Something similar happened in South Africa, much of it promulgated by Nelson Mandela, a genius at appreciating sacred values.32 Mandela, while at Robben Island, had taught himself the Afrikaans language and studied Afrikaans culture—not just to literally understand what his captors were saying among themselves at the prison but to understand the people and their mind-set. At one point just before the birth of a free South Africa, Mandela entered into secret negotiations with the Afrikaans leader General Constand Viljoen. The latter, chief of the apartheid-era South African Defence Force and founder of the Afrikaner Volksfront group opposed to the dismantling of apartheid, commanded an Afrikaans militia of fifty to sixty thousand men. He was therefore in a position to doom South Africa’s impending first free election and probably trigger a civil war that would kill thousands.
They met in Mandela’s house, with the general apparently anticipating tense negotiations across a conference table. Instead the smiling, cordial Mandela led him to the warm, homey living room, sat beside him on a comfy couch designed to soften the hardest of asses, and spoke to the man in Afrikaans, including small talk about sports, leaping up now and then to get the two of them tea and snacks. While the general did not quite wind up as Mandela’s soul mate, and it is impossible to assess the importance of any single thing that Mandela said or did, Viljoen was stunned by Mandela’s use of Afrikaans and warm, chatty familiarity with Afrikaans culture. An act of true respect for sacred values. “Mandela wins over all who meet him,” he later said. And over the course of the conversation, Mandela persuaded Viljoen to call off the armed insurrection and to instead run in the upcoming election as an opposition leader. When Mandela retired from his presidency in 1999, Viljoen gave a short, halting speech in Parliament praising Mandela . . . in the latter’s native language, Xhosa.*
The successful birth of the new South Africa was rife with acts of respect for sacred values. Perhaps the most famous was Mandela’s public embrace of rugby, a sport highly symbolic of Afrikaans culture and historically disdained by black South Africans. And famously, as depicted in book and film, among the consequences was the tectonically symbolic act of the heavily Afrikaans national rugby team singing the ANC anthem, the hymn “Nkosi Sikelel’ iAfrika,” followed by a black choir singing the Afrikaans anthem, “Die Stem van Suid-Afrika,” a craggy song with references to the country’s craggy mountains.* This came before the South African host team’s mythic underdog winning of the World Cup in 1995 in Johannesburg.
I could watch that YouTube clip of the anthems being sung at the World Cup all day long, especially after having to write the section on Rwanda. What do Hussein, McGuinness, Robinson, Viljoen, and Mandela show? That our confusion of the literal and the metaphorical, our granting of life-threatening sanctity to the symbolic, can be used to bring about the best of our behaviors. Which prepares us for the final chapter, soon to come.
Sixteen
Biology, the Criminal Justice System, and (Oh, Why Not?) Free Will*
DON’T FORGET TO CHECK THEIR TEAR DUCTS
Some years back a foundation sent a letter to various people, soliciting Big Ideas for a funding initiative of theirs. The letter said something along the lines of “Send us a provocative idea, something you’d never propose to another foundation because they’d label you crazy.”
That sounded fun. So I sent them a proposal titled “Should the Criminal Justice System Be Abolished?” I argued that the answer was yes, that neuroscience shows the system makes no sense and they should fund an initiative to accomplish that.
“Ha-ha,” they said. “Well, we asked for it. That certainly caught our attention. That’s a great idea to focus on interactions between neuroscience and the law. Let’s do a conference.”
So I went to a conference with some neuroscientists and some legal types—law professors, judges, and criminologists. We learned one another’s terminology, for example seeing how we neuroscientists and the legal people use “possible,” “probable,” and “certainty” differently. We discovered that most of the neuroscientists, including me, knew nothing about the workings of the legal world, and that most of the legal folks had avoided science since being traumatized by ninth-grade biology. Despite the two-culture problem, all sorts of collaborations got started there, which eventually grew into a network of people studying “neurolaw.”
Fun, stimulating, interdisciplinary hybrid vigor. And frustrating to me, because I kind of meant the title of the proposal that I had written. The current criminal justice system needs to be abolished and replaced with something that, while having some broad features in common with the current system,* would have utterly different underpinnings. Which I’m going to try to convince you of. And that’s just the first part of this chapter.
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You can’t be less controversial than stating that the criminal justice system needs reform and that this should involve more science and less pseudoscience in the courtroom. If nothing else, consider this: according to the Innocence Project, nearly 350 people, a mind-boggling 20 of them on death row, imprisoned an average of fourteen years, have been exonerated by DNA fingerprinting.1
Despite that, I’m going to mostly ignore criminal justice reform by science. Here are some hot-button topics in that realm that I’m going to bypass entirely:
What to do about the power and ubiquity of automatic, implicit biases (leading to, for example, juries meting out harsher decisions to African American defendants with darker skin). Should Implicit Association Tests be used in jury selection to eliminate people with strong, pertinent biases?
