Ep15 "What should happen when someone with a brain tumor breaks the law?"

When does neuroscience overlap with the legal system? Do we have free will or don't we? Did changes in Charles Whitman's brain have something to do with him becoming a mass shooter? Why was the heir to the Gucci fashion fortune killed by his wife? Join Eagleman on a wild journey to understand what happens when the study of the brain and the law end up in the same courtroom.

Episode Transcript

Speaker 1 (00:05):
Why was Maurzio Gucci killed by his wife? And even
though there was a good movie about it recently, what
was the part of the movie that was left out?
Who was Charles Whitman and what had changes in his
brain have to do with him becoming a school shooter?
And what does any of this have to do with
Friedrich Nietzsche or guessing which sex offender is going to

(00:28):
re offend, or the notion of culpability. Where does the
study of the brain overlap with how we think about
our legal system. Welcome to Inner Cosmos with me David Eagleman.
I'm a neuroscientist and an author at Stanford University, and

(00:49):
I've spent my whole career studying the intersection between how
the brain works and how we experience life. In the
last episode, we talked about all the ways in which
your unconscious brain drives the show of what's happening in

(01:13):
your life. We feel like we make free decisions, that
we have free will, but it turns out that your actions,
your beliefs, who you are, these are all driven by
mechanisms well below the access level of your conscious mind.
So given that foundation, we're now going to explore what

(01:35):
this means for us on a societal level. Today, we're
going to talk about the intersection of brain science, which
is playing out in labs all over the world, and
the legal system, which plays out on streets and courthouses
all around the world. These are usually thought of as
separate issues, but in fact they are inseparable. What happened

(02:00):
when someone commits a crime and it might have something
to do with a disease or defect in their brain,
do we punish them differently? We can't just let them
off the hook, right, because the job of the legal
system is to keep everyone safe. So what is the
right thing to do here? So today I'm going to
give you the argument why we can't keep pretending like

(02:23):
everyone is exactly the same on the inside and that
we all act from our own free will, because modern
neuroscience suggests these are bad assumptions. So let's dive into
the inner cosmos. When you look at neuroscience labs on
any campus all over the planet, you find entire labs

(02:44):
devoted to studying the brain at the level of the
human genome, or studying the incredibly precise orchestra of molecules
that dance around the genome. Or other labs that study
the cascades of signals that pervade as sell and go
all the way to the membranes and can get excreted
and so on. Or you can devote an entire lab

(03:07):
to understanding the behavior of individual neurons, which are like
their own little animals with their own personalities. Or you
can study giant networks of neurons and how information flows
in those networks, and how those are changed by chemicals,
by what you eat, your environment and your society, your religion,

(03:27):
your culture. All these are different aspects of neuroscience. Now,
my personal interest has always been in studying all these
levels and trying to understand how they map onto our behavior,
our perception, our reality. As I worked to demonstrate in

(03:47):
the last episode, you are built out of this alien
computational material. You are not separate from your brain. So
what I want to do now is give you three
examples to illustrate this point. Some of you will be
familiar with the story of a young man who had

(04:07):
a terrible accident that taught the world a lot about
how your brain maps onto who you are. This young
man was named Phineas Gage, and in eighteen forty eight
he was working with a crew on a railroad near Cavendish, Vermont,
and the way the land was cleared to build the

(04:28):
railroad was by a series of explosions. So the way
this would work is one guy would dig small holes,
and then a second guy would fill those holes with gunpowder,
and another guy would put sand on top of the gunpowder,
and then Phineas Gauge would go around and tamp down
the sand on top with a big metal rod called

(04:50):
a tamping rod. So one day, the guy ahead of
him forgot to put the sand on top of the
gunpowder in one of these holes, and Phineas didn't notice that,
and so when he pounded the tamping rod into the hole,
the metal rod hit a rock and caused a spark,
and the gunpowder exploded. And this metal tamping rod, which

(05:15):
was about the width of a dry erase marker and
almost four feet long, this exploded into his head and
straight through it. It went below his chin, and it
burst out the top of his skull, and this metal
rod clattered to the ground eighty feet away. Now this
became a very famous medical case because he didn't die,

(05:38):
and in fact, he didn't even lose consciousness. The first
doctor to arrive on the scene about thirty minutes later,
wasn't even quite sure that he believed what everyone was
saying had just happened. But then Phineas got up and
vomited and quote a half at cupful of brain fell
out on the floor. But it became a really, really

(06:00):
famous medical case because Gauge's personality changed entirely. His friend said,
he quote is no longer a Gauge. He went from
a nice young man to someone who cussed and gambled
and slept with sex workers. And this was an early
case that started opening the door to an understanding of

(06:24):
something massively important. And that is when your biology changes,
you change. Now. I want to take as a second example,
a clean cut young man named Charles Whitman. On a
hot day in nineteen sixty six, Whitman climbed to the
top of the tower on U T. Austin's campus and

