Speaker 1: Why was Maurzio Gucci killed by his wife? And even
Speaker 1: though there was a good movie about it recently, what
Speaker 1: was the part of the movie that was left out?
Speaker 1: Who was Charles Whitman and what had changes in his
Speaker 1: brain have to do with him becoming a school shooter?
Speaker 1: And what does any of this have to do with
Speaker 1: Friedrich Nietzsche or guessing which sex offender is going to
Speaker 1: re offend, or the notion of culpability. Where does the
Speaker 1: study of the brain overlap with how we think about
Speaker 1: our legal system. Welcome to Inner Cosmos with me David Eagleman.
Speaker 1: I'm a neuroscientist and an author at Stanford University, and
Speaker 1: I've spent my whole career studying the intersection between how
Speaker 1: the brain works and how we experience life. In the
Speaker 1: last episode, we talked about all the ways in which
Speaker 1: your unconscious brain drives the show of what's happening in
Speaker 1: your life. We feel like we make free decisions, that
Speaker 1: we have free will, but it turns out that your actions,
Speaker 1: your beliefs, who you are, these are all driven by
Speaker 1: mechanisms well below the access level of your conscious mind.
Speaker 1: So given that foundation, we're now going to explore what
Speaker 1: this means for us on a societal level. Today, we're
Speaker 1: going to talk about the intersection of brain science, which
Speaker 1: is playing out in labs all over the world, and
Speaker 1: the legal system, which plays out on streets and courthouses
Speaker 1: all around the world. These are usually thought of as
Speaker 1: separate issues, but in fact they are inseparable. What happened
Speaker 1: when someone commits a crime and it might have something
Speaker 1: to do with a disease or defect in their brain,
Speaker 1: do we punish them differently? We can't just let them
Speaker 1: off the hook, right, because the job of the legal
Speaker 1: system is to keep everyone safe. So what is the
Speaker 1: right thing to do here? So today I'm going to
Speaker 1: give you the argument why we can't keep pretending like
Speaker 1: everyone is exactly the same on the inside and that
Speaker 1: we all act from our own free will, because modern
Speaker 1: neuroscience suggests these are bad assumptions. So let's dive into
Speaker 1: the inner cosmos. When you look at neuroscience labs on
Speaker 1: any campus all over the planet, you find entire labs
Speaker 1: devoted to studying the brain at the level of the
Speaker 1: human genome, or studying the incredibly precise orchestra of molecules
Speaker 1: that dance around the genome. Or other labs that study
Speaker 1: the cascades of signals that pervade as sell and go
Speaker 1: all the way to the membranes and can get excreted
Speaker 1: and so on. Or you can devote an entire lab
Speaker 1: to understanding the behavior of individual neurons, which are like
Speaker 1: their own little animals with their own personalities. Or you
Speaker 1: can study giant networks of neurons and how information flows
Speaker 1: in those networks, and how those are changed by chemicals,
Speaker 1: by what you eat, your environment and your society, your religion,
Speaker 1: your culture. All these are different aspects of neuroscience. Now,
Speaker 1: my personal interest has always been in studying all these
Speaker 1: levels and trying to understand how they map onto our behavior,
Speaker 1: our perception, our reality. As I worked to demonstrate in
Speaker 1: the last episode, you are built out of this alien
Speaker 1: computational material. You are not separate from your brain. So
Speaker 1: what I want to do now is give you three
Speaker 1: examples to illustrate this point. Some of you will be
Speaker 1: familiar with the story of a young man who had
Speaker 1: a terrible accident that taught the world a lot about
Speaker 1: how your brain maps onto who you are. This young
Speaker 1: man was named Phineas Gage, and in eighteen forty eight
Speaker 1: he was working with a crew on a railroad near Cavendish, Vermont,
Speaker 1: and the way the land was cleared to build the
Speaker 1: railroad was by a series of explosions. So the way
Speaker 1: this would work is one guy would dig small holes,
Speaker 1: and then a second guy would fill those holes with gunpowder,
Speaker 1: and another guy would put sand on top of the gunpowder,
Speaker 1: and then Phineas Gauge would go around and tamp down
Speaker 1: the sand on top with a big metal rod called
Speaker 1: a tamping rod. So one day, the guy ahead of
Speaker 1: him forgot to put the sand on top of the
Speaker 1: gunpowder in one of these holes, and Phineas didn't notice that,
Speaker 1: and so when he pounded the tamping rod into the hole,
Speaker 1: the metal rod hit a rock and caused a spark,
Speaker 1: and the gunpowder exploded. And this metal tamping rod, which
Speaker 1: was about the width of a dry erase marker and
Speaker 1: almost four feet long, this exploded into his head and
Speaker 1: straight through it. It went below his chin, and it
Speaker 1: burst out the top of his skull, and this metal
Speaker 1: rod clattered to the ground eighty feet away. Now this
Speaker 1: became a very famous medical case because he didn't die,
Speaker 1: and in fact, he didn't even lose consciousness. The first
Speaker 1: doctor to arrive on the scene about thirty minutes later,
Speaker 1: wasn't even quite sure that he believed what everyone was
Speaker 1: saying had just happened. But then Phineas got up and
Speaker 1: vomited and quote a half at cupful of brain fell
Speaker 1: out on the floor. But it became a really, really
Speaker 1: famous medical case because Gauge's personality changed entirely. His friend said,
Speaker 1: he quote is no longer a Gauge. He went from
Speaker 1: a nice young man to someone who cussed and gambled
Speaker 1: and slept with sex workers. And this was an early
Speaker 1: case that started opening the door to an understanding of
Speaker 1: something massively important. And that is when your biology changes,
Speaker 1: you change. Now. I want to take as a second example,
Speaker 1: a clean cut young man named Charles Whitman. On a
Speaker 1: hot day in nineteen sixty six, Whitman climbed to the
Speaker 1: top of the tower on U T. Austin's campus and
Speaker 1: began to shoot people at random. He shot at pedestrians,
Speaker 1: he shot at the people who came to help them,
Speaker 1: He shot at the ambulance drivers that came to help them.
Speaker 1: In total, he murdered fourteen people that day and wounded
Speaker 1: thirty one. But there was a mystery about Whitman, and
Speaker 1: that is, there was nothing in particular about him that
Speaker 1: would have presaged this kind of horrific act. He had
Speaker 1: been an eagle scout, he'd been honorably discharged from the Marines.
