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Review – "Brains: The mind as matter", Wellcome Trust
29 March – 17 June 2012
Wellcome Trust, 183 Euston Road, London. NW1.
My first love is cognitive neuroscience. It was with enormous pleasure that I went to look around the ‘Brains: The Mind as Matter’ exhibition at the Wellcome Trust this afternoon on my own. The Wellcome Trust in fact funded my Ph.D. at Cambridge in 1997 – 2000 on the early detection of frontal lobe dementia, after I obtained the second highest mark on the class list in neuroscience at Cambridge in finals in 1996.
For me the Wellcome Trust is very easy to get to from Primrose Hill. Its opening hours are here. I had a very relaxing dish of wild rice accompanied by traditional lemonade at the café run by Peyton and Byrne.
I found the staff in the Blackwells bookshop very helpful as I managed to locate ‘Zero degrees of empathy’, indeed hand-signed by Prof Simon Baron-Cohen, my first ever supervisor at Cambridge, a world expert on autism and Asperger spectrum disorders and theory of mind, amongst various other neuroscientific topics such as synaesthesia. Some other classics of mine were to be found in that bookshop, including the seminal ‘Advice for a young investigator’ by Santiago Ramón y Cajal.
I asked Steve, one of the exhibition helpers, how many neurones he thought the human brain had. As a philosophy graduate, his estimate of 100 billion was pretty impressive – the figure is apparently 1000 million. We then discussed why the human brain should have quite so many neurones, when so many of the functions of the brain were done by animals such as their fly in more primitive organs (such as the eye). We discussed how the answer was probably was to do with humans perceive the mental states of others, and how humans are able to integrate information from the senses with planning , strategy, personality and emotions in a coherent manner. I feel that Simon would have been proud of Steve’s answer. I feel Simon also would have been particularly proud of the fact that Steve admired the contribution which Simon had made in putting raising the awareness of autism and Asperger spectrum disorders. Our conversation, given Steve’s background, necessarily came onto the philosophy of mind, as we discussed how our conceptualisation of the mind or brain had changed with time. How the relative importance of information from the body’s organs had been perceived differently with the progress of time, and indeed whether ‘modularity of mind’ existed (as reflected in the historic rise of phrenology) or whether the notion of distributed neuronal networks was a more realistic approach. Whatever functional architecture one decides upon for the human brain, possibly the greatest achievement of contemporary neuroscience has been to realise that the social brain is necessary for communities to function, and if, how or why we have a social brain designed differently from other animals present tough challenges for us as a society.
The exhibition itself was beautiful. The photographs of the brain donors were beautifully presented. The 3-D etching of a brain onto a glass block ‘My soul’ by Katharine Dawson, was simply magnificent. This consists of a laser-etched lead crystal glass formation in the shape of a brain, and was created using the artist’s own MRI scan.
I particularly enjoyed the functional neuroimaging of Stravinsky’s “The Rite of Spring” in live time – though listening to the music itself with headphones while watching the different colours of the brain activations was rather mesmerising! I particularly liked the efforts the curators had made in reflecting the comparative anatomy of the brain across species, e.g. brain models of species ranging from alligator to dog, though perhaps the neuroscientific advisors of the exhibition failed to point out perhaps that ‘size isn’t everything’ when it comes to the power of the brain (that’s why all the elegance in measuring the size of parts of the brain might be misplaced given the inevitable amount of neuronal redundancy there might be).
Above all, the exhibition succeeded in making the viewer question what he or she thought about this most enigmatic of all organs, and I felt it was quite fitting that we were left with an air of confusion epitomised by this cinema poster ‘Change of Mind’ featuring Leslie Nielsen.
But that of course would not be the first time that output from the Wellcome Trust had turned your perception of our living world upside down..!
My brain made me do it – a problematic schism between neuroscience and the law
There is no doubt that a number of factors potentially lead in increased levels of crime in society, for examples gang culture, or population density. This requires a different experimental approach altogether to considering how the legal and neuroscientific approaches can be made to converge in the “mens rea” of the crime, which we have previously discussed elsewhere.
The degree to which a person can be truly culpable of crime is to do with the degree of his voluntariness. That is when the factors which are ‘internal’ to someone can be highly relevant. For example, in one isolated study, significantly higher testosterone levels were found among violent female outpatients than among the non-violent ones, whose levels were similar to those reported for normal females. This study reported increased irritability among violent patients during menstruation, which is consistent with other research showing associations between criminality and both premenstrual and menstrual periods (1). Obviously, as a society, some people perhaps believe that, culturally, women cannot blame their periods for a crime. Criminal law,cthrough a combination of case-made law and statute law,chas stumbled its way through dealing with mental illness in the US and UK jurisdictions.The discussion here centres on the English jurisdiction, except where stated otherwise.
