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Speaker 1: Why was Maurzio Gucci killed by his wife? And even

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Speaker 1: though there was a good movie about it recently, what

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Speaker 1: was the part of the movie that was left out?

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Speaker 1: Who was Charles Whitman and what had changes in his

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Speaker 1: brain have to do with him becoming a school shooter?

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Speaker 1: And what does any of this have to do with

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Speaker 1: Friedrich Nietzsche or guessing which sex offender is going to

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Speaker 1: re offend, or the notion of culpability. Where does the

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Speaker 1: study of the brain overlap with how we think about

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Speaker 1: our legal system. Welcome to Inner Cosmos with me David Eagleman.

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Speaker 1: I'm a neuroscientist and an author at Stanford University, and

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Speaker 1: I've spent my whole career studying the intersection between how

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Speaker 1: the brain works and how we experience life. In the

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Speaker 1: last episode, we talked about all the ways in which

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Speaker 1: your unconscious brain drives the show of what's happening in

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Speaker 1: your life. We feel like we make free decisions, that

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Speaker 1: we have free will, but it turns out that your actions,

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Speaker 1: your beliefs, who you are, these are all driven by

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Speaker 1: mechanisms well below the access level of your conscious mind.

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Speaker 1: So given that foundation, we're now going to explore what

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Speaker 1: this means for us on a societal level. Today, we're

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Speaker 1: going to talk about the intersection of brain science, which

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Speaker 1: is playing out in labs all over the world, and

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Speaker 1: the legal system, which plays out on streets and courthouses

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Speaker 1: all around the world. These are usually thought of as

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Speaker 1: separate issues, but in fact they are inseparable. What happened

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Speaker 1: when someone commits a crime and it might have something

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Speaker 1: to do with a disease or defect in their brain,

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Speaker 1: do we punish them differently? We can't just let them

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Speaker 1: off the hook, right, because the job of the legal

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Speaker 1: system is to keep everyone safe. So what is the

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Speaker 1: right thing to do here? So today I'm going to

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Speaker 1: give you the argument why we can't keep pretending like

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Speaker 1: everyone is exactly the same on the inside and that

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Speaker 1: we all act from our own free will, because modern

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Speaker 1: neuroscience suggests these are bad assumptions. So let's dive into

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Speaker 1: the inner cosmos. When you look at neuroscience labs on

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Speaker 1: any campus all over the planet, you find entire labs

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Speaker 1: devoted to studying the brain at the level of the

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Speaker 1: human genome, or studying the incredibly precise orchestra of molecules

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Speaker 1: that dance around the genome. Or other labs that study

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Speaker 1: the cascades of signals that pervade as sell and go

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Speaker 1: all the way to the membranes and can get excreted

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Speaker 1: and so on. Or you can devote an entire lab

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Speaker 1: to understanding the behavior of individual neurons, which are like

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Speaker 1: their own little animals with their own personalities. Or you

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Speaker 1: can study giant networks of neurons and how information flows

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Speaker 1: in those networks, and how those are changed by chemicals,

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Speaker 1: by what you eat, your environment and your society, your religion,

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Speaker 1: your culture. All these are different aspects of neuroscience. Now,

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Speaker 1: my personal interest has always been in studying all these

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Speaker 1: levels and trying to understand how they map onto our behavior,

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Speaker 1: our perception, our reality. As I worked to demonstrate in

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Speaker 1: the last episode, you are built out of this alien

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Speaker 1: computational material. You are not separate from your brain. So

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Speaker 1: what I want to do now is give you three

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Speaker 1: examples to illustrate this point. Some of you will be

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Speaker 1: familiar with the story of a young man who had

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Speaker 1: a terrible accident that taught the world a lot about

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Speaker 1: how your brain maps onto who you are. This young

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Speaker 1: man was named Phineas Gage, and in eighteen forty eight

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Speaker 1: he was working with a crew on a railroad near Cavendish, Vermont,

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Speaker 1: and the way the land was cleared to build the

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Speaker 1: railroad was by a series of explosions. So the way

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Speaker 1: this would work is one guy would dig small holes,

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Speaker 1: and then a second guy would fill those holes with gunpowder,

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Speaker 1: and another guy would put sand on top of the gunpowder,

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Speaker 1: and then Phineas Gauge would go around and tamp down

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Speaker 1: the sand on top with a big metal rod called

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Speaker 1: a tamping rod. So one day, the guy ahead of

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Speaker 1: him forgot to put the sand on top of the

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Speaker 1: gunpowder in one of these holes, and Phineas didn't notice that,

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Speaker 1: and so when he pounded the tamping rod into the hole,

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Speaker 1: the metal rod hit a rock and caused a spark,

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Speaker 1: and the gunpowder exploded. And this metal tamping rod, which

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Speaker 1: was about the width of a dry erase marker and

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Speaker 1: almost four feet long, this exploded into his head and

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Speaker 1: straight through it. It went below his chin, and it

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Speaker 1: burst out the top of his skull, and this metal

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Speaker 1: rod clattered to the ground eighty feet away. Now this

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Speaker 1: became a very famous medical case because he didn't die,

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Speaker 1: and in fact, he didn't even lose consciousness. The first

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Speaker 1: doctor to arrive on the scene about thirty minutes later,

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Speaker 1: wasn't even quite sure that he believed what everyone was

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Speaker 1: saying had just happened. But then Phineas got up and

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Speaker 1: vomited and quote a half at cupful of brain fell

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Speaker 1: out on the floor. But it became a really, really

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Speaker 1: famous medical case because Gauge's personality changed entirely. His friend said,

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Speaker 1: he quote is no longer a Gauge. He went from

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Speaker 1: a nice young man to someone who cussed and gambled

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Speaker 1: and slept with sex workers. And this was an early

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Speaker 1: case that started opening the door to an understanding of

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Speaker 1: something massively important. And that is when your biology changes,

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Speaker 1: you change. Now. I want to take as a second example,

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Speaker 1: a clean cut young man named Charles Whitman. On a

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Speaker 1: hot day in nineteen sixty six, Whitman climbed to the

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Speaker 1: top of the tower on U T. Austin's campus and

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Speaker 1: began to shoot people at random. He shot at pedestrians,

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Speaker 1: he shot at the people who came to help them,

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Speaker 1: He shot at the ambulance drivers that came to help them.

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Speaker 1: In total, he murdered fourteen people that day and wounded

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Speaker 1: thirty one. But there was a mystery about Whitman, and

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Speaker 1: that is, there was nothing in particular about him that

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Speaker 1: would have presaged this kind of horrific act. He had

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Speaker 1: been an eagle scout, he'd been honorably discharged from the Marines.

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Speaker 1: He'd come back to U T. Austin to be in

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Speaker 1: the architectural engineering program. He was married, He was a

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Speaker 1: good student with a high IQ. He just wasn't the

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Speaker 1: type of person that you would predict for a murdering

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Speaker 1: spree like this. But about a year before the tower shooting,

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Speaker 1: he began to feel changes inside. He wrote about this

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Speaker 1: extensively in his diary. He explained that he was not

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Speaker 1: feeling like himself. He went to see a psychiatrist to

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Speaker 1: express that he was feeling more and more uncontrollable anger.

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Speaker 1: But this was in the nineteen sixties. There were no

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Speaker 1: imaging technology available. There was little that could be done clinically. So,

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Speaker 1: as it turns out, the night before the tower shooting,

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Speaker 1: he murdered his wife and his mother, and then he

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Speaker 1: sat down at his typewriter and he wrote a suicide note.

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Speaker 1: And here's part of it quote, I do not quite

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Speaker 1: understand what it is that compels me to type this letter.

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Speaker 1: I do not really understand myself these days. I'm supposed

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Speaker 1: to be an average, reasonable and intelligent young man. However,

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Speaker 1: lately I cannot recall when it started. I have been

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Speaker 1: a victim of many unusual and irrational thoughts. End quote.

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Speaker 1: So he wrote in his suicide note that when this

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Speaker 1: whole ordeal was over, that he wanted an autopsy to

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Speaker 1: be performed to figure out what in the world was

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Speaker 1: going on. And that's exactly what they did. They took

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Speaker 1: his body to the coroner's office, and they used a

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Speaker 1: bone saw to drill off the top of the skull,

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Speaker 1: and they lifted out his brain and carefully dissected it.