Speaker 1: He'd come back to U T. Austin to be in
Speaker 1: the architectural engineering program. He was married, He was a
Speaker 1: good student with a high IQ. He just wasn't the
Speaker 1: type of person that you would predict for a murdering
Speaker 1: spree like this. But about a year before the tower shooting,
Speaker 1: he began to feel changes inside. He wrote about this
Speaker 1: extensively in his diary. He explained that he was not
Speaker 1: feeling like himself. He went to see a psychiatrist to
Speaker 1: express that he was feeling more and more uncontrollable anger.
Speaker 1: But this was in the nineteen sixties. There were no
Speaker 1: imaging technology available. There was little that could be done clinically. So,
Speaker 1: as it turns out, the night before the tower shooting,
Speaker 1: he murdered his wife and his mother, and then he
Speaker 1: sat down at his typewriter and he wrote a suicide note.
Speaker 1: And here's part of it quote, I do not quite
Speaker 1: understand what it is that compels me to type this letter.
Speaker 1: I do not really understand myself these days. I'm supposed
Speaker 1: to be an average, reasonable and intelligent young man. However,
Speaker 1: lately I cannot recall when it started. I have been
Speaker 1: a victim of many unusual and irrational thoughts. End quote.
Speaker 1: So he wrote in his suicide note that when this
Speaker 1: whole ordeal was over, that he wanted an autopsy to
Speaker 1: be performed to figure out what in the world was
Speaker 1: going on. And that's exactly what they did. They took
Speaker 1: his body to the coroner's office, and they used a
Speaker 1: bone saw to drill off the top of the skull,
Speaker 1: and they lifted out his brain and carefully dissected it.
Speaker 1: And what they found was a tumor pressing against a
Speaker 1: part of his brain called the amygdala, which is a
Speaker 1: small region involved in fear and aggression. Now, how do
Speaker 1: we interpret this? Not everyone who gets a tumor pressing
Speaker 1: on their amygdala becomes a murderer. Nonetheless, did it have
Speaker 1: something to do with his crime? We'll return to this
Speaker 1: sort of question many times in future episodes, because the
Speaker 1: answer isn't always obvious. After all, not everyone with a
Speaker 1: tumor in this area commits a horrific crime. So we
Speaker 1: have to look at the timeline of his behavioral changes
Speaker 1: and the presumed timeline of his tumor, and if they're
Speaker 1: well correlated, as they were in Whitman's case, this gives
Speaker 1: us more confidence that there was a connection. But for
Speaker 1: today's purposes, we can say that Whitman's tumor may well
Speaker 1: have had something to do with his drastic personality changes,
Speaker 1: for the same reason that Phineas Gage's more obvious camping
Speaker 1: rod had something to do with his personality changes. When
Speaker 1: your brain changes, so do you. So let's expose a
Speaker 1: few more examples like this, and then we're going to
Speaker 1: circle back around to the big picture question about how
Speaker 1: your actions result from your biology and how that affects
Speaker 1: the way we think about culpability in the legal system.
Speaker 1: This next case was reported in the medical literature. It
Speaker 1: was a forty year old man who was married. He
Speaker 1: had a normal sexual appetite, and then he started developing
Speaker 1: an interest in pedophilia. He started collecting child pornography, and
Speaker 1: then he tried to touch his prepubescent stepdaughter who lived
Speaker 1: with him and his wife, and at that point his
Speaker 1: wife had him arrested. So while he was in jail
Speaker 1: awaiting sentencing. He started complaining of these terrible headaches and
Speaker 1: they were getting worse and worse. So he was eventually
Speaker 1: taken to the doctor and a brain scan was done,
Speaker 1: and what they discovered was a massive tumor in his
Speaker 1: frontal lobes, about the size of a golf ball. So
Speaker 1: he underwent an emergency neurosurgery and they cut the tumor out,
Speaker 1: and his sexual appetites returned completely to normal. He no
Speaker 1: longer had any pedophilic urges. Now the story has an
Speaker 1: important PostScript because his wife took him back and everything
Speaker 1: was fine, But then about six months later, he started
Speaker 1: developing an interest in pedophilia again. So this time, instead
Speaker 1: of taking him to the police, his wife took him
Speaker 1: back to his neurosurgeon, and it was discovered that a
Speaker 1: part of his tumor had been missed in the surgery
Speaker 1: and the tumor was now regrowing, so they resected the
Speaker 1: tumor a second time, and his sexual behavior returned to
Speaker 1: normal again. The lesson from the sudden pedophile is the
Speaker 1: same lesson that we can take from Phineas Gage and
Speaker 1: from Charles Whitman. When your biology changes, that can change
Speaker 1: your decision making. In quite dramatic ways. And the thing
Speaker 1: we're going to return to that's important is that he
Speaker 1: didn't choose to have a brain tumor, just like Whitman
Speaker 1: didn't just like Phineas Gage didn't choose to have the
Speaker 1: tamping run through his head. Now, what we covered in
Speaker 1: the last episode is that when it comes to things
Speaker 1: like your instincts or what you find beautiful, or who
Speaker 1: you're attracted to, or your decisions in life, these things
Speaker 1: are all driven by automatic circuitry in your brain. It's
Speaker 1: not about the conscious you. It's about your unconscious brain,
Speaker 1: to which you mostly don't have any access or acquaintance.
Speaker 1: So the notion of free will, we called that into
Speaker 1: question last time. Enough of our drives are so inaccessible
Speaker 1: that free will may not exist, or if it exists,
Speaker 1: it might be a small player in the system. Now,
Speaker 1: the question of free will matters quite a bit when
Speaker 1: we turn to culpability. When a criminal stands in front
Speaker 1: of the judge's bench having recently committed a crime, the
Speaker 1: legal system wants to know whether he is blameworthy after all,
Speaker 1: whether he's fundamentally responsible for his actions. Navigates the way
Speaker 1: that we punish, for example, you might punish your child
Speaker 1: if she writes with a cran on the wall, but
Speaker 1: you wouldn't punish her if she did the same thing
Speaker 1: while sleepwalking. But why not. She's the same child with
Speaker 1: the same brain in both cases, right. The difference lies
Speaker 1: in your intuitions about free will. In one case, if
Speaker 1: she's awake, she has it. In the other case, when
Speaker 1: she's asleep, she doesn't. In one case, she's choosing to
Speaker 1: act mischievously. In the other she's an un conscious automaton.
