here is an exciting article from Wired.
Are We Puppets or Free Agents?
By Rowan Hooper | Also by this reporter Page 1 of 1
02:00 AM Dec. 13, 2004 PT
In 1995, the Supreme Court of Georgia heard a lawyer make a novel argument. He had read a study describing violent behavior shared by several generations of men in a Dutch family. Scientists had identified a mutated gene shared by all the violent men, and that's what got the lawyer's brain ticking.
The accused, argued the lawyer, might carry a gene -- like the men in the Dutch family -- that predisposed him to violence. (The lawyer's client was on trial for murder.) Therefore, went the argument, the accused did not have free will, was innocent of the murder and should be acquitted.
The defense, an attempt at legal trickery remarkable even for a lawyer, failed. However, scientific discoveries, particularly advances in neuroscience, are nevertheless having profound consequences for legal procedure.
For example, the insanity plea in the United States currently requires that the accused does not know, because of mental illness, that he did wrong.
The insanity plea derives from the M'Naghten rule, a case from English law. In 1843, a man named Daniel M'Naghten attempted to assassinate the British prime minister; at his trial, he was found to be insane and the trial was abandoned. From that point on, lawyers saw the power of mounting an insanity defense, and many such claims were made.
"By the early 1980s, half the USA and most federal courts were using some sort of insanity test that incorporated elements of loss of volition," said Robert Sapolsky of the Department of Neurology and Neurological Sciences at Stanford University. "This trend abruptly reversed when the potential assassin of Ronald Reagan, John Hinckley, was acquitted."
The acquittal caused a public outcry, and U.S. courts were put under intense pressure to make it more difficult to make a plea of insanity and to restrict claims of impaired volition. Now Sapolsky is calling for a serious reassessment of the law.
"Given that M'Naghten is based on 160-year-old science, it definitely needs to be de-emphasized, or more precisely, to not be used as the sole criterion in so many U.S. states," he said. "The U.S. was definitely moving in the direction of laws that would have encompassed issues like impaired frontal function until the assassination attempt on Ronald Reagan, which led to massive repeal of frontal-friendly laws."
The problem with the reliance on M'Naghten is that modern findings by neuroscientists suggest that damage to the prefrontal cortex of the brain can produce individuals who are able to tell right from wrong but are organically incapable of regulating their behavior.
Sapolsky worked for the defense in a notorious case earlier this year. Scott Erskine was accused of murdering two boys out for a bike ride along the Otay River near the U.S.-Mexico border.
"I worked on the case for the defense, as there was a major issue of damage to his frontal cortex," said Sapolsky. Nevertheless, Erskine was found guilty and sentenced to death for the crimes. The case also starkly illustrates how emotion plays a part in judgments.
"For moral judgment, I think the most interesting trends in neuroscience are the ways in which judgments vary as a function of how emotionally salient the situation is," said Sapolsky.
It is an area that Joshua Greene and Jonathan Cohen, of Princeton University's psychology department, are interested in as well. The pair believes that neuroscientific discoveries will change the law because they will change our moral intuitions about free will and responsibility.
To illustrate what they mean, Greene tells the story of Mr. Puppet, a fictional character genetically designed and environmentally influenced to commit crimes.
"When we know Mr. Puppet's genes and environment were manipulated so that he would behave badly, we pity him and are not inclined to punish him as an end in itself, even if we continue to recognize that he is dangerous and that he and others like him must be contained or deterred," said Greene.
The point of the story is that a deeper understanding of neuroscience will change the way we see behavior, and thus, perhaps, change the way we see the necessity for punishment.
"Neuroscience can help us see that all behavior is mechanical, that all behavior is produced by chains of physical events that ultimately reach back to forces beyond the agent's control," said Greene. "And if we can see that, then I hope we will think differently about punishment, that we'll think of it as a practical tool and not as a way of balancing the universe's moral books."
Of course, that's easier said than done. Emotions are powerful, and it's sometimes difficult to be rational in the face of them. After all, we're not Vulcans.
"But sometime in the future, I hope, when the lessons of neuroscience are as familiar to ordinary people as the fact that the Earth is round, people will have a more accurate understanding of the nature of human action," said Greene, "and they will put aside their intuitive views of punishment, at least for the purposes of legal decision-making.