Criminals or Victims? American Justice, Mental Illness and the Illusion of Free Will

Detective Petrosky would surely argue that the notion of justice means locking up the people who do harm–protecting the innocent. It’s a notion that is hard to argue with. But most prisoners are worse off biologically and emotionally when they emerge from incarceration, increasing rates for re-offense. Not that this bothers us much; we assume that one who has been put away is a menace to society anyway, an individual who will surely do more harm than good. After all, you have to do something to get locked up, and it’s those actions that we judge in our courthouses.

But neuroscientist David Eagleman has a slightly different take on the notion of justice in Incognito. Ealgeman argues that it is not simply the act committed that we should look at during sentencing. To judge an individual, we must identify how blameworthy they are. And that, my friends, is a more difficult subject than most realize.

The Illusion of Free Will 

The line between voluntary action and an involuntary happenstance seems clear cut in many regards. An individual who shoots a stranger in cold blood is clearly a psychopathic maniac, while the jilted lover may have suffered a temporary burst of insanity, or carried out the action in a completely logical, if overblown, expression of rage. (If you want to see that in action, check out The Jilted, especially if you’re a fan of Nick Cutter or Thomas Olde Heuvelt.) But those lines may be far blurrier than we want to admit, and the more scientific research discovers, the more the burden of blame seems to fall on neurochemical alterations, brain changes and involuntary happening below the surface of the mind.

Do we really have free will at all? Or do we only think that we do? And if the latter, how does our current version of justice pan out when it comes to voluntary actions?

Eagleman sites the research of Benjamin Libet, who conducted a series of experiments to see how long it took people to move a finger once they made a conscious decision to do so. As expected, the thought preceded that action by about a quarter of a second. However, the surprising part was that brain activity peaked full seconds before the person was even aware of the decision to move.

This brought up a very interesting question: is what we call conscious decision-making merely the last step between unconscious drives and the action itself? Is free will real or is it simply a construct we use to explain our conscious awareness of a decision made by our brain independent of our conscious knowledge? 

When Free Will Isn’t Free

Of course this was unacceptable to most, and free will was soon linked to “veto” power, the idea that while we have drives and urges, we might have the ability to stop those urges through our power of choice. But not everyone possesses this veto power. Split brain patients—such as those who have undergone surgeries to short circuit seizure disorders—often have alien hand syndrome, where one hand may preform complex tasks without any knowledge or will of the person themselves, an issue which can make getting ready for work highly complex.

“Hey, asshole, I just buttoned that shirt!”

Then there are cases like Tourette’s syndrome, where patients say inappropriate things, for example, yelling “Fatso!” if they see someone who is overweight. In these cases they do not have the ability to filter their exclamations and are usually just as horrified as those around them. However, they do not possess what Eagleman calls “free won’t,” the veto power described by Libet.

These cases are far from rare. Small changes in neurocircuitry and chemical makeup have the power to trigger all types of involuntary actions. Parkinson’s patients on medications are watched closely for gambling behaviors, as the dopamine systems treated by the medications are the same ones that govern rewards, making pathological gambling and shopping a side effect of treatment. Reductions in the medications cause the behaviors to cease, a simple case of involuntary behavior triggered by chemical change.

Eagleman also sites tumors and other malformations as possible triggers to unwanted behaviors, though these cases are sometimes more horrific than compulsive gambling or swearing.

Charles Whitman, and the Tumor that Killed His Family

When Charles Whitman murdered his wife and mother, then went on a murderous shooting spree from the top of a Texas tower, his guilt was seemingly obvious. 

Or was it?

Whitman had sought the assistance of a physician, but the scope of his suffering was not addressed correctly. He left letters indicating that he did not understand himself, and expressed his remorse, concluding: “I imagine it appears that I brutally killed both of my loved ones. I was only trying to do a quick thorough job. If my life insurance policy is valid please pay off my debts…donate the rest anonymously to a mental health foundation. Maybe research can prevent future tragedies of this type.”