Speaker 1: So you assign culpability in the first case and not
Speaker 1: in the second, and the legal system shares your intuition.
Speaker 1: Responsibility for your actions parallels your volitional control. If someone
Speaker 1: commits a murder while awake, he hangs. If he does
Speaker 1: so while he's sleepwalking, which has happened many times, and
Speaker 1: I'll cover this in a future episode, then he's acquitted. Similarly,
Speaker 1: if you hit someone in the face, the law cares
Speaker 1: whether you were being aggressive or you have hemibilismus, which
Speaker 1: is a disorder in which your limbs can flail wildly
Speaker 1: without warning. If you crash your car into a roadside
Speaker 1: fruit stand, the law cares whether you were driving like
Speaker 1: a maniac, or instead you were the victim of a
Speaker 1: heart attack. All these distinctions pivot on the assumption that
Speaker 1: we possess free will. Well, but do we don't We
Speaker 1: science can't yet figure out a way to say yes,
Speaker 1: we have it. Our intuition has a hard time saying no,
Speaker 1: we don't have it. But what I covered in the
Speaker 1: previous episode is that if we have any free will
Speaker 1: at all, it is a bit player because most of
Speaker 1: what we do we do unconsciously. So the question of
Speaker 1: whether we have free will or not is a tough
Speaker 1: scientific problem. But I propose that the answer to the
Speaker 1: question of free will doesn't matter for the purposes of
Speaker 1: social policy. And here's why. In the legal system, there's
Speaker 1: a defense known as an automatism. So what's an automatism.
Speaker 1: It's something that I have no conscious control over. So
Speaker 1: let's say I have that disorder that causes me to
Speaker 1: fling my arm out hemibalismus and I have no conscious
Speaker 1: input into this. It just happens. So one day I
Speaker 1: fling my arm out and I hit someone and they
Speaker 1: fall off a cliff to their death. From the point
Speaker 1: of view view of the legal system, I'm not culpable
Speaker 1: for their death because it was an automatism The conscious
Speaker 1: me was not involved. I didn't have any ill intention
Speaker 1: behind the act, or what the legal system calls mensraea,
Speaker 1: which is Latin for guilty mind. And this kind of
Speaker 1: thing comes up all the time in the courtroom. Let's
Speaker 1: say a person is driving a car and has an
Speaker 1: epileptic seizure and that causes her to steer her car
Speaker 1: into a crowd of pedestrians. The automatism defense is used
Speaker 1: when a lawyer says, look, that act was due to
Speaker 1: a biological process over which the defendant had no control.
Speaker 1: In other words, there was a guilty act, but there
Speaker 1: was not a guilty mind behind it. Okay, but wait
Speaker 1: a minute, Based on everything we've been talking about, don't
Speaker 1: these kind of biological processes describe most, or possibly all,
Speaker 1: of what is going on in our brains. Given the
Speaker 1: steering power of our genetics, of our childhood experiences, of
Speaker 1: environmental toxins or hormones, neurotransmitters, all the details of our neurocircuitry,
Speaker 1: enough of our decisions are beyond our explicit control that
Speaker 1: we are arguably not the ones in charge. So in
Speaker 1: my book Incognito, I proposed what I call the principle
Speaker 1: of sufficient automatism, and this arises simply from understanding that
Speaker 1: free will, if it exists, is only a small factor
Speaker 1: writing on top of enormous automated machinery, so small that
Speaker 1: we might be able to think about bad decision making
Speaker 1: in the same way we think about other physical processes
Speaker 1: like diabetes or lung disease. The principle of sufficient automatism
Speaker 1: says that the answer to the free will question simply
Speaker 1: doesn't matter. To put this another way, Phineas Gage or
Speaker 1: Charles Whitman or the Sudden Pedophile all share the common
Speaker 1: upshot that actions can't be considered separately from the biology
Speaker 1: of the actors. Free will is not as simple as
Speaker 1: we into it, and our confusion about it suggests that
Speaker 1: we cannot meaningfully use it as the basis of punishment decisions. Now,
Speaker 1: before I move on to the heart of the argument,
Speaker 1: I need to put to rest the concern that if
Speaker 1: we look for biological explanations about what's going on with
Speaker 1: people who commit crimes, that's going to lead to freeing
Speaker 1: criminals on the grounds that nothing is their fault. Will
Speaker 1: we still punish criminals? Yes, Letting criminals go wander the
Speaker 1: streets is not the goal of improved understanding. Biological explanation
Speaker 1: does not equal exculpation, which is letting people off the hook.
Speaker 1: Societies will always need to get bad actors off the streets.
Speaker 1: We will not abandon punishment, but we can refine the
Speaker 1: way we punish. See, in the current system, we use
Speaker 1: incarceration as a one size fits all solution. As a result,
Speaker 1: America leads the world in the percentage of our population
Speaker 1: behind bars. Not everyone knows this, but we imprison more
Speaker 1: of our population than any country in the world. Look
Speaker 1: it up if you don't believe it. Now, aside from
Speaker 1: any moral stance you might have on this, it's a
Speaker 1: problem because prison is provably criminogenic, which means that it
Speaker 1: leads to more crime. That's because when you put someone
Speaker 1: in a prison, you break their social circles, and you
Speaker 1: break their employment opportunities, and presumably you introduce them to
Speaker 1: new social circles employment opportunities. As a result, prison becomes
Speaker 1: a revolving door. Now, this is generally something that people
Speaker 1: have an intuition about, but what a lot of people
Speaker 1: don't realize is the estimate that thirty percent of the
Speaker 1: prison population has some form of mental illness. Jail has
Speaker 1: become our de facto mental healthcare system in America. We
Speaker 1: used to have mental institutions, but these were all shut
Speaker 1: down in the nineteen sixties in a process called deinstitutionalization,
Speaker 1: and the whole population flowed from there into the prison system. Now,
Speaker 1: we could reasonably have a discussion about the morality of
Speaker 1: the situation, but I just want to make a practical
Speaker 1: point that this is not a cost effective solution to
Speaker 1: dealing with mental illness in our society because it has
Speaker 1: little to no utility in solving the problem. And here's
Speaker 1: another issue. Ours are stuffed with people who have drug addictions.
