mea culpa?

great article in the telegraph:

The human brain: turning our minds to the law

“Our understanding of the way the brain works could help us create a better legal system, says neuroscientist David Eagleman….

“The problem is that the law rests on two assumptions that are charitable, but demonstrably false. The first is that people are ‘practical reasoners’, which is the law’s way of saying that they are capable of acting in alignment with their best interests, and capable of rational foresight about their actions. The second is that all brains are created equal. Everyone who is of legal age and above an IQ of 70 is assumed, in the eyes of the law, to have the same capacity for decision-making, understanding, impulse control and reasoning. But these ideas simply don’t match up with the facts of neuroscience.

“Along any axis that we measure, brains are different – whether in aggression, intelligence, empathy and so on. Brains are more like fingerprints: we all have them, but they are not exactly alike. As Lord Bingham, the senior law lord, put it, these myths embedded in the legal system do not provide a ‘uniformly accurate guide to human behaviour’.

“The legal system needs an infusion of neuroscience. It needs to turn away from an ancient notion of how people should behave to understand better how they do behave….”

i agree with eagleman 1000%. how can everyone be held equally accountable for their actions when everyone is not equal?

for example, how can someone who is born with the genes predisposing him towards psychopathy — AND who is raised in the right (or should that be wrong?) environment — be held responsible for his actions in the same way that a non-psychopath can be? answer: he can’t.

the psychopath behaves differently because he has a very different neurology than a non-psychopath. how can he be in any way personally responsible for his psychopathic actions? he certainly cannot be reformed! (without a lobotomy or something drastic like that.)

i’m not saying that criminals shouldn’t be locked up — we need to do that to keep society safe. but, we do need to rethink the basis of our legal system given what we now know (and will learn in the future) about our biology.

previously: who’s responsible?

(note: comments do not require an email.)


  1. I heard an interview of the guy on the Nature podcast. While I agree with the notion that everyone is different, I’m not sure that that’s and adequate reason for reform. From my point of view, our legal system is largely operated on fictions, but they’re useful fictions and often, in casting aside a fiction you can make things worse.

    Equal treatment under the law is a very pragmatic principle even if humans are not all equal beings. While it seems to me that most if not all of Eagleman’s description of the brain and mind is correct, I’m not sure that what he says can be used to inform the legal system in a positive manner. It may, but I’d tread lightly in looking at changes.


  2. […] James Pilant great article in the telegraph: "The human brain: turning our minds to the law" "Our understanding of the way the brain works could help us create a better legal system, says neuroscientist David Eagleman…. "The problem is that the law rests on two assumptions that are charitable, but demonstrably false. The first is that people are 'practical reasoners', which is the law’s way of saying that they are capable of acting in alignment with their b … Read More […]


  3. Why should a person who possesses the MAOA “warrior gene” be allowed/let off for punching me in the face during a dominance dispute when I, a person who does not possess the gene and as such is more capable of inhibiting my impulses, not be allowed to punch him in the face even though I very much desire to punch him in the face just as much as he desires to punch me in then face.

    Not treating people equally under the law will lead to outcomes that individuals will not consider fair and will result in a loss of legitimacy for the legal system.


  4. You are imparting god-like properties to mere mortals. They – whoever decides who are psychopaths – are supposed to be infallible, incapable of pride, sloth, greed, envy, etc. They can never be influenced (i.e. bought off or shaken down) by corrupt politicians, special interest groups and the powerful who scape-goat and demonize a particular group for gain. We are already seeing this with laws and regulations that are biased against heterosexual white males and Christians.

    Nietzche announced in 1882 that “God is dead.” But, before you atheists praise your new freedom think on this. He also made a prediction you may not like ( in Ecce Homo). He said that with the loss of morality and the triumph of so-called rationality and science the twentieth century would be a century of “wars such as have never happened on earth” catastrophic beyond imagination. We would then limp into the twenty-first century to even greater destruction and moral chaos “with the total collapse of all values” (in The Will to Power). He predicted people will frantically search for new values to replace the old god-centered ones but will fail because we need a god to say, Thou shalt and Thou shalt not. His ideas seem to be very prescient to me.