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Speaker 1: And what they found was a tumor pressing against a

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Speaker 1: part of his brain called the amygdala, which is a

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Speaker 1: small region involved in fear and aggression. Now, how do

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Speaker 1: we interpret this? Not everyone who gets a tumor pressing

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Speaker 1: on their amygdala becomes a murderer. Nonetheless, did it have

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Speaker 1: something to do with his crime? We'll return to this

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Speaker 1: sort of question many times in future episodes, because the

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Speaker 1: answer isn't always obvious. After all, not everyone with a

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Speaker 1: tumor in this area commits a horrific crime. So we

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Speaker 1: have to look at the timeline of his behavioral changes

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Speaker 1: and the presumed timeline of his tumor, and if they're

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Speaker 1: well correlated, as they were in Whitman's case, this gives

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Speaker 1: us more confidence that there was a connection. But for

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Speaker 1: today's purposes, we can say that Whitman's tumor may well

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Speaker 1: have had something to do with his drastic personality changes,

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Speaker 1: for the same reason that Phineas Gage's more obvious camping

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Speaker 1: rod had something to do with his personality changes. When

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Speaker 1: your brain changes, so do you. So let's expose a

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Speaker 1: few more examples like this, and then we're going to

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Speaker 1: circle back around to the big picture question about how

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Speaker 1: your actions result from your biology and how that affects

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Speaker 1: the way we think about culpability in the legal system.

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Speaker 1: This next case was reported in the medical literature. It

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Speaker 1: was a forty year old man who was married. He

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Speaker 1: had a normal sexual appetite, and then he started developing

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Speaker 1: an interest in pedophilia. He started collecting child pornography, and

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Speaker 1: then he tried to touch his prepubescent stepdaughter who lived

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Speaker 1: with him and his wife, and at that point his

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Speaker 1: wife had him arrested. So while he was in jail

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Speaker 1: awaiting sentencing. He started complaining of these terrible headaches and

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Speaker 1: they were getting worse and worse. So he was eventually

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Speaker 1: taken to the doctor and a brain scan was done,

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Speaker 1: and what they discovered was a massive tumor in his

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Speaker 1: frontal lobes, about the size of a golf ball. So

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Speaker 1: he underwent an emergency neurosurgery and they cut the tumor out,

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Speaker 1: and his sexual appetites returned completely to normal. He no

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Speaker 1: longer had any pedophilic urges. Now the story has an

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Speaker 1: important PostScript because his wife took him back and everything

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Speaker 1: was fine, But then about six months later, he started

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Speaker 1: developing an interest in pedophilia again. So this time, instead

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Speaker 1: of taking him to the police, his wife took him

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Speaker 1: back to his neurosurgeon, and it was discovered that a

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Speaker 1: part of his tumor had been missed in the surgery

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Speaker 1: and the tumor was now regrowing, so they resected the

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Speaker 1: tumor a second time, and his sexual behavior returned to

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Speaker 1: normal again. The lesson from the sudden pedophile is the

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Speaker 1: same lesson that we can take from Phineas Gage and

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Speaker 1: from Charles Whitman. When your biology changes, that can change

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Speaker 1: your decision making. In quite dramatic ways. And the thing

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Speaker 1: we're going to return to that's important is that he

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Speaker 1: didn't choose to have a brain tumor, just like Whitman

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Speaker 1: didn't just like Phineas Gage didn't choose to have the

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Speaker 1: tamping run through his head. Now, what we covered in

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Speaker 1: the last episode is that when it comes to things

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Speaker 1: like your instincts or what you find beautiful, or who

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Speaker 1: you're attracted to, or your decisions in life, these things

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Speaker 1: are all driven by automatic circuitry in your brain. It's

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Speaker 1: not about the conscious you. It's about your unconscious brain,

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Speaker 1: to which you mostly don't have any access or acquaintance.

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Speaker 1: So the notion of free will, we called that into

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Speaker 1: question last time. Enough of our drives are so inaccessible

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Speaker 1: that free will may not exist, or if it exists,

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Speaker 1: it might be a small player in the system. Now,

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Speaker 1: the question of free will matters quite a bit when

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Speaker 1: we turn to culpability. When a criminal stands in front

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Speaker 1: of the judge's bench having recently committed a crime, the

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Speaker 1: legal system wants to know whether he is blameworthy after all,

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Speaker 1: whether he's fundamentally responsible for his actions. Navigates the way

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Speaker 1: that we punish, for example, you might punish your child

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Speaker 1: if she writes with a cran on the wall, but

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Speaker 1: you wouldn't punish her if she did the same thing

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Speaker 1: while sleepwalking. But why not. She's the same child with

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Speaker 1: the same brain in both cases, right. The difference lies

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Speaker 1: in your intuitions about free will. In one case, if

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Speaker 1: she's awake, she has it. In the other case, when

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Speaker 1: she's asleep, she doesn't. In one case, she's choosing to

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Speaker 1: act mischievously. In the other she's an un conscious automaton.

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Speaker 1: So you assign culpability in the first case and not

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Speaker 1: in the second, and the legal system shares your intuition.

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Speaker 1: Responsibility for your actions parallels your volitional control. If someone

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Speaker 1: commits a murder while awake, he hangs. If he does

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Speaker 1: so while he's sleepwalking, which has happened many times, and

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Speaker 1: I'll cover this in a future episode, then he's acquitted. Similarly,

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Speaker 1: if you hit someone in the face, the law cares

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Speaker 1: whether you were being aggressive or you have hemibilismus, which

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Speaker 1: is a disorder in which your limbs can flail wildly

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Speaker 1: without warning. If you crash your car into a roadside

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Speaker 1: fruit stand, the law cares whether you were driving like

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Speaker 1: a maniac, or instead you were the victim of a

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Speaker 1: heart attack. All these distinctions pivot on the assumption that

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Speaker 1: we possess free will. Well, but do we don't We

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Speaker 1: science can't yet figure out a way to say yes,

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Speaker 1: we have it. Our intuition has a hard time saying no,

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Speaker 1: we don't have it. But what I covered in the

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Speaker 1: previous episode is that if we have any free will

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Speaker 1: at all, it is a bit player because most of

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Speaker 1: what we do we do unconsciously. So the question of

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Speaker 1: whether we have free will or not is a tough

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Speaker 1: scientific problem. But I propose that the answer to the

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Speaker 1: question of free will doesn't matter for the purposes of

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Speaker 1: social policy. And here's why. In the legal system, there's

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Speaker 1: a defense known as an automatism. So what's an automatism.

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Speaker 1: It's something that I have no conscious control over. So

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Speaker 1: let's say I have that disorder that causes me to

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Speaker 1: fling my arm out hemibalismus and I have no conscious

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Speaker 1: input into this. It just happens. So one day I

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Speaker 1: fling my arm out and I hit someone and they

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Speaker 1: fall off a cliff to their death. From the point

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Speaker 1: of view view of the legal system, I'm not culpable

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Speaker 1: for their death because it was an automatism The conscious

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Speaker 1: me was not involved. I didn't have any ill intention

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Speaker 1: behind the act, or what the legal system calls mensraea,

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Speaker 1: which is Latin for guilty mind. And this kind of

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Speaker 1: thing comes up all the time in the courtroom. Let's

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Speaker 1: say a person is driving a car and has an

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Speaker 1: epileptic seizure and that causes her to steer her car

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Speaker 1: into a crowd of pedestrians. The automatism defense is used

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Speaker 1: when a lawyer says, look, that act was due to

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Speaker 1: a biological process over which the defendant had no control.

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Speaker 1: In other words, there was a guilty act, but there

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Speaker 1: was not a guilty mind behind it. Okay, but wait

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Speaker 1: a minute, Based on everything we've been talking about, don't

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Speaker 1: these kind of biological processes describe most, or possibly all,

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Speaker 1: of what is going on in our brains. Given the

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Speaker 1: steering power of our genetics, of our childhood experiences, of

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Speaker 1: environmental toxins or hormones, neurotransmitters, all the details of our neurocircuitry,

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Speaker 1: enough of our decisions are beyond our explicit control that

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Speaker 1: we are arguably not the ones in charge. So in

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Speaker 1: my book Incognito, I proposed what I call the principle

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Speaker 1: of sufficient automatism, and this arises simply from understanding that

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Speaker 1: free will, if it exists, is only a small factor

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Speaker 1: writing on top of enormous automated machinery, so small that

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Speaker 1: we might be able to think about bad decision making

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Speaker 1: in the same way we think about other physical processes

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Speaker 1: like diabetes or lung disease. The principle of sufficient automatism

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Speaker 1: says that the answer to the free will question simply

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Speaker 1: doesn't matter. To put this another way, Phineas Gage or

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Speaker 1: Charles Whitman or the Sudden Pedophile all share the common

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Speaker 1: upshot that actions can't be considered separately from the biology

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Speaker 1: of the actors. Free will is not as simple as

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Speaker 1: we into it, and our confusion about it suggests that

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Speaker 1: we cannot meaningfully use it as the basis of punishment decisions. Now,

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Speaker 1: before I move on to the heart of the argument,

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Speaker 1: I need to put to rest the concern that if

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Speaker 1: we look for biological explanations about what's going on with

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Speaker 1: people who commit crimes, that's going to lead to freeing

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Speaker 1: criminals on the grounds that nothing is their fault. Will

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Speaker 1: we still punish criminals? Yes, Letting criminals go wander the

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Speaker 1: streets is not the goal of improved understanding. Biological explanation

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Speaker 1: does not equal exculpation, which is letting people off the hook.

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Speaker 1: Societies will always need to get bad actors off the streets.

