Unfair (45 page)

Our “mug shot” approach:
Miller,
The Social Psychology of Good and Evil
, 2.

By imagining most criminals as:
Ross and Shestowsky, “Contemporary Psychology's Challenges to Legal Theory and Practice,” 1092–93; Fiske et al., “The Cultural Matrix of Social Psychology,” 920.

The answer is nothing more:
Henry T. Greely, “Law and the Revolution in Neuroscience: An Early Look at the Field,”
Akron Law Review
42 (2009): 687–88.

Take away these electrochemical interactions:
Greely, “Law and the Revolution in Neuroscience,” 688.

How could that
thing
be nothing more:
David Eagleman, “What Our Brains Can Teach Us,”
New York Times
, February 22, 2013,
http://www.nytimes.com/​2013/02/23​/opinion/what-our-brains-can-teach-us.html?_r=1&
.

There wasn't some villainous spirit:
“Brain Facts and Figures,” University of Washington, accessed May 20, 2014,
http://faculty.washington.edu/​chudler/​facts.html
.

Even back in Masters' time:
Shelley Batts, “Brain Lesions and their Implications in Criminal Responsibility,”
Behavioral Sciences and the Law
27 (2009): 266–67, doi: 10.1002/bsl.

Perhaps the most famous example:
Mark Wheeler, “UCLA Researchers Map Damaged Connections in Phineas Gage's Brain,”
UCLA Newsroom
, May 16, 2012,
http://newsroom.ucla.edu/​releases/embargoed-for​-release-until-wednesday-233846
; Dean Mobbs et al., “Law, Responsibility, and the Brain,”
PLOS Biology
5, no. 4 (April 2007): 693, doi: 10.1371/journal.pbio.0050103.

Gage's fame all came down:
Wheeler, “UCLA Researchers Map Damaged Connections in Phineas Gage's Brain.”

His actions (perhaps not unexpectedly):
Wheeler, “UCLA Researchers Map Damaged Connections in Phineas Gage's Brain.”

In an amazing bit of luck:
Mobbs et al., “Law, Responsibility, and the Brain,” 693.

But as his friends quickly noticed:
Mobbs et al., “Law, Responsibility, and the Brain,” 693.

Respectful, pleasant, and dutiful:
Mobbs et al., “Law, Responsibility, and the Brain,” 693; Martha J. Farah, “Neuroethics: The Practical and Philosophical,”
TRENDS in Cognitive Science
9, no. 1 (2005): 37–38; Wheeler, “UCLA Researchers Map Damaged Connections in Phineas Gage's Brain.”

The injury to particular parts:
Batts, “Brain Lesions and their Implications in Criminal Responsibility,” 266–67.

But there is no evidence that:
Sam Kean, “Phineas Gage: Neuroscience's Most Famous Patient,”
Slate
, May 6, 2014,
http://www.slate.com/​articles/health_and_science/science/2014/05/phineas_gage_neuroscience_case_true_story_of_famous_frontal_lobe_patient.html
; Jeffrey M. Burns and Russell Swerdlow, “Right Orbitofrontal Tumor with Pedophilia Symptom and Constructional Apraxia Sign,”
Archives of Neurology
60 (2003): 437.

In 2000, a married forty-year-old:
Stephen J. Morse, “Neuroimaging Evidence in Law: A Plea for Modesty and Relevance,” in
Neuroimaging in Forensic Psychiatry
, ed. Joseph Simpson, (Oxford: John Wiley & Sons, 2012), 353; Burns and Swerdlow, “Right Orbitofrontal Tumor,” 437. The name “Mr. Oft” is a pseudonym.

As a first-time offender:
Burns and Swerdlow, “Right Orbitofrontal Tumor,” 437; Greely, “Law and the Revolution in Neuroscience,” 700.

Even though he understood that:
Burns and Swerdlow, “Right Orbitofrontal Tumor,” 437.

Oft was kicked out:
Burns and Swerdlow, “Right Orbitofrontal Tumor,” 437; Greely, “Law and the Revolution in Neuroscience,” 700.

It was so bad that he:
Burns and Swerdlow, “Right Orbitofrontal Tumor,” 437; Greely, “Law and the Revolution in Neuroscience,” 700.

But no sooner had his:
Burns and Swerdlow, “Right Orbitofrontal Tumor,” 438. He also urinated on himself, had trouble walking, and struggled on certain neurological tests, including being unable to draw a clock and write legibly. Morse, “Neuroimaging Evidence in Law,” 353.

