Thursday, March 29, 2007

Around the Blogs, Thursday, March 29, 2007

  • Doug Berman at Sentencing Law and Policy notes a couple of posts raising doubts about the recent reports of rising violent crime rates, especially since the two posts come from guys on the opposite ends of the political spectrum. I would just point out that historically two things have tended to happen here when violent crime rates start going up for real or for hype—there is a call for more prisons (which Mauer is professionally and personally against) and more gun control (which Lott is professionally and personally against). Not saying their critiques are wrong, just that it’s harder to take seriously claims of bias when the claimants are well known for the axes they’ve ground.
  • From Sex Crime Defender, another tale of 100% certain eyewitness testimony sending the wrong guy to prison for a couple of decades, as we discover from DNA tests. Want an understatement? "Capozzi, who has schizophrenia, was arrested in September 1985, charged with three rapes and convicted of two, largely on the basis of the victims identifying him in two police lineups.''They believed in their heart they were accusing the right man,'' Clark said at a news conference. ''Obviously they were violated and they wanted whoever they thought did it to be punished, so they acted in good faith. Sadly, they made a mistake.''
  • From Sex Crimes Blog, this link to a Prevention Works piece Corey beat me to. Matthew Bowen does another nice job updating his readers on the sex offender residency restriction issue, evidence of what works and doesn't with these offenders, and the hard thinking we have to do balancing treatment against legit public concerns. His typical considered and thoughtful view.
  • The Situationist provides an overview of recent studies on the relationship between certain religious fundamentalism and violence. It also helps explain why the more “fundamentalist” states lead the nation in both violent crime and punitive response to it.
  • Finally, a great book review essay at Financial Times, via Neuroethics & Law. A really thoughtful overview of what cognitive and neuro sciences are doing to the concept of free will and what that will do to our concepts of responsibility in criminal law. Here are some key quotes:

The neuroscientist and life peer Susan Greenfield, one of 21 eminent thinkers interviewed by Susan Blackmore in her Conversations on Consciousness: What the Best Minds Think About the Brain, Free Will and What It Means to be Human, is worried. The implications touch ”all of life”, she argues, ”how much a kid at school feels they’re responsible, and feels their destiny is in their own hands”. Another interviewee, the philosopher Pat Churchland, is concerned about ”how the developing knowledge of the genetic and neurobiological causes of irrational violence is going to have an impact on the criminal law”.

The impact could be revolutionary. Imagine, for example, two women - call them Thelma and Louise - who both hear rumours that their husbands are having affairs. Thelma waits for her husband to come home so she can hear his side of the story. Louise waits for her husband to come home, and shoots him as he walks through the door. It turns out neither husband was actually having an affair.

Louise is accused of cold-blooded murder. There is no reason, argues the prosecutor, why she could not have acted just like Thelma, who was, after all, in just the same position. Not so, says Louise’s defence lawyer, producing a map of her brain as it was before she heard the rumour. He then shows the jury how the news made this neuron fire, which caused these other neurons to fire, which eventually, caused Louise’s finger to pull the trigger. He argues that this unbroken causal chain led inevitably from her hearing the rumour of her husband’s infidelity to the awful position in which she now finds herself. Thelma was lucky to have the brain she did, he argues. Louise was not so lucky. Surely this poor widow, a victim of the immutable laws of nature, deserves pity, not punishment?


But our increasing knowledge of how the brain works is already changing the way we view criminal behaviour. Churchland cites the example of people with low levels of MAOA, an enzyme essential for the proper working of the brain. MAOA deficit is associated with impulsiveness and aggression, and therefore higher levels of criminality. Those who suffer both from an MAOA deficit and an abusive upbringing ”are virtually certain to be irrationally and self-destructively violent”, she claims.

There is already ample evidence that prison is effectively where society sends those whose brains do not work properly. A report released last month suggested over a quarter of the UK’s almost 80,000 prison population have an IQ of lower than 80 and suspected learning disabilities, such as forms of autism and dyslexia. Another study carried out at the Young Offenders’ Institute in Aylesbury showed that if prisoners were given minerals and fatty acids essential for proper brain functioning, they committed 37 per cent fewer violent offences.

When we know that the structure of someone’s brain makes them very likely to be a menace to society, we will increasingly be faced with the choice of medically intervening - even forcibly - or knowing that we could have prevented a terrible crime. ”The interventions may not always be pretty, but of course going to prison is not pretty either,” says Churchland.


Derk Pereboom recognises that our lack of free will means we need to rethink morality - but sees this as no bad thing. It would, he suggests, lead to sensible reforms, such as shifting the focus of the criminal justice system away from retributive punishment and towards re-education and deterrence - or towards protecting society: ”Suppose that a serial killer continues to pose a grave danger to a community. Even if he is not morally responsible for his crimes, it would be as legitimate to detain him as it is to quarantine a carrier of a deadly communicable disease.”


Perhaps it is too early to throw open the prison doors, close down the courts and resign ourselves to the remorseless laws of nature. But there is no doubt that as we learn more about the mechanics of the mind, we will need to rethink some of our deepest beliefs about ourselves and our society. Each of these three volumes sheds some light on the work that needs to be done. But the book that really does justice to this question is yet to be written.

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