Autopsy found a glioblastoma, a tumor which pressed on his amygdala, a structure known to trigger lack of fear, overreaction and overall trouble with emotional responses. Impulse control and his “veto power” went out the window when the tumor altered his brain in such as way that calm rationality could no longer win. This is much like the murderer in my novel, Conviction, which you need on your bookshelf, like yesterday.

But was Whitman culpable? Is his guilt altered by the fact that free will was no longer his when he climbed that tower? Or are we so blinded by retribution that intent doesn’t matter?

Eagleman sites pedophilia as another area altered by tumor growth, describing the story of one man driven to solicit sex from minors and visit child pornography websites when a massive tumor began growing in his orbitofrontal cortex. When then tumor was removed, his sexuality returned to normal, until a regrowth triggered the drives again. Another surgery, and his sexuality was again restored to where it had been for the first forty years of his life.

Which of these men is the real one? Was he basically a pedophile, or a fundamentally normal guy with a brain tumor? Who do we punish?

Prefrontal lobe dementia also causes behavior that is socially taboo, such as stripping naked in public, shoplifting, sexual transgressions or physical aggressiveness. Should this particular geriatric population suffer the same consequences as a younger person without this illness for flashing children in a park? What if research shows similar alterations in brain structures?

Now, I am certainly not making an argument for the freeing of pedophiles, or for increased tolerance for penis flashing at our schools (ew). But culpability and punishment are a little out of whack in ways that don’t always serve the better interest or the greater good.

What Leads to Brain Alterations (and who is at fault)

Neurobiology supports the idea that our behaviors are the result of a series of neurochemical reactions and brain changes that have occurred over the course of our lives, most of which we had no ability to opt out of. Two examples are:

• Genetics, such as the possession of the aptly named “warrior gene” which triggers aggression–more on that in “Breeding Psychopaths and the Future of Humanity.”

• Early environment, where attachment is responsible for teaching us how to regulate emotions.

Biology and decision-making are inseparable because biology and neurochemical input determine how you see the world and, therefore, how you make decisions. Early connections often involve alterations in impulse control, based on survival mechanisms and delayed maturation of the regions of the brain that control impulses. And impulsivity can lead to action before the socialized part of the brain has time to respond.

Due to those changes, adults do not all have the same ability to stifle impulses or to make choices that would be beneficial. Traits such as aggression, depression, heightened anxiety, and even sexual responsiveness are the result of a long series of unconscious alterations that shape who we are.

As neither genetics nor early environment are the choice of the individual experiencing the fallout as an adult, Eagleman believes that criminals should be “treated as incapable of acting otherwise.” Just as we cannot pick our genetic makeup, we had no ability to choose what we were born into, a catch-22 that makes blame more difficult. If our brains are the results of these factors more than any other, the blame for our current state belongs elsewhere as well.

It’s not that our behaviors cannot be altered over time, or that we don’t have a responsibility to attempt to improve systems that may have been damaged before choice existed. But the knowledge that brain systems or behaviors can be altered in the first place is necessary. While increasing early intervention and education is an obvious first step, it does little to help those already awaiting their turn in front of a judge.

So how to fix such a thing?

Eagleman on Fixing A Broken System: Judgment Based on Modifiability

As Eagleman says, it all comes down to wanting to know how blameworthy someone is so we can mete out punishment. If your child pees in a drawer during the day because they think it’s funny, you might have a different response than if they do it in the middle of a deep sleep. (True story). It is a question of responsibility, and the voluntary control of the action itself.

While Eagleman argues that there must be a shift from blame to biology, this does not mean that those who break laws would be exempt from punishment. Instead, he advocates a statistical model of punishment based on the probability of re-offense, a much bigger issue for the safety of humanity, especially when most who enter the system leave less rehabilitated and more disillusioned, particularly after long or arbitrary sentences.

Actuarial Tests

Eagleman encourages using scientific testing to create a more accurate assessment of future danger. This includes full histories of those arrested, as these factors are critical in determining how likely someone is to do it again, regardless of the nature of the original crime. For sex offenders, long-term relationships, sexual abuse as a child, remorse/guilt, substance abuse and a number of other factors have been shown to be more important than the original crime in determining whether someone is actually a danger to society at large.

