Imagine being accused of murder and being able to blame your brain? Imagine, perhaps, you committed the crime but don’t totally remember it. You were, of course, in a fit of rage because you came home and found your spouse in bed with another person. In hindsight, of course, you know that it was wrong but at the time, you were blinded by rage and barely even felt conscious while doing it. Perhaps the head injury that you suffered from the car accident a few months before, an incident that left you never feeling the same, contributed to your rage. Perhaps, it wasn’t the car accident but, instead, it was your upbringing, the horrific experiences you endured because of an abusive parent. Perhaps you inherited experiences from your mother or father. Could you blame your brain?


In fact, neuroscience is being used more and more in the legal system, particularly during pre-trial determination of competency, during trials, and during sentencing, according. In fact, neuroscience is making its way into the legal system so furiously that if a defendant does not undergo neuropsychological testing a defense lawyer could be charged with “ineffective council”, a serious claim that is traditionally very difficult to prove.


Using neuroscience in the justice system is increasing in a variety of ways, which were described in a very enlightening, philosophical, and intriguing talk by Nita Farahany last week at the Society for Neuroscience annual meeting in San Diego. Here are a few examples of how it has been used:


The Developing Brain Theory - a claim that is being used as a blanket “truth” for teenagers and young people because the neuroscience is so compelling with respect to behaviours like impulsivity and decision making. I am reminded of the experience in Ontario a few weeks ago where one 19-year-old dies after car-surfing and a 16-year driver is charged with criminal negligence causing bodily harm and dangerous driving causing bodily harm. What was striking to me about that incident is that I remember myself returning home one “fun” evening with a bloody and swollen head and leg because of a similar incident where I too was flung from the back of a car. I didn’t know better. And I assume neither did the Ontario teens. 


Reduced Monoamine Oxidase - Monoamine oxidase (MAO) is an enzyme that breaks down serotonin. A gene that regulates this is known as MAOa and its expression is reduced in some males. When that dysfunctional gene combines with sever childhood maltreatment like abuse, these males are more prone to aggression and are more likely to end up in the criminal justice system defending themselves against crimes they are accused of committing. How much are they to blame versus their genetic predisposition and their horrible upbringing?


Drug & Alcohol Abuse - Although medicalizing drugs and alcohol abuse has been helpful for people in seeking treatment and reducing the stigma associated with it as a  “disease”, medicalizing drug and alcohol abuse has also been used in the justice system as a rational for why people get high and commit crimes associated with such abuse. Some defense lawyers have argued an “unconscious brain” predisposed their clients toward drug- and alcohol-related crimes.


Brain injuries that render a person “never the same” aren’t that far of a stretch either. Remember the classic case of Phineas Gage who was struck with an iron rod that shot right through his brain during a railway explosion? He was never the same: He could no longer manage his crew, could not relate to humans the same way, and could not regulate his emotions. How would he fair in today’s society? Imagine if he came home and found his spouse in bed with someone else? Perhaps he too would have tipped over the line. And if so, would his brain be to blame? It was clear that his brain injury was the culprit in changing a beloved and trusted man into a difficult person to have around. 


What about the increased incidents of concussions in sports, which are of serious concern? What about the increased incidents of suicide, possibly related to such concussions? Are these brains to blame if they do lash out and harm themselves? 


Stress damages the brain, including memory systems and decision making. I just saw a lot about that this year at SfN. Actually, I see a lot about it every year at SfN. The evidence is far from scarce. Are those stressed brains to blame when they lash out and/or have a moment of blind rage? Am I to blame when I snap at someone because of a crazy day? Do we accept apologies when we are at the receiving end? if so, does that mean we accept that circumstances (or the brain) is to blame?


What about Adam Lanza who shot and killed 20 1st graders and 6 adults last December. In October of this year information about his medical and school history was released that reported signs of severe anxiety but no overwhelming evidence for what drove him to massacre that day. Perhaps a brain scan would have been useful. 


The effect of this emerging neuroscience as it relates to legalities is forcing us to think about accountability. I myself have long ranted to anyone who would entertain me about this accountability and our lack of free will. People repeatedly feel uncomfortable with my assertion that we have no free will (this is my opinion btw - I have yet to see any with conclusive evidence for or against that assertion). With good reason we are uncomfortable about this: We want to be in charge of us because if not us, then who? 


But what if the neuroscience is right? What if we are a product of our brains, how they develop, and the experiences that helped shape them? Some of that evidence was written about recently with respect to how experiences not only from our lives but our parents lives can influence us. These are indeed, thing to think about! 


In my mind, there is no debate. I believe we are a product of our experiences and those experiences leave footprints in our DNA and in our brain, altering who we are from that moment on, sometimes in huge ways and some times in subtle ways, but nonetheless we are changes each moment of our existence and we are changing the existence of our offspring. But even if you don’t believe that entirely, what if there is a possibility that there is an ounce of truth to that? If so, then, as Nita suggests, we as a society must consider the ramifications of this, most important of which has to do with our justice system. Our system relies on punishment and paying the price for our crimes. But is punishment the best way to deal with our brains? Would efforts directed toward rehabilitation be better served? Our brains are plastic, we know that. How plastic, we don’t know. But if we shape our brains one way, should we not work towards reshaping them in a way that promotes society integration? What happens to the brains of people who spend years in prison? Does that do anything to help alleviate the problem that anxiety, isolation, abuse, or shame has done in the first place?


THAT is something to think about and I encourage you to do so.



Further Resources:

Epigenetics & Stress


Inheriting Our Experiences From Our Father


Book: The Impact of Behavioral Sciences on Criminal Law by Nita Farahany


Science Paper: MAOa and Aggression


Science Paper: Suicide & Concussions

AuthorMandy Wintink