By Susan A. Ehrlich, J.D., LL.M. (biotechnology & genomics), Judge, Arizona Court of Appeals (ret.)
Lex talionis is the law of retribution. The Code of Hammurabi, the Law
of Moses and the Qur’an similarly press retributive justice. As expressed in
the Bible in the Book of Exodus: “[I]f any mischief follow, thou shalt give
life for life, eye for eye, tooth for tooth, burning for burning, wound for
wound, stripe for stripe.” The decree was absolute; there were no exceptions
for youth, for the mentally disabled, or for anyone unable to govern his or her
acts.
To obtain retribution no longer is the sole or even the
primary reason for which the law exists, however. The overarching purpose of
the law is to guide individual conduct in the framework of the greater social
good and to hold an individual responsible for his or her conduct by means of a
just process. The overarching purpose of the criminal law is to protect the
common good through the enforcement of violations of that social code through
measures that include education regarding the shared norms and values, the
maintenance of peace by publicly licensed law-enforcement officers, the
punishment of a transgressor upon due process, deterrence through the
punishment of an offender and the education of all, and the rehabilitation of
the wrongdoer. Retribution is not for the criminal but for his or her
victim(s), as a mechanism of deterrence and for the satisfaction of society
because justice has been achieved.
If it is undisputed that a wrong has been done, is it,
however, appropriate to punish an individual if his or her act was neither
intentional nor attributable to a lack of judgment because the offender was or
is not capable of forming the requisite intent, of understanding the
consequences of his or her act, of understanding that the act was wrong, or of
conforming his or her behavior to the law? Does the offender’s ability to
understand and accept responsibility for a criminal act have to be an
indispensable condition of a just punishment? David Hume wrote in An
Enquiry Concerning Human Understanding that “[t]he only proper object of
hatred or vengeance is a person … endowed with thought and consciousness,” and
that is the perspective for which neuroscience is pertinent.
Three examples of individuals whose behavior likely was
marked by irregularities of the brain are the following:
(1) Phineas Gage in 1848 survived an explosion that drove
an iron bar through the front portion of his head. Immediately, Gage’s
personality changed markedly; he became impulsive, showed inappropriate social
behavior and otherwise lost a noticeable number of his normal, conventional inhibitions.
No autopsy was done, but the destruction to his skull shows that the area of
his pre-frontal cortex was damaged.
(2) Charles Edmund Cullen is suspected of being the most
prolific serial killer in United States history. A nurse, he has admitted killing
as many as forty of his patients beginning in 1988, but it is likely that he
has killed many more people, possibly hundreds of patients whose identities he
cannot remember. Moreover, while in his interviews he speaks of right versus
wrong, he seems to lack an obvious or real cognition that the deaths he caused
indeed were wrong. A scan of his brain might show that his amygdala is smaller
than that of a normal man.
(3) A Virginia teacher in 2000 began surreptitiously
visiting web sites featuring pornography and collecting pornography, most of
which highlighted images of children and adolescents. After he approached his
young stepdaughter, he was arrested and convicted for child molestation. The
man was given the choice of participating in a rehabilitation program for
sexual addiction or prison. Despite his strong desire to avoid prison, he
failed in the program because he continued to solicit sexual favors from
members of the staff and fellow patients. He was awaiting the sentence to
prison when, suffering from a headache and problems of balance, fearing that he
might rape his landlady and contemplating suicide, he went to an emergency
room, still unable to control his impulses as indicated by his approaches to
the female staff. An MRI showed the presence of a right orbitofrontal tumor.
When it was removed, his inappropriate sexual urges disappeared, and his
behavior returned to normal. The man again was permitted to enter a
rehabilitation program, which he successfully completed and thereafter returned
to live with his wife and stepdaughter. When he began to display his former
interest in pornography, though, he self-reported, and an MRI showed that the
tumor had reappeared. It was removed, and his urges again subsided.
Irregularities in the brain need not be physiological at
birth. There may be injury due to physical trauma such as exposure to lead,
abuse or an explosive device, or emotional disturbance such as abuse or
post-traumatic stress disorder. But when does a structural difference, whatever
the source, become a functional difference, and what is a tolerable range of
behavior? “Abnormal” with reference to brain function or behavior is not
self-defining except at the extremes, but a presumption of what is “normal” is
a conceit necessary for the regulation of individual behavior within society,
the notion of responsibility itself being a social construct. The law
therefore treats individuals as intentional persons, and legal responsibility
depends on a person’s capacity to be rational. Indeed, the definition of
“insanity” in the American Law Institute’s Model Penal Code, which has been
widely adopted, is that a person is not liable for a criminal offense if, when
the offense was committed, he or she “suffered from a mental disease or defect
that resulted in the individual lacking the substantial capacity to appreciate
the wrongfulness or his or her actions or to conform” those actions to the
law. In this, a mental disorder may play a causal role.
This presents the question of the degree to which a person
should or will be held responsible if his or her capacity to be rational is not
completely developed. In addressing not responsibility for committing a crime
but culpability in the context of punishment, the United States Supreme Court
held in Atkins v. Virginia (2000) that a mentally disabled person,
because of his or her disabilities in reasoning, judgment and impulse-control,
does not act with the level of culpability that supports the imposition of the
death penalty. Instead, it wrote, punishment must be tailored to the
individual’s “personal responsibility and moral guilt.” Subsequently, the
Court held in Roper v. Simmons (2005) that the “diminished culpability”
of offenders younger than age 16 due to their “lack of maturity and an
underdeveloped sense of responsibility” also bars the imposition of the death
penalty.
Neuroscience can provide significant insight and an
improved understanding of the human condition. Neuroimaging may display a
condition that can compromise or negate rational behavior. Accepting the
reliability of the proof, the introduction of neuroscientific evidence
implicates varied and numerous legal issues for a just determination of guilt
and punishment. While not exclusive to the justice system of the United
States, its system provides a useful scaffold to present for consideration if
not resolution of many of these issues.
International
Judicial Monitor