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, as 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)