What they found was staggering:
Greely, “Law and the Revolution in Neuroscience,” 700; Tom Valeo, “Legal-Ease: Is Neuroimaging a Valid Biomarker in Legal Cases?”
Neurology Today
12, no. 8 (April 19, 2012): 39, doi: 10.1097/01.NT.0000414615.73995.c8.

The surgery to remove it provided:
Burns and Swerdlow, “Right Orbitofrontal Tumor,” 438; Greely, “Law and the Revolution in Neuroscience,” 700–01.

Seven months later:
Burns and Swerdlow, “Right Orbitofrontal Tumor,” 438.

By October 2001, his headache:
Burns and Swerdlow, “Right Orbitofrontal Tumor,” 438; Greely, “Law and the Revolution in Neuroscience,” 701.

Sure enough, when doctors ordered:
Greely, “Law and the Revolution in Neuroscience,” 701.

And with a second surgery:
Burns and Swerdlow, “Right Orbitofrontal Tumor,” 438; Greely, “Law and the Revolution in Neuroscience,” 701; The Royal Society, “Brain Waves Module 4: Neuroscience and the Law,”
Brain Waves
4 (December 2011): 15,
https://royalsociety.org​/~/media/Royal_Society_Content/policy​/projects/brain-waves/Brain-Waves-4.pdf
.

But it is important to understand:
Morse, “Neuroimaging Evidence in Law,” 352; Greely, “Law and the Revolution in Neuroscience,” 699–701. For instance, we do not know for certain
how much Gage and Oft could actually control their antisocial behavior. Morse, “Neuroimaging Evidence in Law,” 353.

A better approach for revealing:
Phillip M. Boffey, “The Next Frontier Is Inside Your Brain,”
New York Times
, February 23, 2013,
http://www.nytimes.com/​2013/02/24/​opinion/sunday/the-next-frontier-is-in-your-brain.html
. In particular, neuroscientists have focused on known offenders, individuals who have experienced particular brain traumas or who were born with certain identifiable brain deficiencies, and noncriminals who appear to have no brain anomalies. Boffey, “The Next Frontier Is Inside Your Brain.” As with the case of Mr. Oft, we also sometimes compare people to themselves at different ages. Susan E. Rushing, Daniel A. Pryma, and Daniel D. Langleben, “PET and SPECT,” in
Neuroimaging in Forensic Psychiatry
, ed. Joseph Simpson (Oxford: John Wiley & Sons, 2012), 17.

Our prisons, for example, contain:
Mobbs et al., “Law, Responsibility, and the Brain,” 695; “Mental Illness Not Linked to Crime, Research Finds,” American Psychological Association, last modified April 21, 2014,
http://www.apa.org/​news/press/releases/2014​/04/mental-illness-crime.aspx
. Moreover, illnesses tend to cluster together. As one example, it is estimated that between 75 percent and 93 percent of pedophiles also have other mental disorders, like depression or anxiety. Christine Wiebking et al., “Pedophilia,” in
Neuroimaging in Forensic Psychiatry
, ed. Joseph Simpson (Oxford: John Wiley & Sons, 2012), 102. And 60 percent have been shown to have personality disorders. Wiebking et al., “Pedophilia,” 102.

However, it is important to note that although those with mental illness are incarcerated at much higher rates than those without mental illness, criminal behavior may not be directly
related to the
symptoms
of mental illness. That is, the crimes committed by those with schizophrenia, for example, appear to only rarely result directly from hallucinations and delusions. Jillian K. Peterson et al., “How Often and How Consistently Do Symptoms Directly Precede Criminal Behavior Among Offenders with Mental Illness?”
Law and Human Behavior
38, no. 5 (2014): 439–49, doi: 10.1037/lhb0000075.

Although both are correlated with criminality, psychopathy and antisocial personality disorder are overlapping but distinct conditions. Jeremy Coid et al., “Psychopathy Among Prisoners in England and Wales,”
International Journal of Law and Psychology
32, no. 3 (2009): 134–41, doi: 10.1016/j.ijlp.2009.02.008. The DSM-5 only recognizes antisocial personality disorder and classifies it as “a pervasive pattern of disregard for, and violation of, the rights of others that begins in childhood or early adolescence and continues into adulthood.” Unfortunately, the DSM-5 introduces some confusion into the area by suggesting that “this pattern has also been referred to as psychopathy, sociopathy, or dissocial personality disorder.” American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders
, 5th ed. (Arlington, VA: American Psychiatric Publishing, Incorporated, 2013), 659.

