Suzuki2008

Neuroscience and Criminal Justice System 1 Anti-social behavior and brain abnormality We are praised if we do something good and criticized if we do something bad. Among bad things, however, there are things that deserve more than that. Modern society stipulates some of anti-social behaviors as crimes and punishes those who commit them. When someone commits a crime, he or she is arrested by the police, prosecuted by the prosecutors' office, and sentenced by the judge. Then he or she is punished according to the sentence. Punishment includes probation, fine, or imprisonment. Most of the countries in modern society adapt such a criminal justice system, though the detail varies from a country to another. This system seems to be based on the following idea. We human beings can act according to our own will and therefore we are responsible for the consequences of our actions. We are praised if we help someone in need of help and we are reproached if we lie to someone. This is because both are what we do with our own will. We are responsible even for anti-social behaviors and criticized or punished for them because they too are the actions based on our free will. How well does this system work? People might have the impression that crime rate keeps going up because we often hear about the vicious and violent crimes. According to the white paper on crime 2007 (National Police Agency 2007), however, the crime rate in Japan stays between 1500 and 2000 per 100,000 persons per year for a long time, with no sign of increase. So, we could say that our criminal justice system do fairy well. There are data, however, that imply there is a problem in the system. These are the data on recidivism. The white paper says that 38.8% of arrested people were recidivists in 2006. It also says that 47.4% of those who had finished imprisonment in 2001 committed further crime by 2006. These data implies that there are people who commit crimes again and again and that a great number of crimes are done by relatively small number of those people. Imprisonment, which is the most popular punishment in the contemporary criminal justice system, might not be effective to those people.1 These data are consistent with psychological researches on anti-sociality. There is a discipline called criminal psychology that studies the causes of crime and the way to reduce crime from a psychological viewpoint. In this discipline, people called psychopaths have been the focus of study (cf. Bartol and Bartol 2005, Ch.4; Hare 1993). Psychopaths are people with the personality which is characterized by selfishness, the tendency to control others, lack of emotion, and lack of control on one's impulse. This personality is thought to have close relationship with crime. Hobson and Shines (1998), for example, reports 26% of prisoners in the UK are psychopaths. Hemphill and others (1998) reports the rate of recidivism of psychopaths is four times higher than that of normal prisoners. These researches suggest that there are people among criminals to whom punishment is ineffective.2 It seems, from these data, that criminal behaviors are not the product of weakness of will or sudden rage that we all experience, but the product of the some sort of dysfunction of the mind. This conjecture has support in neuroscience researches. The forerunner of neuroscientific research of anti-sociality is the case of Phineas Gage in 19th century (cf. Damasio 1994). Gage met a terrible accident when he was working as a construction worker of railroad. The iron bar blew by an explosion hit Gage's face and the bar went through his forehead. Miraculously, he seemed to suffer no serous damage and he had been alive more than 10 years after the accident. Gage, who had been gentle and diligent, however, became rude and anti-social after the 1 The white paper 2007 has a special chapter on recidivism. This fact itself suggests the seriousness of the issue of recidivism. 2 We should keep in mind that psychopaths not always commit serious crimes as murder. Anti-social behavior of psychopaths might be non-violent when they commit thefts or deceits. The common feature of anti-social behaviors by psychopaths is lack of remorse or regret. accident. Gage's case dramatically shows that abnormality of brain has something to do with anti-social behavior.3 There had been little advance in the research on the relationship of anti-sociality and working of the brain since then, because the method we can use to examine human brain was limited to X-ray photographs and EEGs. It was not until 1980s that we saw the remarkable development in the field. In their pioneering study, Lewis and others (1986) studied 15 prisoners sentenced death penalty. What they found through interviews and medical examinations was that all prisoners had the prior experience of head injury, that five of them had severe neurological disorders such as convulsion or paralysis, and that seven had mild neurological disorders such as dizziness. They argued from these findings that many condemned criminals might have covert psychiatric and neurological disorders and that this fact might be a reason to mitigate their sentences. In 1980s and 90s, the development of imaging technologies such as MRI and PET enabled us to observe the structure and activity