Whether neuroimaging information regarding a defendant’s brain should be admissible in a courtroom.2 This has grown less contentious as neuroimaging has transitioned from revolutionary to a standard approach in science’s tool kit. But there remains the issue of whether juries should be shown actual neuroimages—the worry is that nonexperts are readily overly impressed with exciting, color-enhanced Pictures of the Brain (it’s turning out to be less of an issue than feared).
Whether neuroimaging data regarding someone’s veracity should have a place in the courtroom (or in the workplace regarding security clearances). Basically, I know of no expert who thinks the technique is sufficiently accurate. Nonetheless, there are entrepreneurs selling the approach (including, I kid you not, a company called No Lie MRI). This issue extends to lower-tech but equally unreliable versions of is-that-brain-lying? This includes electroencephalograms (EEGs), which are admissible in Indian courtrooms.3
What should be the IQ cutoff for someone to be smart enough to be executed? The standard is an IQ of 70 or higher, and debate concerns whether it should be an average of 70 across multiple IQ tests, or if achieving that magic number even once qualifies you for being executed. This issue pertains to about 20 percent of people on death row.4
What to do with the fact that scientific findings can generate new types of cognitive biases in jurors. For example, the belief that schizophrenia is a biological disorder makes jurors less likely to convict schizophrenics for their actions but more likely to view them as more incurably dangerous.5
The legal system distinguishes between thoughts and actions; what to do as neuroscience increasingly reveals the former. Are we approaching precrime detection, predicting who will commit a crime? In the words of one expert, “We’re going to have to make a decision about the skull as a privacy domain.”6
And of course there’s that problem of judges judging more harshly when their stomachs are gurgling.*7
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All of these are important issues, and I think reforms are needed at the intersection of progressive politics, civil liberties, and tough standards about new science. In other words, a standard liberal agenda. Most of the time I’m a clichéd card-carrying liberal; I even know the theme songs to many of NPR’s programs. Nonetheless, this chapter won’t take anything resembling a liberal approach to reforming criminal justice. The reason why i
s summarized in the following example of a classically liberal approach to a legal issue.
It’s the middle of the 1500s. Perhaps because of lax societal standards and people being morally deprived and/or depraved, Europe is overrun with witches. It’s a huge problem—people fear going out at night; polls show that peasants-in-the-street list “witches” as more of a threat than “the plague” or “the Ottomans”; would-be despots gain supporters by vowing to be tough on witches.
Fortunately, there are three legal standards for deciding if someone is guilty of witchcraft:8
The flotation test. Since witches reject the sacrament of baptism, water will reject their body. Take the accused, bound, and toss them into some water. If they float, they’re a witch. If they sink, they’re innocent. Quickly now, retrieve innocent person.
The devil’s-spot test. The devil enters someone’s body to infect them with witch-ness, and that point of entry is left insensitive to pain. Systematically do something painful to every spot on the accused’s body. If some spot is much less sensitive to pain than the rest, you’ve found a devil’s spot and identified a witch.
The tear test. Tell the accused the story of the crucifixion of Our Lord. Anyone not moved to tears is a witch.
These well-established criteria allow authorities fighting this witch wave to identify and suitably punish thousands of witches.
In 1563 a Dutch physician named Johann Weyer published a book, De Praestigiis Daemonum, advocating reform of the witch justice system. He, of course, acknowledged the malign existence of witches, the need to punish them sternly, and the general appropriateness of witch-fighting techniques like those three tests.
However, Weyer aired an important caveat pertinent to older female witches. Sometimes, he noted, elderly people, especially women, have had atrophy of their lachrymal glands, making it impossible to cry tears. Uh-oh—this raises the specter of false convictions of people as witches. The concerned, empathic Weyer counseled, “Make sure you’re not torching some poor elderly person simply because her tear ducts don’t work anymore.”
Now that’s a liberal reform of the witch justice system, imposing some sound thinking in one tiny corner of an irrational edifice. Much like what scientifically based reform of our current system does, which is why something more extreme is needed.*
THREE PERSPECTIVES
Let’s get down to cases. There are three ways of viewing the place of biology in making sense of our behaviors, criminal or otherwise:
We have complete free will in our behavior.
We have none.
Somewhere in between.
If people are forced to carefully follow the logical extensions of their views, probably less than a thousandth of a percent would support the first proposition. Suppose someone convulsing with a grand mal epileptic seizure, flinging their arms around, strikes someone. If you truly believe we freely control our behavior, you must convict them of assault.