  5. Lack of responsibility for one’s acts does not logically preclude punishment for them. In fact, some disabilities, like insanity or idiocy, that are routinely used to mitigate or eliminate punishment are good reasons for life imprisonment or execution.

    Rewards and punishment should be regarded like dog training. If they might achieve some useful modification of a law-breaker’s behavior, use them. Otherwise get rid of the problem.

    Equal protection under law is needed to get wide-spread acquiescence to the law. Otherwise, brute force is needed to get compliance. However, equal protection merely refers to the standards by which the courts decide “guilt” or “nonguilt.” It should not mean that the same act committed by different people will get the same punishment. We already recognize this principle, we just don’t carry through the logic.


  6. From reading SocioPathWorld, one of the things that jumped out at me was that while they may lack moral scruples sociopaths have a strong aversion to getting caught and being sent to jail.

    Doesn’t this argue for the deterrent theory of law enforcement?


  7. Neuroscience can be used to inform us about people’s ability to resist impulses and respond appropriately to stimuli.  If someone has inherently diminished capacity for self-control, prior restraint of their actions is appropriate for both society’s good and their own.

    What’s better for someone with brain problems leading to destructive behavior:  keeping them from harming other people, or punishing them afterward?


  8. > He said that with the loss of morality and the triumph of so-called rationality and science the twentieth century would be a century of “wars such as have never happened on earth” catastrophic beyond imagination.

    He also helped promote those wars, not in two or three sentences dispersed over 10 books, but rather, again and again and again.


  9. @r.a. – “…in casting aside a fiction you can make things worse.”

    quite possible. certainly most people who are religious in nature (in other words, most people) don’t seem to handle living without some sort of belief system. they seem to need a god-figure watching over them to make sure they behave.

    myself, i prefer fiction only in my fiction. (~_^) but, maybe i need to remember that i am an oddball and society prolly can’t function on the basis of what works for me — ’cause most people are not like me — or, rather, i am not like most people.


  10. @chris – “Why should a person who possesses the MAOA ‘warrior gene’ be allowed/let off for punching me in the face during a dominance dispute….”

    oh, i didn’t say, or mean, that anybody should be let off. like i said in my post, i still think that criminals will need to be locked up in order to keep society safe. i just don’t know that spending lots of money to reform actual psychopaths, or the MAOA “warrior gene” carriers you mentioned, has any point. i mean, can they actually be changed? maybe society’s money would be better spent on, i dunno, keeping them apart from society somehow, maybe usefully employed?


  11. @propercharlie – “They can never be influenced (i.e. bought off or shaken down) by corrupt politicians, special interest groups and the powerful who scape-goat and demonize a particular group for gain.”

    yes. that’s a whole other problem, isn’t it?

    aside from being bought off, etc., there’s also the problem of psychiatrists, themselves, simply being biased because of their own personalities.

    @propercharlie – “But, before you atheists praise your new freedom think on this.”

    not sure if this sentence was directed at me actually — but, please note, i am not an atheist.


  12. @bob sykes – “Rewards and punishment should be regarded like dog training.”

    yes. i agree with you here. but, we’ve got to remember that border collies are a lot smarter than english setters. they’re a lot easier to train, and actually willing and eager to learn.

    @bob – “It should not mean that the same act committed by different people will get the same punishment. We already recognize this principle, we just don’t carry through the logic.”

    well, that’s what i’d like to see in my ideal world (which is prolly not possible) — that the logic of it would be followed through.


  13. @luke – “Would you advocate preventive detention? What are the alternatives?”

    preventive detention — eh, not so much. i dunno — i haven’t finalized all my plans yet for when i am dictator of the world. (~_^) i was thinking more about what happens after a crime is committed — what goes on in court and the punishment afterwards.

    i really can’t see, going back to my example, how we can hold a true psychopath equally responsible for his psychopathic actions as a man who is not a psychopath. it’s like holding the english setter i mentioned above responsible for not being as able a herder as a border collie. it just doesn’t make sense logically.

    i also can’t see why we would should spend lots of money trying to reform such a person when any researcher into psychopathy will tell you that they cannot be reformed. to me it’s like spending money making sure that no child is left behind. not logical.

    a dangerous psychopath clearly needs to be segregated from the rest of the community for our sakes. (the non-dangerous ones will just wind up on wall street, which is lethal in a whole other way!) and perhaps the money that would’ve been spent on reforming such people would be better spent in making them productive in some way. put them to work. or spend the money on research into psychopathy! (not necessarily to “cure” it, because some levels of psychopathic behavior in a society might actual be beneficial, but just to understand it.)