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Speaker 1: We will not abandon punishment, but we can refine the

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Speaker 1: way we punish. See, in the current system, we use

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Speaker 1: incarceration as a one size fits all solution. As a result,

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Speaker 1: America leads the world in the percentage of our population

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Speaker 1: behind bars. Not everyone knows this, but we imprison more

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Speaker 1: of our population than any country in the world. Look

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Speaker 1: it up if you don't believe it. Now, aside from

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Speaker 1: any moral stance you might have on this, it's a

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Speaker 1: problem because prison is provably criminogenic, which means that it

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Speaker 1: leads to more crime. That's because when you put someone

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Speaker 1: in a prison, you break their social circles, and you

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Speaker 1: break their employment opportunities, and presumably you introduce them to

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Speaker 1: new social circles employment opportunities. As a result, prison becomes

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Speaker 1: a revolving door. Now, this is generally something that people

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Speaker 1: have an intuition about, but what a lot of people

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Speaker 1: don't realize is the estimate that thirty percent of the

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Speaker 1: prison population has some form of mental illness. Jail has

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Speaker 1: become our de facto mental healthcare system in America. We

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Speaker 1: used to have mental institutions, but these were all shut

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Speaker 1: down in the nineteen sixties in a process called deinstitutionalization,

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Speaker 1: and the whole population flowed from there into the prison system. Now,

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Speaker 1: we could reasonably have a discussion about the morality of

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Speaker 1: the situation, but I just want to make a practical

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Speaker 1: point that this is not a cost effective solution to

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Speaker 1: dealing with mental illness in our society because it has

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Speaker 1: little to no utility in solving the problem. And here's

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Speaker 1: another issue. Ours are stuffed with people who have drug addictions.

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Speaker 1: This began when Nixon declared the War on drugs, and

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Speaker 1: since that time, our prison population has gone up eightfold.

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Speaker 1: This is not the right place for us to be

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Speaker 1: putting people with addiction problems. I'm not saying this is

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Speaker 1: a morality play. The issue is that prison doesn't solve

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Speaker 1: the problem. Addiction is a biological issue. You can't incarcerate

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Speaker 1: someone and expect they're going to forget their addiction. And

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Speaker 1: also there's an active drug trade in prison systems. So

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Speaker 1: all this points to developing a better understanding of what's

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Speaker 1: happening in brains so that we can root people through

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Speaker 1: the system him in a more tailored fashion. Now I

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Speaker 1: want to hit this point again, with biological explanation equal exculpation.

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Speaker 1: No better insight would lead us to be able to

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Speaker 1: do many things. The first is rational sentencing. We don't

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Speaker 1: have to build a legal system with an emphasis on

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Speaker 1: how much we punish, but instead on how to best

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Speaker 1: root individuals through the system. This doesn't let people off

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Speaker 1: the hook who have committed a crime, because we still

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Speaker 1: need to keep our streets safe, but it does allow

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Speaker 1: us to abandon the notion that all brains are the

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Speaker 1: same and everyone should get the same mandated sentence, like

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Speaker 1: five years for this crime. You can have lots of

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Speaker 1: brains in front of a judge's bench for the exact

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Speaker 1: same crime. But this one is there because he has schizophrenia,

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Speaker 1: and this one is a psychopath, and this one over

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Speaker 1: here is tweak down on drugs, and this one has

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Speaker 1: a brain tumor, and so on. Not all brains are

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Speaker 1: the same, and people can be sentenced on more individualized grounds.

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Speaker 1: And one of the key components of this is the

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Speaker 1: second thing. That we could have better insight on customized

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Speaker 1: rehabilitation instead of imagining that jail is the one size

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Speaker 1: fits all solution. We are increasingly getting more insight into

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Speaker 1: what can be done for things like drug addiction, which

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Speaker 1: I'll come back to. And the third thing is realistic

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Speaker 1: incentive structuring, including deterrence and what kinds of punishments actually

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Speaker 1: work for which kinds of people, and which ones are

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Speaker 1: a waste of time that only satisfy our bloodlust but

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Speaker 1: are ineffective at the societal level. Because the fact is

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Speaker 1: that brains are different, and we talk about things like

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Speaker 1: tailored education, why not talk about tailored social policy. So

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Speaker 1: there's a real need for understanding what is happening inside

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Speaker 1: different heads. It doesn't make sense for us to pretend

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Speaker 1: that everyone is just like us or just like each

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Speaker 1: other on the inside. And to help us think about this,

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Speaker 1: here's an excerpt from Charles Whitman's suicide note. He said, quote,

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Speaker 1: if my life insurance policy is valid, please pay off

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Speaker 1: my debts, donate the rest anonymously to a mental health foundation.

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Speaker 1: Maybe research can prevent further tragedies of this type. So

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Speaker 1: some years ago, these considerations inspired me to start the

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Speaker 1: Center for Science and Law, which brings together scientists and

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Speaker 1: attorneys and policy makers to understand how science can refine

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Speaker 1: our legal system. We tackle things like how neuroscience matters

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Speaker 1: for a rational drug policy, or a better understanding of

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Speaker 1: the insanity defense, or how to think about sentencing in juveniles,

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Speaker 1: like what happens when someone commits a terrible crime but

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Speaker 1: they're sixteen years old, and issues like eyewitness testimony and

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Speaker 1: even the brain of the juror. I'm going to drop

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Speaker 1: several episodes on these topics in the coming months, but

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Speaker 1: for now, I want to emphasize the big picture issue,

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Speaker 1: and that is what we understand and how we can

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Speaker 1: move the science forward. So we know that the details

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Speaker 1: of the brain map onto behavior, but it's an extraordinarily

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Speaker 1: complex system, one of such complexity with its billions of

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Speaker 1: neurons and trillions of connections that it bankrupts our ability

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Speaker 1: to understand it. So how do we go about trying

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Speaker 1: to understand the brain of someone who has committed a crime.

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Speaker 1: So let's start by acknowledging that when big crimes happen,

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Speaker 1: it's often the case that we don't even have a

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Speaker 1: brain to examine. Lots of times person will commit a

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Speaker 1: mass shooting, and then shoot themselves in the head, which

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Speaker 1: renders their brain unexaminable. Or take Adam Lanza, the shooter

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Speaker 1: at Sandy Hook Elementary. I remember seeing on the news

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Speaker 1: that he had smashed his computer and hard drive before

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Speaker 1: committing the crime, but that struck me as the least

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Speaker 1: of our problems, because Lanza had committed suicide within fifteen

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Speaker 1: minutes of the nine to one one call by shooting

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Speaker 1: himself in the head, meaning that it wasn't just his

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Speaker 1: hard drive that you couldn't get data from, but his

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Speaker 1: brain as well. So the point is that we couldn't

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Speaker 1: even take a swing at seeing if there was something

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Speaker 1: wrong with his brain, like a tumor or a malformation

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Speaker 1: that he was born with, or a stroke. And this

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Speaker 1: situation is actually surprisingly common. Take the guy Joe Stack,

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Speaker 1: who is mad about his taxes and so he flew

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Speaker 1: his small plane into the IRS office building. Everyone hypothesized

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Speaker 1: about what had gone wrong with Stack based on his

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Speaker 1: suicide note and his behaviors leading up to the attack,

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Speaker 1: But was there anything pathological going on in his brain?

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Speaker 1: Will never know because it was destroyed in the crash.

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Speaker 1: But what happens when we do have a brain to

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Speaker 1: look at what can we conclude how well can we

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Speaker 1: understand the details of a person's behavior when we look

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Speaker 1: at their brain. Well, you've probably seen the wonderful pictures

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Speaker 1: from brain imaging. There's a technology called functional magnetic resonance

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Speaker 1: imaging or fMRI, and this is a technique where someone

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Speaker 1: lies down in a big cylinder and we can image

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Speaker 1: activity in the brain tissue through the skull. It's quite

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Speaker 1: miraculous and beautiful, and I've spent a good chunk of

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Speaker 1: my career publishing papers in which we use fMRI. But

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Speaker 1: I want to emphasize that even this, our best technology

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Speaker 1: for imaging human brains is very limited. We're not directly

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Speaker 1: imaging the activity in the brain, but instead dead the

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Speaker 1: blood flow, the ratio of oxygenated to deoxygenated blood, and

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Speaker 1: so where the blood flow goes. That tells us that

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Speaker 1: some activity was just happening there a few seconds ago.

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Speaker 1: And it's not precise at the level of individual neurons,

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Speaker 1: and there tends to hundreds of electrical spikes per second.

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Speaker 1: But instead, all we can get from it is that

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Speaker 1: there was something happening in this cluster of tens of

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Speaker 1: millions of neurons at the scale of seconds. So here's

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Speaker 1: an analogy to think about fMRI. Imagine that you're in

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Speaker 1: a space shuttle and you're looking down on the United States.

