How Neuroscience is Challenging Punishment: Carl Erik Fisher at TEDxJerseyCity

Neuroscience evidence, such as brain imaging, is increasingly being used in court. Psychiatrist Carl Erik Fisher, who studies legal, ethical and social issues in psychiatry and neuroscience, looks at this phenomenon more closely. Should neuroscience change the way we think about punishment and responsibility?

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)