Speaker 1: This began when Nixon declared the War on drugs, and
Speaker 1: since that time, our prison population has gone up eightfold.
Speaker 1: This is not the right place for us to be
Speaker 1: putting people with addiction problems. I'm not saying this is
Speaker 1: a morality play. The issue is that prison doesn't solve
Speaker 1: the problem. Addiction is a biological issue. You can't incarcerate
Speaker 1: someone and expect they're going to forget their addiction. And
Speaker 1: also there's an active drug trade in prison systems. So
Speaker 1: all this points to developing a better understanding of what's
Speaker 1: happening in brains so that we can root people through
Speaker 1: the system him in a more tailored fashion. Now I
Speaker 1: want to hit this point again, with biological explanation equal exculpation.
Speaker 1: No better insight would lead us to be able to
Speaker 1: do many things. The first is rational sentencing. We don't
Speaker 1: have to build a legal system with an emphasis on
Speaker 1: how much we punish, but instead on how to best
Speaker 1: root individuals through the system. This doesn't let people off
Speaker 1: the hook who have committed a crime, because we still
Speaker 1: need to keep our streets safe, but it does allow
Speaker 1: us to abandon the notion that all brains are the
Speaker 1: same and everyone should get the same mandated sentence, like
Speaker 1: five years for this crime. You can have lots of
Speaker 1: brains in front of a judge's bench for the exact
Speaker 1: same crime. But this one is there because he has schizophrenia,
Speaker 1: and this one is a psychopath, and this one over
Speaker 1: here is tweak down on drugs, and this one has
Speaker 1: a brain tumor, and so on. Not all brains are
Speaker 1: the same, and people can be sentenced on more individualized grounds.
Speaker 1: And one of the key components of this is the
Speaker 1: second thing. That we could have better insight on customized
Speaker 1: rehabilitation instead of imagining that jail is the one size
Speaker 1: fits all solution. We are increasingly getting more insight into
Speaker 1: what can be done for things like drug addiction, which
Speaker 1: I'll come back to. And the third thing is realistic
Speaker 1: incentive structuring, including deterrence and what kinds of punishments actually
Speaker 1: work for which kinds of people, and which ones are
Speaker 1: a waste of time that only satisfy our bloodlust but
Speaker 1: are ineffective at the societal level. Because the fact is
Speaker 1: that brains are different, and we talk about things like
Speaker 1: tailored education, why not talk about tailored social policy. So
Speaker 1: there's a real need for understanding what is happening inside
Speaker 1: different heads. It doesn't make sense for us to pretend
Speaker 1: that everyone is just like us or just like each
Speaker 1: other on the inside. And to help us think about this,
Speaker 1: here's an excerpt from Charles Whitman's suicide note. He said, quote,
Speaker 1: if my life insurance policy is valid, please pay off
Speaker 1: my debts, donate the rest anonymously to a mental health foundation.
Speaker 1: Maybe research can prevent further tragedies of this type. So
Speaker 1: some years ago, these considerations inspired me to start the
Speaker 1: Center for Science and Law, which brings together scientists and
Speaker 1: attorneys and policy makers to understand how science can refine
Speaker 1: our legal system. We tackle things like how neuroscience matters
Speaker 1: for a rational drug policy, or a better understanding of
Speaker 1: the insanity defense, or how to think about sentencing in juveniles,
Speaker 1: like what happens when someone commits a terrible crime but
Speaker 1: they're sixteen years old, and issues like eyewitness testimony and
Speaker 1: even the brain of the juror. I'm going to drop
Speaker 1: several episodes on these topics in the coming months, but
Speaker 1: for now, I want to emphasize the big picture issue,
Speaker 1: and that is what we understand and how we can
Speaker 1: move the science forward. So we know that the details
Speaker 1: of the brain map onto behavior, but it's an extraordinarily
Speaker 1: complex system, one of such complexity with its billions of
Speaker 1: neurons and trillions of connections that it bankrupts our ability
Speaker 1: to understand it. So how do we go about trying
Speaker 1: to understand the brain of someone who has committed a crime.
Speaker 1: So let's start by acknowledging that when big crimes happen,
Speaker 1: it's often the case that we don't even have a
Speaker 1: brain to examine. Lots of times person will commit a
Speaker 1: mass shooting, and then shoot themselves in the head, which
Speaker 1: renders their brain unexaminable. Or take Adam Lanza, the shooter
Speaker 1: at Sandy Hook Elementary. I remember seeing on the news
Speaker 1: that he had smashed his computer and hard drive before
Speaker 1: committing the crime, but that struck me as the least
Speaker 1: of our problems, because Lanza had committed suicide within fifteen
Speaker 1: minutes of the nine to one one call by shooting
Speaker 1: himself in the head, meaning that it wasn't just his
Speaker 1: hard drive that you couldn't get data from, but his
Speaker 1: brain as well. So the point is that we couldn't
Speaker 1: even take a swing at seeing if there was something
Speaker 1: wrong with his brain, like a tumor or a malformation
Speaker 1: that he was born with, or a stroke. And this
Speaker 1: situation is actually surprisingly common. Take the guy Joe Stack,
Speaker 1: who is mad about his taxes and so he flew
Speaker 1: his small plane into the IRS office building. Everyone hypothesized
Speaker 1: about what had gone wrong with Stack based on his
Speaker 1: suicide note and his behaviors leading up to the attack,
Speaker 1: But was there anything pathological going on in his brain?
Speaker 1: Will never know because it was destroyed in the crash.
Speaker 1: But what happens when we do have a brain to
Speaker 1: look at what can we conclude how well can we
Speaker 1: understand the details of a person's behavior when we look
Speaker 1: at their brain. Well, you've probably seen the wonderful pictures
Speaker 1: from brain imaging. There's a technology called functional magnetic resonance
Speaker 1: imaging or fMRI, and this is a technique where someone
Speaker 1: lies down in a big cylinder and we can image
Speaker 1: activity in the brain tissue through the skull. It's quite
Speaker 1: miraculous and beautiful, and I've spent a good chunk of
Speaker 1: my career publishing papers in which we use fMRI. But
Speaker 1: I want to emphasize that even this, our best technology
Speaker 1: for imaging human brains is very limited. We're not directly
Speaker 1: imaging the activity in the brain, but instead dead the
Speaker 1: blood flow, the ratio of oxygenated to deoxygenated blood, and
Speaker 1: so where the blood flow goes. That tells us that
Speaker 1: some activity was just happening there a few seconds ago.
