Asking for a friend…
But seriously, this is a real question. For example, several years ago, Herbert Weinstein tossed his wife out the window of their Manhattan apartment, after killing her, following an argument. He was well known to be a non violent person, and there was really no good reason for him to murder his wife this way. But, it turns out, his prefrontal cortical region was compromised by a very large cyst. Weinstein was one of the first in recent decades to use an insanity style defense connected to neuro-imaging or other neurobiology showing a demonstrable, physical, brain problems.
The obverse is obvious, and somewhat ominous. If a person can commit a serious crime and then be shown to have done so because of something we can see pretty easily inside their brain, then couldn’t, even shouldn’t, we be scanning brains to identify people who might also throw Mrs. Weinstein out the window?
More pragmatically, what about the link between damage to brains in sports or war, and behavior, treatment, and the simple problem of helping people who got messed up because we like to watch them smash into each other on the gladiator’s field, or we wish them to defend our nation on an actual battle field?
Author Kevin Davis notes:
Among the growing number of cases involving neuroscientific evidence are those that involve combat veterans from Afghanistan and Iraq as defendants. The attorney for Army Staff Sgt. Robert Bales, who was charged with killing 17 civilians in Afghanistan, has said his client suffered a traumatic brain injury.
So many veterans are winding up in the courts that the National Veterans Foundation, a Los Angeles-based nonprofit, created The Attorney’s Guide to Defending Veterans in Criminal Court, which covers traumatic brain injury and post-traumatic stress disorder.
By the way, do you know who Melissa Fitzgerald is? She played Carol Fitzpatrick (aka “Carol”) on The West Wing — CJ’s assistant. Go to The West Wing Weekly podcast, find episode 1.10, and listen to an interview with her about veteran law and veteran’s courts.
Anyway, Kevin Davis, quoted above, is coming out with a book called The Brain Defense: Murder in Manhattan and the Dawn of Neuroscience in America’s Courtrooms, which covers this topic in some detail. In particular, he uses the Weinstein murder case as the context for a detailed exploration of neuroscience and criminal justice.
Shortly after Weinstein was arrested, an MRI revealed a cyst the size of an orange on his brain’s frontal lobe, the part of the brain that governs judgment and impulse control. Weinstein’s lawyer seized on that discovery, arguing that the cyst had impaired Weinstein’s judgment and that he should not be held criminally responsible for the murder. It was the first case in the United States in which a judge allowed a scan showing a defendant’s brain activity to be admitted as evidence to support a claim of innocence.
The Weinstein case marked the dawn of a new era in America’s courtrooms, raising complex and often troubling questions about how we define responsibility and free will, how we view the purpose of punishment, and how strongly we are willing to bring scientific evidence to bear on moral questions. Davis brings to light not only the intricacies of the Weinstein case but also the broader history linking brain injuries and aberrant behavior, from the bizarre stories of Phineas Gage and Charles Whitman, perpetrator of the 1966 Texas Tower massacre, to the role that brain damage may play in violence carried out by football players and troubled veterans of America’s twenty-first century wars. The Weinstein case opened the door for a novel defense that continues to transform the legal system: Criminal lawyers are increasingly turning to neuroscience and introducing the effects of brain injuries—whether caused by trauma or by tumors, cancer, or drug or alcohol abuse—and arguing that such damage should be considered in determining guilt or innocence, the death penalty or years behind bars. As he takes stock of the past, present and future of neuroscience in the courts, Davis offers a powerful account of its potential and its hazards.
The book is coming out in late February, but you can preorder it here.