Neuroscience And The Law: Why Smarter People Are More Responsible.

The Neuroscience Of Culpability

With neuroscience, we can gather more data about the actions, intentions, and motivations of others. And having more data is, overall, a positive. However, what we do with the data is a different story.

On the one hand, we can lessen someone’s criminal and moral culpability. It is not uncommon to relinquish guilt from those who were born of a disposition inherently incompatible with our current moral standards. For example, we don’t hold dogs nearly as morally accountable as humans when it comes to the theft of food from our plates. And so, the same immoral action has different standards of punishment due to the disposition of the agent.

So, if we were to find some tumour the frontal cortices of a criminal, we might be tempted to suppose of them less moral and criminal culpability. And there indeed might good justification for treating them as less culpable. But what of a sociopath who has a lessened metabolic rate in the frontal cortex and, therefore, cannot control their impulses or process risks as accurately as a-typical people. Do we treat them with lesser moral culpability as well? Put otherwise, is culpability a single continuum from norma brain function to abnormal?

As well, what of those who are well-behaved and do not break the law, yet have exactly the same neural dysfunction as those with sociopathy?

Some of these questions might be answered by the following: we take a base-rate for each category of human we have, whether these categories are based in psychology or some other discipline matters not, and we assume that those who are within the base-rate are as culpable as others. Meaning, the average for each group is equally culpable, with a few exceptions. From there, we might then say, standard deviations below the mean corresponds to lessened culpability, while standard deviations above the mean corresponds to more culpability.

Of course, some averages will not be as culpable as others in every instance; in example, a normal brain will be slightly more culpable than a person with a tumour, but the average person with a tumour will be more culpable than someone who is both in the tumour category and three standard deviations below the average person with a tumour.

Thus, we have an apparent solution to the following question: “what do we make of those who have a tumour but never commit crimes, while at the same time we suppose someone is not guilty because of their tumour?”. But we have other issues, nevertheless.

If we suppose those who have impaired executive functions to be less culpable, then there seems to be an implicit bias against those who are smarter; that is, smarter, or more typical, people are of greater culpability for their crimes – even if the action is identical as those who are of less culpability. Such seems contentious, as there is a lack of justification for doing so.

I believe, however, that those with greater executive functioning ought be held more accountable; only because there is no doubt, on average, more awareness of their crimes than with those who score lower in executive functioning.

Intelligent, and a-typical, individuals have a greater ability to grasp and understand the contents of a legal system; likewise, they also have the ability to understand the future consequences of their actions. Since they are born with a better set of tools to play the game of law, then we ought put them on a greater level of difficulty than those who cannot perform as well. Thus, by doing so, we effectively balance their social and genetic advantages.

With that being said, I caution that brain function ought not be the only metric by which we determine how culpable someone be. An important factor to consider, no doubt, though dangerous if it be the one and only one metric we consider.

In example, some actions ought be treated as inherently bad, no matter who performs it. Murder cannot go without some form of corrective or punitive measures. Of course, if someone who has remarkably poor executive functioning commits murder, then we shall either restrict their freedoms, greatly, so as to ensure they cannot commit such an act again. But, nevertheless, the action bears inherent culpability.

Likewise, when we consider the environmental impact on brains, then it should be clear that there will be times wherein which two similar brains will have obtained radically different educational outcomes; and so, there ought be situational influence on someone’s culpability.

Thus, although these categories seem to help us deal with issues of culpability when considering brain function, they cannot be the only consideration; only because doing so leads to serious injustice.

Falsity Of Assumptions

There are some assumptions rooted within the system I’ve put forward, and I believe that these assumptions can be false if certain evidence is presented.

Assumption 1: I have assumed that intelligence and a-typical brain function is an important factor when it comes to determining whether people will obey the law or not. There is some rudimentary evidence to support this assumption as well:

“The relationship between intellectual functioning and criminal offending has received considerable focus within the literature. While there remains debate regarding the existence (and strength) of this relationship, there is a wider consensus that individuals with below average functioning (in particular cognitive impairments) are disproportionately represented within the prison population.” –  (Freeman, 2012).

However, if this assumption turns out to not be the case upon further evidence, that is, if smarter people do indeed commit more crime, then my first assumption is entirely false. And it is important to stop any policies which are harsher on smarter people, as we will have a disproportionate representation of intelligent people inside our prisons and jails.

That will not only make it more difficult to maintain order inside the prisons and jails, but it will likewise deter intelligent individuals from the country and have a negative economic impact upon our society.

Assumption 2: I have likewise assumed that intelligent or a-typical individuals have greater awareness about their actions. And are, therefore, more culpable.

Individuals who have lower frontal lobe activity, or underdeveloped frontal cortices, have lower risk assessment skills and are not as able in their ability to defer impulses. If, somehow, the mountain of evidence which is in support of these assumptions turns out to be wrong, then we will likewise have to abandon this assumption.

Conclusion

The potential to create useful categories of culpability from different styles of brain function is great; it can solve numerous problems that regard culpability within the legal system;  but it likewise has the potential to be dangerous to our legal system. Thus, close examination of the foundational assumptions is important. Lastly, as said before, brain function shall not be the only metric by which we assess culpability, as doing so can lead to injustice and economic detriment.

References

Freeman, J. (January 01, 2012). The relationship between lower intelligence, crime and custodial outcomes: a brief literary review of a vulnerable groupVulnerable Groups & Inclusion, 3, 1.)

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