Blame it on the brain: can you be held legally responsible for your brain?

Earlier this year, Edwin Hart Turner (38) was executed by lethal injection after being convicted of murdering Eddie Brooks and Everett Curry in a robbing spree near Mississippi. Shortly before the murders, Turner had been admitted at a mental hospital for depression after an attempted suicide. The defence attorneys’ main argument against Turner’s execution was his unstable state of mental health. Guilty or not guilty, Turner’s lawyers argued that a mentally ill person should be exempt from state execution.

Charles Whitman was a sporty, popular man who became increasingly aggressive and violent, while complaining of ‘tremendous headaches’. In 1966 he shot 13 people dead and wounded 32 others at the University of Texas in Austin before committing suicide. His autopsy discovered a cancerous tumour the size of a walnut invading his amygdala – a part of the brain important in regulating fear and rage.

Currently, the trial of Norwegian Anders Behring Breivik is dividing both social and professional opinion. Breivik, led by his far right-wing views, killed 8 people with a car bomb in Oslo and 69 more on the island of Utoya, a camp for the youth wing of the Norwegian Labour Party. Breivik maintains that he is not legally insane and that he should be held fully culpable for his acts. Legally this would mean the difference between him being sectioned in a mental hospital, possibly indefinitely, or being incarcerated for a very long time. Professional opinions of Breivik’s mental health vary from him being ‘lucid but lonely’, to having personality disorders, including extreme narcissism; paranoid schizophrenia or psychosis; being both suicidal and homicidal; to having ‘a rare form of Asperger’s and Tourette’s syndrome’.

Admittedly, cases such as these aren’t exactly common. However, with further advances in our understanding of mental illness these stories are increasingly relevant, necessitating a level of crossover between neuroscience and legal ethics. This crossover poses a major dilemma for society, the question of how much personal control we have over our own brains and whether or not we can be held entirely responsible for our actions? Must all mass-murderers be, to some extent, mentally ill since they fall so far outside a ‘normal’ moral spectrum? Are we less accountable for our actions and decisions since our brains’ functions are a product of our biology and social influences?

These more general philosophical questions lead us to specific practical questions about how society should act. Should all criminals be psychologically and neurologically tested when being trialled? Should brain scans be used as evidence in a court of law? How should we treat people who have committed terrible crimes but are psychologically or neurologically unwell and should there be a distinction between the two?

At the end of 2011 The Royal Society published a report stating that in the USA, neurological or behavioural genetics were used as evidence for 722 legal defences between 2005 and 2009. In Italy, a woman had her sentence for murdering her sister reduced after the defence lawyers presented genetic and imaging evidence that her brain’s anatomy was different to that of 10 normal women. On the other hand, in 2008 an Indian woman was convicted of poisoning her husband when a scan of brain activity allegedly revealed that she had knowledge of events surrounding her spouses death which could only have been gained through experience. Neuroscientists are now often called upon as expert witnesses and so should have a understanding of the legal and ethical implications of their testimonies.

Following this, there has been a lot of research investigating how people perceive neurological or psychological evidence. In this research, mock-jurors were asked to decide whether a virtual defendant was guilty or ‘not guilty by reason of insanity’ (NGRI). The virtual defendants had different levels of neurological or psychological evidence to support their claim of insanity. For example, in some cases medical evidence was provided proving the defendant had suffered brain damage, whilst in other cases the results of psychological analysis was given showing various types of personality disorder. This research found that around 50% of mock-jurors will find the defendant NGRI on the basis of evidence suggesting the defendant has suffered physical brain injury or neurological disease, especially if this is backed up by a brain scan. However, only about 10-12% of mock-jurors find virtual defendants with a personality disorder or psychopathy to be NGRI.

So what does this mean in real life? Today, it is estimated that 90% of UK prisoners have a diagnosable mental illness or substance abuse problem (Office for national statistics). About 1 in 7 of all prisoners in the UK are thought to have four concurrent mental health problems, often not simply associated with the time spent in prison. Also more than half the reported prisoners who commit suicide in prison exhibit symptoms of mental health problems on entering prison. Whether or not these mental health issues preceded or even contributed to their crime is unknown (and I can’t say how one would ever prove that beyond reasonable doubt), but I think that this has huge implications for the prison system. Seeing as people outside prison with mental illnesses are treated as patients rather than criminals, I think the government should focus on treating and rehabilitating, rather than punishing, prisoners who have been incarcerated on their brain’s behalf.