(06:46):
began to shoot people at random. He shot at pedestrians,
he shot at the people who came to help them,
He shot at the ambulance drivers that came to help them.
In total, he murdered fourteen people that day and wounded
thirty one. But there was a mystery about Whitman, and
that is, there was nothing in particular about him that

(07:09):
would have presaged this kind of horrific act. He had
been an eagle scout, he'd been honorably discharged from the Marines.
He'd come back to U T. Austin to be in
the architectural engineering program. He was married, He was a
good student with a high IQ. He just wasn't the

(07:30):
type of person that you would predict for a murdering
spree like this. But about a year before the tower shooting,
he began to feel changes inside. He wrote about this
extensively in his diary. He explained that he was not
feeling like himself. He went to see a psychiatrist to

(07:51):
express that he was feeling more and more uncontrollable anger.
But this was in the nineteen sixties. There were no
imaging technology available. There was little that could be done clinically. So,
as it turns out, the night before the tower shooting,
he murdered his wife and his mother, and then he
sat down at his typewriter and he wrote a suicide note.

(08:15):
And here's part of it quote, I do not quite
understand what it is that compels me to type this letter.
I do not really understand myself these days. I'm supposed
to be an average, reasonable and intelligent young man. However,
lately I cannot recall when it started. I have been
a victim of many unusual and irrational thoughts. End quote.

(08:40):
So he wrote in his suicide note that when this
whole ordeal was over, that he wanted an autopsy to
be performed to figure out what in the world was
going on. And that's exactly what they did. They took
his body to the coroner's office, and they used a
bone saw to drill off the top of the skull,
and they lifted out his brain and carefully dissected it.

(09:04):
And what they found was a tumor pressing against a
part of his brain called the amygdala, which is a
small region involved in fear and aggression. Now, how do
we interpret this? Not everyone who gets a tumor pressing
on their amygdala becomes a murderer. Nonetheless, did it have
something to do with his crime? We'll return to this

(09:26):
sort of question many times in future episodes, because the
answer isn't always obvious. After all, not everyone with a
tumor in this area commits a horrific crime. So we
have to look at the timeline of his behavioral changes
and the presumed timeline of his tumor, and if they're
well correlated, as they were in Whitman's case, this gives

(09:49):
us more confidence that there was a connection. But for
today's purposes, we can say that Whitman's tumor may well
have had something to do with his drastic personality changes,
for the same reason that Phineas Gage's more obvious camping
rod had something to do with his personality changes. When
your brain changes, so do you. So let's expose a

(10:13):
few more examples like this, and then we're going to
circle back around to the big picture question about how
your actions result from your biology and how that affects
the way we think about culpability in the legal system.
This next case was reported in the medical literature. It
was a forty year old man who was married. He

(10:34):
had a normal sexual appetite, and then he started developing
an interest in pedophilia. He started collecting child pornography, and
then he tried to touch his prepubescent stepdaughter who lived
with him and his wife, and at that point his
wife had him arrested. So while he was in jail

(10:55):
awaiting sentencing. He started complaining of these terrible headaches and
they were getting worse and worse. So he was eventually
taken to the doctor and a brain scan was done,
and what they discovered was a massive tumor in his
frontal lobes, about the size of a golf ball. So
he underwent an emergency neurosurgery and they cut the tumor out,

(11:18):
and his sexual appetites returned completely to normal. He no
longer had any pedophilic urges. Now the story has an
important PostScript because his wife took him back and everything
was fine, But then about six months later, he started
developing an interest in pedophilia again. So this time, instead

(11:39):
of taking him to the police, his wife took him
back to his neurosurgeon, and it was discovered that a
part of his tumor had been missed in the surgery
and the tumor was now regrowing, so they resected the
tumor a second time, and his sexual behavior returned to
normal again. The lesson from the sudden pedophile is the

(12:02):
same lesson that we can take from Phineas Gage and
from Charles Whitman. When your biology changes, that can change
your decision making. In quite dramatic ways. And the thing
we're going to return to that's important is that he
didn't choose to have a brain tumor, just like Whitman
didn't just like Phineas Gage didn't choose to have the

(12:23):
tamping run through his head. Now, what we covered in
the last episode is that when it comes to things
like your instincts or what you find beautiful, or who
you're attracted to, or your decisions in life, these things
are all driven by automatic circuitry in your brain. It's
not about the conscious you. It's about your unconscious brain,

(12:46):
to which you mostly don't have any access or acquaintance.
So the notion of free will, we called that into
question last time. Enough of our drives are so inaccessible
that free will may not exist, or if it exists,
it might be a small player in the system. Now,

(13:06):
the question of free will matters quite a bit when
we turn to culpability. When a criminal stands in front
of the judge's bench having recently committed a crime, the
legal system wants to know whether he is blameworthy after all,
whether he's fundamentally responsible for his actions. Navigates the way

