, maybe this is... he's trying 
to get out of his punishment.

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This doesn't seem 
like it really hangs together."

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But they give the guy 
the benefit of the doubt

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and they do a brain scan.

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And they find this. It's a huge tumor 
in his frontal lobe.

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Luckily for him, it's a benign tumor.

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It's actually just a bone tumor

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that's pressing on 
his orbital frontal cortex,

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which is the part of the brain 
that people think governs

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social behavior and social regulation.

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So, they remove the tumor, 
the guy does all right,

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he goes back to the treatment court

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and he passes with flying colors.

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He's back to his 
normal mild-mannered self.

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Then, a couple years later,

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he starts to develop these urges again,

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but, thankfully, 
he's on the lookout for it.

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He goes back. 
Sure enough, the tumor is back.

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It's removed again and he's fine.

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And, as far as we know, to this day,

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no more problems.

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So, my point here is that this notion,

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"It wasn't me, it was my brain" 
sounds a little odd at first,

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but maybe there are certain cases 
where it actually makes sense.

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Maybe there are certain cases 
where we have to investigate

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a little further.

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This is some research from some 
Duke University law researchers,

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looking at court cases,

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and how often they say 
actual neuroscience,

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how often somebody produces brain imaging

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or brain scanning evidence.

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And so, in 2005, we already had 
about a hundred cases

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where people were doing this.

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This is growing exponentially, though.

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So, in just seven years,

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more than double the number of cases

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have been produced in court.

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So, this is happening, 
it's already getting traction.

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And these are only the court cases 
that are reported in opinions.

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There's probably more going on

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in the everyday pratice of courts.

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So, in most cases, 
this has to do with mitigation,

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it has to do with lowering 
someone's sentence,

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not getting them off entirely.

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So, I'm going to give a couple 
of examples about how this works.

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So, in the United States,

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there's a famous case of a serial killer 
called Brian Dugan.

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And I won't get into 
the gruesome details,

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but the point is that there's 
no doubt about his guilt.

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It was very clear 
that this man was guilty.

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So, the prosecution 
was going for the death penalty.

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The defense lawyers decided 
that the strategy would be,

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"Let's get an expert in brain imaging,

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scan his brain and put up some cartoons

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to make a very novel argument."

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It was the first time it happened 
in American courts.

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And they argued that Mr. Dugan 
had psychopathy.

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Psychopathy 
is a special medical condition.

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As indicated by his brain scans,

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he can't engage in a normal 
sort of impulse regulation,

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he can't govern his behavior.

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There's just something wrong 
with his brain, it's not him.

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And it's always hard to say exactly
what causes a particular event,

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what causes the jury to make a decision,

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but, in this case, they actually 
voided the death penalty.

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So, for an even more stark example,

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let's go over to Italy.

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There is a woman, Stefania Albertani, 
just a couple of years ago,

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who killed her sister, 
attempted to murder her parents,

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and got a life sentence.

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But then, the defense got the opportunity

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to present some more evidence.

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They presented some evidence 
about brain imaging

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and they made the argument 
that the brain areas

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that govern impulsivity 
were disfunctional in her.

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So, they managed to reduce her 
life sentence down to tweny years.

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So, we're already seeing some evidence

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that this stuff is working,

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it's getting traction, it's being used,

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and, in particular cases, brain imaging

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is actually managing to lower 
particular people's sentences.

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But does it have any impact 
on the court system at all?

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Can it change the way 
that we punish people overall?

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So, to answer that question,

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I'm going to turn 
to the US juvenile justice systems.

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So, if you've had any familiarity
or any encounters with this system,

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you'll know that the US 
can be pretty harsh

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when it comes to punishing kids.

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Until recently, 
kids could get the death penalty,

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they could be sentenced 
to life without parole.

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But there's been a series 
of recent supreme court cases

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that challenged that notion.

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The first was in 2005, 
Roper versus Simmons,

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and this was a case 
that challenged the death penalty

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for sixteen and seventeen-year-olds.

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And the majority opinion ruled 
that that was unconstitutional,

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that you couldn't give 
the death penalty to juveniles.

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And it's an especially notable case,

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because, for the first time,

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the supreme court actually cited 
neuroscience data.

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They said not only 
are adolescents not fully mature,

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that brain imaging and brain scaning 
actually shows us that.

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They show that the brain is still 
developing and evolving at that age.

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And that's part of their justification

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for why this is unconstitutional.

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Moving ahead to more recent cases,

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two more cases just very recently

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challenged the possibility 
of life without parole for juveniles,

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again found unconstitutional.

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But what's notable is, as we go 
in progression, case to case,

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the amount of the court opinion 


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that's devoted to neuroscience 
is increasing.