Speaker 1: And it's not precise at the level of individual neurons,
Speaker 1: and there tends to hundreds of electrical spikes per second.
Speaker 1: But instead, all we can get from it is that
Speaker 1: there was something happening in this cluster of tens of
Speaker 1: millions of neurons at the scale of seconds. So here's
Speaker 1: an analogy to think about fMRI. Imagine that you're in
Speaker 1: a space shuttle and you're looking down on the United States.
Speaker 1: You could see big events like a major forest fire
Speaker 1: in California, but you wouldn't be able to see how
Speaker 1: the economy is going, or what fashions people are now wearing,
Speaker 1: or who won the World Cup. You can only see
Speaker 1: really big changes. And that's the same with brain imaging.
Speaker 1: We're only able to see really obvious things going on,
Speaker 1: and that puts us in a funny situation because it
Speaker 1: puts pressure on scientists and lawyers and courts to say
Speaker 1: more than they're able to. Everyone wants to see a
Speaker 1: brain scan and see if there's something different going on
Speaker 1: with this guy, but our technology most of the time
Speaker 1: doesn't allow us to do that. Now, part of the
Speaker 1: problem is that the media around us that constantly suggests
Speaker 1: that we can look at a brain scan and say
Speaker 1: something clear about someone's behavior. So I've made a little
Speaker 1: collection of Time magazine covers that drive me insane. For example,
Speaker 1: one cover shows a brain scan image with fancy colors
Speaker 1: and the title reads what makes us Good or Evil?
Speaker 1: And there's a little picture of Gandhi with an arrow
Speaker 1: to a small spot in the brain, and another picture
Speaker 1: of Adolf Hitler with an arrow to another spot. And
Speaker 1: the concern is that this gives the general population a
Speaker 1: kind of erroneous thinking that we should be able to
Speaker 1: run a brain scan and just see whether someone is
Speaker 1: good or evil. But that's impossible for technical reasons, and
Speaker 1: also because good and evil are not straightforward concepts. You
Speaker 1: can't look at activity in a particular part of the
Speaker 1: brain and say, yes, that person is evil. Friedrich Nietzschi
Speaker 1: wrote about this over one hundred years ago in his
Speaker 1: book Beyond Good and Evil, where he pointed out that
Speaker 1: the concepts of what is good and what is evil
Speaker 1: these are historically defined, and they're different in different cultures
Speaker 1: and different time periods, and they can be quite locally defined,
Speaker 1: and they can be user defined, as you know, when
Speaker 1: you get into a political argument with a family member
Speaker 1: or a coworker and you think that something is evil
Speaker 1: that they don't, or they think something is evil that
Speaker 1: you don't. Although we can typically agree on things that
Speaker 1: the extremes, there's no single right answer to what constitutes
Speaker 1: good and evil for almost everything in the middle. So
Speaker 1: importantly the relationship between a person's brain and their behavior
Speaker 1: can generally be totally opaque, totally impossible to read, as in,
Speaker 1: perhaps you have a tumor in part of your brain,
Speaker 1: or you've had traumatic brain injury or a stroke that
Speaker 1: damaged part of the tissue in your brain, But is
Speaker 1: that actually the reason you committed a crime or did
Speaker 1: you do it because you would have done it anyway.
Speaker 1: Take the movie House of Gucci. This is about Patricia
Speaker 1: Reggiani played by Lady Gaga, who marries Marizio Gucci, who
Speaker 1: is the heir to the Gucci fashion fortune. So she's
Speaker 1: twenty two. She meets Marizio Gucci at a party. Two
Speaker 1: years later, they marry, they have two daughters. It seems
Speaker 1: to everyone around them like it's a fairy tale. But
Speaker 1: a few years later, Rizzio separates from her so that
Speaker 1: he can date a model, and things turn really sour
Speaker 1: with Patricia. She starts stalking him, she plants spies around him,
Speaker 1: she keeps calling and threatening to kill him, and then
Speaker 1: one day, as Rizio Gucci is walking through the lobby
Speaker 1: of an office building, he gets shot by a hitman
Speaker 1: and dies, and the day he's killed, Patricia writes paradise
Speaker 1: in her diary. Now, given her hatred of Rizio, Patricia
Speaker 1: immediately becomes a suspect and soon enough the evidence clearly
Speaker 1: points to her as the hand behind the hitman. And
Speaker 1: it goes to court and Reggiani is charged with murder,
Speaker 1: along with her psychic and the hitman and the getaway
Speaker 1: car driver, and she gets sentenced to twenty six years
Speaker 1: in San Vettore prison for having ordered the killing. So
Speaker 1: this is a wild true story and it made a
Speaker 1: good movie. But the most fascinating part picks up where
Speaker 1: the movie ends. So the real life twist is that
Speaker 1: after she went to prison, Patricia's legal team campaigned for
Speaker 1: a retrial. They argued that Patricia was not in control
Speaker 1: of her mental faculties during the murder. Why because she
Speaker 1: had undergone surgery to remove a brain tumor some years before,
Speaker 1: and they argued this surgery had affected her ability to
Speaker 1: be in command of her mental faculties. It wasn't precisely
Speaker 1: her fault, they argued, it was the fault of the
Speaker 1: tumor and the brain surgery. Now, how should a court
Speaker 1: assess this? After all, she famously hated him, and she
Speaker 1: always talked about how unhappy she was and how much
Speaker 1: she wanted to kill him. So her argument about the
Speaker 1: brain surgery only partially convinced the court. It didn't change
Speaker 1: much of anything materially. So what I want to illustrate
Speaker 1: here is the complexity of looking for easy the answers.
Speaker 1: Did her small tumor that was removed have something to
Speaker 1: do with her crime? Or was it totally incidental to
Speaker 1: the crime? In other words, having nothing to do with it.
Speaker 1: A biological problem doesn't necessarily tell you a clear story
Speaker 1: about the interpretation of a crime, and this difficulty in
Speaker 1: interpretation comes up in all sorts of guyses in the courtroom.
Speaker 1: Take concussion or a traumatic brain injury. If someone robs
Speaker 1: a store, how do we know it had anything to
Speaker 1: do with the concussion. Maybe this was the kind of
Speaker 1: guy who is always headed for trouble anyway. Maybe he's
Speaker 1: been doing this kind of antisocial behavior since elementary school.
