Agency on Trial

A friend recently shared The Brain on Trial, an article by David Eagleman, and I found it to raise some interesting questions in the domains of criminal sentencing and agency. Eagleman also wades into the realm of “free will”, but the treatment seems to be only surface-level (at least from a philosophical standpoint) and not required to get at the main points (for those interested, this post covers some thoughts on that topic in greater detail).

Eagleman’s article starts by reviewing some examples where it’s difficult to pinpoint the source of blame for a criminal act. He offers up two instances of tumors that led to criminal behavior, and another where a crime was committed while sleepwalking (by someone with no prior history or motive). These examples are used to highlight the difficulty (and perhaps futility) of blame assignment, and lead into a deeper dive on the (both biological and experiential) differences between individuals, particularly with regard to their ability to follow laws. Eagleman specifically points out the differences that exist in our biology, and makes clear how these differences lead to varying degrees of culpability. He then makes the case for a more forward-looking approach to sentencing – one in which punishments or treatments are determined on a case-by-case basis with a primary target of minimizing recidivism (rather than being applied broadly based on the crime as they are today).

As I read him, Eagleman is examining two distinct assumptions that exist in our justice system today:

1. Individuals are continuous (i.e. I’m extremely similar to the person I was yesterday; due to this extreme similarity, it is fair to lock the me of today up for crimes committed by the me of yesterday)
2. It is most fair to apply the laws to all adults equally (children are treated differently for some reasons Eagleman discusses)

The earlier examples in the article highlight some issues with the first point of continuity. However, it seems most people would agree that, particularly in the cases involving tumors where an “unnatural” and reversible cause generated the discontinuity, it is fair to simply remove the perpetrator of the crime by addressing the cause (and at the same time, return the original, non-tumor-suffering person to the world).

The sleepwalking example fits into this framework as well (though less cleanly) if we divide the sleepwalker (Kenneth) into two “patterns” (which seems fair due to their degree of difference). There’s Kenneth1, the standard pattern during waking hours, who was known as a “gentle giant”, and there’s Kenneth2, a pattern residing in the sleepwalking portions of the brain. Here, unless we have a method for ensuring the removal of Kenneth2, we’re stuck with a more difficult legal problem – do we let Kenneth1 walk free, knowing the dangers of Kenneth2, or do we lock innocent Kenneth1 up (or remove him from society) to ensure Kenneth2 cannot act again? In a society that errs on the side of innocence, the former seems the better path (albeit with some additional precautions to keep Kenneth “locked up” while asleep).

Overall, the edge cases of continuity do not seem to present too great a problem for our justice system, and actually seem to be handled relatively well today (as shown in Kenneth’s case, where he was let free, and in the handling of crimes of passion or childhood crime). As I understand Eagleman’s opinion, I think he’d agree with that view – it seems his main focus is instead on point 2, where he lays out the reasons why it is not fair to apply the laws to all equally (particularly from a forward-looking perspective). I agree with him that we aren’t all equal, but I don’t think that necessarily means the application of our laws should be tuned for those inequalities.

To get a feel for the degree of biological inequality, here are some figures Eagleman shares:

If you think genes don’t affect how people behave, consider this fact: if you are a carrier of a particular set of genes, the probability that you will commit a violent crime is four times as high as it would be if you lacked those genes. You’re three times as likely to commit robbery, five times as likely to commit aggravated assault, eight times as likely to be arrested for murder, and 13 times as likely to be arrested for a sexual offense. The overwhelming majority of prisoners carry these genes; 98.1 percent of death-row inmates do. These statistics alone indicate that we cannot presume that everyone is coming to the table equally equipped in terms of drives and behaviors.

The genes in question driving these differences are all part of the Y chromosome, and are common to all men. As such, an extreme reading of Eagleman’s view (but perhaps not an inaccurate one) would be that, all else being equal, men convicted of violent crime should be treated with more leniency than women, due to their reduced ability to act differently (because of their genes). A violent man perhaps only requires testosterone suppression treatment (or something akin to it which results in reduced aggression), while the constitution of a violent woman is more incompatible with society (again, all else being equal, or as equal as possible). Once on the treatment, we can imagine men then being treated the same as women, with a second violent act leading to similar consequences.

Taking a forward-looking perspective, we may not even want to wait for men to commit violent crimes before “adjusting” them as described above. If we’ve identified that men are at greater risk to commit crimes due to their Y chromosome, from one perspective we have an obligation to require preemptive “adjustment” (so that it is fair to hold them to the same laws). Without this pre-emptive approach, we’re left either with men receiving more lenient sentences than women for violent crime, and thus having less of a reason to avoid it (which pairs especially poorly with their increased biological drives to commit violent crime), or with men receiving the same punishment, but still having less of an ability to avoid the act (which Eagleman views to be unfair).

For orderly society to exist, it is critical to avoid removing the dis-incentives to crime – and a pure loosening of the laws for certain groups is a direct reduction of these dis-incentives. Eagleman’s ideas work well in a society where the actual punishments for crimes can differ from those listed “on the books” (which function as deterrents), but this approach does not appear tenable (information simply travels too freely). We unfortunately cannot decouple the putative and deterrent aspects of sentences, and accordingly cannot focus solely on the minimization of recidivism – we must also consider punishment (and its role as a deterrent) when structuring sentences.

Taking a step back, it seems that much of the debate on legal frameworks comes down to a question of the degree to which we want to assign humans with agency. At the “agency” end of the spectrum, we treat everyone as completely responsible for their own actions (and completely able to avoid breaking laws), with equal punishments for law-breaking applied across the board. At the far (far) end of the other side, we treat the world simply as a mass of particles bumping into other particles. “Crime” may happen due to particular particles (perhaps ones that are part of “neurons” or “weapons”) bumping into other particles, but there’s no blame to be assigned; in fact, there’s not even anyone to assign it to. Eagleman certainly doesn’t go this far, but any move away from the side of agency brings with it some tradeoffs. As agency is taken from people, so is freedom (as we saw above with mandated “adjustment”) – and it seems most would prefer their freedom to be potentially taken for actions they committed than to be definitely taken for a lack of choice that others perceived.