  14. @luke – “BTW, do you follow SociopathWorld, a blog written by and for sociopaths?”

    i don’t follow it regularly, but i have read it on occasion. fascinating stuff! many of the discussions remind me of the sort of analysis that goes on on aspie boards/blogs — trying to figure out NTs — just with the addition of the rather scary psychopath-ness.

    @luke – “From reading SocioPathWorld, one of the things that jumped out at me was that while they may lack moral scruples sociopaths have a strong aversion to getting caught and being sent to jail. Doesn’t this argue for the deterrent theory of law enforcement?”

    yeah, actually you’re quite right there. at least, that’s my understanding, too. the LAST thing that psychopaths/sociopaths want is for their plans to be kiboshed. so for many of them, the threat of jail might be pretty good. doesn’t work great for low-iq psychopaths, though — they’re just to dumb and keep getting caught. and for high-iq psychopaths — well, they might work extra hard to NEVER get caught, but still carry through their psychopathic plans. eeeeeek!

    the other thing, again, is the question of reform. psychopaths will just lie, lie, and lie — very plausibly — that they have turned over a new leaf. and they get out of jail over and over again, just to wind up back in jail after they’ve committed another crime (if they’re dumb, that is). we have to get over the idea that everyone can be reformed.


  15. The problem is that the actual purpose of the criminal justice system (not its stated purpose but its actual purpose) is to “other” people. If the system can “other” them enough, then they can be treated as non-human objects and maltreated and even killed or tortured. The maltreatment is part of the “othering” process.

    The “othering” has several goals. For people who care about being in a social hierarchy, being “othered” is a severe punishment. It is the stigma of being labeled a criminal and in then being moved down the social power hierarchy that is supposed to be the deterrent, and for some people it is. When someone moves down the social hierarchy, someone else moves up. The social hierarchy is zero-sum. When prosecutors move someone down, the prosecutors move up. That is why very often celebrities are treated more harshly than non-celebrities. A celebrity has a higher position on the social hierarchy to begin with, so the move down farther, so the prosecutor who moves them down gains more.

    This is one of the problems with trying to bring “leaders” to justice is that if they remain at the top of their followers’ social power hierarchy, when you move the “leader” down, all the followers move down too, and many of the followers don’t want to move down, so they resist having their “leader” brought to justice. For example GWB.

    I don’t think that legislators will be able to use science in determining what laws should be like. They already can’t use science for any other thing, why would they be able to use it for this?

    There is some research by Bernard Gesch, that if you give prisoners in prisons supplemental vitamins, essential minerals, essential fatty acids, you reduce the violence levels in prisons.

    The cycle of violence is extremely well known. You expose people to violence and they become more violent. What does anyone expect when non-violent drug offenders are put in prisons with violent offenders? Duh, the non-violent offenders learn how to be violent to survive and leave the prison a worse problem than when they entered it.

    The problem is that the people who put people in prison and who run prisons don’t have the agenda of trying to help prisoners learn behaviors that will keep them out of prison. They don’t really want to reform anyone.

    I think that raising people’s nitric oxide level will reduce violence in prisons and in society. It has an effect sort of like meditation but everyone can do it, even those people who can’t meditate.


  16. @hbd chick
    myself, i prefer fiction only in my fiction. (~_^)

    As do I, which is why I never considered pursuing a career in law.

    My point was that law is based upon a wide variety of ideas, some true and some *ahem* questionable, which have come together in a way such that modifying the system in such a way to “fix” one questionable aspect could bring about a raft of unintended consequences, which have historically been patched over in a kludgy way.