of the brain in detail. This development of technology encouraged the research on the relationship between anti-sociality and brain dysfunction. Raine and others (1997), for example, measured by PET scan the brain activity of 41 murderers who claimed innocence by reason of insanity and compared it with that of healthy innocent people. They found low metabolism in prefrontal, left angular gyrus, corpus callosum, left amygdala, and left hippocampus among murderers. They also found that there is asymmetry of the activity of amygdala, thalamus, and hippocampus. Those areas include the areas known to have important role in emotion, control of impulses, and cognition of social stimuli. They also found than there is no difference in metabolic activity in areas known to have role in perception or bodily movement. They speculate from these that the dysfunction concerning emotion might be a cause of anti-social behavior. 3 Damasio and others (1994) examined Gage's skull and showed Gage had damage in orbitofrontal area and medial ventral prefrontal area. We can find a lot of researches on anti-sociality and brain dysfunction in these 10 or 15 years (cf. Brower an Price 2001; Blair 2003; Pridmore et al. 2005). As to structural abnormality, Raine and others (2000) reports that psychopaths have 10% smaller gray matter in prefrontal area compared to healthy people. Caspi and others (2002) reports that people with the dysfunction of the gene, which regulates the enzyme MAO-A that itself has something to do with metabolism of neurotransmitters, tend to show more anti-social behavior if they have been abused in their childhood. As to functional abnormality, Kiehl (2001) says that psychopathic criminals show lower activity in limbic system compered with healthy people or non-psychopathic criminals. Dolan and others (2002) reports that there is a negative correlation between the function of serotonin system and impulsiveness. These studies all suggest that there are physical causes of anti-social behavior. The common hypothesis today is this (cf. Abbott 2001; Blair 2003; Blair 2007). Limbic system, which consists of prefrontal area, cingulate cortex, amygdala and others, plays the central role in controlling impulses, acting according to prior plans, and having sympathy with others. Dysfunction of this system seems to be a cause of psychopathy and anti-social behavior.4 2 From Punishment to Treatment The neuroscientifc view that anti-social behavior is the product of brain abnormality casts some doubt on the present criminal justice system. If anti-social behaviors are caused by brain abnormality, it seems that we can't see them as something people do with their own will. If so, it seems we cannot attribute responsibility to criminals with brain abnormalities. If so, we seem to be unable to punish them for what they did. 4 The parts of the brain referred to in these studies are also often referred to in the study of morality (cf. Greene and Haidt 2002; Casebeer 2003; Moll et al. 2005). It seems that normal functioning of these parts produces our pro-social behaviors and abnormal functioning produces anti-social behaviors. There are, however, disputes among researchers as to what kind of dysfunctions cause what kind of abnormal behaviors. For example, Raine and others (2000) see the dysfunction of orbitofrontal area is the main cause of anti-sociality while Blair (2003) claims the dysfunction of amygdala is the main cause. For example, if I intentionally hit you, I will be reproached for what I did and might be punished. On the other hand, if there is an abnormality in my brain, my arm suddenly moves because of the abnormality, and then my arm hits you, I will not be criticized for that. It is because the movement of my arm is caused by the abnormal activity of my brain and it is not my action with my own will.5 Contemporary neuroscience, it seems, encourages us to see anti-social behaviors of psychopaths in a similar way. It shows that criminal behaviors are caused by abnormal processes of the brain and are not based on criminals' will. So, it seems, we cannot attribute responsibility to them and punish them. We have to see why we punish criminals before examining the appropriateness of punishing criminals with brain abnormalities. There are two popular explanations to the question why we should punish criminals (cf. Von Hirsh 1998). One is the consequentialist explanation that punishment deters further crimes and reduces recidivism. The other is the retributionist explanation that punishing criminals is justified because crimes themselves are blameworthy and criminals are worth being punished.6 How we should treat criminals with brain abnormalities if we adopt these theories? Take the consequentialist view first. If the neuroscientific view is correct, punishment such as imprisonment is quite probably not effective to them. Because they have disorders in the parts of the brain that control impulse and so on, their behaviors will not be improved unless we treat these disorders. So, from consequentialist perspective, punishing criminals with brain abnormalities is not be justified.7 5 I might be criticized if I know beforehand that I have such an abnormality and I stand by you nevertheless. Even in this case, though, what might be criticized is not