It is always rewarding, and sometimes remarkably difficult, to have a very smart patient in Psychoanalysis. Some patients have a talent for introspection and reflection; others use their intellectual abilities to set up all sorts of impediments to the treatment with an unconscious goal of defeating the Analyst and insuring that they do not change. Complex and sophisticated rationalizations comprise some of the most intractable defenses. From time to time a more simple defense appears, which by virtue of its simplicity, allows the patient to refute all interpretative efforts and deny responsibility for their difficulties. Among such simplistic rationalizations is the cry, of a particular behavior, "my brain made me do it." Among other things, this defense has the virtue of being (apparently) supported by modern neuroscience and the legal profession, which takes every opportunity to find ways to mitigate the responsibility for misbehavior of their clients.
This morning, NPR discussed the results of MRI scans of the brains of criminals and how such scans may be changing our conception of guilt and innocence in the courtroom:
Kent Kiehl has studied hundreds of psychopaths. Kiehl is one of the world's leading investigators of psychopathy and a professor at the University of New Mexico. He says he can often see it in their eyes: There's an intensity in their stare, as if they're trying to pick up signals on how to respond. But the eyes are not an element of psychopathy, just a clue.
Officially, Kiehl scores their pathology on the Hare Psychopathy Checklist, which measures traits such as the inability to feel empathy or remorse, pathological lying, or impulsivity.
"The scores range from zero to 40," Kiehl explains in his sunny office overlooking a golf course. "The average person in the community, a male, will score about 4 or 5. Your average inmate will score about 22. An individual with psychopathy is typically described as 30 or above. Brian scored 38.5 basically. He was in the 99th percentile."
"Brian" is Brian Dugan, a man who is serving two life sentences for rape and murder in Chicago. Last July, Dugan pleaded guilty to raping and murdering 10-year-old Jeanine Nicarico in 1983, and he was put on trial to determine whether he should be executed. Kiehl was hired by the defense to do a psychiatric evaluation.
I don't think I am spoiling the story to mention that Psychopaths show different patterns on fMRI (functional Magnetic Resonance Imaging) of their brains than normal people do:
For ethical reasons, Kiehl could not allow me to watch an inmate's brain being scanned, so he asked his researchers to demonstrate.
After a few minutes of preparation, researcher Kevin Bache settles into the brain scanner, where he can look up and see a screen. On the screen flashes three types of pictures. One kind depicts a moral violation: He sees several hooded Klansmen setting a cross on fire. Another type is emotional but morally ambiguous: a car that is on fire but you don't know why. Another type of photo is neutral: for example, students standing around a Bunsen burner.
The subjects rate whether the picture is a moral violation on a scale of 1 to 5. Kiehl says most psychopaths do not differ from normal subjects in the way they rate the photos: Both psychopaths and the average person rank the KKK with a burning cross as a moral violation. But there's a key difference: Psychopaths' brains behave differently from that of a nonpsychopathic person. When a normal person sees a morally objectionable photo, his limbic system lights up. This is what Kiehl calls the "emotional circuit," involving the orbital cortex above the eyes and the amygdala deep in the brain. But Kiehl says when psychopaths like Dugan see the KKK picture, their emotional circuit does not engage in the same way.
Kiehl's response then encapsulates an argument that has already begun to be made in the Ivory Towers of Harvard and Yale Law Schools:
"We have a lot of data that shows psychopaths do tend to process this information differently," Kiehl says. "And Brian looked like he was processing it like the other individuals we've studied with psychopathy."
Kiehl says the emotional circuit may be what stops a person from breaking into that house or killing that girl. But in psychopaths like Dugan, the brakes don't work. Kiehl says psychopaths are a little like people with very low IQs who are not fully responsible for their actions. The courts treat people with low IQs differently. For example, they can't get the death penalty.
"What if I told you that a psychopath has an emotional IQ that's like a 5-year-old?" Kiehl asks. "Well, if that was the case, we'd make the same argument for individuals with low emotional IQ — that maybe they're not as deserving of punishment, not as deserving of culpability, etc."
And that's exactly what Dugan's lawyers argued at trial last November. Attorney Steven Greenberg said that Dugan was not criminally insane. He knew right from wrong. But he was incapable of making the right choices.
"Someone shouldn't be executed for a condition that they were born with, because it's not their fault," Greenberg says. "The crime is their fault, and he wasn't saying it wasn't his fault, and he wasn't saying, give [me] a free pass. But he was saying, don't kill me because it's not my fault that I was born this way."
[I won't even bother pointing out that brain structure does not predict behavior in any individual case. There are people who have "psychopathic brain scans" who have never been involved in criminal behavior. There are a multitude of criminals who have "normal" brain scans. In reality, low IQ is highly correlated with criminality, though most people with low IQ's are not criminals. Of course, many of the same behavioral scientists who insist that Psychopathy is hard wired and therefor mitigates or excuses criminal behavior will also argue there is no such thing as a meaningful neurological substrate for IQ.]
This is an argument that is without end. If you believe in free will and responsibility then we must all accept responsibility for our actions. The only reasonable exception should be the McNaughton Defense, where the perpetrator literally does not appreciate the difference between right and wrong. Lenny, in Mice and Men, would have to be judged innocent under this standard.
If all behavior is not just psychically determined but structurally determined, then no one is responsible for anything. The BP executives could no more avoid taking short cuts in the Gulf and their Regulators could no more avoid neglecting their duties than poor "Brian" could avoid raping and killing that 10 year old child. That way lies nihilism. At the same time, while smart lawyers work out ways to free people like Brian from the consequences of their actions, they are also setting the table for a form of institutionalized neurologically based totalitarianism. Once we have dispensed with free will and responsibility, then those who have "incorrect" or "dangerous" brain structures can only be locked up or otherwise removed from the body politic. We do not know how to "fix" such brain structures (and such fixes are a long way off, perhaps an infinite distance off, considering the implications of complexity involved) and once we accept that no one can ever help doing what their brain “makes” them do, then the only way to protect a functioning society is to remove those whose brains are inimical to the demands of those who by virtue of their "correct" brain structures have no choice but to rule over the rest of us who are not so lucky.
A society based on “Neurological Determinism” will truly be mindless.