    Well, I certainly agree that status games are an effect of the criminal justice system and that towards some ends, they is seen as a desirable effect, but I don’t agree that they are the main goal of the system. I suspect that it is your own ideology that causes you to elevate that particular aspect above all others, rather that the actual intentions of its practitioners.

    Very roughly, the criminal justice system is meant as a means of maintaining order in society by attempting to solve multiple simultaneous problems. Status games and deterrence are part of it and serve as one of many mechanisms involved, but essentially, like many social institutions, it is meant to deal with multiple competing interests within a population.

    Now, I do think that there are many areas where the system handles its role sub-optimally and the dynamics within prisons are a big part of that. Reforms of the system that address the problems without creating greater side effects are certainly needed and I suspect that there are a wide range of low-hanging fruit in the American prison system for doing just that.

    For my part (as someone who’s already expressed his lack of interest in working in the legal system) I merely advocate that reforms receive serious deliberation before they are enacted. In the context of David Eagleman’s discussion of law, it seemed to me that he had fixated on a single issue and that while the facts he presented relating to his viewpoint seemed to by and large be correct, he did not work his proposal into the functioning of the whole system–he merely took a single issue and proposed a reform without considering upstream and downstream effects.


  17. hbd chick, if you look at the history of the criminal justice system in the US, it started out in England first as might makes right, then as trial by individual combat, then trial by hired champions, then trial by hired lawyers where we are now. It is an adversarial system, it isn’t designed to produce justice, it is designed to produce winners and losers. If you have money or status, you get treated differently. Sometimes better and sometimes worse.

    It is designed to move people up and down the social power hierarchy, not make the social power hierarchy more fair and equitable.

    I don’t disagree that people need rules of conduct and need to be sanctioned when they violate those rules, but the justice system is really set up to have multiple standards depending on your social status and to favor those with already high status.

    I have a bumper sticker on my care “Sow justice, reap peace.” To me, justice is something that the more you have of it, the better off everyone in the society is. What ever it is that the criminal justice is producing, more of it would not make our society better off.


  18. @daedalus2u
    I assume that you were responding to me. Regardless, I am aware of the history of the English adversarial system. But the fact of the matter is that that system has undergone some rather radical change since then. While the initial setup was indeed risable, there has been a fair amount of optimization toward a system that better mediates conflicts.

    The issue I have is that while the current system is not perfect by any stretch of the imagination, there is not an obvious alternative that would be more effective at mediating conflict in society that could be easily implemented. I’m sure that there are plenty of reforms that thinkers in the field of criminal justice have proposed that would further optimize the system for the purpose of encouraging social order.

    Finally, I will say that I have a different view of justice and the ends of criminal justice system than you do. It seems that you view justice as an entity in and of itself, something that can be increased and decreased like a commodity. I see justice as an abstract quality that is subjectively perceived, with a fair amount of overlap in collective perception.

    Having a justice system is essentially a means of compromising such that all groups can agree to defer authority on what the just course of action is to a central authority, thus circumventing the conflicts that arise from competing notions of justice and conflicting accounts of the facts. This is why “vigilante justice” is rather corrosive, as it allows a single individual or groups within a society to answer both questions without compromise with the greater society.

    Much as our political system is imperfect, our criminal justice system is as well. There are steps that can be taken to improve both. However, I think that the notion that Platonic perfect social institutions can be reached is one that should be resisted. There is an element of “social power hierarchy” to the criminal justice system. I don’t see that as an inherent condemnation and given that some elements that appear “unfair” by some modes of reckoning are vital to the operation of the system, I would be wary of proposals that try to radically transform the system according to some perfected view of fairness.


  19. Yes, I was responding to your comment. If you look at my blog post on xenophobia

    There is another system of “justice”, more of a philosophy, that of Ubuntu which I try and contrast with the “eye for an eye” justice system of the Patriarchal religions.

    In the Patriarchal system, the “punishment” is movement on the social hierarchy. The problems with the US criminal justice system is that the social hierarchy is a zero-sum. For people to move up, others have to move down. Those who move up profit at the expense of those who move down. Maybe that movement is justified, but when innocent people are convicted of crimes they did not do, they are still moved down and the prosecutors are moved up. There is insufficient incentive for prosecutors to not convict innocent people.