the movement of my arm. 6 There is a third view on punishment called restorative justice, which claims that punishing criminals are justified because it brings recovery from the damage done by crimes to criminals themselves, victims, and society. We will not touch on this view here. 7 Some may think that punishing them will deter criminal behaviors of others even if it will Let's look at retributionist view next. If we adopt retributionism as the basis of punishment, we punish criminals not because punishment deters crimes or reduce recidivism, but because anti-social behaviors themselves are worth punishing. So, it seems that we should punish criminals regardless of deterrence effect. The case is not that simple, however. Retributionism seems to be based on the assumption that we act on our free will and therefore are responsible for our actions. Criminals are worth punishing because they commit crimes with their own will. The fact that they have brain abnormalities, however, seems to suggest that they lack free will and responsibility that healthy people have. If so, we cannot punish criminals with brain abnormalities even if we adapt retributionism.8 Punishing criminals with brain abnormalities seems to be inappropriate whether we adopt consequentialism or retributionism. It seems that we can more effectively reduce recidivism if we treat the brain abnormalities with some neuroscientific measures. Possible measures include neuropharmacological intervention that improves the working of neurotransmitter systems and neurosurgery that removes the part of the brain or plants artificial neurons in damaged brain areas.9 It seems to be not affect their own behavior. This might be true, but it is arguable that the simple consequentialist consideration alone can justify the policy, just as the similar consideration cannot justify the severe punishment of minor crimes. 8 Some may argue that we should punish criminals if we take into consideration victims' and their families' emotions and feelings. It is not clear, however, what kind of emotions and feelings they have. On the one hand, we have strong anger and resentment against someone when he or she intentionally do harm to us. On the other hand, we usually do not have strong emotions and feelings against natural disasters, which occur according to natural laws. If it becomes clear that criminals have brain abnormalities and if they learn the detail of the abnormalities, it is not clear which reactions the victims and their families show. Even if they feel strong anger or resentment even in this case, that might be not against the criminals themselves but against the state or the administration that fails to take some appropriate measures. 9 This is more than a theoretical possibility. For example, according to the study by Cherek and others (2002), SSRI, the drug normally used as anti-depressant, is effective in inhibiting impulsive behaviors. more appropriate to do neuroscientific intervention to criminals with brain abnormalities, rather than punish them as we do. We can find further support to this proposal. First, as Tancredi (2005) points out, if we take contemporary neuroscientific view seriously, it follows that criminal behaviors are no different from abnormal behaviors due to mental illness in that those are the results of brain dysfunctions. We give medical treatments to those with mental illness to improve their behaviors, instead of blaming and punishing them. If this is the appropriate attitude, we should give similar medical treatment also to criminals with brain abnormalities. As Paul Churchland points out, it seems that "there is no difference between removing a bullet causing unbearable pain and removing a brain tumor causing uncontrollable rage"(Churchland 1995, p.312). Secondly, as Farah (2002) points out, we already give medical treatments and therapies to certain criminals. One example is imposing cognitive and behavioral treatment program on sex criminals. This seems to show that traditional punishment such as imprisonment is not the only way and not always the best way. From these, we can see that neuroscientific intervention can be an alternative to traditional punishments that is worth serious consideration.10 3 The problem of responsibility Should we revise our criminal justice system? There are, however, problems in shifting towards this direction. We will examine these problems in the rest of the paper. 10 We should keep in mind that punishment will not be abolished as a whole. First, punishment can deter recidivism of criminals without brain abnormalities. Second, even if criminals have some brain abnormalities, these abnormalities can be improved by punishment especially if they are minor ones. Seeing these, we can say that the transition from punishment to treatment is limited. The first problem we have to examine is the problem of responsibility. The consequence of neuroscientific view is that we might not be able to see criminals as responsible if they have brain abnormalities. According to this view, contemporary criminal justice system attributes responsibility to those who are not responsible for what they do and punish them. For example, McNaughton Rule, which has been popular as the criterion of responsibility in the U. S, says that we should