Post by: Natasha Bray

11 thoughts on “Blame it on the brain: can you be held legally responsible for your brain?

  1. Societies today constantly make excuses for bad behavior. This article exemplifies that desire to make excuses.

    The deciding questions should be:
    1) Did the person know that murder (torture, rape, etc.) was wrong?

    2) Did the person commit the crime in full knowledge that it was wrong?

    Even severely mentally ill people recognize that certain behaviors are wrong.

    People are capable of controlling their behavior.

    Parkinson’s disease may cause a person to shake uncontrollably and Tourette syndrome may cause a person to speak uncontrollably, but there is no murder disease or torture disease or rape disease.

    Behaviors are always choices.

    • Hi Jerry,
      Thanks for your comment; I’m glad that the article has sparked some discussion. I hope you don’t mind that I’ve chosen to reply to some of your points.
      Firstly, the legal defence “complete madness” (later termed “criminally insane”) has been used in England since the 14th century. “Societies today” aren’t making excuses for people; these excuses have existed for a long time. The thing that is evolving in today’s society is the ability to diagnose and treat mental illness.
      Secondly, you make an interesting point about whether people recognise that the crime they commit is wrong. The definition of mental illness (thanks to the Oxford online dictionary) is “a condition which causes serious disorder in a person’s behaviour or thinking”. Therefore it is logically possible that a severe mental illness may impair a person’s thinking such that they (for instance):
      a) do not recognise/realise/believe their action to be ‘wrong’ (either acutely or on a long-term basis);
      b) realise that their actions are wrong, but can’t rationalise the full consequences of their actions;
      or c) realise that their actions are wrong, but have a delusional belief that they are justified.
      Obviously the overwhelming majority of these people retain the mental faculties to know right from wrong. But in a legal context, distinguishing between the logical possibilities above and a ‘guilty’ verdict “beyond all reasonable doubt” means the difference between medical care and prison.
      You are right, there is no such thing (as yet) as ‘murder disease’ or ‘rape disease’. Would it be a surprise if there were? We often describe heinous crimes or their perpetrators as ‘sick’; can a person be that evil without being mentally unwell?
      Lastly, you state that “behaviours are always choices”. First of all, this requires a ‘choice’ to be determined be an autonomous ‘free will’. One could argue that if we are a product of our genes and the environment, then they are to blame if we do something bad. If that is true, where does free will fit in?
      Anyway, I hope you found the article interesting, even if you didn’t agree. I realise that with some of my arguments I am using extreme examples but I think the logic stands. Thanks again for commenting!

    • What part of the brain and what neural peptide are responsible for actions?

      What part of the body determines choice?

      Is choice something that starts in the endocrine system? Or is it regulated by various parts of the brain?

      If statistical analysis is able to determine what your course of action is, do you really have a choice?

      How is it possible to have choice and at the same time be determined by said analysis?

      Are these not contradictory terms in nature?

      Since you have made a statement with authority these are questions I have had and am glad to find an authority to answer them. Thank you for you help!

  2. One of the fundamental principles of punishment is deterrence. There is also a very old idea about “an eye for an eye, and a tooth for a tooth”. I do not say that was and is always a wrong idea. It was simply the best strategy for limiting aberrant behavior for those that didn’t have better knowledge on how to enforce laws and principles of conduct that are necessary in all civilized societies. There was a time when I believed very firmly in capital punishment – until I found out that, for the most part, countries that enforced that had higher rates of capital crimes than those that didn’t.
    I am sure the same is true for many punishments, particularly incarceration (where the convicted learn better how to be a thief/assaulter/murderer). I admit, there still something very fundamental in me that wants to “hurt” those who have hurt others. But the thinking part of my brain tells me that wanting to get “revenge” against the criminal is something that is at least in doubt, and we should seek and develop strategies that are more effective. It may be we have to combine both real punishment like (I’m not joking about this) forty lashes, combined with enforced treatment and rehabilitation – or maybe just the forty lashes or just the treatment/rehabilitation.
    In any event, punishment/enforcement is not something we should ever think is a decided issue. Society/Societies change both with the advance of social structure and the tools we use to best enforce/encourage that structure. That is something that will be true for our entire existence as a species – we should maintain our legal assemblies with that as purpose. Not to ever think that we will eventually produce a perfect society – besides that, a “perfect” society would probably be a fairly boring one.

