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December 24, 2011

"Do we have a responsibility to use neuroscience to inform [sentencing] law?"

The question in the title of this post involves a minor tweak to the title of this interesting entry at the Practical Ethics blog at The University of Oxford, which concludes with a fascinating case-study and follow-up queries that should be of special interested to sentencing fans:

[C]onsider[] a case that has gained much exposure in the area of NeuroLaw, and was discussed at the beginning of the BBC segment as well as in the Royal Society report (adapted from the Royal society report):

[A man] was found to have developed unusual sexual arousal behaviours and had begun to secretly collect child pornography.  He was eventually removed from the family home for making sexual advances towards his step-daughter, and was subsequently diagnosed with paedophilia and convicted of child molestation. […]

The evening before sentencing, the man was admitted to hospital with a headache and balance problems. Neurological examination, which included magnetic resonance imaging (MRI) revealed a cancerous tumour that displaced the right orbitofrontal cortex. The orbitofrontal cortex is involved in the regulation of social behaviour.... Disruption of this system can result in decision-making that emphasizes immediate reward rather than long-term gain, impairing the subject’s ability to appropriately navigate social situations.

Following examination the tumour was removed and after several days the patient’s balance improved and he was able to complete a Sexaholics Anonymous programme. Seven months later the patient was deemed to no longer be a threat to his stepdaughter and returned home.

Almost a year later, the man reported persistent headaches and that he had begun secretly collecting child pornography again.  Tumour recurrence was revealed by MRI studies and surgery was performed to remove it for a second time. Once again the patient’s behaviour returned to normal after a couple of days.

If it matters to us (in terms of moral responsibility) that the man’s pedophilic behavior seems to result from the compression of his orbitofrontal cortex by the tumor, an interesting set of questions follow....

 1) Before the age of brain scans, the man’s tumor would have gone unnoticed and he would have been punished to the full extent. Indeed, it is likely that tumors have gone unnoticed precisely like this. To what extent does the creation of the technology to detect these morally significant tumors create a responsibility to check for them?

2) Dr. Mackintosh pointed out in the podcast that it is important that the tumor could be removed: “if it had not been possible to remove the tumor, then one would, surely, at least consider the argument that he had to be kept in prison for public protection.” If, as Dr Mackintosh’s qualification and hesitation might suggest, this detainment is to some extent objectionable, then to what extent does the detection of a neurobiological factor in criminal behavior create a responsibility to quickly and vigorously search for ways to avoid this preventive detainment (in this case, develop medical techniques to remove the tumor)?

3) If it is likely that there exist other biological mechanisms that have a similar morally significant impact on criminal behavior, and that individuals are currently being locked away in prison without these mechanisms coming to light, then to what extent does this create a responsibility to research into these other biological mechanisms?

December 24, 2011 at 12:58 PM | Permalink


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Side #1: "It follows from this that significant medical factors could play a role in many cases where abnormal behavior surfaced suddenly. As a society, our criminal justice system should pursue all means of rehabilitation, medically or otherwise, as well as incarceration. In this case, no incarceration was needed to protect the public from future crimes of the defendant. Punishing the patient for the symptoms of a disease (where such disease is medically curable) certainly constitutes Cruel and Unusual Punishment in violation of the 8th Amendment to the U.S. Constitution. The right is mean"

Side #2: "A crime is a crime is a crime. No matter the reason a criminal chooses to violate laws (s)he knows, or should reasonably assume, exist, they should be held accountable for their actions. MRI studies are very often considered junky science (see [insert previous blog post and/or outside link here]). This is just another attempt of criminal sympathizers to create excuses for criminal behavior. The way the United States does business right now has contributed to the HUGE drop in crime rates across the board over the last 20 years. The left is dumb."

How'd I do?

Posted by: Eric | Dec 24, 2011 1:12:27 PM

Side #3.

You can't pick and choose the science that fits your point of view and ignore all the rest. All the psychological studies that were done on pedophilia back in the 70s (admittedly, few) show that pedophilia is beneficial to children or at worst does them no lasting harm. So if you want to follow the science it should lead you to a place where pedophilia is legal not to a place where people are less morally culpable. There simply is no scientific basis for outlawing pedophilia. None whatsoever.

I have a strong objection to using "morals" and science in the same paragraph, even the same paper. The moral imperative and the scientific discipline are both conceptually and functionally distinct. One's taste in apples doesn't normally have anything to do with how one flies to the moon.

Posted by: Daniel | Dec 24, 2011 2:01:22 PM

i have to agree. IF in this case the crime is happening becasue of a medical conditon that is demonstrabily treatable. Then TREAT IT and move on.

now in this case it seems that a regular MRI exam needs to be mandated to keep the tumor from returning outside of that. LEAVE it alone!

Posted by: rodsmith | Dec 24, 2011 4:41:11 PM

All behavior is biologically based, including the response to punishment and the threat of punishment. There is some duty to individualize response to crime. Some people need surgery, some need to stay in a cage. There is no big deal here, just intelligent management. We will someday understand and remedy sociopathy, the biggest cause of criminality. We can only provide the best available technology at this time.

By the same token, pitching a baseball at 95 mph is also biologically based. Should the pitcher not receive $10 million salary because his ability is biologically based?

Consequences, both positive and negative are also effects on brain function.

"Dr. Mackintosh pointed out in the podcast that it is important that the tumor could be removed: “if it had not been possible to remove the tumor, then one would, surely, at least consider the argument that he had to be kept in prison for public protection.” "

The doctor seems to be making the point I have tried to. Mental illness should be an aggravating factor, not an excuse.

Posted by: Supremacy Claus | Dec 24, 2011 7:15:35 PM

Heaven forbid science should skew our biblical notions of good and evil.

Posted by: Barkley | Dec 24, 2011 10:58:43 PM

i would agree SC in cases where there was no demonstrated medical remediation that could be done that would end the danger to society.

in those cases not much you can do but either medicate the hell out of them and watch them or lock them up TILL it is possible to do something.

but in a case like this where it has been deminstrated the turmor is what is causing the criminal behavior and removal can STOP said criminal behaivor....why spend 20-40 THOUSAND DOLLARS a year to lock him/her up instead of just doing the treatment and then arrange periodic followup's to make sure it's not returned and move on?

UNLESS your admitting the american justice system is more a REVENGE system than a JUSTICE system!

Posted by: rodsmith | Dec 25, 2011 2:56:02 AM

Rod: Here we agree, "There is some duty to individualize response to crime. Some people need surgery, some need to stay in a cage."

Posted by: Supremacy Claus | Dec 25, 2011 1:03:23 PM

And rapid executions, after age 14, should not be taken out of the tool kit of remedies, if the public safety requires it.

Posted by: Supremacy Claus | Dec 25, 2011 1:09:59 PM

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