deny responsibility only when criminals cannot tell right from wrong or when they cannot recognize what they do is wrong (cf. Yamauchi 2006). The rule seems to take into account only the cases where criminals have disorders in cognitive abilities. Typical psychopaths, however, have no problem in cognitive abilities in general. They know that murder or theft is wrong or at least they say so and they know that what they do is a murder or a theft, but they repeat what they do. They have disorders in motivational or emotional abilities, not in cognitive abilities. If this is the case, the rule attributes responsibility to those to whom it should not do. There will be some problems, however, if we deny responsibility when we find abnormalities in criminals' brain. First, brain abnormalities do not always cause anti-social behaviors. Raine and others (1994), for example, show that they cannot find difference in the tendency of violent behaviors at adult age between those with brain abnormalities, those abused in childhood, and those without these problems. Even among those with both problems, only 10% show the tendency of violence, which is just twice as high as the number they find in healthy people. In many cases, brain abnormalities are not something that necessary cause criminal behaviors. So, it seems inappropriate to judge responsibility solely by the state of the brain. The second problem is how we can define brain abnormalities. For example, it is known that there is a huge individual difference in gray matter volume or metabolic activity of prefrontal area. It seems that we cannot tell how small the volume has to be or how low the activity has to be for it to be abnormal, independent from how people act. Even if the volume of one person's gray matter is 30% smaller, we will not see this as abnormal if there is no difference between his or her behavior and behavior of those with larger volume. Moreover, we have to take into account the workings of other parts of the brain. Even if the volume of gray matter in prefrontal area is small and, say, the function of inhibiting impulses is compromised to some extent, anti-social behavior will not occur if other parts of the brain can compensate it. If this is the case, we can define brain abnormalities that cause anti-social behaviors only somewhat tautologically as the brain states that cause anti-social behavior. Then, the brain states that cause anti-social behavior will all be the brain abnormalities. This means that all anti-social behaviors are behaviors caused by some brain abnormalities because the behaviors themselves are abnormal. This means, it seems, that if we start talking about brain abnormalities, the conceptual scheme of free will and responsibility itself might be undermined, at least as to negative behaviors. 4 The problem of intervention The second issue concerning the transition from punishment to treatment is the appropriateness of intervention for treatment itself. Recent neuroscientific view seems to suggest that imprisonment of criminals might be ineffective for prevention of recidivism when there are brain abnormalities in criminals' brain and that intervention for treatment such as admission of drugs or neurosurgery would be more effective. In our criminal justice system, we offer medical treatments, instead of punishments, to criminals whose responsibility is compromised or denied due to psychiatric disorders. It seems that we have to deal with criminals with brain abnormalities in the same way. There are some problems here. First, some people may think that neurological intervention to criminals is not allowed if we think about their human rights. For example, in some U. S. states, sex criminals are provided hormones that reduce testosterone and reduce sexual impulses, but there is a dispute on this policy. Neuroscientific interventions may illicit similar criticism. It is problematic especially when psychopathic criminals with their cognitive abilities intact refuse to have medical treatments and nonetheless we want to provide them. To this criticism, we can point out first that punishments also may violate the human rights of criminals to some degree. We all agree to put criminals in jail not because that does not violate human rights but because the violation can be justified for some reason. Consequentialists would say, for example, that punishing criminals causes disadvantage to criminals because that deprives them of freedom but it also produces great benefit to our society by reducing recidivism. They say that the benefit overwhelms the disadvantage. We could also say that punishing criminals may violate their right to freedom but it also defends the right of victims and other members of society to freedom and life. If we can justify punishments, we may justify neuroscientific intervention in the same way. Here, some might say that neuroscientific intervention may cause greater violation to criminals' human rights than punishments do. For example, if we inhibit offensiveness of criminals by drugs, we would change their characters and personalities through neuroscientific intervention. This might be seen as serious violation of human rights because to change one's characters and personalities is to change his or her essence.11 We could set the general policy to this problem that it is not permissible to do neuroscientific intervention that causes serious modification to criminals' personalities only to prevent minor recidivism but it is permissible to do neuroscientific intervention that does not affect criminals much to prevent serious crimes. According to this policy, we can admit at least some cases of intervention. As to cases in between, however, we have to compare advantages and disadvantages and decide. 