(13:27):
that we punish, for example, you might punish your child
if she writes with a cran on the wall, but
you wouldn't punish her if she did the same thing
while sleepwalking. But why not. She's the same child with
the same brain in both cases, right. The difference lies
in your intuitions about free will. In one case, if

(13:50):
she's awake, she has it. In the other case, when
she's asleep, she doesn't. In one case, she's choosing to
act mischievously. In the other she's an un conscious automaton.
So you assign culpability in the first case and not
in the second, and the legal system shares your intuition.
Responsibility for your actions parallels your volitional control. If someone

(14:17):
commits a murder while awake, he hangs. If he does
so while he's sleepwalking, which has happened many times, and
I'll cover this in a future episode, then he's acquitted. Similarly,
if you hit someone in the face, the law cares
whether you were being aggressive or you have hemibilismus, which

(14:38):
is a disorder in which your limbs can flail wildly
without warning. If you crash your car into a roadside
fruit stand, the law cares whether you were driving like
a maniac, or instead you were the victim of a
heart attack. All these distinctions pivot on the assumption that
we possess free will. Well, but do we don't We

(15:03):
science can't yet figure out a way to say yes,
we have it. Our intuition has a hard time saying no,
we don't have it. But what I covered in the
previous episode is that if we have any free will
at all, it is a bit player because most of
what we do we do unconsciously. So the question of
whether we have free will or not is a tough

(15:24):
scientific problem. But I propose that the answer to the
question of free will doesn't matter for the purposes of
social policy. And here's why. In the legal system, there's
a defense known as an automatism. So what's an automatism.
It's something that I have no conscious control over. So

(15:44):
let's say I have that disorder that causes me to
fling my arm out hemibalismus and I have no conscious
input into this. It just happens. So one day I
fling my arm out and I hit someone and they
fall off a cliff to their death. From the point
of view view of the legal system, I'm not culpable
for their death because it was an automatism The conscious

(16:08):
me was not involved. I didn't have any ill intention
behind the act, or what the legal system calls mensraea,
which is Latin for guilty mind. And this kind of
thing comes up all the time in the courtroom. Let's
say a person is driving a car and has an
epileptic seizure and that causes her to steer her car

(16:28):
into a crowd of pedestrians. The automatism defense is used
when a lawyer says, look, that act was due to
a biological process over which the defendant had no control.
In other words, there was a guilty act, but there
was not a guilty mind behind it. Okay, but wait

(16:50):
a minute, Based on everything we've been talking about, don't
these kind of biological processes describe most, or possibly all,
of what is going on in our brains. Given the
steering power of our genetics, of our childhood experiences, of
environmental toxins or hormones, neurotransmitters, all the details of our neurocircuitry,

(17:16):
enough of our decisions are beyond our explicit control that
we are arguably not the ones in charge. So in
my book Incognito, I proposed what I call the principle
of sufficient automatism, and this arises simply from understanding that
free will, if it exists, is only a small factor

(17:39):
writing on top of enormous automated machinery, so small that
we might be able to think about bad decision making
in the same way we think about other physical processes
like diabetes or lung disease. The principle of sufficient automatism
says that the answer to the free will question simply

(18:02):
doesn't matter. To put this another way, Phineas Gage or
Charles Whitman or the Sudden Pedophile all share the common
upshot that actions can't be considered separately from the biology
of the actors. Free will is not as simple as

(18:22):
we into it, and our confusion about it suggests that
we cannot meaningfully use it as the basis of punishment decisions. Now,
before I move on to the heart of the argument,
I need to put to rest the concern that if
we look for biological explanations about what's going on with
people who commit crimes, that's going to lead to freeing

(18:45):
criminals on the grounds that nothing is their fault. Will
we still punish criminals? Yes, Letting criminals go wander the
streets is not the goal of improved understanding. Biological explanation
does not equal exculpation, which is letting people off the hook.
Societies will always need to get bad actors off the streets.

(19:09):
We will not abandon punishment, but we can refine the
way we punish. See, in the current system, we use
incarceration as a one size fits all solution. As a result,
America leads the world in the percentage of our population
behind bars. Not everyone knows this, but we imprison more

(19:32):
of our population than any country in the world. Look
it up if you don't believe it. Now, aside from
any moral stance you might have on this, it's a
problem because prison is provably criminogenic, which means that it
leads to more crime. That's because when you put someone
in a prison, you break their social circles, and you

(19:54):
break their employment opportunities, and presumably you introduce them to
new social circles employment opportunities. As a result, prison becomes
a revolving door. Now, this is generally something that people
have an intuition about, but what a lot of people
don't realize is the estimate that thirty percent of the

(20:15):
prison population has some form of mental illness. Jail has
become our de facto mental healthcare system in America. We
used to have mental institutions, but these were all shut
down in the nineteen sixties in a process called deinstitutionalization,
and the whole population flowed from there into the prison system. Now,

(20:38):
we could reasonably have a discussion about the morality of
the situation, but I just want to make a practical
point that this is not a cost effective solution to
dealing with mental illness in our society because it has
little to no utility in solving the problem. And here's
another issue. Ours are stuffed with people who have drug addictions.

