
The Brain on Trial - sajid
http://www.theatlantic.com/magazine/print/2011/07/the-brain-on-trial/8520/
======
tokenadult
From the article, referring to recidivism rates in sex crimes: "But among the
strongest predictors of recidivism are prior sexual offenses and sexual
interest in children. When you compare the predictive power of the actuarial
approach with that of the parole boards and psychiatrists, there is no
contest: numbers beat intuition."

One of the best changes in the administration of criminal justice in the
United States during my lifetime has been use of standardized sentencing
guidelines, pioneered in the state of Minnesota,

<http://www.msgc.state.mn.us/msgc5/guidelines.htm>

to reduce the variance among different judges in how convicted criminals are
sentenced. By taking into account the severity of the most recent offense for
which a defendant is convicted, along with the defendant's history of previous
convictions, Minnesota can imprison many fewer criminals than most states--
diverting less dangerous criminals to community-based rehabilitation programs
--and actually spend more per prisoner (for more humane imprisonment) while
spending less per taxpayer on its prison system than most other states. The
most dangerous criminals are kept away from potential victims, so that my
neighborhood and most neighborhoods in Minnesota are perfectly safe for
children to go out in alone. Youthful offenders who make one minor mistake are
set straight and continue to be productive members of society. By contrast,
the "three strikes and you're out" rule of California, promoted as a make-work
program by the prison guard trade union, needlessly imprisons tens of
thousands of California convicts in degrading conditions that result in more
recidivism when convicts are eventually released, and endangers the solvency
of the whole state government.

------
henrikschroder
"A leading neuroscientist describes how the foundations of our criminal-
justice system are beginning to crumble"

Well, it's a blow to the foundations of revenge-based justice systems, like
the US one.

In rehabilitation-based justice systems like the ones in Europe, this is not a
problem. It's simply more tools to diagnose and rehabilitate prisoners.

~~~
philwelch
Care to expand on the differences? I'm not sure if you have an insightful
point here or if you're just making a glib anti-American remark.

~~~
henrikschroder
It was a generalization, there are big differences between the various states
in the US, and there are big differences between various countries in Europe,
but generally, criminal punishments are less severe over here, and more severe
in the US.

Some states in the US have the capital punishment, and some even allow the
victims to witness the execution. "To ensure justice was done" is the official
explanation, but in reality, it's to satisfy the victim's desire for revenge.

Over here, the victims of a crime are part of the process only as witnesses,
and then they're out. There are no juries to sway with emotion, all sentence
lengths are standardized by law, and "life in prison" means 20 years, max.

There is no public opinion that we should be "tougher on crime", no political
parties are campaigning with the promise to increase sentence lengths or be
harder on criminals, some want more resources and money to the police, but
that's it.

There's a general awareness that prisons actually harden criminals, that the
more time they spend with each other, the more likley they are to return to a
life of crime when they get out. We try not to mix people serving a sentence
for the first time, with people who are return criminals.

The primary purposes of prisons is of course to lock people up, to remove them
from society, to ensure they can't move freely or do work or business, but
there is a secondary explicit purpose, and that is to rehabilitate as
effectively as possible, to give the prisoners as much help and support as
possible, to make sure they don't commit crimes again.

It is very common over here that people who commit murder are sentenced to
forced psychiatric rehabilitation instead of prison, and you do psychiatric
evaluations of everyone accused of violent crimes, so there's an underlying
general sentiment that criminals are sick, not evil.

Of course a lot of people mistrust former convicts, of course a lot of people
think criminals deserve to be put away, but there's a lot less of those
sentiments over here, compared to the US. Our prison population per capita
here in Sweden is also 1/10th of the US average.

So, given all this, the news that a lot of criminal behaviour can be explained
by brain malfunction isn't devastating at all. Quite the opposite, it means
that you suddenly have more ways to rehabilitate criminals, if you can remove
a tumor or fix a chemical inbalance, that's good! It means even less people in
jail, and less violent crime.