Speaker 1: Everyone knew this guy was trouble, and then two years
Speaker 1: ago he hit his head hard, and everyone agrees that
Speaker 1: was a bad thing. But now his lawyer argues that
Speaker 1: his crime resulted from the traumatic brain injury. Maybe it's
Speaker 1: a slightly worse crime. As a result. But maybe he's
Speaker 1: just graduated to the next level as a criminal. It's
Speaker 1: hard to know, and there's no brain scan that can
Speaker 1: magically tell you the answer, because his behavior also results
Speaker 1: from everything else in his life, his circumstances, his group
Speaker 1: of friends, all the details of his decision making. So
Speaker 1: just knowing that someone had a brain injury tells us
Speaker 1: very little about the details of why they committed a crime.
Speaker 1: And the flip side is true too. Somebody might commit
Speaker 1: a horrific crime and their brain looks totally normal. So
Speaker 1: take the Las Vegas shooter Stephen Paddock in twenty seventeen.
Speaker 1: He smashed out the window of his hotel room at
Speaker 1: the Mandola Bay where he'd been stockpiling arms, and he
Speaker 1: started shooting at the people below and an outdoor concert,
Speaker 1: and he murdered sixty people, and he injured about eight
Speaker 1: hundred and sixty seven. This way in the deadliest mass
Speaker 1: shooting in the United States. So at the time, I
Speaker 1: wrote an article on CNN about what might be wrong
Speaker 1: with his brain, and I was careful to end it
Speaker 1: by saying, look, there might be nothing that's obviously wrong
Speaker 1: with his brain, so we may never have anything that
Speaker 1: we can conclude here. His brain was sent over here
Speaker 1: to Stanford to my neuropathology colleague in the medical school,
Speaker 1: who did an analysis and concluded nothing. He couldn't find
Speaker 1: anything that was obviously wrong with Paddock's brain. There was
Speaker 1: no giant tumor or giant stroke, or a neurodegenerative disorder
Speaker 1: or anything like that. So I've just told you a
Speaker 1: number of things, and I want to pull these all
Speaker 1: back together in the question of what does this mean
Speaker 1: for the notion of culpability. Well, there are several points
Speaker 1: of view we could take here. One view proposed by
Speaker 1: the neurophysiologist Well Singer goes like this. He says, quote,
Speaker 1: as long as we can't identify all the causes, which
Speaker 1: we cannot and probably never will be able to do,
Speaker 1: we should grant that for everybody there is a neurobiological
Speaker 1: reason for being abnormal end quote. In other words, in
Speaker 1: Singer's view, the act of committing a crime is all
Speaker 1: the evidence we need for a brain abnormality, whether or
Speaker 1: not we can see it, whether or not it's obvious.
Speaker 1: Some years ago, there was a biologist at the University
Speaker 1: of Alabama and Huntsville named doctor Amy Bishop, and she
Speaker 1: was denied tenure, which means the university declined to give
Speaker 1: her a permanent position. And the next week there was
Speaker 1: a routine faculty meeting in the biology department and she
Speaker 1: stood up with a nine millimeter Ruger handgun and began
Speaker 1: shooting the other faculty members one by one in the head. So,
Speaker 1: speaking to the media, Amy Bishop's defense attorney, Roy Miller said, quote,
Speaker 1: I think the case speaks for itself. I think she's wacko.
Speaker 1: End quote. Now this was her defense attorney, so this
Speaker 1: might not sound like a very good defense, but essentially
Speaker 1: her attorney was taking Wolf Singer's position that the act
Speaker 1: of committing the crime was all the evidence we need
Speaker 1: for a brain abnormality, and that's why he said the
Speaker 1: case speaks for itself. So I've planted a bunch of
Speaker 1: question marks here, and now I want to come back
Speaker 1: around to the main question. What does all this add
Speaker 1: up to for our notion of culpability. Well, think of
Speaker 1: culpability as lying on a spectrum with phineas gauge all
Speaker 1: the way at one end where we say, look, it's
Speaker 1: not really your fault, and next to him, maybe the
Speaker 1: sudden pedophile with the brain tumor. We look at them
Speaker 1: and we say, your, poor guys, you didn't choose that.
Speaker 1: You didn't ask to get a tamping rod through your
Speaker 1: head or to grow a prefrontal brain tumor. So any
Speaker 1: changes in personality or decision making can't really be your fault.
Speaker 1: It's just a matter of your biology. Now, as we
Speaker 1: move along this line towards the center, we come to
Speaker 1: cases that clearly have to do with the brain, but
Speaker 1: they're not quite as easy to interpret. So in the
Speaker 1: last episode, I talked about Chris Benoit, the Worldwide Wrestling
Speaker 1: Federation champion, who conspired with his physician to take huge
Speaker 1: quantities of testosterone and that sent him on roid rages,
Speaker 1: and he ended up killing his wife and his son.
Speaker 1: So that has to do with his biology. But maybe
Speaker 1: it's not so easy for us to say, well, it's
Speaker 1: not exactly your fault. Or we find Amy Bishop, the
Speaker 1: biologist who killed her colleagues, and we think something is
Speaker 1: wrong with her, but we can't quite identify what. And
Speaker 1: then at the far other end of the spectrum, we
Speaker 1: find your average criminals sitting in a jail cell nobody's
Speaker 1: studying his brain. And even if someone were our current
Speaker 1: technology probably wouldn't be able to say much anyway. The
Speaker 1: overwhelming majority of lawbreakers are over on this side of
Speaker 1: the line, and even if we spent millions of dollars
Speaker 1: and did brain scans on all of them, almost all
Speaker 1: of them wouldn't have any obvious measurable biological problems, and
Speaker 1: so as a result, the legal system thinks of them
Speaker 1: as freely choosing actors. This spectrum, from Phineas Gage to
Speaker 1: the common criminal captures the common intuition that juries have
Speaker 1: regarding blameworthiness, where at one end we say it's not
Speaker 1: your fault, and the other end we say it is
Speaker 1: your fault. But there's a deep problem with this intuition,
Speaker 1: which is that our technology draws a line on the spectrum,
Speaker 1: and on one side of this line we say, hey,
Speaker 1: we can measure something, so it's not your fault, and
Speaker 1: on the other side we say, look, we can't really
Speaker 1: measure anything and point to something, so we're to say
Speaker 1: it is your fault. The problem is that technology will
Speaker 1: continue to improve, and as we grow better at measuring
Speaker 1: problems in the brain, the line that separates the not
Speaker 1: blame worthy side from the blame worthy side, it will
Speaker 1: continue to move such that people who we now hold
Speaker 1: fully accountable for their crimes will someday be understood to
Speaker 1: have whatever. The next level of technology is going to
Speaker 1: teach us that, for example, they have Schmedley's disorder and
Speaker 1: couldn't control their behavior. Problems that are opaque to us
Speaker 1: today will open their flower pedals to new techniques, and
Speaker 1: in one hundred years we're likely to find that many
Speaker 1: types of behavior have a basic biological explanation, as we've
Speaker 1: already found with schizophrenia or epilepsy, or depression or mania
Speaker 1: and so on. In other words, today's neuroimaging is a
Speaker 1: crude technology. It's not able to explain the details of
Speaker 1: individual behavior. We can only detect large scale problems. But
Speaker 1: within the coming decades we will be able to detect
Speaker 1: patterns that unimaginably small levels of the microcircuitry that correlate
Speaker 1: with behavioral problems, and neuroscience will be better able to
Speaker 1: say why people are predisposed to act the way they do.