(21:04):
This began when Nixon declared the War on drugs, and
since that time, our prison population has gone up eightfold.
This is not the right place for us to be
putting people with addiction problems. I'm not saying this is
a morality play. The issue is that prison doesn't solve
the problem. Addiction is a biological issue. You can't incarcerate

(21:28):
someone and expect they're going to forget their addiction. And
also there's an active drug trade in prison systems. So

(21:50):
all this points to developing a better understanding of what's
happening in brains so that we can root people through
the system him in a more tailored fashion. Now I
want to hit this point again, with biological explanation equal exculpation.
No better insight would lead us to be able to

(22:14):
do many things. The first is rational sentencing. We don't
have to build a legal system with an emphasis on
how much we punish, but instead on how to best
root individuals through the system. This doesn't let people off
the hook who have committed a crime, because we still
need to keep our streets safe, but it does allow

(22:36):
us to abandon the notion that all brains are the
same and everyone should get the same mandated sentence, like
five years for this crime. You can have lots of
brains in front of a judge's bench for the exact
same crime. But this one is there because he has schizophrenia,
and this one is a psychopath, and this one over

(22:59):
here is tweak down on drugs, and this one has
a brain tumor, and so on. Not all brains are
the same, and people can be sentenced on more individualized grounds.
And one of the key components of this is the
second thing. That we could have better insight on customized
rehabilitation instead of imagining that jail is the one size

(23:24):
fits all solution. We are increasingly getting more insight into
what can be done for things like drug addiction, which
I'll come back to. And the third thing is realistic
incentive structuring, including deterrence and what kinds of punishments actually
work for which kinds of people, and which ones are

(23:45):
a waste of time that only satisfy our bloodlust but
are ineffective at the societal level. Because the fact is
that brains are different, and we talk about things like
tailored education, why not talk about tailored social policy. So
there's a real need for understanding what is happening inside

(24:06):
different heads. It doesn't make sense for us to pretend
that everyone is just like us or just like each
other on the inside. And to help us think about this,
here's an excerpt from Charles Whitman's suicide note. He said, quote,
if my life insurance policy is valid, please pay off
my debts, donate the rest anonymously to a mental health foundation.

(24:29):
Maybe research can prevent further tragedies of this type. So
some years ago, these considerations inspired me to start the
Center for Science and Law, which brings together scientists and
attorneys and policy makers to understand how science can refine
our legal system. We tackle things like how neuroscience matters

(24:52):
for a rational drug policy, or a better understanding of
the insanity defense, or how to think about sentencing in juveniles,
like what happens when someone commits a terrible crime but
they're sixteen years old, and issues like eyewitness testimony and
even the brain of the juror. I'm going to drop

(25:13):
several episodes on these topics in the coming months, but
for now, I want to emphasize the big picture issue,
and that is what we understand and how we can
move the science forward. So we know that the details
of the brain map onto behavior, but it's an extraordinarily
complex system, one of such complexity with its billions of

(25:37):
neurons and trillions of connections that it bankrupts our ability
to understand it. So how do we go about trying
to understand the brain of someone who has committed a crime.
So let's start by acknowledging that when big crimes happen,
it's often the case that we don't even have a
brain to examine. Lots of times person will commit a

(26:00):
mass shooting, and then shoot themselves in the head, which
renders their brain unexaminable. Or take Adam Lanza, the shooter
at Sandy Hook Elementary. I remember seeing on the news
that he had smashed his computer and hard drive before
committing the crime, but that struck me as the least
of our problems, because Lanza had committed suicide within fifteen

(26:24):
minutes of the nine to one one call by shooting
himself in the head, meaning that it wasn't just his
hard drive that you couldn't get data from, but his
brain as well. So the point is that we couldn't
even take a swing at seeing if there was something
wrong with his brain, like a tumor or a malformation
that he was born with, or a stroke. And this

(26:44):
situation is actually surprisingly common. Take the guy Joe Stack,
who is mad about his taxes and so he flew
his small plane into the IRS office building. Everyone hypothesized
about what had gone wrong with Stack based on his
suicide note and his behaviors leading up to the attack,
But was there anything pathological going on in his brain?

(27:06):
Will never know because it was destroyed in the crash.
But what happens when we do have a brain to
look at what can we conclude how well can we
understand the details of a person's behavior when we look
at their brain. Well, you've probably seen the wonderful pictures
from brain imaging. There's a technology called functional magnetic resonance

(27:29):
imaging or fMRI, and this is a technique where someone
lies down in a big cylinder and we can image
activity in the brain tissue through the skull. It's quite
miraculous and beautiful, and I've spent a good chunk of
my career publishing papers in which we use fMRI. But
I want to emphasize that even this, our best technology

(27:52):
for imaging human brains is very limited. We're not directly
imaging the activity in the brain, but instead dead the
blood flow, the ratio of oxygenated to deoxygenated blood, and
so where the blood flow goes. That tells us that
some activity was just happening there a few seconds ago.