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Speaker 1: You could see big events like a major forest fire

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Speaker 1: in California, but you wouldn't be able to see how

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Speaker 1: the economy is going, or what fashions people are now wearing,

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Speaker 1: or who won the World Cup. You can only see

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Speaker 1: really big changes. And that's the same with brain imaging.

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Speaker 1: We're only able to see really obvious things going on,

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Speaker 1: and that puts us in a funny situation because it

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Speaker 1: puts pressure on scientists and lawyers and courts to say

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Speaker 1: more than they're able to. Everyone wants to see a

432
00:29:17,600 --> 00:29:21,280
Speaker 1: brain scan and see if there's something different going on

433
00:29:21,360 --> 00:29:24,760
Speaker 1: with this guy, but our technology most of the time

434
00:29:25,000 --> 00:29:27,719
Speaker 1: doesn't allow us to do that. Now, part of the

435
00:29:27,760 --> 00:29:31,280
Speaker 1: problem is that the media around us that constantly suggests

436
00:29:31,280 --> 00:29:33,920
Speaker 1: that we can look at a brain scan and say

437
00:29:33,920 --> 00:29:37,440
Speaker 1: something clear about someone's behavior. So I've made a little

438
00:29:37,480 --> 00:29:42,560
Speaker 1: collection of Time magazine covers that drive me insane. For example,

439
00:29:42,920 --> 00:29:46,840
Speaker 1: one cover shows a brain scan image with fancy colors

440
00:29:46,840 --> 00:29:50,719
Speaker 1: and the title reads what makes us Good or Evil?

441
00:29:51,160 --> 00:29:54,320
Speaker 1: And there's a little picture of Gandhi with an arrow

442
00:29:54,360 --> 00:29:56,959
Speaker 1: to a small spot in the brain, and another picture

443
00:29:57,000 --> 00:30:00,120
Speaker 1: of Adolf Hitler with an arrow to another spot. And

444
00:30:00,160 --> 00:30:02,880
Speaker 1: the concern is that this gives the general population a

445
00:30:03,000 --> 00:30:06,400
Speaker 1: kind of erroneous thinking that we should be able to

446
00:30:06,480 --> 00:30:09,640
Speaker 1: run a brain scan and just see whether someone is

447
00:30:09,640 --> 00:30:12,960
Speaker 1: good or evil. But that's impossible for technical reasons, and

448
00:30:13,040 --> 00:30:18,040
Speaker 1: also because good and evil are not straightforward concepts. You

449
00:30:18,080 --> 00:30:21,240
Speaker 1: can't look at activity in a particular part of the

450
00:30:21,240 --> 00:30:25,440
Speaker 1: brain and say, yes, that person is evil. Friedrich Nietzschi

451
00:30:25,480 --> 00:30:27,840
Speaker 1: wrote about this over one hundred years ago in his

452
00:30:27,920 --> 00:30:31,680
Speaker 1: book Beyond Good and Evil, where he pointed out that

453
00:30:31,800 --> 00:30:34,959
Speaker 1: the concepts of what is good and what is evil

454
00:30:35,200 --> 00:30:39,560
Speaker 1: these are historically defined, and they're different in different cultures

455
00:30:39,880 --> 00:30:43,640
Speaker 1: and different time periods, and they can be quite locally defined,

456
00:30:43,960 --> 00:30:46,760
Speaker 1: and they can be user defined, as you know, when

457
00:30:46,760 --> 00:30:49,680
Speaker 1: you get into a political argument with a family member

458
00:30:49,760 --> 00:30:52,560
Speaker 1: or a coworker and you think that something is evil

459
00:30:52,600 --> 00:30:54,720
Speaker 1: that they don't, or they think something is evil that

460
00:30:54,800 --> 00:30:58,120
Speaker 1: you don't. Although we can typically agree on things that

461
00:30:58,200 --> 00:31:02,560
Speaker 1: the extremes, there's no single right answer to what constitutes

462
00:31:02,640 --> 00:31:06,680
Speaker 1: good and evil for almost everything in the middle. So

463
00:31:07,400 --> 00:31:12,840
Speaker 1: importantly the relationship between a person's brain and their behavior

464
00:31:13,320 --> 00:31:19,120
Speaker 1: can generally be totally opaque, totally impossible to read, as in,

465
00:31:19,720 --> 00:31:21,800
Speaker 1: perhaps you have a tumor in part of your brain,

466
00:31:22,240 --> 00:31:26,080
Speaker 1: or you've had traumatic brain injury or a stroke that

467
00:31:26,200 --> 00:31:29,200
Speaker 1: damaged part of the tissue in your brain, But is

468
00:31:29,240 --> 00:31:32,400
Speaker 1: that actually the reason you committed a crime or did

469
00:31:32,440 --> 00:31:35,200
Speaker 1: you do it because you would have done it anyway.

470
00:31:35,880 --> 00:31:40,120
Speaker 1: Take the movie House of Gucci. This is about Patricia

471
00:31:40,240 --> 00:31:45,160
Speaker 1: Reggiani played by Lady Gaga, who marries Marizio Gucci, who

472
00:31:45,240 --> 00:31:49,360
Speaker 1: is the heir to the Gucci fashion fortune. So she's

473
00:31:49,400 --> 00:31:52,960
Speaker 1: twenty two. She meets Marizio Gucci at a party. Two

474
00:31:53,040 --> 00:31:55,560
Speaker 1: years later, they marry, they have two daughters. It seems

475
00:31:55,560 --> 00:31:58,000
Speaker 1: to everyone around them like it's a fairy tale. But

476
00:31:58,080 --> 00:32:01,440
Speaker 1: a few years later, Rizzio separates from her so that

477
00:32:01,520 --> 00:32:04,760
Speaker 1: he can date a model, and things turn really sour

478
00:32:04,840 --> 00:32:09,680
Speaker 1: with Patricia. She starts stalking him, she plants spies around him,

479
00:32:09,680 --> 00:32:12,440
Speaker 1: she keeps calling and threatening to kill him, and then

480
00:32:12,520 --> 00:32:15,720
Speaker 1: one day, as Rizio Gucci is walking through the lobby

481
00:32:15,800 --> 00:32:19,240
Speaker 1: of an office building, he gets shot by a hitman

482
00:32:19,440 --> 00:32:23,680
Speaker 1: and dies, and the day he's killed, Patricia writes paradise

483
00:32:23,840 --> 00:32:28,760
Speaker 1: in her diary. Now, given her hatred of Rizio, Patricia

484
00:32:28,840 --> 00:32:32,840
Speaker 1: immediately becomes a suspect and soon enough the evidence clearly

485
00:32:32,920 --> 00:32:36,520
Speaker 1: points to her as the hand behind the hitman. And

486
00:32:36,600 --> 00:32:40,200
Speaker 1: it goes to court and Reggiani is charged with murder,

487
00:32:40,320 --> 00:32:43,200
Speaker 1: along with her psychic and the hitman and the getaway

488
00:32:43,240 --> 00:32:46,800
Speaker 1: car driver, and she gets sentenced to twenty six years

489
00:32:47,080 --> 00:32:50,320
Speaker 1: in San Vettore prison for having ordered the killing. So

490
00:32:50,440 --> 00:32:53,200
Speaker 1: this is a wild true story and it made a

491
00:32:53,200 --> 00:32:57,480
Speaker 1: good movie. But the most fascinating part picks up where

492
00:32:57,520 --> 00:33:01,680
Speaker 1: the movie ends. So the real life twist is that

493
00:33:01,880 --> 00:33:06,600
Speaker 1: after she went to prison, Patricia's legal team campaigned for

494
00:33:06,680 --> 00:33:11,160
Speaker 1: a retrial. They argued that Patricia was not in control

495
00:33:11,240 --> 00:33:16,000
Speaker 1: of her mental faculties during the murder. Why because she

496
00:33:16,120 --> 00:33:21,360
Speaker 1: had undergone surgery to remove a brain tumor some years before,

497
00:33:21,960 --> 00:33:26,560
Speaker 1: and they argued this surgery had affected her ability to

498
00:33:26,560 --> 00:33:30,520
Speaker 1: be in command of her mental faculties. It wasn't precisely

499
00:33:30,640 --> 00:33:34,120
Speaker 1: her fault, they argued, it was the fault of the

500
00:33:34,160 --> 00:33:37,960
Speaker 1: tumor and the brain surgery. Now, how should a court

501
00:33:38,400 --> 00:33:42,080
Speaker 1: assess this? After all, she famously hated him, and she

502
00:33:42,120 --> 00:33:45,160
Speaker 1: always talked about how unhappy she was and how much

503
00:33:45,440 --> 00:33:48,959
Speaker 1: she wanted to kill him. So her argument about the

504
00:33:48,960 --> 00:33:52,960
Speaker 1: brain surgery only partially convinced the court. It didn't change

505
00:33:53,040 --> 00:33:56,120
Speaker 1: much of anything materially. So what I want to illustrate

506
00:33:56,160 --> 00:34:00,840
Speaker 1: here is the complexity of looking for easy the answers.

