Monthly Archives: December 2011

“Modifiability”: David Eagleman’s Gift To Criminal Justice

I read a lot of books in my spare time.  My television time is, by design, quite a bit less than my reading time.  Some of the books I read are not so great, and some of them are pretty good.  Every now and then I find a book that is excellent.  Neuroscientist David Eagleman recently published such a book called Incognito- The Secret Lives of The Brain. It is a work of non-fiction, and it is one of the few non fiction books that I’ve read where I could not not stop reading it, even after I was tired.

After I read the whole book, which was a few months ago, I had the opportunity to meet Dr. Eagleman and hear him speak to a group of people who have an interest in neuroscience.  I was not disappointed.

David Eagleman is that rare combination of scientist, creative genius, and showman.  His speaking skills are as good as his writing skills, and he has a charm and humility about him that makes it hard not to like him.  I only wish I could have spent a couple hours with him, instead of a couple of minutes when I had him sign my copy of his book.  I would have loved to discuss how his work, and the work of the neuroscience community in general, might someday change how society deals with crime and the important task of punishing and rehabilitating criminals.

Although the entire book is really well worth reading, my interest as a parole attorney here in Texas was really fascinated with Chapter 6 of the book, titled, Why Blameworthiness Is The Wrong Question. After personally interviewing several hundred convicted felons over the last few years, I had already arrived at some of Dr. Eagleman’s conclusions, but I had no idea why I felt the way I did, until I saw how he explained what happens in the brain that triggers the overwhelming majority of criminal behavior.

As I read Dr. Eagleman’s words, it was as if he was eloquently expressing many of my disorganized inner hunches and validating my gut instincts about criminal behavior and the ways in which our present methodology of criminal punishment and prisoner rehabilitation misses the mark so badly.

Dr. Eagleman is a respected neuroscientist at Baylor College of Medicine.  His scientific research has been published in journals such as Science, and Nature. He has some pretty insightful conclusions, based on the growing body of cutting edge neuroscience research.  I have to wonder how long it’s going to take society to catch up to the scientific insights already so well understood by Dr. Eagleman and his peers.

I could never do justice to Dr. Eagleman’s book here in this blog, even as it relates to the chapter on blameworthiness.  However, a couple interesting quotes from Chapter 6 ought to give you a basic understanding of his thoughts about criminal blameworthiness, and what we should do about it  :

“The question of free will matters quite a bit when we turn to culpability.  When a criminal stands in front of the judge’s bench having recently committed a crime, the legal system wants to know whether he is blameworthy. After all, whether he is fundamentally responsible for his actions navigates the way we punish.  You might punish your child if she writes with a crayon on the wall, but you wouldn’t punish her if she did the same thing while sleepwalking.  But why not?  She’s the same child with the same brain in both cases, isn’t she?  The difference lies in your intuitions about free will: in one case she has it, in the other she doesn’t”…

“I propose that the answer to the question of free will doesn’t matter–at least not for the purposes of social policy–and here’s why.  In the legal system, there is a defense known as an automatism.  This is pled when the person performs an automated act–say if an epileptic seizure causes a driver to steer into a crowd. The automatism defense is used when a lawyer claims that the act was due to a biological process over which the defendant had little or no control.  In other words, there was a guilty act, but there was not a choice behind it….”

“Before moving into the heart of the argument, let’s put to rest the concern that biological explanations will lead to freeing criminals on the grounds that nothing is their fault.  Will we still punish criminals?  Yes.  Exonerating all criminals is neither the future nor the goal of an improved understanding. Explanation does not equal exculpation.  Societies will always need to get bad people off the the streets.  We will not abandon punishment, but we will refine the way we punish…”

I cannot begin to do justice to Dr. Eagleman’s argument, but suffice it to say that he asks a deeper question than the superficial one that is asked today.  Dr. Eagleman indicates that,

“There is no meaningful distinction between his (the criminal’s) biology and his decision making.  They are inseparable…the criminal activity itself should be taken as evidence of brain abnormality, regardless whether currently measurable problems can be pinpointed….So, culpability appears to be the wrong question to ask.

Dr. Eagleman looks forward to the future, rather than backwards at the crime itself.  He asks how a criminal’s brain and his decision making skills, including impulse control, can be permanently modified, for the better.  The remainder of  Chapter 6 of Dr. Eagleman’s book argues that “modifiability” is a much better question than “culpability” especially once a society’s bloodlust for exacting punishment is under control.  After all, an extremely high percentage of criminals are eventually released.  The manner in which their brains function following release from prison becomes far more important to public safety than whether they previously committed a crime.

So, “modifiability” becomes much more relevant than “culpability” because culpability concerns itself with what happened, and modifiability concerns itself with making sure bad things don’t happen in the future.  This is a shift that would allow the petty criminal to be modified before he graduates to the big leagues, and it would take the big league criminal and retire him from the game before he becomes even worse.

For those who cannot be modified?  Dr. Eagleman admits that there will be some of these people too.  The long term warehousing of prisoners may still be the only way to handle these people.   For most, however, meaningful rehabilitation would result, perhaps without the costly and unreasonably long sentences that are the norm today.

Hope springs eternal.  Good luck to Dr. Eagleman and other neuroscientists!  Their work could someday make our prisons better, and our society safer and more enlightened.



Six Parole Hearings In One Day, But One Stands Out

Today was, well, pretty unusual for me.  I had six parole hearings in one very long, very interesting day.  I cannot remember a day when I had more than three hearings.  The good news is that I’m pretty sure a good number of the clients made parole.  Yet, I am saddened that the guy who was probably the most deserving of the six will likely not make it this year.

Why?  It’s simple…I’m 90% sure that there was a protest on file from the victim’s family.  It’s not really important why I know there was a protest, suffice it to say that the Board is not allowed to divulge whether there is a protest.  Nonetheless, I’m pretty sure I’m right.  The sad thing is that, in my opinion, a parole protest pretty much guarantees that the Offender gets denied parole.

When a protest is filed, my experience is that the Board takes the path of least resistance most, if not all of the time.  That path is called “Parole Denied”.

This is a scenario that needs to be reformed.  I’m going to figure out a way someday to get the Board to release the data so that I can prove that a protest equals parole denied. I’m really not sure who’ll listen to me when I can prove I am right, but it’s an injustice that really needs to stop.