This is also true of those with antisocial tendencies, where research indicates that antisocial hotheadedness predicts violence but other elements common in psychopathy—such as personality considerations like superficiality—do not predict violence or aggression.

All of those with pedophilia or antisocial personality issues are not equal in their risk to others, even if they happened to commit the same crime. This should be taken into account to provide assistance wherever possible. Eagleman believes that those with more risk factors for recidivism—or those more likely to respond positively to punishments like incarceration—should receive higher sentences. Those less likely to reoffend, or who are deemed likely to respond to modification treatments, would receive therapies for behaviors. If modification is not likely, say in the case of serial killers with seriously disturbed childhood histories, persistent brain alterations and empathic systems that will not be changed by punishment, warehousing those individuals in institutions would be more practical.

In this model, perhaps Marissa Alexander would have received less than twenty years in prison after she fired a gun at a wall to scare her estranged husband (against whom she had a restraining order). Obviously, she could have done that differently. However, there is something to be said for Eagleman’s model if it might address some of the inconsistencies within the legal system and base sentences on the public good, where a woman with three small children, a Master’s degree, and no priors might find herself with a sentence lighter than twenty years based on likelihood of her becoming a danger in the future. Leaving three children without their mother, and thus setting them up for the very risk factors that cause later problems with impulsivity and all manner of psychological distress, might not be the way to go for long-term societal benefit.

A Model for Increasing Impulse Control

In Eagleman’s view, impulse control is the single biggest issue for most of those who offend. And impulse control has much to do with the frontal lobe.

The frontal lobe of the brain matures later in life, usually fully by the mid twenties, but is highly volatile in the teenage years (hence the differences in the legal treatment of minors). Eaglemen and colleagues have developed a process to train the brain into maturity using a system that appears much like biofeedback.

Biofeedback is a therapeutic technique where individuals learn to control certain bodily functions through conscious choice, usually through the use of electrodes placed on the body where they can monitor things like heart rate, blood pressure or breathing. For example, a heart rate monitor might be attached and an individual would use their mind to reduce their heart rate so they could more easily control it later if they are feeling anxious.

In Eaglemen’s model, he goes straight to the source: electrodes on the head to allow for adjustment of blood flow to certain brain regions, training specific areas, like the frontal lobe, to become more controlled. This rehabilitative technique uses brain feedback in conjunction with exposure to improve impulse control mechanisms.

An individual might see a picture of chocolate cake, and brain sensors would pick up the activity and show it on a screen, often in the form of a bar, like a volume control. Then the person tries to consciously change that bar by training specific brain regions. If your craving is higher, the bar creeps up. As you learn to consciously control the craving—and the firing in those regions of the brain—you make the bar go down. Because there are a number of different avenues inside the brain to do this, people have many different opportunities to do this brain “work-out” and find what works for their brain, and thus, what will work for them in the real world.

In this model of brain retraining, the understanding exists that we may not be able to fully get rid of the thoughts themselves, though cognitive behavioral therapy can assist with that. Instead, it provides a way to help “mature” the frontal lobe and therefore resist the impulses to act on those thoughts.

The Future of Judgment

The line between volition and non-volition is drawn where current scientific information and research has been able to probe, and this line will continue to move as more research is conducted. But it is clear that using prisons as institutions helps no one if those sentenced are worse off biologically when they exit than when they enter.

Humans are hardwired to seek out retribution. We call it justice, but it rarely is. Understanding the impulse to punish does not make it effective, either for those punished or for humanity as a whole. We owe it to ourselves to find a more effective method for removing those who offend as well as rehabilitating those who may have something positive to offer society at large.

We may not all have the amount of control we want, but we do have the ability to take a different idea of control into consideration when determining judgment. We all have something we wish we could change, something we wanted more control over, something we regret.

No one wants the rest of their life to revolve around the worst thing they ever did.




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