507
00:34:01,400 --> 00:34:04,719
Speaker 1: Did her small tumor that was removed have something to

508
00:34:04,760 --> 00:34:08,080
Speaker 1: do with her crime? Or was it totally incidental to

509
00:34:08,160 --> 00:34:10,399
Speaker 1: the crime? In other words, having nothing to do with it.

510
00:34:11,239 --> 00:34:16,200
Speaker 1: A biological problem doesn't necessarily tell you a clear story

511
00:34:16,640 --> 00:34:20,799
Speaker 1: about the interpretation of a crime, and this difficulty in

512
00:34:20,800 --> 00:34:24,520
Speaker 1: interpretation comes up in all sorts of guyses in the courtroom.

513
00:34:24,920 --> 00:34:29,000
Speaker 1: Take concussion or a traumatic brain injury. If someone robs

514
00:34:29,000 --> 00:34:31,759
Speaker 1: a store, how do we know it had anything to

515
00:34:31,800 --> 00:34:34,279
Speaker 1: do with the concussion. Maybe this was the kind of

516
00:34:34,280 --> 00:34:37,399
Speaker 1: guy who is always headed for trouble anyway. Maybe he's

517
00:34:37,760 --> 00:34:41,400
Speaker 1: been doing this kind of antisocial behavior since elementary school.

518
00:34:41,760 --> 00:34:44,800
Speaker 1: Everyone knew this guy was trouble, and then two years

519
00:34:44,800 --> 00:34:48,400
Speaker 1: ago he hit his head hard, and everyone agrees that

520
00:34:48,480 --> 00:34:51,680
Speaker 1: was a bad thing. But now his lawyer argues that

521
00:34:51,760 --> 00:34:56,160
Speaker 1: his crime resulted from the traumatic brain injury. Maybe it's

522
00:34:56,160 --> 00:34:58,919
Speaker 1: a slightly worse crime. As a result. But maybe he's

523
00:34:59,000 --> 00:35:01,879
Speaker 1: just graduated to the next level as a criminal. It's

524
00:35:01,920 --> 00:35:05,239
Speaker 1: hard to know, and there's no brain scan that can

525
00:35:05,320 --> 00:35:09,880
Speaker 1: magically tell you the answer, because his behavior also results

526
00:35:09,920 --> 00:35:13,080
Speaker 1: from everything else in his life, his circumstances, his group

527
00:35:13,080 --> 00:35:16,799
Speaker 1: of friends, all the details of his decision making. So

528
00:35:17,080 --> 00:35:20,239
Speaker 1: just knowing that someone had a brain injury tells us

529
00:35:20,360 --> 00:35:24,160
Speaker 1: very little about the details of why they committed a crime.

530
00:35:24,520 --> 00:35:27,120
Speaker 1: And the flip side is true too. Somebody might commit

531
00:35:27,160 --> 00:35:31,040
Speaker 1: a horrific crime and their brain looks totally normal. So

532
00:35:31,160 --> 00:35:35,120
Speaker 1: take the Las Vegas shooter Stephen Paddock in twenty seventeen.

533
00:35:35,280 --> 00:35:37,920
Speaker 1: He smashed out the window of his hotel room at

534
00:35:37,920 --> 00:35:41,480
Speaker 1: the Mandola Bay where he'd been stockpiling arms, and he

535
00:35:41,520 --> 00:35:44,840
Speaker 1: started shooting at the people below and an outdoor concert,

536
00:35:44,920 --> 00:35:47,759
Speaker 1: and he murdered sixty people, and he injured about eight

537
00:35:47,880 --> 00:35:50,760
Speaker 1: hundred and sixty seven. This way in the deadliest mass

538
00:35:50,760 --> 00:35:53,759
Speaker 1: shooting in the United States. So at the time, I

539
00:35:53,800 --> 00:35:56,799
Speaker 1: wrote an article on CNN about what might be wrong

540
00:35:56,840 --> 00:35:58,840
Speaker 1: with his brain, and I was careful to end it

541
00:35:58,920 --> 00:36:02,960
Speaker 1: by saying, look, there might be nothing that's obviously wrong

542
00:36:03,040 --> 00:36:05,840
Speaker 1: with his brain, so we may never have anything that

543
00:36:05,880 --> 00:36:09,160
Speaker 1: we can conclude here. His brain was sent over here

544
00:36:09,200 --> 00:36:12,520
Speaker 1: to Stanford to my neuropathology colleague in the medical school,

545
00:36:12,760 --> 00:36:16,640
Speaker 1: who did an analysis and concluded nothing. He couldn't find

546
00:36:16,800 --> 00:36:20,360
Speaker 1: anything that was obviously wrong with Paddock's brain. There was

547
00:36:20,400 --> 00:36:25,000
Speaker 1: no giant tumor or giant stroke, or a neurodegenerative disorder

548
00:36:25,120 --> 00:36:27,800
Speaker 1: or anything like that. So I've just told you a

549
00:36:27,920 --> 00:36:30,040
Speaker 1: number of things, and I want to pull these all

550
00:36:30,080 --> 00:36:34,040
Speaker 1: back together in the question of what does this mean

551
00:36:34,600 --> 00:36:38,600
Speaker 1: for the notion of culpability. Well, there are several points

552
00:36:38,600 --> 00:36:42,120
Speaker 1: of view we could take here. One view proposed by

553
00:36:42,200 --> 00:36:45,880
Speaker 1: the neurophysiologist Well Singer goes like this. He says, quote,

554
00:36:46,440 --> 00:36:50,080
Speaker 1: as long as we can't identify all the causes, which

555
00:36:50,160 --> 00:36:52,680
Speaker 1: we cannot and probably never will be able to do,

556
00:36:53,440 --> 00:36:57,800
Speaker 1: we should grant that for everybody there is a neurobiological

557
00:36:57,920 --> 00:37:02,680
Speaker 1: reason for being abnormal end quote. In other words, in

558
00:37:02,800 --> 00:37:06,520
Speaker 1: Singer's view, the act of committing a crime is all

559
00:37:06,560 --> 00:37:10,680
Speaker 1: the evidence we need for a brain abnormality, whether or

560
00:37:10,719 --> 00:37:12,760
Speaker 1: not we can see it, whether or not it's obvious.

561
00:37:13,320 --> 00:37:16,160
Speaker 1: Some years ago, there was a biologist at the University

562
00:37:16,160 --> 00:37:19,799
Speaker 1: of Alabama and Huntsville named doctor Amy Bishop, and she

563
00:37:19,960 --> 00:37:23,600
Speaker 1: was denied tenure, which means the university declined to give

564
00:37:23,640 --> 00:37:26,239
Speaker 1: her a permanent position. And the next week there was

565
00:37:26,280 --> 00:37:29,600
Speaker 1: a routine faculty meeting in the biology department and she

566
00:37:29,719 --> 00:37:32,720
Speaker 1: stood up with a nine millimeter Ruger handgun and began

567
00:37:32,840 --> 00:37:36,840
Speaker 1: shooting the other faculty members one by one in the head. So,

568
00:37:37,280 --> 00:37:42,720
Speaker 1: speaking to the media, Amy Bishop's defense attorney, Roy Miller said, quote,

569
00:37:43,600 --> 00:37:47,080
Speaker 1: I think the case speaks for itself. I think she's wacko.

570
00:37:47,600 --> 00:37:50,520
Speaker 1: End quote. Now this was her defense attorney, so this

571
00:37:50,640 --> 00:37:53,360
Speaker 1: might not sound like a very good defense, but essentially

572
00:37:53,400 --> 00:37:57,120
Speaker 1: her attorney was taking Wolf Singer's position that the act

573
00:37:57,200 --> 00:38:00,560
Speaker 1: of committing the crime was all the evidence we need

574
00:38:00,960 --> 00:38:04,480
Speaker 1: for a brain abnormality, and that's why he said the

575
00:38:04,560 --> 00:38:08,520
Speaker 1: case speaks for itself. So I've planted a bunch of

576
00:38:08,600 --> 00:38:11,160
Speaker 1: question marks here, and now I want to come back

577
00:38:11,200 --> 00:38:15,120
Speaker 1: around to the main question. What does all this add

578
00:38:15,239 --> 00:38:19,840
Speaker 1: up to for our notion of culpability. Well, think of

579
00:38:19,960 --> 00:38:25,080
Speaker 1: culpability as lying on a spectrum with phineas gauge all

580
00:38:25,120 --> 00:38:27,200
Speaker 1: the way at one end where we say, look, it's

581
00:38:27,239 --> 00:38:30,640
Speaker 1: not really your fault, and next to him, maybe the

582
00:38:30,719 --> 00:38:33,879
Speaker 1: sudden pedophile with the brain tumor. We look at them

583
00:38:33,920 --> 00:38:37,120
Speaker 1: and we say, your, poor guys, you didn't choose that.

