Post No.: 0778
Furrywisepuppy says:
In Post No.: 0770, we asked whether neuroscientific data could help improve our ability to detect lies and assess the minds of those accused of committing crimes in order to determine responsibility and culpability.
More broadly, should insanity be a defence, and can neuroscientific technology be used to assess whether someone was insane at the time a crime was committed? How extensive must a brain abnormality, injury or mental illness be to render someone free from behavioural and criminal responsibility? Can sleepwalking be a defence? What about addiction? And can we use neuroscience to tell us when an adolescent brain is sufficiently developed enough to have the intentionality that the law requires for assessments of guilt? These are further kinds of questions that lawyers and scholars ponder when studying jurisprudence, or the philosophy of law.
As a recap, whether someone is considered guilty or not depends not just on the harm they’ve caused by their actions but on their mental state at the time; in light of other factors (or defences). Intent matters in criminal law. That’s why establishing a motive is central. It’ll also depend on how their mental state can and will be evaluated – at present, psychiatric evaluations are performed to determine a perpetrator’s mental state and whether they are mentally ill.
And if all those factors have been influenced by the presence of a brain lesion, for instance, a person’s criminal responsibility will be called into question. If one has a sufficiently diseased or disordered mind, one will be considered incapable of satisfying the requisite intent when committing a crime. But is it right for a court to view that they were not capable of understanding their conduct at the time of the crime, and therefore they should be found not guilty?
Now mental illness refers to a psychiatric disorder. Mental illness is routinely considered as a factor regarding both culpability and punishment assessments. But insanity is different. Insanity concerns whether someone knew what they were doing was illegal, or knew what they were doing at all, and if they felt compelled to do what they did by ‘an irresistible force’. Mental illness is a prerequisite for this defence but it requires proof of insanity too.
The ‘insanity defence’ is deployed to eliminate the ‘guilty mind’ requirement for criminal action. The law presupposes that we’re all rational creatures – but if someone is the victim of an insane mind, they cannot make rational decisions and consequently shouldn’t be held responsible for their actions (not guilty by reason of insanity). Should the insanity defence be morally permissible?
Certain brain abnormalities, like tumours, can indeed all of a sudden cause someone to engage in antisocial or criminal conduct (e.g. sexual misconduct). And once the tumour is removed, that behaviour will stop. If criminal behaviour is the product of a brain abnormality then perhaps the individual should be acquitted. But should it make a difference if the crime was murder compared to, say, petty theft?
What if a brain lesion causes someone to have uncontrollable paedophilia? Would they be responsible for their subsequent actions? Since the area of the brain affected doesn’t affect the person’s physical health, they could have extensive damage to their brain without a doctor suspecting that anything is wrong with them through questioning alone. So should every paedophile be entitled to an MRI scan?
What’s the difference, if any, if a patient had a normal history before they later changed and acquired a problem, compared to if they developed a problem very early on in life but we regard them as ‘they’ve always been like that’? Analogous to if an adult contracted some disease that gave them a low testosterone level, compared to someone who always had a low testosterone level as an adult, perhaps because of the conditions they experienced when they were in their mother’s womb – is only the first person morally allowed to take anabolic steroids to improve his/her athletic performance? What issues does this raise for people who are accused of crimes with no obvious – or presently understood – symptoms of a brain abnormality too? Is it just down to the luck of what scientific understanding and diagnostic technologies we have at any given present time? Woof.
Not only is the process of diagnosing a mental disorder complex – determining whether a disorder had a sufficiently relevant effect on an individual at a specific date is notoriously tricky. For example – at what point, if any, does ideologically-driven fanaticism turn into ‘madness’?
It’s tempting to think that all extreme crimes, like terrorism, must necessarily stem from a mentally-ill mind. But if this is our belief then should a defendant receive our compassion instead of our anger to punish them? Criminal responsibility attempts to weigh up the severity of someone’s mental insanity or incapacity with the magnitude of harm resulting from their actions.
Yet responsibility and harm are separate matters. If an individual isn’t criminally responsible for an act, the issue of the harm that his/her actions nevertheless caused must be dealt with in ways other than punishment. Treatment for their mental condition may thus be the most appropriate response. If this is too lenient then understand that this represents the flipside of a criminal justice system that works on the assumption that everyone is an independent agent, and, in a liberal democratic system anyway, this protects us from excessive state paternalism. This system requires that each accused individual shall be respected as an autonomous fluffy subject of the law.
But if there’s proof of someone’s insanity at the time they committed a crime, they could still be made the subject of a court order that might detain them in a secure psychiatric unit inside a prison – not due to moral condemnation or blameworthy conduct but with the prudent aim of preventing them from conducting further harms. And this form of detention can be just as long as any prison term.