But if the primary purpose of your justice system is to ensure the victims get
their revenge, then it's not helpful, it's not good, because it will "rob"
victims of their revenge.

~~~
philwelch
The US had really, really bad crime in the 1980's and 1990's. In a lot of
large American cities, infamously including New York, things like street
muggings were literally a fact of life that nearly everyone had faced one time
or another. I'm not aware that things ever got that bad in Europe; it's not
fair to criticize our solution to a problem Europe hasn't even had.

Why were things so bad? We're not a culturally homogenous society, so we have
lots of oppressed classes of people who are more likely to turn to crime. We
have a history of high immigration and a history of puritanical,
prohibitionist laws, which means organized crime from all over the world can
easily gain a foothold here.

And, unlike Europe, large parts of America were basically frontier less than
150 years ago. The "wild west" wasn't as violent as you see in movies, but it
wasn't a very nice place, either, and harsh measures were sometimes necessary.
A lot of American sentiment on capital punishment dates from these times, and
these circumstances which Europeans haven't been familiar with for centuries.

Pragmatically, the American justice system (capital punishment and long
sentences included) does a very good job at containing criminals. We can be
fairly certain that as long as someone is in prison, or dead, they are not
going to go on and commit more crimes.

Frankly, the bulk of the problem in America has been urban gang violence. You
can't fix that by rehabilitating individuals, because gang violence isn't an
individual crime. Sure, brain malfunctions might explain individual criminals.
They don't explain entire criminal subcultures. They can't all have brain
damage, they just live in a culture where gangs are normal. Any human will do
violent and terrible things to fit in with the culture that surrounds them.

As for the jury system, Americans consider jury trials to be just as
fundamental to democracy as elections. Of course juries can be swayed by
emotion--but if you only allow trained, expert judges to pass verdicts on a
trial, by that same reasoning, shouldn't you only allow trained experts to
choose your country's leaders? After all, voters can be swayed by emotion,
too.

On another note, I'm curious as to how the justice systems you're talking
about would handle criminals like Timothy McVeigh or Charles Manson. Don't you
think that someone who kills children with truck bombs, or arranges a series
of murders in order to incite a race war prophesied in Beatles lyrics, is too
dangerous to be let go? A lot of experts believe that true psychopaths can't
actually be rehabilitated--at best, they only learn how to fool therapists
into believing they're healthy again. How is that handled?

~~~
henrikschroder
Interesting perspective. Thanks!

(Sorry for not responding at length, but this is too far buried now)

------
rednum
What struck me while reading this article, is thought that modern society will
be seen as barbarian 100 years from now - it seems very likely to me that
people will see imprisoning (of person with brain problems) as something
cruel, similarly that we are disgusted by concept of cutting off thieves'
hands. Also this implies that there are many behaviours in our society that
will turn out immoral some years later, which is rather uncomfortable thought.

~~~
kristofferR
I've thought about this topic a lot lately. The issue with this is that in one
way or another, all violent criminals have some sort of problem with their
brain. They may not have a tumor or dementia, but something is wrong outside
of their control. Should we punish them for that? And what is the alternative?

Well, I live in Norway, where the maximum sentence is 21 years. There are no
life-sentences and certainly no death penalty. Even the top-security prisons
are not too bad (
[http://www.time.com/time/magazine/article/0,9171,1986002,00....](http://www.time.com/time/magazine/article/0,9171,1986002,00.html)
). The focus is on rehabilitation instead of punishment, and it seems to work
quite good. The inmates can get an education and participate in social
activites.

Our crime rate is quite low and while that probably is a result of our welfare
system, there are no indications that humane prisons negatively impact crime
rates at all.

And the thing is that even our so-called "luxury prisons" ends up being
cheaper than the American hellholes because we keep our inmates in for much
shorter periods of time and focus on making them productive members of society
instead of cage-animals.

~~~
randallsquared
_The issue with this is that in one way or another, all violent criminals have
some sort of problem with their brain. They may not have a tumor or dementia,
but something is wrong outside of their control._