584
00:38:37,360 --> 00:38:39,839
Speaker 1: You didn't ask to get a tamping rod through your

585
00:38:39,840 --> 00:38:43,600
Speaker 1: head or to grow a prefrontal brain tumor. So any

586
00:38:43,680 --> 00:38:47,720
Speaker 1: changes in personality or decision making can't really be your fault.

587
00:38:47,760 --> 00:38:51,040
Speaker 1: It's just a matter of your biology. Now, as we

588
00:38:51,120 --> 00:38:54,440
Speaker 1: move along this line towards the center, we come to

589
00:38:54,520 --> 00:38:57,759
Speaker 1: cases that clearly have to do with the brain, but

590
00:38:57,800 --> 00:39:00,920
Speaker 1: they're not quite as easy to interpret. So in the

591
00:39:01,000 --> 00:39:05,280
Speaker 1: last episode, I talked about Chris Benoit, the Worldwide Wrestling

592
00:39:05,320 --> 00:39:09,399
Speaker 1: Federation champion, who conspired with his physician to take huge

593
00:39:09,480 --> 00:39:13,480
Speaker 1: quantities of testosterone and that sent him on roid rages,

594
00:39:13,880 --> 00:39:15,919
Speaker 1: and he ended up killing his wife and his son.

595
00:39:16,440 --> 00:39:19,040
Speaker 1: So that has to do with his biology. But maybe

596
00:39:19,080 --> 00:39:21,040
Speaker 1: it's not so easy for us to say, well, it's

597
00:39:21,080 --> 00:39:24,759
Speaker 1: not exactly your fault. Or we find Amy Bishop, the

598
00:39:24,800 --> 00:39:28,120
Speaker 1: biologist who killed her colleagues, and we think something is

599
00:39:28,160 --> 00:39:31,359
Speaker 1: wrong with her, but we can't quite identify what. And

600
00:39:31,400 --> 00:39:34,360
Speaker 1: then at the far other end of the spectrum, we

601
00:39:34,480 --> 00:39:38,040
Speaker 1: find your average criminals sitting in a jail cell nobody's

602
00:39:38,440 --> 00:39:42,440
Speaker 1: studying his brain. And even if someone were our current

603
00:39:42,480 --> 00:39:46,000
Speaker 1: technology probably wouldn't be able to say much anyway. The

604
00:39:46,320 --> 00:39:50,560
Speaker 1: overwhelming majority of lawbreakers are over on this side of

605
00:39:50,600 --> 00:39:53,680
Speaker 1: the line, and even if we spent millions of dollars

606
00:39:53,760 --> 00:39:56,640
Speaker 1: and did brain scans on all of them, almost all

607
00:39:56,719 --> 00:40:02,000
Speaker 1: of them wouldn't have any obvious measurable biological problems, and

608
00:40:02,080 --> 00:40:04,399
Speaker 1: so as a result, the legal system thinks of them

609
00:40:04,560 --> 00:40:29,040
Speaker 1: as freely choosing actors. This spectrum, from Phineas Gage to

610
00:40:29,120 --> 00:40:34,719
Speaker 1: the common criminal captures the common intuition that juries have

611
00:40:35,000 --> 00:40:38,680
Speaker 1: regarding blameworthiness, where at one end we say it's not

612
00:40:38,760 --> 00:40:40,360
Speaker 1: your fault, and the other end we say it is

613
00:40:40,400 --> 00:40:43,600
Speaker 1: your fault. But there's a deep problem with this intuition,

614
00:40:43,880 --> 00:40:48,040
Speaker 1: which is that our technology draws a line on the spectrum,

615
00:40:48,080 --> 00:40:51,040
Speaker 1: and on one side of this line we say, hey,

616
00:40:51,080 --> 00:40:54,239
Speaker 1: we can measure something, so it's not your fault, and

617
00:40:54,320 --> 00:40:57,239
Speaker 1: on the other side we say, look, we can't really

618
00:40:57,280 --> 00:41:00,480
Speaker 1: measure anything and point to something, so we're to say

619
00:41:00,480 --> 00:41:04,040
Speaker 1: it is your fault. The problem is that technology will

620
00:41:04,080 --> 00:41:07,840
Speaker 1: continue to improve, and as we grow better at measuring

621
00:41:08,000 --> 00:41:12,000
Speaker 1: problems in the brain, the line that separates the not

622
00:41:12,160 --> 00:41:15,040
Speaker 1: blame worthy side from the blame worthy side, it will

623
00:41:15,040 --> 00:41:19,640
Speaker 1: continue to move such that people who we now hold

624
00:41:19,680 --> 00:41:23,480
Speaker 1: fully accountable for their crimes will someday be understood to

625
00:41:23,560 --> 00:41:26,200
Speaker 1: have whatever. The next level of technology is going to

626
00:41:26,280 --> 00:41:30,239
Speaker 1: teach us that, for example, they have Schmedley's disorder and

627
00:41:30,320 --> 00:41:34,759
Speaker 1: couldn't control their behavior. Problems that are opaque to us

628
00:41:34,760 --> 00:41:39,799
Speaker 1: today will open their flower pedals to new techniques, and

629
00:41:39,880 --> 00:41:42,080
Speaker 1: in one hundred years we're likely to find that many

630
00:41:42,120 --> 00:41:47,200
Speaker 1: types of behavior have a basic biological explanation, as we've

631
00:41:47,239 --> 00:41:52,239
Speaker 1: already found with schizophrenia or epilepsy, or depression or mania

632
00:41:52,320 --> 00:41:56,040
Speaker 1: and so on. In other words, today's neuroimaging is a

633
00:41:56,200 --> 00:42:00,759
Speaker 1: crude technology. It's not able to explain the details of

634
00:42:00,880 --> 00:42:05,239
Speaker 1: individual behavior. We can only detect large scale problems. But

635
00:42:05,360 --> 00:42:08,520
Speaker 1: within the coming decades we will be able to detect

636
00:42:08,640 --> 00:42:14,040
Speaker 1: patterns that unimaginably small levels of the microcircuitry that correlate

637
00:42:14,160 --> 00:42:18,040
Speaker 1: with behavioral problems, and neuroscience will be better able to

638
00:42:18,080 --> 00:42:22,520
Speaker 1: say why people are predisposed to act the way they do.

639
00:42:23,040 --> 00:42:27,440
Speaker 1: And as we become more skilled at specifying how behavior

640
00:42:27,560 --> 00:42:32,000
Speaker 1: results from the microscopic details of the brain, more defense

641
00:42:32,080 --> 00:42:37,200
Speaker 1: lawyers will point to biological mitigators of guilt, and more

642
00:42:37,280 --> 00:42:41,880
Speaker 1: juries will place defendants on the not blameworthy side of

643
00:42:41,920 --> 00:42:44,680
Speaker 1: the line. Now, all of this puts us in a

644
00:42:44,840 --> 00:42:51,719
Speaker 1: strange situation, because, after all, a just legal system can't

645
00:42:51,760 --> 00:42:57,640
Speaker 1: define culpability simply by the limitations of current technology. A

646
00:42:57,719 --> 00:43:01,480
Speaker 1: legal system that declares a person culpable at the beginning

647
00:43:01,480 --> 00:43:05,560
Speaker 1: of a decade and not culpable at the end is

648
00:43:05,680 --> 00:43:10,960
Speaker 1: one in which culpability carries no clear meaning. The crux

649
00:43:11,000 --> 00:43:13,560
Speaker 1: of the problem is that it no longer makes sense

650
00:43:13,680 --> 00:43:17,879
Speaker 1: to ask to what extent was this crime committed because

651
00:43:17,920 --> 00:43:20,800
Speaker 1: of his biology? And to what extent was it committed

652
00:43:20,840 --> 00:43:25,160
Speaker 1: because of him? Because there is no meaningful distinction between

653
00:43:25,160 --> 00:43:29,799
Speaker 1: a person's biology and his decision making. They are inseparable.