11 Some may think about lobotomy surgery, which has been popular during the first half of 20th century. This is the surgery mainly performed to violent psychiatric patients and in the surgery the connection between prefrontal lobe and other brain areas are dissected. It turned out later that patients of this surgery not only became calm but also lost other mental abilities and became social dysfunctional. Some worry that neuroscientific intervention to criminals might become another lobotomy. Second, the cost of intervention also matters. At present, to examine criminals neurologically, diagnose them, and offer them medical treatments would require substantial cost. If we have to continue to administrate drugs to criminals to prevent recidivism, the cost becomes larger. So, we have to consider how much effect neuroscientific intervention can produce and how much it costs. The problem is that, as to cost, neuroscientific intervention might be inferior to other measures. Let's compare it with imprisonment. Neuroscientific intervention might be effective in prevention of recidivism, but it costs much. Imprisonment, on the other hand, cannot affect the workings of criminals mind, but it can prevent recidivism by physically insulated criminals from society. It is true that the cost of imprisonment might be higher than that of neuroscientific intervention, but it might be desirable especially if we cannot effectively prevent recidivism even with neuroscientific intervention.12 The third problem of intervention is how we should think about environmental factor. As we saw, in many cases, anti-social behaviors are not caused solely by brain abnormalities. Then, to improve environmental factors are also effective in preventing crimes. For example, if we want to reduce the cases where people burst into rage and shoot others, we can administer drugs to someone with brain abnormalities, but we can also simply ban the possession of guns. This intervention to an environmental factor costs much less and has small chance of violation of human rights. This example shows that sometimes the intervention to environmental factors is a better way to achieve the goal of prevention of crime. Neurological intervention is not always our first choice. Neuroscientific intervention has another problem. What should we do if we find abnormalities in criminals' brain but there is nothing we can do to them? What we can do as neuroscientific intervention, at present, is limited 12 We have to note that in this case we put criminals in jail because we have to insulate them from society, not because we want to correct them. to administration of drugs or neurosurgery. So, it is fairly likely that there is nothing we can do to brain abnormalities even if we can identify them.13 There are three possibilities here. One is to incapacitate criminals by neurological measures. Lobotomy is an extreme case. This policy enables us to prevent recidivism with relatively small cost, but we can't ignore the problem of violation of human rights here. We cannot adopt this policy at least when the intervention causes serious incapacitation. Second possibility is to put into jail forever criminals with brain abnormalities we cannot cure. This policy enables us to prevent recidivism, but it costs much. The third possibility is to execute them. This policy enables us to prevent recidivism with small cost, but the violation of human rights of criminals is so severe that quite probably we cannot adopt this policy. So, all we can do is moderate incapacitation and long-term imprisonment. We have to note that there is a further problem in long-term imprisonment. If we adopt this policy, one criminal without brain abnormality receives short-term imprisonment and another criminal with brain abnormality receives long-term imprisonment even if their crimes are similar. This is against the common policy that crime and punishment must be proportionate. It would be arguable that we can apply long-term imprisonment to criminals with brain abnormalities just to prevent recidivism and to defend the society. 