In his 2002 book “The Blank Slate” Steven Pinker argues against the notion of the tabula rasa – which is to say that we are all blank slates upon which society crafts our personalities.  As an alternative he suggests that evolutionary psychology delivers humans largely prewired. 

This has an interesting implication on criminal justice.  If a person is largely prewired to be a criminal, is that person’s free will challenged or diminished in some way?  The defining difference between murder and manslaughter is forethought and intent.  Forethought and intent are in turn, products of the human brain and the psychology thereof. 

 

 

Now consider the case of Brian Dugan, a death row inmate whose brain has been demonstrated by new science to have a measurable defect.  Kent Kiehl, a neuroscientist from the University of New Mexico has been amassing fMRI (functional Magnetic Resonance Imaging) data on prisoners accused of violent crimes.  The scan above demonstrates a measurable defect in the paralimbic system – a system known to regulate emotion.  Also, during an interview Kiehl conducted with Dugan, Dugan scored 38 out of a possible 40 on the Hare Psychopathy Checklist.  This checklist is a diagnostic tool used to assess the possible psychopathy of a given individual and is conducted during a structured interview by a qualified therapist.  (This checklist was developed by Robert Hare, Kiehl’s graduate school mentor.)

( Kent Kiehl in front of his mobile fMRI scanner )

Kiehl testified on behalf of Dugan asking for clemency based on this defect which perhaps could be considered a mitigating factor in the case.  Now many people have brain defects of one form or another, but the bar raised by the law is the knowledge of right from wrong.  However, this particular brain defect effects emotional regulation which may substantially impact on the ability to determine right from wrong. 

Originally the jury was not unanimous in the death sentence verdict but upon a second meeting of the jury, a unanimous verdict was reached.  The verdict aside, the case raises a host of issues, legal and otherwise.  As fMRI data becomes more tuned and reliable, should it be given higher weight in court cases?  Should fMRI scans be conducted as part of early childhood psychological workups to determine potential problems and arrange for prevention and treatment? 

The philosophical and religious implications are more concerning.  All religions and theologies are based on the notion of free will.  Brian Dugan’s brain poses a huge problem for adherents to the theology that all people are born with free will and equal potential.  Most religions contend that we are all born with challenges.  Some of us are angry by nature, some of us to docile, and it is up to each of us to overcome our challenges to grow as individuals.  But the case of Brian Dugan asks us to draw a line as to where a certain personality characteristic is too deeply ingrained (due to a physical defect) to be controlled by free will. 

 

Theologians should be tremendously troubled by this research even though they are likely to dismiss it out of hand as un-godly science.  Were they to accept this research, then they would be forced to accept that God could create individuals that have (or effectively have) no choice in committing horrible acts of violence.  True the ‘Lord works in mysterious ways’, but this mystery may prove to be more horrifying and belief destroying than compelling and ultimately glorious.

If the Hare Psychopathy Checklist and Kiehl’s fMRI research are revealed to be reliable predictors of psychopathic behaviours, then certain individuals’ free will and indeed ‘sanity’ in the legal sense are intrinsically non-present.  It is my understanding the Dugan wasn’t asking to be released based on this evidence, just to avoid the death sentence.  As this type of evidence (this was the first case where it was considered) is perfected and refined, a death sentence ruling may become more and more difficult to win. 

A famous quote oft quoted by lawyers in criminal cases is “to understand is to forgive”.  As our knowledge of workings of the human brain advances, our understanding will undoubtedly increase in equal measure.  Hopefully, too, our ability to forgive and treat rather than answer murder with murder will follow suit.

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Further reading: http://www.nature.com/news/2010/100317/full/464340a.html

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Postscript:

In 2011 Illinois governor abolished capital punishment and Dugan’s death sentence was commuted to life in prison.

http://en.wikipedia.org/wiki/Brian_Dugan