Psychopaths have just the traits:
Greely, “Law and the Revolution in Neuroscience,” 692; Kent A. Kiehl and Joshua W. Buckholtz, “Inside the Mind of a Psychopath,”
Scientific American Mind
(September/October 2010): 22–29,
http://cicn.vanderbilt.edu/​images/news/psycho.pdf
; Scott O. Lilienfeld and Hal Arkowitz, “What ‘Psychopath' Means,”
Scientific American
, November 28, 2007,
http://www.scientificamerican.com/​article/what-psychopath-means/
; William Hirstein, “What Is a Psychopath?”
Psychology Today
, January 30, 2013,
http://www.psychologytoday.com/​blog/mindmelding/201301/what-is-psychopath-0
. The leading measure of psychopathy is the Psychopathy Checklist-Revised (PCL-R), which uses twenty
criteria (scored at 0, 1, or 2) to determine whether someone meets the diagnosis (a total score of 30 or higher). Some of the criteria relate to antisocial behavior, while others relate to emotional and interpersonal traits. Kiehl and Buckholtz, “Inside the Mind of a Psychopath,” 28.

And though they make up only:
Greely, “Law and the Revolution in Neuroscience,” 692; The Royal Society, “Brain Waves Module 4,” 23. In addition, a prisoner appears to be about ten times more likely to be classified as suffering from antisocial personality disorder—characterized by a long-term pattern of disregarding moral norms and the rights and feelings of others—than a member of the general public. Mayo Clinic, “Antisocial Personality Disorder,” accessed May 21, 2014,
http://www.mayoclinic.org/​diseases-conditions/​antisocial-personality-disorder/basics​/definition/con-20027920
; Medline Plus, “Antisocial Personality Disorder,” accessed May 21, 2014,
http://​www.nlm.nih.gov/​medlineplus/ency/article/000921.htm
; Psych Central Staff, “Antisocial Personality Disorder Symptoms,”
Psych Central
, accessed May 21, 2014,
http://psychcentral.com/​disorders/​antisocial-personality-disorder-symptoms/
; Mobbs et al., “Law, Responsibility, and the Brain,” 695.

The evidence related to traumatic brain injuries:
Katherine Harmon, “Brain Injury Rate 7 Times Greater among U.S. Prisoners,”
Scientific American
, February 4, 2012,
http://www.scientificamerican.com/​article/traumatic-brain-​injury-prison/
.

Computed tomography (CT) and magnetic resonance:
Medline Plus, “Brain PET Scan,” accessed May 21, 2014,
http://www.nlm.nih.gov/​medlineplus/ency/article​/007341.htm
.

Their primary value comes in:
Erin D. Bigler, Mark Allen, and Gary K. Stimac, “MRI and Functional MRI,” in
Neuroimaging in Forensic Psychiatry
, ed. Joseph Simpson, (Oxford: John Wiley & Sons, 2012), 27–28; Bigler, Allen, and Stimac, “MRI and Functional MRI,” 27–28.

A functional magnetic resonance imaging:
Bigler, Allen, and Stimac, “MRI and Functional MRI,” 32–35. A positron emission tomography (PET) scan also captures how the brain is working, but employs a radioactive substance (i.e., a tracer) to look at blood flow to different areas of the brain, with higher radioactivity understood to associate with higher brain activity. Medline Plus, “PET Scan,” accessed May 21, 2014,
http://www.nlm.nih.gov/​medlineplus/ency/article​/003827.htm
; Mayo Clinic, “Position Emission Tomography (PET) Scan,” accessed May 21, 2014,
http://www.mayoclinic.org/​tests-procedures/pet-scan/​basics/definition​/prc-20014301
.

This neuroimaging technology has allowed:
Morse, “Neuroimaging Evidence in Law,” 344. It is important to grasp how difficult it is to connect the brain to the mind to behavior. Morse, “Neuroimaging Evidence in Law,” 343. The brain is our most complex organ. Boffey, “The Next Frontier Is Inside Your Brain.” Each of our brains contains some 100 billion neurons, each of which is connected to thousands of other neurons. Eagleman, “What Our Brains Can Teach Us.” With a single neuron potentially firing multiple times each second and perhaps 1,000 trillion neural connections in each of our brains, neuroscientists face an immense challenge. Eagleman, “What Our Brains Can Teach Us”; Boffey, “The Next Frontier is Inside Your Brain.”

Pathological liars, highly aggressive people:
Mobbs et al., “Law, Responsibility, and the Brain,” 694.

There are also links:
Mobbs et al., “Law, Responsibility, and the Brain,” 693–94.