Dark Bilious Vapors

”….The news peg for the program was the U.S. Supreme Court's recent decision in Roper v. Simmons prohibiting the execution of murderers who were 17 or younger when they committed their crime. Justice Anthony Kennedy's majority opinion referred, but only in a glancing way, to the scientific argument that adolescents are more impulsive than adults (and thus less blameworthy) because they rely more on a primitive part of the brain called the amygdala.

"Amygdala schmamygdala!" was the reaction of a lot of commentators to this argument -- which may explain why Kennedy gave it relatively short shrift -- but the AEI program demonstrated that the larger issue won't go away.

Henry T. Greely, a professor of law and genetics at Stanford, pointed to three ways in which breakthroughs in neuroscience could affect the law: in predicting behavior, in "mind reading" (using the MRI as a super-polygraph) and in the enhancement of cognitive ability through drugs like Ritalin (a favorite of college students during exam periods, according to another panelist, Martha J. Farah of the University of Pennsylvania).

For me the most interesting debate to emerge at the panel was the one dealing with crime and punishment.

In this corner, Joshua Greene, a philosopher on his way from Princeton to Harvard, argued that developments in brain science do complicate legal theories of personal responsibility, threatening the "dueling dualisms" of the left and right.

Liberals, Greene explained, say about a criminal: "Don't blame him. Blame his brain," while conservatives say, "Don't blame his brain, blame him." Anglo-American law, in the form of the insanity defense, says "If he's rational, blame him, if he's not rational, blame his brain." But Greene argued persuasively that all of these dualisms are open to logical attack sharpened by developments in neuroscience.

As he put it in a paper her co-authored with Jonathan Cohen: "Cognitive neuroscience, by identifying the specific mechanisms responsible for behavior, will vividly illustrate what until now could only be appreciated through esoteric theorizing: that there is something fishy about our ordinary conceptions of human action and responsibility, and that, as a result, the legal principles we have devised to reflect those conceptions may be flawed."

Not so, said another panelist, Stephen J. Morse, a professor of law and psychology at the University of Pennsylvania. In his talk and in a paper distributed by AEI, Morse essentially told the legal system to relax. Despite refinements in brain scans and other advances, Morse said, "we have no idea how the brain enables the mind" and it is the mind with which the law is concerned. "To ask why a person acted a certain way is to ask for reasons, not for reductionist biophysical, psychological or sociological explanations," according to Morse.

Who's right? In terms of practical effect on the law, Morse may have the better of the argument, at least according to one of my gurus on criminology, Alfred Blumstein of the Heinz School at Carnegie Mellon University. Blumstein said that developments in brain imaging haven't yet altered the way justice is meted out. He likened the situation to the argument, first offered 20 years ago, that violent criminals with an extra male chromosome -- XYY instead of XY -- deserved sympathy because of a statistical correlation between an extra Y chromosome and violent tendencies.

The courts didn't buy it, and arguments for leniency based on brain imaging would likely run into similar resistance, because in both cases a general correlation between a biological trait and behavior is being offered to challenge the culpability of an individual. The same problem exists with the argument for sparing a particular teenage murderer's life because of the cognitive immaturity of adolescents in general, as Justice Sandra Day O'Connor pointed out in her dissent in Roper v. Simmons.

Interestingly, however, Blumstein agreed that schools and churches in the future might be interested in using brain imaging for a "pedophilia center" in the brain when hiring teachers or priests. Which brings us back to my opening two questions. My guess is that several readers who would not acquit a child molester because of an aberrant brain scan wouldn't object to the same technology being used to weed out potential molesters. We believe in free will, but we don't want to take any chances.

This sort of contradiction isn't new. Long before brain scans were developed, people who insisted that criminals chose to break the law could be heard to argue on other occasions that murderers or child molesters could never be rehabilitated because they were "bad to the bone." To quote Josh Greene, there always has been "something fishy" about popular notions of crime and responsibility. Advances in neuroscience may make it harder for those already inconsistent assumptions to pass the smell test.

Michael McGough is an editor at large in the PG's National Bureau (mmcgough@
nationalpress.com).”