You are saying that no healthy human being would ever commit a violent crime
-- that nothing involving incentives or circumstances could prompt someone to
make a decision to be violent? It seems to believe this you have to assume
that in most eras most humans had some problem with their brain.

~~~
ugh
You are your brain so I kind of have problems seeing the distinction in the
first place.

When a law says “Don’t publish a copy of the copyrighted music you own.” and
you do publish a copy is there something wrong with your brain?

There certainly is if you believe that a healthy brain should not publish
copyrighted music given the existing incentives in society.

Just think for a moment what would happen if we really were able and willing
to change brains however we wanted to. Laws then become blueprints for
changing brains which is kind of scary. Laws don’t have to orient themselves
on what might be considered healthy brain behavior (but who gets to define
that?), they can say whatever they want. It’s a pretty significant intrusion,
but then again, so is locking someone up for a few decades.

I’m actually quite a fan of not ever punishing. I think the goal of criminal
law should be to reduce crime while still allowing as much freedom as
possible. Imprisonment (or, even worse, the death penalty) seems like a very
blunt instrument for that purpose. Changing the brain, however, comes with its
own issues. Does society get to decide who we are? I’m not sure about that.

------
gruseom
This article is glib. It begins with a tragic anecdote that would soften
anyone up - it certainly did me, no doubt triggering a brain reaction that
caused me to read on. The author raises matters of great moral and social
gravity. But what are his actual points?

1\. That the biology of brain function affects behavior. Well, duh. 2. That
this has legal implications. Double duh. 3. That our present legal system is
one-size-fits-all. No it isn't. It may in aggregate be crude and stupid, but
not _that_ crude and stupid, as everybody knows
(<http://en.wikipedia.org/wiki/Extenuating_circumstances>) and as the article
itself shows (cf the Parks story). 4. That society's concepts of guilt change
over time. 5. That scientific findings are relevant here. Who is arguing
against any of this?

How about particular scientific findings with particular legal consequences?
Well, "This research is just beginning"... "but if it works well, it will be a
game changer." Today, "neuroimaging is a crude technology", but "within the
coming decades" we "will be better able to say why people are predisposed to
act the way they do". And that's it. The grandeur-to-substance ratio
approaches that of strong AI.

Yes, the brain is important and people are not ideal atoms of free will. It
does not follow that brain imaging has turned centuries of jurisprudence on
their head.

~~~
mike_h
"The future is already here, it's just not evenly distributed" is the Gibson
quote that often gets applied to technology, but it applies as well to
knowledge in general.

 _Who is arguing against any of this?_

Maybe not anyone at a certain level of academic discourse, but US society and
law continue to argue against it: the average person would attempt to make an
explicit argument, and laws on the whole reflect an implicit discipline-and-
punish philosophy more than the rehab hypothesis.

There's a long way to go before this is democratically-actionable knowledge,
and I think he does a good job of presenting some easily-digestible food for
thought.

------
ZoFreX
Nice article overall but the free will arguments towards the end were a little
shaky. I also took issue with:

> No amount of threatening will chase away depression, but a little pill
> called fluoxetine often does the trick.

Isn't therapy more effective than fluoxetine? Sugar pills certainly are.

~~~
jamesbritt
Clinical depression has different causes. Even when it is neurochemical it
could be an imbalance of dopamine or serotonin or norepinephrine or something
else entirely. There's no one pill that works for everyone, or even most
everyone.

------
ISeemToBeAVerb
"Imagine that you’d like to quit smoking cigarettes…"

This sentence alone is enough to tell me that this "game changing" technique
of "prefrontal workouts" is misguided.

As a former smoker, I can tell you that there is definitely a mental rivalry
going on in the head of someone who would like to quit cigarettes. However, I
want to emphasize the "someone who would like to quit cigarettes" part because
it makes an important distinction.

Smokers who have no desire to quit don't have the tug-of-war that the author
speaks of. When I first started smoking I never once gave thought to quitting
because, in my mind, I didn't have a problem. Only when I realized I was
hooked and WANTED to quit did I start to have the mental rivalry he speaks of.

What does this have to do with criminals? The same rules apply. Let's rework
that sentence a bit:

"Imagine that you’d like to quit crime…"

Huh???

How many criminals enter the penal system with such lofty goals? My guess
would be not many.

I can see this being useful for someone who has already been reformed to some
degree, because that person actually does possess a desire to change.

That being said, it still isn't THAT useful because, despite the fact that you
may know which camp your thoughts fall into, you still need to deal with the
day-to-day task of actualizing that knowledge.

As anyone who has ever tried to make a significant change can likely attest,
knowledge is only half the battle- and the easiest half at that.

------
khookie
Wow, this is the reason I read Hacker News day by day rather than the
gibberish most of mass media produces.

------
olliesaunders
The not guilty verdict of Kenneth, the sleepwalk killer, bothers me. It
doesn’t seem likely to me that they jury was in any doubt whether he committed
the crime. And, in that case, our legal system says you should find the
defendant guilty. I guess the jury gave the not guilty verdict because they
felt it would be wrong for the defendant to be punished for a crime he
committed while sleepwalking. This suggests to me that there’s insufficient
separation in our legal system between whether someone committed a crime and
what should be done about it. The assumption, you committed a crime therefore
you should be punished, is deeply flawed and deserves serious reconsideration.