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What was just a footnote 
in Roper versus Simmons

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is now a whole section

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in the most recent case 
of Miller versus Alabama.

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So, we see that, 
in the highest court of the US,

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there's more and more 
focus on neuroscience.

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It's getting more traction.

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So, this has led some folks, 
especially in Academia,

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to make some claims 
about how neuroscience

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should change the way we think 
about neuroscience overall,

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about how our punishment practices 
in the US should be changed.

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So, this is David Eagleman.

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He's a neuroscientist down at Baylor

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and he's got a good example.

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He says that criminal activity

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should be taken as evidence 
of brain abnormality.

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We shouldn't see it as bad behavior.

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We should just see it 
as some sort of biological disfunction,

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and, furthermore, that we should 
tailor punishment to individuals,

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it should just be about rehabilitation,

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it should just be about treatment.

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This is becoming a very fashionable idea

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throughout all the halls of Academia.

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Philosophers, law professors, 
neuroscientists

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are now looking to neuroscience 
to provide a justification.

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Punishment in the United States 
right now, they say,

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is too retribution-based.

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We're trying to give people 
their just deserts.

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What we should be doing 
is be focusing on rehabilitation,

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about helping people.

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So, it sounds like 
an attractive concept, right,

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to have a more humane 
and more just punishment system,

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but I think we need 
to look to history for some lessons

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about how this might play out.

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So, this is a picture 
of the Alcatraz jazz band, in the 1950's.

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So, back around this time, 
the 1950's and 60's,

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in US punishment philosophy 
and US punishment justifications,

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people were very invested 
in the rehabilitation model.

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There was a lot of focus on 
addressing the root causes of crime.

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Maybe if we can provide people 
with useful opportunities,

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ways to develop themselves 
as people, we can prevent crime,

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and once people are released,

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we won't get the same rates 
of recidivism as we do normally.

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The problem with this 
was that it didn't work.

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The social reformers were 
overclaiming, overpromising,

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and then, when those results 
weren't realized,

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it set the stage for a backlash.

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So, by the 1980's,

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we have a totally different retoric.

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We have the war on crime, 
mandatory minimum sentences,

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determinative sentences 
that take more of the choice

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out of judges' hands.

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And what I'd like to suggest

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is that this is, in large part, 
due to a setup.

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The social reformers 
of the 50's and 60's, by overpromising,

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set the stage for this sort of backlash,

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when the pendulum swung back

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toward a more 
retribution-based punishment system.

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This is a graph of incarceration rates 
in the United States,

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as a function of population.

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So, it's just the proportion of people

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who are locked up at any given time.

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So, what we see here is, 
dating back to 1925,

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incarceration rates 
were relatively stable,

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including through the social reform era.

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But then, around this time, 
in the late 1970's, 1980's,

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where the tough-on-crime retoric 
starts to pick up speed,

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we see a massive increase 
in incarceration rates.

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And so, to bring us back to neuroscience,

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the story I want to tell

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is that it has implications for what we do

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with the science that we're using.

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To promote a treatment model sounds good,

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but we have to be careful about
what scientific arguments we hitch

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on to our policy argument.

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Neuroscience might have 
a limited role in the court room.

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In cases where someone has a tumor,

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in cases where someone 
has a clearly identified abnormality,

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it might be useful 
to investigate further.

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But, even then, facts are just facts, 
and that's how science works.

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They give us the facts, but then, 
in the court of law,

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or in ethics or in any sort 
of value system,

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then we have to make the active step

250
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of making a determination 
about what actually matters.

251
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I'd like to suggest 
that the dangerous part of this trend

252
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is this notion: 
"It isn't us, it's our brains."

253
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To argue for a systemwide reform 
on the basis of neuroscience

254
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gets in a dangerous territory.

255
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We've already seen that making 
overpromises and making overclaims

256
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might set the stage 
for a pendular backlash,

257
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and you can imagine the same sort of data

258
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being used for the opposite argument:

259
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if someone's brain is broken

260
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or if their brain determines 
that they're a criminal,

261
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why not lock them up for longer?

262
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So, I think we have to be careful 
about these questions.

263
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There are a lot of questions 
that are worth asking

264
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about the US punishment system.

265
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My point is not to make a political point,

266
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but just whether we're interested in

267
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whether the US legal system 
is punishing people the right way,

268
00:11:23,026 --> 00:11:25,308
if our penal system 
is accomplishing the goals

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that it's set out to accomplish.

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These are questions worth asking.

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But we don't need to wait 
for neuroscience to tell us the answers.

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We don't need to hitch 
our arguments on to neuroscience.

273
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That's my talk. Thanks very much.

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(Applause)