    • Hi David,

      Thanks for your comment, it’s great to hear people’s perspectives on this since I would say there is no consistently ‘right’ answer to improving our judiciary/penal system. Personally I think that incarceration in necessary in order to protect society, but you’re right, often prisons unfortunately serve as a hub of criminal ‘know-how’ where people can pick up techniques. To cement this, the rate of re-offending is incredibly high. Whether this is due to people havign a different biological pre-disposition towards committing socially unacceptable behaviours (‘traits’), or whether it is more to do with that individual’s current situation in society (‘state’), the penal system should aim to treat the problem rather than keep the focus on punishing. The deterrent aspect is important, you’re right; but people who are ill and are wrongly put in prison are less likely to get better without the support they need and are therefore arguably more likely to re-offend.
      I think that sadly the main obstacle to the ‘advance of social structure’ (as you so eloquently put it!) within this topic is the perfectly natural gut reaction that humans feel towards those who commit crimes. Our natural instinct is, as you say, to want to hurt those that have hurt others. One could argue that we are the lucky ones; we can inhibit our desire to hurt others because we retain the mental faculties to realise that it would be wrong. It doesn’t stop these extreme crimes being tragic, it just means that our response should be more pragmatic and aimed more at bettering the whole of society rather than just ‘recompensing’ the victim’s loss. What I think would be a noble and admirable thing for society to achieve would be to use what we know (using science correctly) rather than what we feel when deciding how to treat wrong-doers.
      Thanks again,

  3. We may be over-agreeing but . . .

    I think the fundamental control of “wrong-doing” strategies should really always be aimed at one thing: minimizing that wrong-doing. Two of the most ineffective strategies in modern society seems to be the current punishment systems. All too many of our punishment systems seem to be over concerned with punishing and not reforming. Most of our current societies seem to have some concern with reforming the aberrant behavior, but not examining all the strategies available. I do think that punishment is a simple and effective tool for that reform, but we really do have to work on finding a punishment more effective than simple incarceration. It may even be we should doing a research examination on alternate strategies with the wrong-doer’s. All too many projects are concerned with establishing a behavior modification that is particular favorite of the researcher – and amazingly, the strategy they formulate is all too often a success. We should be trying to separate the inventors of a particular strategy and the agents responsible for confirmation of those strategies – and separate as far as possible so that there is no “selling” by either side, trying to distort either the strategy or the confirmation.

    To me, one of the best ways is establishing different strategies in the punishment system – make them as different as possible. Those strategies are likely to offend one side or the other – the right wingers thinking it too soft, with the left wingers thinking it too harsh. But we should be both trying to examine whatever method we use, with as SCIENTIFIC an examination we can muster. And recognize that our major concern is modifying the behavior – it is a little unfortunate that the best group to use “experimental” strategies on would be all the wrong-doers, but they have, of course, brought it on themselves. There is also the difficulty that genuine scientific research should include those that have committed no wrong-doing – simply so there is a “control” group. Perhaps glorifying the duty they are doing society – and that would apply to both the control group and the wrong-doers experimental group.

    There you go – sorry if I am sounding a little too “Spock-Logic/Vulcan-ish” and not showing enough “Humanity”. But I care more about limiting the hurt we do to one another than moralities that are hundreds of year old – though I am sure that some of them still have some value with some wrong-doers. To continually repeat myself, our societies will grow and change for all eternity – so we should try to keep up with the wrong-doing that grows and changes along with us. Forever.

    • Hi David,

      I totally agree with you – the sad truth however might be that it would be difficult to argue that a social experiment would be ethically appropriate. Unfortunately, on the other hand, it would also be incredibly difficult to conduct a meta-analysis of the effectiveness of judiciary systems around the world that takes into account socio-economic and cultural differences. An experiment would be really interesting though. Surely the control would be to let wrong-doers go without any consequences (a sort of placebo)? Also, what would the measure of final outcome be? The rate of first crimes, or the rate of re-offending, or the satisfaction amongst the rest of the society that ‘justice has been served’? ‘Practicalities’ aside, I wholeheartedly agree with your points: changes to our society should be brought about by valid evidence drawn from an appropriate scientific method.
      Thanks again for your comments – I really appreciate you taking the time to write to us.


