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David Ewing Duncan

A View from David Ewing Duncan

High Neurocrimes and Misdemeanors

An article in the New York Times makes me wonder what my brain will do next–and if we’re ready to give up our freedom to a lump of gray tissue between our ears.

  • March 15, 2007

And binding Nature fast in fate, Left free the human will.

An etching of Alexander Pope.

–Alexander Pope
The Universal Prayer, 1738

Lawyer and author Jeffrey Rosen has written a compelling article for the New York Times Magazine about the slow creep of the “my brain made me do it” defense in criminal law. He recounts a little-known case from the early 1990s that may be the watershed moment in which the age of personal responsibility ended.

The case involved Herbert Weinstein, a 65-year-old advertising executive who strangled his wife and tried to make the death look like a suicide by throwing her out a window in the couple’s 12th-floor New York City apartment. Although this seemed like an act of planning and will that Weinstein could be held accountable for, his lawyer suggested that a cyst on his client’s arachnoid membrane, which surrounds the brain, made him commit the crime. The jury agreed and convicted Weinstein of the reduced charge of manslaughter.

Rosen writes about what this case means for law:

“The implications of the claim were considerable. American law holds people criminally responsible unless they act under duress (with a gun pointed at the head, for example) or if they suffer from a serious defect in rationality–like not being able to tell right from wrong. But if you suffer from such a serious defect, the law generally doesn’t care why–whether it’s an unhappy childhood or an arachnoid cyst or both. To suggest that criminals could be excused because their brains made them do it seems to imply that anyone whose brain isn’t functioning properly could be absolved of responsibility. But should judges and juries really be in the business of defining the normal or properly working brain? And since all behavior is caused by our brains, wouldn’t this mean all behavior could potentially be excused?”

The article cites similar cases and delves into a raging debate among scientists, legal scholars, and lawyers about how far the neuro defense should go. Perhaps more intriguing is the other point of the article, which gets into the use of fMRIs to scan brains for defects and neuro profiles that might predict future criminal behavior. This is getting into Philip K. Dick territory, and it opens up a mind-bending range of issues and possibilities. For instance, will there be search warrants to peer into brains? Will people be arrested for having the profile of a murderer?

This comes just three or four centuries after humans in the West and scattered other parts of the world threw off various dogmas and authoritarian systems telling us what to do and, instead, embraced the idea of intellectual and secular free will. These notions came out of the Enlightenment and are now the bedrock of not only our politics and law, but also our philosophy, which emphasizes the supremacy of the individual and individual rights. It also emphasizes the potent sensibility that we have choices in what we do, such as to strangle or not to strangle our spouses–or to turn left or turn right when we come to an intersection.

Is it possible that every decision we make in some unfathomably complex way is determined by the interaction of our brains with environmental input and anomalies such as tumors? Before the Enlightenment, people gave God (or gods) the power of determination in human affairs. Are we about to cede this power again to a lump of gray matter between our ears?

Like many new worlds presented by technology, this one seems frightening, though as a self-proclaimed (by my brain) biopragmatist, I suspect that cooler heads will prevail. Indeed, my neuroscientist friends and acquaintances point out that the understanding of the brain is very crude right now. The mechanics of how tumors impact behavior and what it means when a region of the brain associated with criminal behavior fires up during an fMRI scan are poorly understood.

Personally, I’ll stick with the poet Alexander Pope’s hope that human beings will be left free. I also suspect that free will won’t be in danger anytime soon; that we are decades if not centuries away from understanding the complexity of environmental inputs, genetics and physiology that impact what our brains will do or not do.

Now I’m going to exercise my free will and stop writing. Or is that my brain making me stop for predetermined reasons that I have no control over? Maybe this whole blog is a product of my brain that I have no control over. So if I offend you, then it’s not my fault.

Does anyone else have a headache thinking about this?

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