Virtually everyone considers that absurd. Yet that legal outcome would have occurred half a millennium ago in much of Europe.9 That seems ludicrous because in the last few centuries the West has crossed a line and left it so far behind that a world on the other side is unimaginable. We embrace a concept that defines our progress—“It’s not him. It’s his disease.” In other words, at times biology can overwhelm anything resembling free will. This woman didn’t bump into you maliciously; she’s blind. This soldier standing in formation didn’t pass out because he doesn’t have what it takes; he’s diabetic and needs his insulin. This woman isn’t heartless because she didn’t help the elderly person who had fallen; she’s paralyzed from a spinal cord injury. Similar shifts in the perception of criminal responsibility have occurred in other realms. For example, from two to seven centuries ago, prosecution of animals, objects, and corpses thought to have intentionally harmed someone was commonplace. Some of these trials had a weirdly modern tint to them—in a 1457 trial of a pig and her piglets for eating a child, the pig was convicted and executed, whereas the piglets were found to be too young to have been responsible for their acts. Whether the judge cited the maturational state of their frontal cortices is unknown.
Thus hardly anyone believes that we have complete conscious control over our behavior, that biology never constrains us. We’ll ignore this stance forever after.
DRAWING LINES IN THE SAND
Nearly everyone believes in the third proposition, that we are somewhere between complete and no free will, that this notion of free will is compatible with the deterministic laws of the universe as embodied in biology. Only a subset of versions of this view fit the fairly narrow philosophical stance called “compatibilism.” Instead this broader view is that we have something resembling a spirit, a soul, an essence that embodies our free will, from which emanates behavioral intent; and that this spirit coexists with biology that can sometimes constrain it. It’s a kind of libertarian dualism (“libertarian” in the philosophical rather than political sense), what Greene calls “mitigated free will.” It’s encapsulated in the idea that well-intentioned spirit, while willing, can be thwarted by flesh that is sufficiently weak.
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Let’s start with the definitive legal framing of mitigated free will.
In 1842 a Scotsman named Daniel M’Naghten tried to assassinate British prime minister Robert Peel.10 He mistook Peel’s private secretary, Edward Drummond, for the prime minister and shot him at close range, killing him. At his arraignment M’Naghten stated, “The Tories in my native city have compelled me to do this. They follow and persecute me wherever I go, and have entirely destroyed my peace of mind. They followed me to France, into Scotland . . . wherever I go. I cannot get no rest from them night or day. I cannot sleep at night. . . . I believe they have driven me into a consumption. I am sure I shall never be the man I formerly was. . . . They wish to murder me. It can be proved by evidence. . . . I was driven to desperation by persecution.”
In today’s terminology M’Naghten had some form of paranoid psychosis. It may not have been schizophrenia—his delusional symptoms started many years later than the typical age of onset of the disease. Regardless of the diagnosis, M’Naghten had abandoned his business and spent the previous two years wandering Europe, hearing voices, convinced that he was being spied upon and persecuted by powerful people, with Peel his most diabolical tormentor. In the words of a doctor who testified as to his insanity, “The delusion was so strong that nothing but a physical impediment could have prevented him from committing the act [i.e., murder].” M’Naghten was so clearly impaired that the prosecution withdrew criminal charges, agreeing with the defense that he was insane. The jury agreed, and M’Naghten spent the rest of his life in insane asylums, reasonably well treated by the standards of the time.
There was bellowing protest after the jury’s decision, ranging from the man in the street to Queen Victoria—M’Naghten had gotten away with murder. The presiding judge was grilled by Parliament and stood by the decision. The equivalent of the Supreme Court was tasked by Parliament with assessing the case and supported him. And out of the decision came the formalization of what is now the common criterion for finding someone innocent by reason of insanity, namely the “M’Naghten rule”: if, at the time of the crime, the person is so “laboring under such a defect of reason from disease of the mind,” that he cannot distinguish right from wrong.*
The M’Naghten rule was at the core of John Hinckley Jr. being found not guilty for reasons of insanity in his attempted assassination of Reagan in 1981, being hospitalized rather than jailed. There was considerable “He’s getting away with it” outrage afterward; a number of states banned the M’Naghten criterion, and Congress essentially banned it for federal cases with the 1984 Insanity Defense Reform Act.* Nonetheless, the reasoning behind M’Naghten has generally withstood the test of time.
This is the essence of a stance of mitigated free will—people need to be held responsible
for their actions, but being floridly psychotic can be a mitigating circumstance. It is the idea that there can be “diminished” responsibility for our actions, that something can be semivoluntary.
Here’s how I’ve always pictured mitigated free will:
There’s the brain—neurons, synapses, neurotransmitters, receptors, brain-specific transcription factors, epigenetic effects, gene transpositions during neurogenesis. Aspects of brain function can be influenced by someone’s prenatal environment, genes, and hormones, whether their parents were authoritative or their culture egalitarian, whether they witnessed violence in childhood, when they had breakfast. It’s the whole shebang, all of this book.
And then, separate from that, in a concrete bunker tucked away in the brain, sits a little man (or woman, or agendered individual), a homunculus at a control panel. The homunculus is made of a mixture of nanochips, old vacuum tubes, crinkly ancient parchment, stalactites of your mother’s admonishing voice, streaks of brimstone, rivets made out of gumption. In other words, not squishy biological brain yuck.
Behave: The Biology of Humans at Our Best and Worst Page 59