      • In the end, the only concern with any Legal system is to limit wrongdoing. While I think that our current prison system has it failings (no – am sure!), it also does do some good. There are education and punishment aspects to almost all prisons in the “Western” world. I should make clear that my definition of “Western” is fairly broad – since I include countries like Japan and India (even to an extent, China). I have no idea what argument you could make that a simple vibrant economy and a reduction of “need” they make does reduce crime – maybe it just changes the scale for individual wrongdoers.

        I don’t know if this is already done, does that represent an effective database right now? Can an analysis be done on the effect of any punishment system, including the economy in that analysis? It would take a long time, but could you make an analysis of: a)their legal system, b)their crime rate, c)make the scale of the crime rate properly analyzed on the basis of their GDP on a per Capita basis, d)that would have to somehow include the variance within the system (i.e. how extreme the poverty was against how extreme the rich guys were), e)an ongoing tracking of the punishment/reform aspects of their penal system,

        Something else would have to be done: make the data gathering done in a way that would reduce the bias any sort of social research project has. I think that is a fundamental failing of almost all Sociological/Economic research projects. Amazingly, they just about always prove the fundamental Aim/Hypothesis they start out with. Try somehow both having experiment/data gathering groups through varying levels of bias in whatever the Aim of the Thesis and gathering that data independently. But once a year, 6 months, 3 months they would get together and debate the meaning/worth/bias of that data.

        I don’t know if that would eliminate bias (no, I DO know that would NOT eliminate the bias) – but it would certainly lessen it. Maybe it would even produce the data you needed to develop a methodology for the scientific analysis of ANY bias.

        Personally, I have always thought we go into way too much detail in all of our laws. Most people in this world are almost “afraid” of the details of the Law. A lot of our crimes are obvious (like murder or theft) but it even gets complicated as to what constitutes a theft or murder – or what is a “manslaughter” or “repossession” or even “self defense”! The law against any crime should be both a just law, and, more importantly, something that everyone can understand.

        In the end, any law has to meet the standard of (pardon the old fangled language, just always though it was more “poetic” said this way): “Do unto others as you would have them do unto you.” Though there might even be an advantage to that phrasing. If you frustrated someone on just the detail of what something that sounded so old fashioned, they’d be more motivated to understand it. Compared to something like “the first party will never engage (except under circumstances that would justify that engagement) any action upon a second party that would impose a loss that they would not like to suffer . . .” the first line would sound much more like something they could argue about – and not simply dismiss. The amazing thing is that if I was a lawyer or a politician, I could probably make my second “do unto” version much longer and more complicated. I admit, it could probably be twisted into something that whoever was in charge was to their advantage, but the simpler the terms of any argument the more likely the average Joe/Josephine will feel they can argue about it. And we are moving into an age where everyone is beginning to feel that they can argue with anyone, anywhere! Even with someone that doesn’t understand English/French/Russian/Hindi/Cantonese/Swahili, you will be able to communicate/argue with him or her somehow through the Net. I am certain that most of the time, both parties would separate each equally certain that they had won the argument, but I am also certain there would be some detail from the other person (if it was a real argument) that bugged the hell out of them!

        The final thing is talking about your “placebo”. The laws are so different around the planet that a great many things that are illegal in one jurisprudence area are legal in another. Could you analyze that? I know that I am moving into another reality when I talk about this much data, but couldn’t we START to put it all in the same place? With the aim of making sure that laws were written so that everyone understood that law, not of making sure there wasn’t a twisting the intent of the law. If everyone understands a law, you’ll have a lot more people looking for that “intent twist” – either way – on all cases.

        Here’s an even wilder idea: set up a “Legal Police Force” for Judges so that not only the rich (or the ones who could make some intellectual argument to a lawyer/legal society to take on their case) could appeal their case. Might be impossible to implement, but most cases would be easy to dismiss. And even those easy dismiss-able cases might build database against a particular judge – find out when he’s over dismissing. Then just putting a limit against his trialing those cases.

        I am getting way too technical. Sorry.

  4. To hark back to an earlier point – the first post in fact – the seemingly logical conclusion we arrive at after the supposition that the mind is behaving intrisically without the intellectual knowledge, or permission of the self, is of seeing this as an excuse for the behaviour.