Speaker 1: And as we become more skilled at specifying how behavior
Speaker 1: results from the microscopic details of the brain, more defense
Speaker 1: lawyers will point to biological mitigators of guilt, and more
Speaker 1: juries will place defendants on the not blameworthy side of
Speaker 1: the line. Now, all of this puts us in a
Speaker 1: strange situation, because, after all, a just legal system can't
Speaker 1: define culpability simply by the limitations of current technology. A
Speaker 1: legal system that declares a person culpable at the beginning
Speaker 1: of a decade and not culpable at the end is
Speaker 1: one in which culpability carries no clear meaning. The crux
Speaker 1: of the problem is that it no longer makes sense
Speaker 1: to ask to what extent was this crime committed because
Speaker 1: of his biology? And to what extent was it committed
Speaker 1: because of him? Because there is no meaningful distinction between
Speaker 1: a person's biology and his decision making. They are inseparable.
Speaker 1: A system of blameworthiness that depends on the technology of
Speaker 1: the day can't represent real justice. The whole notion of
Speaker 1: blameworthiness is a concept that demands the impossible task of
Speaker 1: untangling the hopelessly complex web of genetics, an environment that
Speaker 1: constructs the trajectory of a human life. So our current
Speaker 1: approach to punishment rests on a bedrock of personal volition
Speaker 1: and blame, But our modern understanding of the brain suggests
Speaker 1: a different approach. My suggestion for a number of years
Speaker 1: now has been that blameworthiness should be removed from the
Speaker 1: way we talk about things in the legal system. Blameworthiness
Speaker 1: is a concept that looks back and demands the impossible
Speaker 1: task of figuring out how a brain came into its
Speaker 1: current form. But instead of debating culpability, I suggest our
Speaker 1: effort should be to focus on what to do moving
Speaker 1: forward with an accused law breaker. The legal system has
Speaker 1: to become forward looking, primarily because it can't continue much
Speaker 1: longer pretending that it can do Otherwise, because as we
Speaker 1: come to know more and more about the brain and
Speaker 1: science continues to complexify the question of culpability, our legal
Speaker 1: and social policy is going to have to shift to
Speaker 1: a different set of questions. How is this person likely
Speaker 1: to behave in the future, Our criminal actions likely to
Speaker 1: be repeated? Can this person be helped towards pro social behavior?
Speaker 1: How can incentives be realistically structured to deter crime? The
Speaker 1: important change is going to be in the way we
Speaker 1: respond to the vast range of criminal acts. Consider as
Speaker 1: an example that the vast majority of known serial killers
Speaker 1: were abused as children. Does this make them less blameworthy
Speaker 1: it's actually the wrong question to ask. The knowledge that
Speaker 1: they were abused encourages us to build social programs to
Speaker 1: prevent child abuse, but it does nothing to change the
Speaker 1: way that we deal with the particular murderer standing in
Speaker 1: front of the bench. We still need to keep him
Speaker 1: off the streets, irrespective of his past misfortunes. The child
Speaker 1: abuse can't serve as a reason to let him go.
Speaker 1: The judge has to keep society safe, so people who
Speaker 1: break social contracts need to be confined. But in this framework,
Speaker 1: the future is equally as important as the past. So
Speaker 1: deeper biological insight into behavior is going to give us
Speaker 1: a better understanding of recidivism, that is recommitting of crime,
Speaker 1: and that gives us a way to base sentencing on
Speaker 1: the individual. Some people will need to be taken off
Speaker 1: the streets for a longer time, even a lifetime, because
Speaker 1: their likelihood of reoffense is high. Others, because of differences
Speaker 1: in neural constitution, are less likely to recitivate, and so
Speaker 1: they can be released sooner. Now, if this sounds strange,
Speaker 1: keep in mind that the law is already forward looking
Speaker 1: in some respects. Think about a crime of passion versus
Speaker 1: a premeditated murderer. You know, a woman murders her husband
Speaker 1: when she finds him in bed with a lover, versus
Speaker 1: a woman who plots out and murders her husband for
Speaker 1: his life. Insurance courts tend to be more more lenient
Speaker 1: on crimes of passion. Why. It's because those who commit
Speaker 1: a crime of passion are less likely to recidibate to
Speaker 1: reoffend than those who are premeditated, and they're sentencing reflects that.
Speaker 1: And in the same way, most legal systems draw a
Speaker 1: bright line between criminal acts committed by people under eighteen
Speaker 1: minors and crimes by adults, and they punish adults much
Speaker 1: more harshly. The approach of putting this dividing line at
Speaker 1: your eighteenth birthday is arbitrary and not terribly specific, but
Speaker 1: the intuition behind it makes sense. Adolescents have fewer skills
Speaker 1: in decision making and impulse control than adults do. A
Speaker 1: teenager's brain just doesn't like an adult's brain, so lighter
Speaker 1: sentences are appropriate for those whose impulse control is likely
Speaker 1: to improve naturally as adolescence gives way to adulthood. So
Speaker 1: what would it look like if we could expand on
Speaker 1: these intuitions and elevate things into a more scientific approach
Speaker 1: to sentencing. In some cases, this is already happening. So
Speaker 1: take this sentencing of sex offenders. Some years ago, researchers
Speaker 1: asked psychiatrists and parole board members how likely specific sex
Speaker 1: offenders were to relapse when they were let out of prison.