(28:14):
And it's not precise at the level of individual neurons,
and there tends to hundreds of electrical spikes per second.
But instead, all we can get from it is that
there was something happening in this cluster of tens of
millions of neurons at the scale of seconds. So here's
an analogy to think about fMRI. Imagine that you're in

(28:37):
a space shuttle and you're looking down on the United States.
You could see big events like a major forest fire
in California, but you wouldn't be able to see how
the economy is going, or what fashions people are now wearing,
or who won the World Cup. You can only see

(28:57):
really big changes. And that's the same with brain imaging.
We're only able to see really obvious things going on,
and that puts us in a funny situation because it
puts pressure on scientists and lawyers and courts to say
more than they're able to. Everyone wants to see a
brain scan and see if there's something different going on

(29:21):
with this guy, but our technology most of the time
doesn't allow us to do that. Now, part of the
problem is that the media around us that constantly suggests
that we can look at a brain scan and say
something clear about someone's behavior. So I've made a little
collection of Time magazine covers that drive me insane. For example,

(29:42):
one cover shows a brain scan image with fancy colors
and the title reads what makes us Good or Evil?
And there's a little picture of Gandhi with an arrow
to a small spot in the brain, and another picture
of Adolf Hitler with an arrow to another spot. And
the concern is that this gives the general population a

(30:03):
kind of erroneous thinking that we should be able to
run a brain scan and just see whether someone is
good or evil. But that's impossible for technical reasons, and
also because good and evil are not straightforward concepts. You
can't look at activity in a particular part of the
brain and say, yes, that person is evil. Friedrich Nietzschi

(30:25):
wrote about this over one hundred years ago in his
book Beyond Good and Evil, where he pointed out that
the concepts of what is good and what is evil
these are historically defined, and they're different in different cultures
and different time periods, and they can be quite locally defined,
and they can be user defined, as you know, when

(30:46):
you get into a political argument with a family member
or a coworker and you think that something is evil
that they don't, or they think something is evil that
you don't. Although we can typically agree on things that
the extremes, there's no single right answer to what constitutes
good and evil for almost everything in the middle. So

(31:07):
importantly the relationship between a person's brain and their behavior
can generally be totally opaque, totally impossible to read, as in,
perhaps you have a tumor in part of your brain,
or you've had traumatic brain injury or a stroke that
damaged part of the tissue in your brain, But is

(31:29):
that actually the reason you committed a crime or did
you do it because you would have done it anyway.
Take the movie House of Gucci. This is about Patricia
Reggiani played by Lady Gaga, who marries Marizio Gucci, who
is the heir to the Gucci fashion fortune. So she's

(31:49):
twenty two. She meets Marizio Gucci at a party. Two
years later, they marry, they have two daughters. It seems
to everyone around them like it's a fairy tale. But
a few years later, Rizzio separates from her so that
he can date a model, and things turn really sour
with Patricia. She starts stalking him, she plants spies around him,

(32:09):
she keeps calling and threatening to kill him, and then
one day, as Rizio Gucci is walking through the lobby
of an office building, he gets shot by a hitman
and dies, and the day he's killed, Patricia writes paradise
in her diary. Now, given her hatred of Rizio, Patricia
immediately becomes a suspect and soon enough the evidence clearly

(32:32):
points to her as the hand behind the hitman. And
it goes to court and Reggiani is charged with murder,
along with her psychic and the hitman and the getaway
car driver, and she gets sentenced to twenty six years
in San Vettore prison for having ordered the killing. So
this is a wild true story and it made a

(32:53):
good movie. But the most fascinating part picks up where
the movie ends. So the real life twist is that
after she went to prison, Patricia's legal team campaigned for
a retrial. They argued that Patricia was not in control
of her mental faculties during the murder. Why because she

(33:16):
had undergone surgery to remove a brain tumor some years before,
and they argued this surgery had affected her ability to
be in command of her mental faculties. It wasn't precisely
her fault, they argued, it was the fault of the
tumor and the brain surgery. Now, how should a court

(33:38):
assess this? After all, she famously hated him, and she
always talked about how unhappy she was and how much
she wanted to kill him. So her argument about the
brain surgery only partially convinced the court. It didn't change
much of anything materially. So what I want to illustrate
here is the complexity of looking for easy the answers.

(34:01):
Did her small tumor that was removed have something to
do with her crime? Or was it totally incidental to
the crime? In other words, having nothing to do with it.
A biological problem doesn't necessarily tell you a clear story
about the interpretation of a crime, and this difficulty in
interpretation comes up in all sorts of guyses in the courtroom.

