The Brain On Trial

Is Criminal behavior regulated by “free will?” Is free will something that is actually free at all? Neuroscientist, David Eagleman[1], recently published an article in The Atlantic, July/August 2011, The Brain on Trial.[2] He describes how the foundations of our criminal-justice system are beginning to crumble, and proposes a new way forward for law and order.

My interest in theological, philosophical, psychological and biological explanations ranging from the reason for suffering in this world and free will versus fate/destiny was discussed in my blog a few years back.

Can I freely choose to not eat chocolate cake? Can I freely invoke my long term understanding of the cake’s short term benefits versus its long term costs to overpower my short term understanding of my desire to eat it? Clearly the obesity crisis in our country and others would say ‘sometimes, but not most.’ Certainly eating chocolate cake is not a crime. But let’s apply the same ideas to crime and recidivism.

Neuroscientist, Wolf Singer argued that crime itself should be taken as evidence of brain abnormality, even if no abnormality can be found, and criminals treated as incapable of having acted otherwise.[3]

Conversely, at an Ethics and Public Policy Conference on Neuroscience and the Human Spirit,[4]  the question was asked: “Do . . . scientific advances challenge the first principles that the majority of our citizens believe provide the very foundation upon which our civilization rests—free will and the capacity to make moral choices? . . . Does [the] growing understanding of genetic and environmental influences on human behavior leave any room for free will?”

The conclusion advanced “accepting a compatibilist, naturalistic view of freedom and morality will unify our self-understanding. Since moral mechanisms have a clear social function that science can help us to understand and improve, no longer will morality have to seek shelter from science. We may not be free in the exceptional, ultimate sense we once supposed, but we are more than compensated by the pragmatic benefits that flow from recognizing our complete inclusion in the causal order. The “human spirit”—our dignity, freedom, and power—is not threatened by science, only shown its true home in the natural world.”

In his lengthy article, David Eagleman sets out court dramas of those recently brought to trial. Judges and juries compare, as they instruct and are instructed, to weigh their analysis against a “reasonable person” standard. Many times, we all engage in the blame game by asserting, “Well I would not have done that.” However that may be missing the point according to Eagleman. “Changes in the balance of brain chemistry, even small ones, can also cause large and unexpected changes in behavior [:]” Addictive personalities and gambling; Pedophiles and the desire to look at children. Also included are not just unacceptable behaviors but, as mentioned earlier, compulsive eating, excessive alcohol consumption, and hypersexuality, to name a few.

“The lesson from all these stories is the same: human behavior cannot be separated from human biology….Perhaps not everyone is equally “free” to make socially appropriate choices.” Do we really have free will to choose or is that really an illusion? Eagleman states “Many of us like to believe that all adults possess the same capacity to make sound choices. It’s a charitable idea, but demonstrably wrong. People’s brains are vastly different.”

Starting at birth we are the product of our parent’s genes. “When it comes to nature and nurture, the important point is that we choose neither one. We are each constructed from a genetic blueprint, and then born into a world of circumstance that we cannot control in our most-formative years….The unique patterns of neurobiology inside each of our heads cannot qualify as choices; these are the cards we are dealt.”

Turing to the legal system and courts, the standard applied assumes we are ‘practical reasoners’ which, in turn, presumes beings with free will. Eagleman uses the example of those inflicted with Tourette’s syndrome, who suffer from doing things they do not will to do: sticking out her tongue, voicing inappropriate language and others. The point is that a Tourette’s patient’s free will cannot over ride her sense of free won’t.” Similarly, high-level behaviors can take place in the absence of free will.

“Historically, clinicians and lawyers have agreed on an intuitive distinction between neurological disorders (“brain problems”) and psychiatric disorders (“mind problems”). The two ends of the spectrum have been those whose brain injuries (e.g. Parkinson’s) who cannot help some of their behavior, while most others are simply thought of as freely choosing actors.

Therefore, prisons have, according to Eagleman, become de-facto mental-health-care institutions. Incarceration does little to rehabilitate those with mental illness and increases cases of recidivism.   Courts around the country and in Nevada have begun mental-health courts and drug courts based on better understanding of the problems of recidivism.

Eagleman proposes a new approach. He posits the understanding that the brain “operates like a team of rivals, with different neural populations competing to control the single output channel of behavior.” Something he terms the ‘prefontal-workout.’ Essentially he is trying to defeat the short term brain circuits to overcome bad behavior. It is similar to bio-feedback of the 1970s. So when we see that delicious piece of chocolate cake, we can overcome the choice to eat it, which is essentially against our will. More importantly when one is faced with a socially unacceptable behavior, can he invoke a system to squelch the urge and make a better choice?

Eagleman concludes by saying that “neuroscience is beginning to touch on questions that were once only in the domain of philosophers and psychologists, questions about how people make decisions and the degree to which those decisions are truly ‘free.’ These are not idle questions. Ultimately, they will shape the future of legal theory and create a more biologically informed jurisprudence.”

David Eagleman’s article is available on The Atlantic’s site and in print.

[1] David Eagleman is a neuroscientist and a New York Times bestselling author. He directs the Laboratory for Perception and Action and the Initiative on Neuroscience and Law at Baylor College of Medicine. He is best known for his work on time perception, synesthesia, and neurolaw.

[2] Quotes are largely taken from David Eagleman’s article.

[3] See

[4] See