    I don’t see it like this. The question however then becomes, not whether punishment or sanctions apply in this scenario, but who exactly is it being levied against. Are we saying that if the individual is found to be responsible then therefore the sanction is justified, but if they are considered not to be culpable for the action (in the case of diminished responsibilty for example) then by default they are also penalised; either way, the person is going to be detained in whichever facility is appropriate dependent on the verdict.

    I think what I’m trying to say, and probably just repeating from the article except in a different way, is that we shouldn’t immediately see this as an opportunity for justifying the commiting of heinous acts, which is what is summised when having this kind of discussion. Rather it can further our understanding and possible treatment of individuals within that system, and indeed the legal system as a whole. Or at least make us think differently about these cases.

    Jerry says, “Behaviors are always choices.”

    When contrasting this with the ‘readiness potential’, I’m not so sure. Perhaps an individual could be charged with not stopping an act, rather than for commiting it.

  5. This is a fascinating conversation, and one we’ll surely be agonizing over for years to come. I haven’t been the victim of a crime, but a close friend of mine is bipolar, and at his worst engages in behavior that could be described as cruel or frightening. (The comparison, I readily admit, is imperfect, and I would never compare my interactions with him, however difficult, to the horrors visited upon a crime victim. Still, I believe the impetus we are concerned with is the same in both instances.) In the depths of his illness, he has alienated nearly everyone in our circle of friends. His actions have included accusations made out of thin air, savage put-downs, physical threats, and all-around toxic behavior.

    At my best, I try to remind myself that he is possessed by forces well beyond his control, a coping strategy that provides at least a moderate shield for abuse. At my worst, I come to disdain him, and distance myself even further. I’m fairly emotional myself, and can’t but help feel attacked by his vitriol. (Not, of course, that he’s always like this. He can be thoughtful and funny when he’s feeling okay.) It can be desperately hard not to respond to his callous judgments, particularly when his own life is such a shambles and far more ripe for the same ruthless analysis he so readily dishes out to everyone else.

    Another friend of ours, more even-keeled than I am, is convinced that all of our friend’s actions must be seen through the lens of his illness. Accordingly, he is willing to put up with, or at least excuse, much more of his toxic behavior than I am (and I’m one of the few in the circle who are still around to be subjected to it). Our many discussions about our friend’s sad predicament, and the appropriate responses to it, have perhaps unsurprisingly led us to the discussion in this post. (My friend is a lawyer, so he may have long had these questions on his mind.) I don’t think my friend has fully convinced himself of the argument, but he has suggested that perhaps every criminal is either ill or the product of forces beyond his control, and consequently, cannot truly be said to be responsible for his actions.

    If this is true, as your post seems to be arguing, albeit somewhat cautiously, this would (or at least should) have serious repercussions for our “justice” system. This is, by the way, not a farfetched . Interestingly—or appallingly, depending on your views on the topic of culpability—a public defender I volunteered with a few years ago endorsed the idea of complete absolution. Indeed, she gladly took this argument to its practical, logical, extreme: nobody should be in jail. Parking offenders, murderers, and rapists—all were failed by society and/or biology, and none should be made to pay for their burden by incarceration. A great person to have on your side if you’re ever accused of a crime, but I’m not sure her position is in society’s best interest. In fact, I think it would be a very bad thing if her dream ever came to fruition. (My intention for mentioning this story isn’t to fit the author of the post and the public defender in the same box; it’s just to illustrate that the belief in non-culpability is hardly pie-in-the-sky, but actually alive and held among influential people.)

    For me, if someone commits an unjustifiable violent crime (I’ll just concern myself to physical offenses here, as the post itself does), culpability should still have no effect whatsoever on our response: removing the offender from society. It may, however, have an enormous effect on the process of this removal. If the offender can be proven to be mentally ill—or, if we agree (not that we have!) that anyone who commits a crime is indeed mentally ill, this would of course include anyone convicted of a violent crime—this would mean re-examining our methods of incarceration, and the entire debate on rehabilitation vs. punishment. In the end, however, I say the result must still stand: the offender must be decommissioned. Whether he is truly culpable or not, subject good fortune or bad, for society to function we must respond to consequences, not motives. We can, and should, work to rehabilitate and provide help to those who are compelled, for whatever aberrant reason, to do bad things, but we simply can’t abide violence under any guise.

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