(34:24):
Take concussion or a traumatic brain injury. If someone robs
a store, how do we know it had anything to
do with the concussion. Maybe this was the kind of
guy who is always headed for trouble anyway. Maybe he's
been doing this kind of antisocial behavior since elementary school.
Everyone knew this guy was trouble, and then two years
ago he hit his head hard, and everyone agrees that

(34:48):
was a bad thing. But now his lawyer argues that
his crime resulted from the traumatic brain injury. Maybe it's
a slightly worse crime. As a result. But maybe he's
just graduated to the next level as a criminal. It's
hard to know, and there's no brain scan that can
magically tell you the answer, because his behavior also results

(35:09):
from everything else in his life, his circumstances, his group
of friends, all the details of his decision making. So
just knowing that someone had a brain injury tells us
very little about the details of why they committed a crime.
And the flip side is true too. Somebody might commit
a horrific crime and their brain looks totally normal. So

(35:31):
take the Las Vegas shooter Stephen Paddock in twenty seventeen.
He smashed out the window of his hotel room at
the Mandola Bay where he'd been stockpiling arms, and he
started shooting at the people below and an outdoor concert,
and he murdered sixty people, and he injured about eight
hundred and sixty seven. This way in the deadliest mass
shooting in the United States. So at the time, I

(35:53):
wrote an article on CNN about what might be wrong
with his brain, and I was careful to end it
by saying, look, there might be nothing that's obviously wrong
with his brain, so we may never have anything that
we can conclude here. His brain was sent over here
to Stanford to my neuropathology colleague in the medical school,
who did an analysis and concluded nothing. He couldn't find

(36:16):
anything that was obviously wrong with Paddock's brain. There was
no giant tumor or giant stroke, or a neurodegenerative disorder
or anything like that. So I've just told you a
number of things, and I want to pull these all
back together in the question of what does this mean
for the notion of culpability. Well, there are several points

(36:38):
of view we could take here. One view proposed by
the neurophysiologist Well Singer goes like this. He says, quote,
as long as we can't identify all the causes, which
we cannot and probably never will be able to do,
we should grant that for everybody there is a neurobiological
reason for being abnormal end quote. In other words, in

(37:02):
Singer's view, the act of committing a crime is all
the evidence we need for a brain abnormality, whether or
not we can see it, whether or not it's obvious.
Some years ago, there was a biologist at the University
of Alabama and Huntsville named doctor Amy Bishop, and she
was denied tenure, which means the university declined to give

(37:23):
her a permanent position. And the next week there was
a routine faculty meeting in the biology department and she
stood up with a nine millimeter Ruger handgun and began
shooting the other faculty members one by one in the head. So,
speaking to the media, Amy Bishop's defense attorney, Roy Miller said, quote,
I think the case speaks for itself. I think she's wacko.

(37:47):
End quote. Now this was her defense attorney, so this
might not sound like a very good defense, but essentially
her attorney was taking Wolf Singer's position that the act
of committing the crime was all the evidence we need
for a brain abnormality, and that's why he said the
case speaks for itself. So I've planted a bunch of

(38:08):
question marks here, and now I want to come back
around to the main question. What does all this add
up to for our notion of culpability. Well, think of
culpability as lying on a spectrum with phineas gauge all
the way at one end where we say, look, it's
not really your fault, and next to him, maybe the

(38:30):
sudden pedophile with the brain tumor. We look at them
and we say, your, poor guys, you didn't choose that.
You didn't ask to get a tamping rod through your
head or to grow a prefrontal brain tumor. So any
changes in personality or decision making can't really be your fault.
It's just a matter of your biology. Now, as we

(38:51):
move along this line towards the center, we come to
cases that clearly have to do with the brain, but
they're not quite as easy to interpret. So in the
last episode, I talked about Chris Benoit, the Worldwide Wrestling
Federation champion, who conspired with his physician to take huge
quantities of testosterone and that sent him on roid rages,

(39:13):
and he ended up killing his wife and his son.
So that has to do with his biology. But maybe
it's not so easy for us to say, well, it's
not exactly your fault. Or we find Amy Bishop, the
biologist who killed her colleagues, and we think something is
wrong with her, but we can't quite identify what. And
then at the far other end of the spectrum, we

(39:34):
find your average criminals sitting in a jail cell nobody's
studying his brain. And even if someone were our current
technology probably wouldn't be able to say much anyway. The
overwhelming majority of lawbreakers are over on this side of
the line, and even if we spent millions of dollars
and did brain scans on all of them, almost all

(39:56):
of them wouldn't have any obvious measurable biological problems, and
so as a result, the legal system thinks of them
as freely choosing actors. This spectrum, from Phineas Gage to

(40:29):
the common criminal captures the common intuition that juries have
regarding blameworthiness, where at one end we say it's not
your fault, and the other end we say it is
your fault. But there's a deep problem with this intuition,
which is that our technology draws a line on the spectrum,
and on one side of this line we say, hey,