Speaker 1: So both groups, the psychiatrists and the parole board members,
Speaker 1: had lots of experience with these particular sex offenders, so
Speaker 1: predicting who was getting on the right road and who
Speaker 1: was going to be coming back to prison seemed pretty straightforward.
Speaker 1: But surprisingly, these expert guesses showed almost no correlation with
Speaker 1: the actual outcomes. The experts had only slightly better accuracy
Speaker 1: at predicting than coin flippers, so this astounded the legal community.
Speaker 1: So the researchers tried something a little more like how
Speaker 1: life insurance companies do things using statistics. The researchers gathered
Speaker 1: a huge cloud of data from twenty three thousand sex
Speaker 1: offenders who had been released. They looked at whether the
Speaker 1: offender had unstable employment, had been sexually abused as a child,
Speaker 1: was addicted to drugs, showed remorse, had deviant sexual interests,
Speaker 1: on and on. And on. The researchers then tracked them
Speaker 1: for five years after release to see who wound up
Speaker 1: back in prison, and at the end of the study
Speaker 1: they computed which factors best explained the reoffense rates, and
Speaker 1: from this they were able to build statistical models also
Speaker 1: called actuarial tables to use in sentencing. So when researchers
Speaker 1: compared the predictive power of the actuarial approach with that
Speaker 1: of the psychiatrists and prol boards, there was no contest.
Speaker 1: It turns out, perhaps not surprisingly, that numbers beat intuition,
Speaker 1: so in courtrooms across the nation, these actuarial tests are
Speaker 1: now used in pre sentencing to dial the length of
Speaker 1: prison terms. Not everyone is getting exactly the same length
Speaker 1: of sentencing. As a side note, the way to make
Speaker 1: a system like this immune to government abuse is to
Speaker 1: make the data and equations that compose the sentence and
Speaker 1: guidelines transparent and available online for anyone to verify. Now,
Speaker 1: I need to make it clear that we're never going
Speaker 1: to know with certainty what someone's going to do when
Speaker 1: they get released from prison, because real life is complicated
Speaker 1: and crime often depends on the context that someone finds
Speaker 1: themselves in, and an approach like this offers individualized tailoring
Speaker 1: in place of the blunt guidelines that the legal system
Speaker 1: typically employs where everyone gets the same sentence. And beyond
Speaker 1: customized sentencing, a forward thinking legal system informed by scientific
Speaker 1: insights is going to allow us to stop reading prison
Speaker 1: as the one size fits all solution. To be clear,
Speaker 1: I'm not opposed to incarceration. It has several purposes, including
Speaker 1: removing dangerous people from the streets, and just the prospect
Speaker 1: of going to jail deters some amount of would be crimes.
Speaker 1: But deterrence only works for certain brains in the population.
Speaker 1: I mentioned that prisons have become our de facto mental
Speaker 1: health care institutions, and inflicting punishment on the mentally ill
Speaker 1: usually has little to no influence on their future behavior.
Speaker 1: So an encouraging trend is the establishment of mental health
Speaker 1: courts around the nation. These are specialized courts where you
Speaker 1: have judges and juries with expertise in mental illness, and
Speaker 1: people with mental illness can be helped while being confined
Speaker 1: in a tailored environment. There are many cities that are
Speaker 1: moving to this sort of specialized court system for reasons
Speaker 1: of justice and cost effectiveness and general efficacy and Similarly,
Speaker 1: there are lots of jurisdictions that are opening specialized drug
Speaker 1: courts and developing alternative sentences. They've realized that prisons are
Speaker 1: not that useful for solving addictions as compared to let's say,
Speaker 1: a meaningful drug rehabilitation program. And this is the other
Speaker 1: big benefit of a forward looking legal system is the
Speaker 1: ability to parlay biological understanding into customized rehab viewing criminal
Speaker 1: behavior the way that we understand other medical conditions like
Speaker 1: epilepsy or schizophrenia or depression, conditions that now allow the
Speaker 1: seeking and giving of help, and so we can seek
Speaker 1: rehabilitative strategies for people in all sorts of circumstances instead
Speaker 1: of imagining that incarceration is the optimal solution. So let's
Speaker 1: wrap up. Along any axis that we use to measure
Speaker 1: human beings, we find a wide ranging distribution, whether in
Speaker 1: empathy or intelligence, or impulse control or aggression. People don't
Speaker 1: have the same brains. The variation between people, the fact
Speaker 1: that we're not all alike gives rise to a wonderfully
Speaker 1: diverse society, but it's a source of trouble for the
Speaker 1: legal system because that is largely built on the premise
Speaker 1: that everyone is the same. The idea of human equality
Speaker 1: suggests that everyone is equally capable of controlling his impulses,
Speaker 1: or making good decisions, or comprehending consequences. And while that
Speaker 1: is a very charitable idea, a real look at the
Speaker 1: data suggests otherwise. As brain science improves, we're going to
Speaker 1: better understand the ways in which people exist along these
Speaker 1: spectrums rather than all in one box or even in
Speaker 1: a few simple categories. And once we take on board
Speaker 1: that people are meaningfully different, will be better able to
Speaker 1: tailor sentencing and rehabilitation for the individual, rather than maintain
Speaker 1: the pretense that all brains are going to respond optimally
Speaker 1: to identical prison sentences. Neuroscience is beginning to touch on
Speaker 1: questions that were once only in the domain of philosophers
Speaker 1: and psychologists, questions about how people make decisions and the
Speaker 1: degree to which those decisions are truly free. These aren't
Speaker 1: idle questions. Ultimately, they're going to shape the future of
Speaker 1: legal theory and create a more biologically informed system of justice.
Speaker 1: If you're interested in learning more, check out silaw dot
Speaker 1: org scilaw dot org. That's my nonprofit that works at
Speaker 1: the intersection of the brain and the law, and you
Speaker 1: can find lots to further readings at eagleman dot com,
Speaker 1: slash podcast, watch full video episodes, and leave comments on
Speaker 1: YouTube at Innercosmospod. Until then, this is David Eagleman signing
Speaker 1: off from the Inner Cosmos