David Eagleman has an article in The Atlantic The Brain on Trial, in which he ‘describes how the foundations of our criminal-justice system are beginning to crumble, and proposes a new way forward for law and order.’

The ever more successful endeavours of neuroscience to link behaviour to biology, claim Eagleman, mean that we will have to acknowledge that the ‘simplistic’ categorisation of individuals into responsible and not-responsible for their actions is untenable. Instead we should admit that culpability is graded and refocus our legal system on rehabilitation and the prevention of recidivism.

In fact, rehabilitation has long been admitted as a core purpose of the justice system, though of course that’s no reason to complain about someone reiterating its importance (and obviously the call for a refocussing on rehabilitation makes most sense in a culture addicted to incarceration). What is harmful is the implication that you need neuroscience to be able to realise that circumstances and history make some people more able to make responsible choices. Neuroscience just expands our idea of what counts as ‘circumstances’, to include aspects of the internal environment – ie our biology.

However, according to Eagleman, a brave new world of evidence-based justice awaits:

As brain science improves, we will better understand that people exist along continua of capabilities, rather than in simplistic categories. And we will be better able to tailor sentencing and rehabilitation for the individual, rather than maintain the pretence that all brains respond identically to complex challenges and that all people therefore deserve the same punishments.

This is profoundly misleading, giving the impression that the justice system gives the same punishments for the same crimes (which is doesn’t) and that it was only neuroscientific ignorance that forced legal philosophers to create the category of ‘legally responsible’.

Another view is that, the simple idea of legal responsibility was adopted as a deliberate choice, a choice we make hand in hand with that of equality before the law. We do this because as the alternative to legal equality is odious, so the alternative to equality of responsibility is pernicious. The criminal justice system already de facto admits to gradations of responsibility, how exactly does Eagleman imagine that it could be improved by formalising a graded notion of responsibility? Far from crumbling, as Eagleman claims, the criminal justice system is already a compromise between the need to view people as responsible and the recognition that not all choices are equally free. The revolution heralded by Eagleman’s barrage of rhetorical questions and attacks on strawmen is a damp squib. If the neurosciences are going to make a genuine contribution to issues like this, the onus must be on us to engage with existing thought on complicated matters like criminal justice and provide detailed evidence of how neuroscience can inform these existing systems, rather than pretending that new findings in the lab can sweep away thousands of years of cultural and philosophical endeavour.

Link to The Atlantic article, The Brain on Trial

Previously on mindhacks.com, Against Neuroethics