(40:51):
we can measure something, so it's not your fault, and
on the other side we say, look, we can't really
measure anything and point to something, so we're to say
it is your fault. The problem is that technology will
continue to improve, and as we grow better at measuring
problems in the brain, the line that separates the not

(41:12):
blame worthy side from the blame worthy side, it will
continue to move such that people who we now hold
fully accountable for their crimes will someday be understood to
have whatever. The next level of technology is going to
teach us that, for example, they have Schmedley's disorder and
couldn't control their behavior. Problems that are opaque to us

(41:34):
today will open their flower pedals to new techniques, and
in one hundred years we're likely to find that many
types of behavior have a basic biological explanation, as we've
already found with schizophrenia or epilepsy, or depression or mania
and so on. In other words, today's neuroimaging is a

(41:56):
crude technology. It's not able to explain the details of
individual behavior. We can only detect large scale problems. But
within the coming decades we will be able to detect
patterns that unimaginably small levels of the microcircuitry that correlate
with behavioral problems, and neuroscience will be better able to

(42:18):
say why people are predisposed to act the way they do.
And as we become more skilled at specifying how behavior
results from the microscopic details of the brain, more defense
lawyers will point to biological mitigators of guilt, and more
juries will place defendants on the not blameworthy side of

(42:41):
the line. Now, all of this puts us in a
strange situation, because, after all, a just legal system can't
define culpability simply by the limitations of current technology. A
legal system that declares a person culpable at the beginning
of a decade and not culpable at the end is

(43:05):
one in which culpability carries no clear meaning. The crux
of the problem is that it no longer makes sense
to ask to what extent was this crime committed because
of his biology? And to what extent was it committed
because of him? Because there is no meaningful distinction between
a person's biology and his decision making. They are inseparable.

(43:30):
A system of blameworthiness that depends on the technology of
the day can't represent real justice. The whole notion of
blameworthiness is a concept that demands the impossible task of
untangling the hopelessly complex web of genetics, an environment that

(43:51):
constructs the trajectory of a human life. So our current
approach to punishment rests on a bedrock of personal volition
and blame, But our modern understanding of the brain suggests
a different approach. My suggestion for a number of years
now has been that blameworthiness should be removed from the

(44:13):
way we talk about things in the legal system. Blameworthiness
is a concept that looks back and demands the impossible
task of figuring out how a brain came into its
current form. But instead of debating culpability, I suggest our
effort should be to focus on what to do moving

(44:33):
forward with an accused law breaker. The legal system has
to become forward looking, primarily because it can't continue much
longer pretending that it can do Otherwise, because as we
come to know more and more about the brain and
science continues to complexify the question of culpability, our legal
and social policy is going to have to shift to

(44:56):
a different set of questions. How is this person likely
to behave in the future, Our criminal actions likely to
be repeated? Can this person be helped towards pro social behavior?
How can incentives be realistically structured to deter crime? The
important change is going to be in the way we
respond to the vast range of criminal acts. Consider as

(45:21):
an example that the vast majority of known serial killers
were abused as children. Does this make them less blameworthy
it's actually the wrong question to ask. The knowledge that
they were abused encourages us to build social programs to
prevent child abuse, but it does nothing to change the

(45:42):
way that we deal with the particular murderer standing in
front of the bench. We still need to keep him
off the streets, irrespective of his past misfortunes. The child
abuse can't serve as a reason to let him go.
The judge has to keep society safe, so people who
break social contracts need to be confined. But in this framework,

(46:04):
the future is equally as important as the past. So
deeper biological insight into behavior is going to give us
a better understanding of recidivism, that is recommitting of crime,
and that gives us a way to base sentencing on
the individual. Some people will need to be taken off
the streets for a longer time, even a lifetime, because

(46:26):
their likelihood of reoffense is high. Others, because of differences
in neural constitution, are less likely to recitivate, and so
they can be released sooner. Now, if this sounds strange,
keep in mind that the law is already forward looking
in some respects. Think about a crime of passion versus
a premeditated murderer. You know, a woman murders her husband

(46:50):
when she finds him in bed with a lover, versus
a woman who plots out and murders her husband for
his life. Insurance courts tend to be more more lenient
on crimes of passion. Why. It's because those who commit
a crime of passion are less likely to recidibate to
reoffend than those who are premeditated, and they're sentencing reflects that.