654
00:43:30,680 --> 00:43:34,600
Speaker 1: A system of blameworthiness that depends on the technology of

655
00:43:34,640 --> 00:43:39,840
Speaker 1: the day can't represent real justice. The whole notion of

656
00:43:39,880 --> 00:43:45,560
Speaker 1: blameworthiness is a concept that demands the impossible task of

657
00:43:45,719 --> 00:43:51,399
Speaker 1: untangling the hopelessly complex web of genetics, an environment that

658
00:43:51,520 --> 00:43:56,000
Speaker 1: constructs the trajectory of a human life. So our current

659
00:43:56,040 --> 00:44:00,960
Speaker 1: approach to punishment rests on a bedrock of personal volition

660
00:44:01,160 --> 00:44:05,279
Speaker 1: and blame, But our modern understanding of the brain suggests

661
00:44:05,400 --> 00:44:09,040
Speaker 1: a different approach. My suggestion for a number of years

662
00:44:09,040 --> 00:44:13,239
Speaker 1: now has been that blameworthiness should be removed from the

663
00:44:13,280 --> 00:44:17,080
Speaker 1: way we talk about things in the legal system. Blameworthiness

664
00:44:17,160 --> 00:44:20,720
Speaker 1: is a concept that looks back and demands the impossible

665
00:44:20,840 --> 00:44:24,080
Speaker 1: task of figuring out how a brain came into its

666
00:44:24,200 --> 00:44:29,480
Speaker 1: current form. But instead of debating culpability, I suggest our

667
00:44:29,560 --> 00:44:33,560
Speaker 1: effort should be to focus on what to do moving

668
00:44:33,840 --> 00:44:38,279
Speaker 1: forward with an accused law breaker. The legal system has

669
00:44:38,360 --> 00:44:42,919
Speaker 1: to become forward looking, primarily because it can't continue much

670
00:44:42,920 --> 00:44:46,080
Speaker 1: longer pretending that it can do Otherwise, because as we

671
00:44:46,239 --> 00:44:49,239
Speaker 1: come to know more and more about the brain and

672
00:44:49,320 --> 00:44:53,560
Speaker 1: science continues to complexify the question of culpability, our legal

673
00:44:53,600 --> 00:44:56,520
Speaker 1: and social policy is going to have to shift to

674
00:44:56,640 --> 00:45:00,279
Speaker 1: a different set of questions. How is this person likely

675
00:45:00,320 --> 00:45:03,840
Speaker 1: to behave in the future, Our criminal actions likely to

676
00:45:03,880 --> 00:45:08,160
Speaker 1: be repeated? Can this person be helped towards pro social behavior?

677
00:45:08,640 --> 00:45:13,719
Speaker 1: How can incentives be realistically structured to deter crime? The

678
00:45:13,800 --> 00:45:16,359
Speaker 1: important change is going to be in the way we

679
00:45:16,440 --> 00:45:21,279
Speaker 1: respond to the vast range of criminal acts. Consider as

680
00:45:21,280 --> 00:45:25,280
Speaker 1: an example that the vast majority of known serial killers

681
00:45:25,600 --> 00:45:30,799
Speaker 1: were abused as children. Does this make them less blameworthy

682
00:45:31,239 --> 00:45:35,320
Speaker 1: it's actually the wrong question to ask. The knowledge that

683
00:45:35,360 --> 00:45:39,239
Speaker 1: they were abused encourages us to build social programs to

684
00:45:39,280 --> 00:45:42,400
Speaker 1: prevent child abuse, but it does nothing to change the

685
00:45:42,400 --> 00:45:45,520
Speaker 1: way that we deal with the particular murderer standing in

686
00:45:45,520 --> 00:45:47,560
Speaker 1: front of the bench. We still need to keep him

687
00:45:47,600 --> 00:45:52,160
Speaker 1: off the streets, irrespective of his past misfortunes. The child

688
00:45:52,239 --> 00:45:55,080
Speaker 1: abuse can't serve as a reason to let him go.

689
00:45:55,760 --> 00:45:58,959
Speaker 1: The judge has to keep society safe, so people who

690
00:45:59,000 --> 00:46:03,759
Speaker 1: break social contracts need to be confined. But in this framework,

691
00:46:04,000 --> 00:46:08,480
Speaker 1: the future is equally as important as the past. So

692
00:46:08,680 --> 00:46:12,759
Speaker 1: deeper biological insight into behavior is going to give us

693
00:46:12,800 --> 00:46:17,120
Speaker 1: a better understanding of recidivism, that is recommitting of crime,

694
00:46:17,480 --> 00:46:20,560
Speaker 1: and that gives us a way to base sentencing on

695
00:46:20,640 --> 00:46:23,480
Speaker 1: the individual. Some people will need to be taken off

696
00:46:23,520 --> 00:46:26,640
Speaker 1: the streets for a longer time, even a lifetime, because

697
00:46:26,640 --> 00:46:30,839
Speaker 1: their likelihood of reoffense is high. Others, because of differences

698
00:46:30,880 --> 00:46:34,880
Speaker 1: in neural constitution, are less likely to recitivate, and so

699
00:46:34,920 --> 00:46:38,680
Speaker 1: they can be released sooner. Now, if this sounds strange,

700
00:46:38,800 --> 00:46:41,840
Speaker 1: keep in mind that the law is already forward looking

701
00:46:41,880 --> 00:46:46,400
Speaker 1: in some respects. Think about a crime of passion versus

702
00:46:46,480 --> 00:46:50,640
Speaker 1: a premeditated murderer. You know, a woman murders her husband

703
00:46:50,640 --> 00:46:53,400
Speaker 1: when she finds him in bed with a lover, versus

704
00:46:53,840 --> 00:46:57,239
Speaker 1: a woman who plots out and murders her husband for

705
00:46:57,280 --> 00:47:00,720
Speaker 1: his life. Insurance courts tend to be more more lenient

706
00:47:00,880 --> 00:47:04,920
Speaker 1: on crimes of passion. Why. It's because those who commit

707
00:47:05,000 --> 00:47:09,400
Speaker 1: a crime of passion are less likely to recidibate to

708
00:47:09,480 --> 00:47:15,279
Speaker 1: reoffend than those who are premeditated, and they're sentencing reflects that.

709
00:47:15,920 --> 00:47:18,839
Speaker 1: And in the same way, most legal systems draw a

710
00:47:18,960 --> 00:47:23,080
Speaker 1: bright line between criminal acts committed by people under eighteen

711
00:47:23,560 --> 00:47:27,960
Speaker 1: minors and crimes by adults, and they punish adults much

712
00:47:27,960 --> 00:47:31,560
Speaker 1: more harshly. The approach of putting this dividing line at

713
00:47:31,640 --> 00:47:36,239
Speaker 1: your eighteenth birthday is arbitrary and not terribly specific, but

714
00:47:36,320 --> 00:47:41,839
Speaker 1: the intuition behind it makes sense. Adolescents have fewer skills

715
00:47:41,920 --> 00:47:45,719
Speaker 1: in decision making and impulse control than adults do. A

716
00:47:45,800 --> 00:47:49,240
Speaker 1: teenager's brain just doesn't like an adult's brain, so lighter

717
00:47:49,320 --> 00:47:54,000
Speaker 1: sentences are appropriate for those whose impulse control is likely

718
00:47:54,080 --> 00:47:58,799
Speaker 1: to improve naturally as adolescence gives way to adulthood. So

719
00:47:58,880 --> 00:48:01,239
Speaker 1: what would it look like if we could expand on

720
00:48:01,320 --> 00:48:06,080
Speaker 1: these intuitions and elevate things into a more scientific approach

721
00:48:06,440 --> 00:48:10,759
Speaker 1: to sentencing. In some cases, this is already happening. So

722
00:48:10,880 --> 00:48:15,960
Speaker 1: take this sentencing of sex offenders. Some years ago, researchers

723
00:48:16,360 --> 00:48:22,160
Speaker 1: asked psychiatrists and parole board members how likely specific sex

724
00:48:22,160 --> 00:48:25,720
Speaker 1: offenders were to relapse when they were let out of prison.

725
00:48:26,120 --> 00:48:29,040
Speaker 1: So both groups, the psychiatrists and the parole board members,

726
00:48:29,280 --> 00:48:33,239
Speaker 1: had lots of experience with these particular sex offenders, so

727
00:48:33,640 --> 00:48:36,319
Speaker 1: predicting who was getting on the right road and who

728
00:48:36,360 --> 00:48:39,839
Speaker 1: was going to be coming back to prison seemed pretty straightforward.

729
00:48:40,239 --> 00:48:46,680
Speaker 1: But surprisingly, these expert guesses showed almost no correlation with

730
00:48:46,719 --> 00:48:51,600
Speaker 1: the actual outcomes. The experts had only slightly better accuracy

731
00:48:51,680 --> 00:48:56,800
Speaker 1: at predicting than coin flippers, so this astounded the legal community.

732
00:48:57,280 --> 00:49:00,239
Speaker 1: So the researchers tried something a little more like how

733
00:49:00,320 --> 00:49:05,760
Speaker 1: life insurance companies do things using statistics. The researchers gathered

734
00:49:05,760 --> 00:49:09,200
Speaker 1: a huge cloud of data from twenty three thousand sex

735
00:49:09,200 --> 00:49:12,400
Speaker 1: offenders who had been released. They looked at whether the

736
00:49:12,440 --> 00:49:16,440
Speaker 1: offender had unstable employment, had been sexually abused as a child,

737
00:49:16,719 --> 00:49:20,920
Speaker 1: was addicted to drugs, showed remorse, had deviant sexual interests,

738
00:49:21,000 --> 00:49:24,160
Speaker 1: on and on. And on. The researchers then tracked them

739
00:49:24,160 --> 00:49:27,920
Speaker 1: for five years after release to see who wound up

740
00:49:27,960 --> 00:49:30,080
Speaker 1: back in prison, and at the end of the study

741
00:49:30,080 --> 00:49:35,680
Speaker 1: they computed which factors best explained the reoffense rates, and

742
00:49:35,760 --> 00:49:39,200
Speaker 1: from this they were able to build statistical models also

743
00:49:39,239 --> 00:49:45,120
Speaker 1: called actuarial tables to use in sentencing. So when researchers

744
00:49:45,160 --> 00:49:49,719
Speaker 1: compared the predictive power of the actuarial approach with that

745
00:49:50,000 --> 00:49:53,960
Speaker 1: of the psychiatrists and prol boards, there was no contest.