~~~
latch
"[there's no doubt that] he committed the crime. And, in that case, our legal
system says you should find the defendant guilty"

And what legal system is that? Grade 11 law class: both actus reas _and_ mens
rea are fundamental (and equally important) elements of guilt.

~~~
sukuriant
For the others that didn't know what "actus reas" and "mens rea" mean:

actus rea: the actual guilty act

mens rea: the guilty mind. (knowing they did something wrong, I suppose?)

I used Wikipedia for the citation. A useful quote from the Actus reus article
to help expound on what I think latch was saying: "The terms actus reus and
mens rea developed in English Law, are derived from the principle stated by
Edward Coke, namely, actus non facit reum nisi mens sit rea,[1] which means:
"an act does not make a person guilty unless (their) mind is also guilty";
hence, the general test of guilt is one that requires proof of fault,
culpability or blameworthiness both in behaviour and mind." (Actus Reus.
Wikipedia. Entymology Section)

------
keiferski
Reminds me of an argument Plato (or was it Socrates?) made 2300 years ago.
Essentially, he thought that all "unjust" people believe their actions to be
"just" - they themselves thought they did the right thing.

As such, these unjust people should not be punished for their lack of
knowledge, but instead educated or rehabilited, as their unjust actions were
simply a result of not knowing what the "just" really is.

A modern metaphor for this might replace "knowledge of the just" with "biology
that can resist impulse," or something similar. The problem, which was just as
valid in Greece as it is now, is the question of "What is just?," or "Is a
non-impulsive brain chemistry desirable?".

~~~
gaius
Hmm, do you really think most criminals believe themselves to be acting
justly? I think they know full well that what they do is "wrong" but since
they can get away with it, they figure why not?

~~~
keiferski
Actually, now that you mention it, I believe Plato was (consciously or
unconsciously, due to his aristocratic background) referring to the unjust in
positions of power, maybe not so much criminals. As in, unjust men with long-
term planning.

In that case, it is a convincing argument. Consider that most dictators and
despots seem to think they are in the right (Ww2, etc.) Compare this to
"normal" criminals, who seem to have poor impulse control (lack of long-term
planning. )

Of course, that has nothing to do with the article. I've brought up an
argument and then dismissed it just as quickly :)

~~~
jgroch
I'm not sure I'd dismiss your argument so quickly. If one considers the "just"
to be the best decision, given the circumstances, then most criminals are
trying to be just. They may badly need money for their family. Or perhaps to
feed a drug habit (In which case, as you said, perhaps they are ignorant of
what really is just.) If they didn't think it was the best decision, for some
good, why would they do it?

------
logicchop
This just rehashes an old (and fallacious) argument under the guise of
neuroscience. Bobert Blatchford tried to push the same view 100 years ago (see
his article "Defense of the Bottom Dog"). He didn't convince many, though.
There are some puzzles about the concept of "deserved punishment" (what do we
say in cases of brain tumors?? omg!), but it isn't clear that we can
reconceive of criminal justice on the model of putting someone in quarantine
(where we don't blame them, but force them into a room for public safety; we
also give them goodies to compensate for how we treat them..)

~~~
Symmetry
To the extent that our modern justice system is based on rehabilitation I
think we're already pretty close to the model you seem to be saying is
untenable. I only skimmed Blachford's article just now, but he seems to be
saying that no criminal is responsible for his actions, which is very
different from the tack taken by by this article, which distinguishes
criminals who are responsible for their actions and those who aren't.

------
Symmetry
I thought this was an excellent article, and it brought to mind another
excellent article on the same topic by from a more general perspective.
[http://lesswrong.com/lw/2as/diseased_thinking_dissolving_que...](http://lesswrong.com/lw/2as/diseased_thinking_dissolving_questions_about/)

