Moral Blame and Retribution in a Scientific World

by Nicole Fries, 2L – Sandra Day O’Connor College of Law

When someone has a brain injury and commits a crime, how much should we blame them and how much should we blame the injury?  There are two conflicting theories of criminal law behind this statement, that of retribution and that of utilitarianism.[1]  Retribution argues that when an individual acts in a way to injure the state (which we assume any act considered criminal does) they should be punished in equal measure.  Specifically, this is more of an eye-for-an-eye theory of punishment.  Utilitarianism has other purposes including, rehabilitation, prevention, and incapacitation, ultimately attempting to prevent more crime in many ways.

Nita Farahany works in this field of neuro-law and determined that a steady increase of cases where defendants are implicating these types of defenses.[2] Essentially, something in my brain made me do it.  In 2011-12, in written opinions alone there were 300 such cases.[3] However, these statistics only relate to written opinions and only those cases in which the lawyers or defendants understand that this may be a viable justification or excuse.  I do not use these words lightly; in criminal law both have very specific meanings.  If your brain tumor was found to be a reason for the ways you acted and you weren’t otherwise culpable of the thoughts that led up to your bad act, you may be exempt from punishment because this justification trumps your crime.  An example of this would be participating in a crime as a hostage.  Excuse is even broader.  Excuse says that what you did wasn’t a bad act at all; you didn’t have the intent necessary for the crime.  Self-defense is such an example, because it allows the bad act of assault because you had a different intent in mind: self-protection.

But how could we ever prove such a thing?  Farahany suggests that an electroencephalography (EEG), or electronic brain scan could be used to show that your brain is abnormal in this circumstance.[4]  But how do we define abnormal?  Radio Lab put forward this hypothetical: a deaf person can’t hear a child screaming in a burning building, so we wouldn’t hold them responsible for the child’s death if it dies.[5]  In the same way, if you are emotionally deaf, there is just no neural reaction to save a child, should they be responsible? Damage to the brain would be just as physical as damage to the ear to make one deaf.

David Eagleman says technologically, we are not advanced enough to apply these theories.[6]  For example, how do we know what exactly that brain tumor does to the part of the brain it is putting pressure on, or what it means when an unexpected part of the brain responds to pleasure or fear.  And if we suggest that it implies one is not responsible for all kinds of criminal acts we hold others responsible for, are we as a society prepared for what that means?  This could mean an individual who has done something our society disapproves of – imagine something particularly heinous to you – will get away, dodging punishment.  Or think of it in the reverse: our technology and understanding of the brain is not perfect. What if you were the one accused of a crime that you were not mentally responsible for, and yet nothing could be found to explain why you acted as such?  In that situation, we’d opened the door for the fact that there could be another reason for your actions, yet couldn’t find anything.

There is another issue: where do we draw the line?  Sure a brain tumor seems like a likely disturbance to greatly affect an individual’s brain; but what about something smaller that we aren’t completely sure how it would affect you?  And if we make this landmark shift in proof of guilt, what about all of the defendants that have come before, who’s guilt was decided before we had any science to be able to examine the “blame” of their brains with?

One suggestion by Eagleman is to focus on the probability of future recidivism, or how likely they are to re-offend.[7] This algorithm is already used by the criminal justice system when dealing with sex offenders. The corrections office reads through the defendant’s record and with give values to certain information of the crime.  Developed by criminal psychologists, these numbers attempt to tell whether this individual is still going to be a danger to the public. Dr. Amy Phenix says that these numbers are accurate about 70% of the time.[8]

Yet Radio Lab brings up that there is an upside and a downside to allowing numbers to determine a defendant’s future.[9]  The upside is that they will not be biased by extraneous factors, such as attractiveness of the defendant as juries have been known to do. But the downside is that human nuance, such as mercy, cannot be invoked to the benefit of a defendant.

Radio Lab final suggestion was that it is a small jump from preventing recidivism to preventing crime.  It sounds attractive, a safer world, etc.  However, our criminal justice system has largely held it is inappropriate to punish or confine someone because of his or her possibility of future crime.  Yet continued incarceration because of recidivism in sex offenders sounds attractive, so why don’t we already do that.  And it is because of these two competing criminal law theories. Utilitarianism is great and important to the safety of society, however retribution is the oldest system of societal maintenance in the world. And an eye-for-an-eye judicial system does appeal to our nature, so should we leave it all behind?

[1] Criminal Law : Cases and Materials 6th Ed. Dressler, Joshua and Garvey, Stephen P.  American Casebook Series. 2012.

[2] Nina Farahany Curriculum Vitae.

[3] Forget About the Blame?  Radio Lab Season 12 Episode 2.  Sept. 12, 2014.

[4] Id.

[5] Id.

[6] Dr. David Eagleman Curriculum Vitae.

[7] Forget About the Blame?  Radio Lab Season 12 Episode 2.  Sept. 12, 2014.

[8] Dr. Amy Phenix Curriculum Vitae.

[9] Forget About the Blame?  Radio Lab Season 12 Episode 2.  Sept. 12, 2014.

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