All right.

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

That means I work 
in the kind of psychiatry

that deals with the court system,

the kind of evidence people 
bring about neuroscience,

mental health, psychiatric diagnosis

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

So, today I wanted 
to talk about punishment,

because one thing 
I've become interested in

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

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

about the way we punish individuals,

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

In its most simple form,

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

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

It doesn't make total intuitive sense.

If my brain is the thing 
that produces my mind,

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

and all of my feelings 
and motivations are stored,

then how could a reference to my brain

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

Let me tell you a story

that might help to set the scene

and understand some of the issues here.

So, this is a real story.

It happened not too long ago in Virginia,

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

had a wife, kids, picket fence.

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

brand-new, he hides it at first --

in child pornography.

He starts collecting it,

he starts secretly gathering it.

And then, it starts to get worse:

he gets interested in massage parlors.

He starts propositioning people for sex.

And then, eventually, saddly,

his wife catches him 
making sexual advances

toward his twelve-year-old kid.

So, he's brought before court

and he's convicted of child molestation.

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

to engage in a treatment program.

So, he goes to treatment groups,

he gets some sort of therapy,

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

the other people in the groups.

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

and this time he's getting sentenced.

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

The night before the court,

he goes to the emergency room,

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

Once people get 
the full story, they think,

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

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

But they give the guy 
the benefit of the doubt

and they do a brain scan.

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

Luckily for him, it's a benign tumor.

It's actually just a bone tumor

that's pressing on 
his orbital frontal cortex,

which is the part of the brain 
that people think governs

social behavior and social regulation.

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

he goes back to the treatment court

and he passes with flying colors.

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

Then, a couple years later,

he starts to develop these urges again,

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

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

It's removed again and he's fine.

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

no more problems.

So, my point here is that this notion,

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

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

Maybe there are certain cases 
where we have to investigate

a little further.

This is some research from some 
Duke University law researchers,

looking at court cases,

and how often they say 
actual neuroscience,

how often somebody produces brain imaging

or brain scanning evidence.

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

where people were doing this.

This is growing exponentially, though.

So, in just seven years,

more than double the number of cases

have been produced in court.

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

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

There's probably more going on

in the everyday pratice of courts.

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

it has to do with lowering 
someone's sentence,

not getting them off entirely.

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

So, in the United States,

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

And I won't get into 
the gruesome details,

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

It was very clear 
that this man was guilty.

So, the prosecution 
was going for the death penalty.

The defense lawyers decided 
that the strategy would be,

"Let's get an expert in brain imaging,

scan his brain and put up some cartoons

to make a very novel argument."

It was the first time it happened 
in American courts.

And they argued that Mr. Dugan 
had psychopathy.

Psychopathy 
is a special medical condition.

As indicated by his brain scans,

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

he can't govern his behavior.

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

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

what causes the jury to make a decision,

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

So, for an even more stark example,

let's go over to Italy.

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

who killed her sister, 
attempted to murder her parents,

and got a life sentence.

But then, the defense got the opportunity

to present some more evidence.

They presented some evidence 
about brain imaging

and they made the argument 
that the brain areas

that govern impulsivity 
were disfunctional in her.

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

So, we're already seeing some evidence

that this stuff is working,

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

and, in particular cases, brain imaging

is actually managing to lower 
particular people's sentences.

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

Can it change the way 
that we punish people overall?

So, to answer that question,

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

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

you'll know that the US 
can be pretty harsh

when it comes to punishing kids.

Until recently, 
kids could get the death penalty,

they could be sentenced 
to life without parole.

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

that challenged that notion.

The first was in 2005, 
Roper versus Simmons,

and this was a case 
that challenged the death penalty

for sixteen and seventeen-year-olds.

And the majority opinion ruled 
that that was unconstitutional,

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

And it's an especially notable case,

because, for the first time,

the supreme court actually cited 
neuroscience data.

They said not only 
are adolescents not fully mature,

that brain imaging and brain scaning 
actually shows us that.

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

And that's part of their justification

for why this is unconstitutional.

Moving ahead to more recent cases,

two more cases just very recently

challenged the possibility 
of life without parole for juveniles,

again found unconstitutional.

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

the amount of the court opinion

that's devoted to neuroscience 
is increasing.

What was just a footnote 
in Roper versus Simmons

is now a whole section

in the most recent case 
of Miller versus Alabama.

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

there's more and more 
focus on neuroscience.

It's getting more traction.

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

to make some claims 
about how neuroscience

should change the way we think 
about neuroscience overall,

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

So, this is David Eagleman.

He's a neuroscientist down at Baylor

and he's got a good example.

He says that criminal activity

should be taken as evidence 
of brain abnormality.

We shouldn't see it as bad behavior.

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

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

it should just be about rehabilitation,

it should just be about treatment.

This is becoming a very fashionable idea

throughout all the halls of Academia.

Philosophers, law professors, 
neuroscientists

are now looking to neuroscience 
to provide a justification.

Punishment in the United States 
right now, they say,

is too retribution-based.

We're trying to give people 
their just deserts.

What we should be doing 
is be focusing on rehabilitation,

about helping people.

So, it sounds like 
an attractive concept, right,

to have a more humane 
and more just punishment system,

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

about how this might play out.

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

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

in US punishment philosophy 
and US punishment justifications,

people were very invested 
in the rehabilitation model.

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

Maybe if we can provide people 
with useful opportunities,

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

and once people are released,

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

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

The social reformers were 
overclaiming, overpromising,

and then, when those results 
weren't realized,

it set the stage for a backlash.

So, by the 1980's,

we have a totally different retoric.

We have the war on crime, 
mandatory minimum sentences,

determinative sentences 
that take more of the choice

out of judges' hands.

And what I'd like to suggest

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

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

set the stage for this sort of backlash,

when the pendulum swung back

toward a more 
retribution-based punishment system.

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

as a function of population.

So, it's just the proportion of people

who are locked up at any given time.

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

incarceration rates 
were relatively stable,

including through the social reform era.

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

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

we see a massive increase 
in incarceration rates.

And so, to bring us back to neuroscience,

the story I want to tell

is that it has implications for what we do

with the science that we're using.

To promote a treatment model sounds good,

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

on to our policy argument.

Neuroscience might have 
a limited role in the court room.

In cases where someone has a tumor,

in cases where someone 
has a clearly identified abnormality,

it might be useful 
to investigate further.

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

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

or in ethics or in any sort 
of value system,

then we have to make the active step

of making a determination 
about what actually matters.

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

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

To argue for a systemwide reform 
on the basis of neuroscience

gets in a dangerous territory.

We've already seen that making 
overpromises and making overclaims

might set the stage 
for a pendular backlash,

and you can imagine the same sort of data

being used for the opposite argument:

if someone's brain is broken

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

why not lock them up for longer?

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

There are a lot of questions 
that are worth asking

about the US punishment system.

My point is not to make a political point,

but just whether we're interested in

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

if our penal system 
is accomplishing the goals

that it's set out to accomplish.

These are questions worth asking.

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

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

That's my talk. Thanks very much.

(Applause)