Sleep science can be used to decide if someone has a genuine sleep disorder, and there are cases where murder or rape have been committed whilst sleepwalking. Somnambulists suffer from a ‘switching error’ between not being fully in REM sleep (hence the muscles are relaxed rather than paralysed) and not being fully in non-REM sleep (hence one can still be dreaming). Primitive behaviours like feeding, sex and searching for objects are the most typical behaviours, but people can even drive a familiar route without remembering any details of the journey! The defence of sleepwalking is based on the idea that one does not act with intent when one is asleep. Do you think this idea holds water?
Sleepwalking is heritable and is more common in children. If people don’t get disturbed within the first hour of sleeping then they likely won’t sleepwalk that night. If you catch someone sleepwalking then don’t try to wake them up – the most violent murders tend to co-occur with a night terror or after someone has tried to wake them up.
Your inhibitions are diminished whilst your emotions are amplified when dreaming. But your inhibitions are also down when drunk – so is being drunk when committing a criminal act also a defence?! I suppose drinking is optional but sleep is not. But sleep deprivation or stress increases the chances of sleepwalking and so what if your sleep deprivation or stress was self-inflicted too? Or what if you’re addicted to alcohol hence drinking or not appears less of a choice?
Addictions, of all kinds, are a challenge for the law whenever assessing guilt. If someone feels compelled to steal to feed an addiction – can we say the crime is really one of choice? Should behavioural addictions like gambling be treated differently to chemical ones like cocaine? Would a treatment or rehab programme be better for them instead of incarceration? Drug addiction can be identified with the help of fMRI – but is this enough to tell us whether someone truly lacked sufficient control of their own actions?
Addiction changes the brain, particularly in ways that reinforces sets of behaviours that feel rewarding. The problem is that the brain adapts via a tolerance effect, which means that a person needs a greater amount of drug to feel the same level of reward as before. Areas of the brain related to judgement, decision-making and impulse control are also impaired. The drug-seeking behaviour then becomes more like a subconscious habit than a consciously-driven thought. Your genetics, upbringing/development (the earlier one tries drugs, the more likely one will become addicted) and environment (e.g. social deprivation and an environment of low rewarding feelings elsewhere in one’s life) all affect the odds of whether you’ll have an ‘addictive personality’.
Yet there is no ‘addiction defence’ as there is for insanity in the UK or USA at present. Current science isn’t unanimous on the subject yet. It’s not always a case of like extreme hunger when you cannot think of anything else but finding food – addicts aren’t constantly in that extreme craving state yet they can still be seeking their next fix. So is addiction a disease or just a failure of personal restraint? Is it more of a public health or criminal issue? Can there be some stance that’s inbetween complete responsibility and non-responsibility for their actions? What would this mean in practice? We could separate the assessment for culpability and the assessment for the appropriate punishment or help to be meted. If help is a part of it though, they’ll likely need to be forced to stick to their rehabilitation programme.
Are they morally weak or are they unfortunate victims of their genetics, development and circumstances? Often this is poverty. The poor have less things to lose to motivate them away from a life of addiction – a good enough reason to quit a habit increases the likelihood of quitting it for good. But it’s a vicious cycle – they might not have a decent job because their addiction has scuppered that, yet they need a decent job to give them something worth fighting their addiction for. So when should we express empathy and compassion for a potential criminal? That’s what it kind of boils down to.
What about convicting juveniles of serious crimes like murder? The law doesn’t usually permit a child to be ‘tried as an adult’, but what if a child was essentially conditioned to kill? If children who’ve been raised in violent environments go on to commit heinous crimes – is this their fault? And how should we judge the adults they’ll path-dependently become? Should we account for their unfortunate upbringings?
It’s well accepted that the brains of children are less developed than those of adults. Should this make a difference to our judgements regarding their incarceration and/or treatment? It’s a gradual transition from childhood to adulthood, yet there’s a strict cut-off age (usually 16-18 years old) for trying someone as a juvenile rather than an adult. And if clear brain differences between juveniles and adults can be identified through brain scans, what should the law do if a particular juvenile’s brain isn’t as developed as his/her age peers?
In short, when should we assert ‘they’re bad’ and when should we assert ‘they’re mad’ or ‘that’s sad’? And how will telling someone that their behaviour is a sign of mental illness affect their experience of agency? How will it affect their response to treatments? Will they see themselves as drivers or mere passengers of their minds, as it were, and will they see their behaviours as something that’s outside of their control or as something that they can control in order to straighten themselves out? And if it is something that they can ultimately control then why should we go easier on them? Perhaps it’s to do with the difficulty rather than impossibility, and we should account for the fact that some people naturally find it harder to exercise self-control than others. And that’s not their fault?
Knotty conundrums.
Woof!
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