(47:15):
And in the same way, most legal systems draw a
bright line between criminal acts committed by people under eighteen
minors and crimes by adults, and they punish adults much
more harshly. The approach of putting this dividing line at
your eighteenth birthday is arbitrary and not terribly specific, but

(47:36):
the intuition behind it makes sense. Adolescents have fewer skills
in decision making and impulse control than adults do. A
teenager's brain just doesn't like an adult's brain, so lighter
sentences are appropriate for those whose impulse control is likely
to improve naturally as adolescence gives way to adulthood. So

(47:58):
what would it look like if we could expand on
these intuitions and elevate things into a more scientific approach
to sentencing. In some cases, this is already happening. So
take this sentencing of sex offenders. Some years ago, researchers
asked psychiatrists and parole board members how likely specific sex

(48:22):
offenders were to relapse when they were let out of prison.
So both groups, the psychiatrists and the parole board members,
had lots of experience with these particular sex offenders, so
predicting who was getting on the right road and who
was going to be coming back to prison seemed pretty straightforward.
But surprisingly, these expert guesses showed almost no correlation with

(48:46):
the actual outcomes. The experts had only slightly better accuracy
at predicting than coin flippers, so this astounded the legal community.
So the researchers tried something a little more like how
life insurance companies do things using statistics. The researchers gathered
a huge cloud of data from twenty three thousand sex

(49:09):
offenders who had been released. They looked at whether the
offender had unstable employment, had been sexually abused as a child,
was addicted to drugs, showed remorse, had deviant sexual interests,
on and on. And on. The researchers then tracked them
for five years after release to see who wound up
back in prison, and at the end of the study

(49:30):
they computed which factors best explained the reoffense rates, and
from this they were able to build statistical models also
called actuarial tables to use in sentencing. So when researchers
compared the predictive power of the actuarial approach with that
of the psychiatrists and prol boards, there was no contest.

(49:54):
It turns out, perhaps not surprisingly, that numbers beat intuition,
so in courtrooms across the nation, these actuarial tests are
now used in pre sentencing to dial the length of
prison terms. Not everyone is getting exactly the same length
of sentencing. As a side note, the way to make

(50:14):
a system like this immune to government abuse is to
make the data and equations that compose the sentence and
guidelines transparent and available online for anyone to verify. Now,
I need to make it clear that we're never going
to know with certainty what someone's going to do when
they get released from prison, because real life is complicated

(50:35):
and crime often depends on the context that someone finds
themselves in, and an approach like this offers individualized tailoring
in place of the blunt guidelines that the legal system
typically employs where everyone gets the same sentence. And beyond
customized sentencing, a forward thinking legal system informed by scientific

(50:57):
insights is going to allow us to stop reading prison
as the one size fits all solution. To be clear,
I'm not opposed to incarceration. It has several purposes, including
removing dangerous people from the streets, and just the prospect
of going to jail deters some amount of would be crimes.
But deterrence only works for certain brains in the population.

(51:21):
I mentioned that prisons have become our de facto mental
health care institutions, and inflicting punishment on the mentally ill
usually has little to no influence on their future behavior.
So an encouraging trend is the establishment of mental health
courts around the nation. These are specialized courts where you

(51:42):
have judges and juries with expertise in mental illness, and
people with mental illness can be helped while being confined
in a tailored environment. There are many cities that are
moving to this sort of specialized court system for reasons
of justice and cost effectiveness and general efficacy and Similarly,

(52:04):
there are lots of jurisdictions that are opening specialized drug
courts and developing alternative sentences. They've realized that prisons are
not that useful for solving addictions as compared to let's say,
a meaningful drug rehabilitation program. And this is the other
big benefit of a forward looking legal system is the

(52:25):
ability to parlay biological understanding into customized rehab viewing criminal
behavior the way that we understand other medical conditions like
epilepsy or schizophrenia or depression, conditions that now allow the
seeking and giving of help, and so we can seek
rehabilitative strategies for people in all sorts of circumstances instead

(52:50):
of imagining that incarceration is the optimal solution. So let's
wrap up. Along any axis that we use to measure
human beings, we find a wide ranging distribution, whether in
empathy or intelligence, or impulse control or aggression. People don't
have the same brains. The variation between people, the fact

(53:13):
that we're not all alike gives rise to a wonderfully
diverse society, but it's a source of trouble for the
legal system because that is largely built on the premise
that everyone is the same. The idea of human equality
suggests that everyone is equally capable of controlling his impulses,

(53:35):
or making good decisions, or comprehending consequences. And while that
is a very charitable idea, a real look at the
data suggests otherwise. As brain science improves, we're going to
better understand the ways in which people exist along these
spectrums rather than all in one box or even in

(53:57):
a few simple categories. And once we take on board
that people are meaningfully different, will be better able to
tailor sentencing and rehabilitation for the individual, rather than maintain
the pretense that all brains are going to respond optimally
to identical prison sentences. Neuroscience is beginning to touch on

(54:20):
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 aren't
idle questions. Ultimately, they're going to shape the future of
legal theory and create a more biologically informed system of justice.

(54:48):
If you're interested in learning more, check out silaw dot
org scilaw dot org. That's my nonprofit that works at
the intersection of the brain and the law, and you
can find lots to further readings at eagleman dot com,
slash podcast, watch full video episodes, and leave comments on
YouTube at Innercosmospod. Until then, this is David Eagleman signing

(55:12):
off from the Inner Cosmos