5 The problem of preventive intervention The third issue on neuroscience and criminal justice systems is the possibility of preventive intervention. With the further development of neuroscience, we may be able to identify brain abnormalities that may cause anti-social behaviors before people actually show such behaviors. If this is 13 Paul Churchland seems to have this possibility in mind when he writes, "if we can identify really problematic criminals, this is a step forward even if there is nothing we can do except for insulating them form the society"(1995, p.314). possible, is it permissible to do some preventive intervention to people with serious brain abnormalities? We have to keep in mind that this kind of preventive measure is common when we deal with something other than humans. For example, if it turns out that a river is very likely to flood, we will quite probably build banks and dams before it actually starts to flood. Even with humans, we sometimes take preventive measures. For example, if a dangerous epidemic disease is likely to prevail, we will force injection of vaccine to people even if they want to refuse it. From these we can say that taking preventive measures is common when we deal with natural disasters and diseases. Should we take the same measure to anti-social behaviors? There are a couple of problems in taking preventive measurers to anti-social behaviors. First, as we saw before, it is quite unlikely that we can identify the brain abnormalities that necessarily cause criminal behaviors. The same brain abnormalities can have different consequences when environmental factors differ. For example, someone with the dysfunction of prefrontal lobe may have difficulty in inhibiting his or her impulses, but whether he or she actually commits a crime depends on such factors as whether knives or guns are around him or her, or what kind of occupation he or she is in. All we can say when we learn there are brain abnormalities is that it is likely that he or she commits a crime. It might be problematic to do preventive intervention when there is only possibility. Secondly, preventive intervention might violate the freedom of thought. It is the rule in most contemporary democratic societies that we will not be punished for merely having some thoughts even if they are extremely anti-social ones. If we adopt preventive intervention, we are allowed to make people unable to have some thoughts through drug administration or surgery when the thoughts are likely to cause actual anti-social behaviors. This seems to violate the freedom of thought.14 14 Our principle of valuing freedom of thought might be based on the assumption that there is a difference between merely thinking something and actually doing it. The development of Thirdly, there is a more fundamental problem here. The argument for preventive intervention seems to cause an internal tension in our view on crime and punishment. In our commonsense view, humans and things have fundamentally different statuses. To humans, we adopt the conceptual scheme of freedom, responsibility, praise, blame, and punishment. On the contrary, to things, we adopt the conceptual scheme of causality and natural law. These days, however, the development of neuroscience enables us to apply to some anti-social behaviors the latter conceptual scheme and understand them causally with neuroscientific vocabulary. We see people within the former scheme until they commit crimes, but we start to see them within the latter scheme once they show anti-social behaviors and we find some brain abnormalities. Which conceptual scheme should we adopt then, when we find some abnormalities in someone's brain but he or she does nothing wrong yet? Is punishing criminals essentially the same as building banks to prevent a flood or forcing injections to prevent an epidemic from prevailing? To do preventive intervention to people who have brain abnormalities but do not commit crimes is to see them within the conceptual scheme of natural science. In other words, it is to take engineering attitude toward them. That may compromise the great part of commonsense conceptual scheme.15 6 Summary neuroscience may show that this assumption is wrong. Even if there were a connection between them, however, this fact would not necessarily justify preventive intervention if the connection is probabilistic. 15 Some may think that if we accept the neuroscientific view, then it follows that our behaviors are caused by brain activities and so we cannot admit responsibility for all our behaviors. In other words, some may think that there is no room left for the commonsense conceptual scheme. This is the long lasting philosophical problem of determinism and free will. We cannot offer a solution to this problem here, but we can point out that the two schemes can be made compatible in some ways. First, as Patricia Churchland (2002) argues, we might be able to tell a person with free will and a person without it according to some neuroscientific difference and naturalize free will. Second, as Greene and Cohen (2004) argue, even if we have to abandon the concept of free will, we can justify our practice concerning responsibility by the consequentialist argument. The development of neuroscience causes many changes in our society. Brain-machine interface technology can improve the quality of life of quadriplegics, for examples. There might be a heated debate on the use of so-called smart drugs. These are not only changes caused by neuroscience, however. Neuroscience can affect our social systems and our view on ourselves. The influence on criminal justice system is just one example. Let's sum up the argument. The development of neuroscience may show that some criminals, especially those that repeat crimes, have brain abnormalities. To those people, punishment such as imprisonment might be ineffective and so it might be better to offer them some sort of treatment. It is not clear, however, to whom we should do so. 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