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Authors: Adrian Raine
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cognitive level that what he was doing was wrong, but did he have the
feeling
that it was wrong? When he wet his pants after admission to the hospital, he did not experience the secondary emotions of embarrassment andshame. Thatlack of feelings arises after damage to theventral orbitofrontal cortex. 37 Similarly, he did not experience a sense of shame and remorse when committing acts of pedophilia.
We can place this affective deficit in the context of offenders more broadly. We saw earlier, in chapter 3 , how psychopathic offenders fail to show activation of thebrain’s emotional circuitry when contemplating moral actions, and we’ve seen how the ventral orbitofrontal cortex is also structurallyimpaired in offenders. Mr. Oft’s case is just the tip of the iceberg of a much larger group of offenders in whom the brain contributes to crime.
This in turn leads to a broader and perhaps more troubling question. If you agree that Mr. Oft was not responsible for his actions because of his orbitofrontal tumor, what judgment would you render on someone who committed the same act as Mr. Oft but, rather than having a clearly visible tumor, had a subtle prefrontal pathology with a neurodevelopmental origin that was hard to see visually from a PET scan? Because such a pathology consists of a slowly evolvingmaldevelopment of this self-control region, there is no rapid switching frombrain abnormality to behavioral abnormality. An individual with this kind of pathology lacks self-control from an early age and is always viewed by those around him as a “bad egg.” He will grow up to be your archetypal evil monster. How should we view him with respect to responsibility? If you cut Mr. Oft some slack, why not individuals like that? And if, on further reflection, you would not cut them some slack, would their case make you feeldifferently about how you view Mr. Oft?
Regardless of this latter issue, you might view Mr. Oft as not responsible not just because his tumor “caused” his pedophilia, but also because the tumor could be resected and return him to normality. He could be quickly and convincingly treated, unlike most offenders with more subtle brain impairment. His treatability is making you think differently about his culpability—it’s altering your moral evaluation of his act. And yet you would view today’s untreatable offenders with volume reductions in their prefrontal cortex and amygdala as more responsible and worthy of punishment? How could we ethically condone such a difference in our evaluation? Today’s brain-impaired offenders cannot help the fact that we cannot currently reverse that brain impairment in the way we could with Mr. Oft. Would we call that difference in our opinion “justice”?
Perhaps the majority of you may agree that Mr. Oft was not responsible for his pedophilia. Some will disagree. All I will say for now is that currently the law holds him responsible, standing almost agnosticly to neurocriminology. But what does the future hold for the application of neurocriminology to the law?Stephen Morse has argued that severepsychopaths just do not get the point ofmorality—just as Mr. Oft could not when questioned by his wife. They are blind to moral concerns and have no capacity for conscience. As such he believes they should be excused from crimes that violate the moral rights of others in society. 38
If we were to agree with this leading expert in criminal responsibility, might there be some basis for applying a similar line of thinking toMr. Oft? Should the law be changed in the light of what we are learning not just in a case like Mr. Oft, not just in severe psychopaths, but also in recidivistic violent offenders who also lack this moral sense and feeling of what is right and wrong? And yet we have seen in chapter 5 there is initial evidence for a neurobiological basis to evenwhite-collar crime. Will there come a day when theBernie Madoffs of the world plead that it’s not their fault—that they
feeling
that it was wrong? When he wet his pants after admission to the hospital, he did not experience the secondary emotions of embarrassment andshame. Thatlack of feelings arises after damage to theventral orbitofrontal cortex. 37 Similarly, he did not experience a sense of shame and remorse when committing acts of pedophilia.
We can place this affective deficit in the context of offenders more broadly. We saw earlier, in chapter 3 , how psychopathic offenders fail to show activation of thebrain’s emotional circuitry when contemplating moral actions, and we’ve seen how the ventral orbitofrontal cortex is also structurallyimpaired in offenders. Mr. Oft’s case is just the tip of the iceberg of a much larger group of offenders in whom the brain contributes to crime.
This in turn leads to a broader and perhaps more troubling question. If you agree that Mr. Oft was not responsible for his actions because of his orbitofrontal tumor, what judgment would you render on someone who committed the same act as Mr. Oft but, rather than having a clearly visible tumor, had a subtle prefrontal pathology with a neurodevelopmental origin that was hard to see visually from a PET scan? Because such a pathology consists of a slowly evolvingmaldevelopment of this self-control region, there is no rapid switching frombrain abnormality to behavioral abnormality. An individual with this kind of pathology lacks self-control from an early age and is always viewed by those around him as a “bad egg.” He will grow up to be your archetypal evil monster. How should we view him with respect to responsibility? If you cut Mr. Oft some slack, why not individuals like that? And if, on further reflection, you would not cut them some slack, would their case make you feeldifferently about how you view Mr. Oft?
Regardless of this latter issue, you might view Mr. Oft as not responsible not just because his tumor “caused” his pedophilia, but also because the tumor could be resected and return him to normality. He could be quickly and convincingly treated, unlike most offenders with more subtle brain impairment. His treatability is making you think differently about his culpability—it’s altering your moral evaluation of his act. And yet you would view today’s untreatable offenders with volume reductions in their prefrontal cortex and amygdala as more responsible and worthy of punishment? How could we ethically condone such a difference in our evaluation? Today’s brain-impaired offenders cannot help the fact that we cannot currently reverse that brain impairment in the way we could with Mr. Oft. Would we call that difference in our opinion “justice”?
Perhaps the majority of you may agree that Mr. Oft was not responsible for his pedophilia. Some will disagree. All I will say for now is that currently the law holds him responsible, standing almost agnosticly to neurocriminology. But what does the future hold for the application of neurocriminology to the law?Stephen Morse has argued that severepsychopaths just do not get the point ofmorality—just as Mr. Oft could not when questioned by his wife. They are blind to moral concerns and have no capacity for conscience. As such he believes they should be excused from crimes that violate the moral rights of others in society. 38
If we were to agree with this leading expert in criminal responsibility, might there be some basis for applying a similar line of thinking toMr. Oft? Should the law be changed in the light of what we are learning not just in a case like Mr. Oft, not just in severe psychopaths, but also in recidivistic violent offenders who also lack this moral sense and feeling of what is right and wrong? And yet we have seen in chapter 5 there is initial evidence for a neurobiological basis to evenwhite-collar crime. Will there come a day when theBernie Madoffs of the world plead that it’s not their fault—that they
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