    I don’t know how to fix the criminal justice system, but I do think it is getting worse and not better. I think the major reason for that is that there is an incentive built into the system for people to profit from it. Prison owners, prison suppliers, prison employees, politicians, etc. They profit from the criminal justice system as it is. Here is a case where judges put children in prison for kickbacks.

    They destroyed the lives of many children. One child did commit suicide. For that they got only 87 months in prison?

    When people profit from the outcomes of the criminal justice system and can use those profits to influence the criminal justice system, there is great potential for great harm and incentive for great harm.


  20. As I said on an earlier post with regard to your post on xenophobia, I think that it’s interesting as a syncretic ideological essay, but overall, I don’t see it as a useful means of analyzing the phenomena it approaches.

    As to the issue of status, it’s a bit more complicated than you portray it. A prosecutor does gain status from a successfully prosecuted case, but those whose status is reduced by that gain are other prosecutors and the defense attorney that the prosecutor faces.

    The status lost by the defendant would transfer to members of the general population, and that assumes that your conjecture that status is zero-sum and therefore conserved. I am not so certain as a status is a pseudo-objective quality–it exists by broad agreement, but there isn’t a neutral arbiter. Regardless, there are likely to be winners from the defendant’s loss of status, but those winners probably will not know who they are and for the most part, status gains would be dilute.

    The point is that there are parallel status games. The status game played by the attorneys (the prosecutor and the defendant) is largely separate from the status lost or gained by a defendant, despite the relatedness of results.

    To be clear, a result in which a prosecutor gains status is one where a defendant loses status, but it isn’t a transfer of status from the defendant to the prosecutor. It’s a transfer of status from the defense attorney and other prosecutors to the victorious prosecutor and a transfer of status from the defendant to members of the general public. The transfers are linked but not identical.

    So, when it comes to interests, there are both interests favoring more imprisonment (prosecutors and those paid to hold prisoners come to mind) and forces opposing (defense attorneys and taxpayers come to mind). Perhaps there are imbalances of immediacy and influence, but it should be noted that those balances can change depending upon outside scenarios. For instance, budget shortfalls shift some power to the taxpayers over those who are paid to hold prisoners, which was referenced by Eagleman in talking about Virginia (just checked and that’s in the podcast segment, not hbd chick’s linked article, sorry).

    As for methods of optimization, your article is an example of one of them. The parents of the children harmed by the actions of the judge brought publicity to the matter and the judges were disbarred, a serious loss of status on their part. There is no hard and fast science to how much someone should be sentenced for a crime, but given the level of prestige a judge holds, disbarment, mandatory resignation, and a prison sentence constitute a pretty significant fall. Perhaps it’s not as great as the harm that their actions inflicted upon the minors involved, but that is a compromise that is necessary for a functional system.

    Now, another issue is that the rich are essentially able to “buy justice” for themselves though the hiring of expensive legal teams that have more skill and more time to dedicate to individual cases than the public defenders assigned to poorer defendants. Obviously this is troubling, but it seems to me to be another example of the sacrifices necessary to have a working legal system. Forcing everyone to use public defenders would increase the leverage of prosecutors, resulting in both an increase in the burden of paying for public defenders and an increase in the number of prisoners to pay for.

    Given a flawed system, a good critique should include alternatives to the status quo that when put into practice produce better results. It should also be noted that there are many factors to optimize including but not limited to level of justice dispensed, process cost to the plaintiffs, process cost to the defendant, and process cost to third parties.

    Ultimately, to tie this back to the original entry, I was skeptical of David Eagleman’s approach to reform because I thought that he had insufficiently considered the context in which reforms to the court system would take place. It seemed like he was singling out one aspect that seemed flawed in isolation and wanted to replace it with one that he thought was a better representation of reality, rather that looking at an aspect that seemed flawed in the context of the current system and seeking to modify it in such a way that outcomes would improve.

    Certainly, it is possible that he has a much more well-thought-out and detailed plan that he has simplified for the sake of media interviews, but given the tone and approach that he used in those interviews, I am a bit skeptical that the results would be positive.


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