746
00:49:54,520 --> 00:49:59,400
Speaker 1: It turns out, perhaps not surprisingly, that numbers beat intuition,

747
00:50:00,560 --> 00:50:04,080
Speaker 1: so in courtrooms across the nation, these actuarial tests are

748
00:50:04,120 --> 00:50:08,040
Speaker 1: now used in pre sentencing to dial the length of

749
00:50:08,239 --> 00:50:11,680
Speaker 1: prison terms. Not everyone is getting exactly the same length

750
00:50:11,719 --> 00:50:14,600
Speaker 1: of sentencing. As a side note, the way to make

751
00:50:14,640 --> 00:50:17,920
Speaker 1: a system like this immune to government abuse is to

752
00:50:17,960 --> 00:50:20,719
Speaker 1: make the data and equations that compose the sentence and

753
00:50:20,760 --> 00:50:26,200
Speaker 1: guidelines transparent and available online for anyone to verify. Now,

754
00:50:26,239 --> 00:50:28,359
Speaker 1: I need to make it clear that we're never going

755
00:50:28,440 --> 00:50:31,759
Speaker 1: to know with certainty what someone's going to do when

756
00:50:31,760 --> 00:50:35,560
Speaker 1: they get released from prison, because real life is complicated

757
00:50:35,880 --> 00:50:38,680
Speaker 1: and crime often depends on the context that someone finds

758
00:50:38,719 --> 00:50:43,160
Speaker 1: themselves in, and an approach like this offers individualized tailoring

759
00:50:43,640 --> 00:50:47,000
Speaker 1: in place of the blunt guidelines that the legal system

760
00:50:47,040 --> 00:50:51,520
Speaker 1: typically employs where everyone gets the same sentence. And beyond

761
00:50:51,640 --> 00:50:57,400
Speaker 1: customized sentencing, a forward thinking legal system informed by scientific

762
00:50:57,440 --> 00:51:00,720
Speaker 1: insights is going to allow us to stop reading prison

763
00:51:00,880 --> 00:51:03,840
Speaker 1: as the one size fits all solution. To be clear,

764
00:51:03,960 --> 00:51:08,080
Speaker 1: I'm not opposed to incarceration. It has several purposes, including

765
00:51:08,440 --> 00:51:12,680
Speaker 1: removing dangerous people from the streets, and just the prospect

766
00:51:12,719 --> 00:51:16,560
Speaker 1: of going to jail deters some amount of would be crimes.

767
00:51:16,880 --> 00:51:20,520
Speaker 1: But deterrence only works for certain brains in the population.

768
00:51:21,040 --> 00:51:23,960
Speaker 1: I mentioned that prisons have become our de facto mental

769
00:51:23,960 --> 00:51:28,800
Speaker 1: health care institutions, and inflicting punishment on the mentally ill

770
00:51:29,560 --> 00:51:33,360
Speaker 1: usually has little to no influence on their future behavior.

771
00:51:34,200 --> 00:51:38,840
Speaker 1: So an encouraging trend is the establishment of mental health

772
00:51:38,880 --> 00:51:42,840
Speaker 1: courts around the nation. These are specialized courts where you

773
00:51:42,880 --> 00:51:47,719
Speaker 1: have judges and juries with expertise in mental illness, and

774
00:51:47,800 --> 00:51:51,759
Speaker 1: people with mental illness can be helped while being confined

775
00:51:52,120 --> 00:51:55,040
Speaker 1: in a tailored environment. There are many cities that are

776
00:51:55,040 --> 00:51:58,240
Speaker 1: moving to this sort of specialized court system for reasons

777
00:51:58,239 --> 00:52:04,120
Speaker 1: of justice and cost effectiveness and general efficacy and Similarly,

778
00:52:04,239 --> 00:52:08,040
Speaker 1: there are lots of jurisdictions that are opening specialized drug

779
00:52:08,120 --> 00:52:13,120
Speaker 1: courts and developing alternative sentences. They've realized that prisons are

780
00:52:13,160 --> 00:52:18,080
Speaker 1: not that useful for solving addictions as compared to let's say,

781
00:52:18,400 --> 00:52:22,919
Speaker 1: a meaningful drug rehabilitation program. And this is the other

782
00:52:22,960 --> 00:52:25,799
Speaker 1: big benefit of a forward looking legal system is the

783
00:52:25,840 --> 00:52:33,520
Speaker 1: ability to parlay biological understanding into customized rehab viewing criminal

784
00:52:33,560 --> 00:52:37,239
Speaker 1: behavior the way that we understand other medical conditions like

785
00:52:37,320 --> 00:52:42,239
Speaker 1: epilepsy or schizophrenia or depression, conditions that now allow the

786
00:52:42,320 --> 00:52:45,240
Speaker 1: seeking and giving of help, and so we can seek

787
00:52:45,360 --> 00:52:50,200
Speaker 1: rehabilitative strategies for people in all sorts of circumstances instead

788
00:52:50,239 --> 00:52:56,200
Speaker 1: of imagining that incarceration is the optimal solution. So let's

789
00:52:56,239 --> 00:53:00,000
Speaker 1: wrap up. Along any axis that we use to measure

790
00:53:00,200 --> 00:53:04,479
Speaker 1: human beings, we find a wide ranging distribution, whether in

791
00:53:04,920 --> 00:53:09,279
Speaker 1: empathy or intelligence, or impulse control or aggression. People don't

792
00:53:09,320 --> 00:53:13,319
Speaker 1: have the same brains. The variation between people, the fact

793
00:53:13,360 --> 00:53:17,720
Speaker 1: that we're not all alike gives rise to a wonderfully

794
00:53:17,760 --> 00:53:21,400
Speaker 1: diverse society, but it's a source of trouble for the

795
00:53:21,480 --> 00:53:25,480
Speaker 1: legal system because that is largely built on the premise

796
00:53:25,520 --> 00:53:30,400
Speaker 1: that everyone is the same. The idea of human equality

797
00:53:30,600 --> 00:53:34,960
Speaker 1: suggests that everyone is equally capable of controlling his impulses,

798
00:53:35,160 --> 00:53:39,719
Speaker 1: or making good decisions, or comprehending consequences. And while that

799
00:53:39,840 --> 00:53:43,759
Speaker 1: is a very charitable idea, a real look at the

800
00:53:43,840 --> 00:53:48,960
Speaker 1: data suggests otherwise. As brain science improves, we're going to

801
00:53:49,000 --> 00:53:52,680
Speaker 1: better understand the ways in which people exist along these

802
00:53:52,760 --> 00:53:57,000
Speaker 1: spectrums rather than all in one box or even in

803
00:53:57,040 --> 00:54:00,920
Speaker 1: a few simple categories. And once we take on board

804
00:54:01,360 --> 00:54:04,880
Speaker 1: that people are meaningfully different, will be better able to

805
00:54:05,400 --> 00:54:11,440
Speaker 1: tailor sentencing and rehabilitation for the individual, rather than maintain

806
00:54:11,520 --> 00:54:15,480
Speaker 1: the pretense that all brains are going to respond optimally

807
00:54:15,880 --> 00:54:20,080
Speaker 1: to identical prison sentences. Neuroscience is beginning to touch on

808
00:54:20,200 --> 00:54:23,680
Speaker 1: questions that were once only in the domain of philosophers

809
00:54:23,719 --> 00:54:28,040
Speaker 1: and psychologists, questions about how people make decisions and the

810
00:54:28,160 --> 00:54:32,040
Speaker 1: degree to which those decisions are truly free. These aren't

811
00:54:32,200 --> 00:54:36,880
Speaker 1: idle questions. Ultimately, they're going to shape the future of

812
00:54:37,000 --> 00:54:46,000
Speaker 1: legal theory and create a more biologically informed system of justice.

813
00:54:48,520 --> 00:54:52,320
Speaker 1: If you're interested in learning more, check out silaw dot

814
00:54:52,440 --> 00:54:57,000
Speaker 1: org scilaw dot org. That's my nonprofit that works at

815
00:54:57,040 --> 00:54:59,360
Speaker 1: the intersection of the brain and the law, and you

816
00:54:59,360 --> 00:55:02,440
Speaker 1: can find lots to further readings at eagleman dot com,

817
00:55:02,480 --> 00:55:06,680
Speaker 1: slash podcast, watch full video episodes, and leave comments on

818
00:55:06,719 --> 00:55:12,520
Speaker 1: YouTube at Innercosmospod. Until then, this is David Eagleman signing

819
00:55:12,520 --> 00:55:13,920
Speaker 1: off from the Inner Cosmos