The evolution of this law has been almost exactly, punctuated at various intervals with observations from the law, rarely neuroscience, cognitive neurology and neuropsychiatry, being put on a statutory footing. The best paradigm of the interface and the law is arguable the defence is the insanity defence. Embarrassingly, this defence has its roots in a very old case in English law. In 1800 James Hadfield was found to be insane on a charge of the attempted murder of George III (2), but he received an outright acquittal. Public and political reaction to this case led in turn to the enactment of the Criminal Lunatics Act 1800 which required the courts to order anyone who had been acquitted by reason of insanity of various serious offences to be detained until His (or Her) Majesty’s pleasure be known. The rules which provide for the insanity defence to be satisfied are known as the “McNaghten Rules” (1842) (3). Firstly, all defendants are presumed sane. On a balance of probabilities, the defendant must prove that at the time the offence, he was labouring under such a defect of reason, arising from a disease of the mind, and that he did not to know the nature and quality of the act he was doing, or, if he did know. it that he did not know that what he was doing was wrong. The jury can therefore return a special verdict of “not guilty by reason of insanity”. Before the 1957 Act, over 40% of murder trials involved a plea of insanity. Now most defendants will opt of the defence of diminished responsibility. Insanity is a rare defence compared to diminished responsibility.
The law on diminished responsibility is contained in s.2 Homicide Act [1957], and has the following definition:
2 Persons suffering from diminished responsibility
(1)Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.
(2)On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.
(3)A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.
(4)The fact that one party to a killing is by virtue of this section not liable to be convicted of murder shall not affect the question whether the killing amounted to murder in the case of any other party to it.
In Byrne [1960] Lord Parker defined ‘abnormality of mind’ as: “a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise willpower to control physical acts in accordance with that rational judgment.” (4) Byrne was a sexual psychopath who found it difficult, if not impossible, to control his perverted sexual desires he strangled a young woman and horrifyingly mutilated the body.
However, the key concept of “disease of the mind” has no agreed psychiatric meaning. As interpreted by the courts, it has even come to include conditions that are not mental disorders, such as epilepsy and diabetes, The Law Commission in their introduction to their consultation on “Unfitness to plead and the Insanity defense”, provide that, “Given the vulnerability of the mentally ill and the increasing frequency with which they are coming into contact with the criminal justice system, modern criminal law should be informed by modern science, and in particular by modern psychiatric thinking.” (5) There is no doubt at all that at the time the rules over insanity and diminished responsibility were formulated, cognitive neuroscience was its infancy.
The application of these antiquated rules has become felt by may as being increasingly difficult, problematic, and artificial. One of the most rapidly advancing fields is neurogenetics. This should be to both cognitive neuroscientists and experts in jurisprudence. Criminal defendants most often offer behavioral predispositions as evidence to mitigate punishment after a finding of guilt, rather than as a defense to criminal liability (People v Sapp [2003]) (6)
Denno (1988) argues that,
“no strong evidence supports either a strictly free will or a strictly deterministic philosophy in the criminal law regarding either the causes of crime or the determinants of criminal responsibility.”
Denno further emphasizes the need that the criminal justice system must evaluate the neuroscience of this behaviour with a view to constructing sensible policy (7). A now historic case (People v Tanner [1970] (8)) failed prove innocent a defendant, with an extra Y chromosome, guilty of kidnapping, forcible rape, and assault with intent to commit murder, was found to have an extra Y chromosome. The two expert witnesses, who were geneticists, stated that their research and that of others demonstrated a causal link between the XYY chromosome disorder and aggressive behaviour.
However, leading academics Farahany and Coleman (2006) describe graphically the double-edged sword of arguing a genetic predisposition for criminal behaviour, by providing that, “Not only have criminal defendants experienced little success by introducing behavioral genetics during sentencing; in some cases it has cut against the defendant, courts have regarded the genetic predisposition of defendants as a potential aggravating sentencing factor or circumstance.” (9) In a final blog tomorrow in this series of articles, we consider the neurological evidence regarding free will from the alien hand syndrome and Gilles de la Tourette syndrome.
References
(1) Ehlers, Rickler & Hovey, A Possible Relationship Between Plasma Testosterone and Aggressive Behavior in a Female Outpatient Population, in Limbic Epilepsy and the Dyscontrol Syndrome 183, 191 (M. Girgis & L. Kiloh eds. 1980).
(2) Hadfield (1800) 27. St Tr 1281
(3) McNaghten (1843) 8 ER 718
(4) R v Byrne B [1960] 44 Cr App R 246; [1960] 2 QB 396
(5) http://www.lawcom.gov.uk/insanity.htm accessed 26.2.10
(6) People v. Sapp, 73 P.3d 433, 469–73 (Cal. 2003) (introducing the defendant’s psychological and neurological factors contributing to the homicide as mitigating evidence).
(7) Denno, DW. Human biology and criminal responsibility: free will or free ride? University of Pennyslvania Law Review (1988) 137: 651-671.
(8) 3 Cal.App.3d 596, 91 Cal.Rptr. 656, 42 ALR3d 1408 (1970
(9) Farahany, NA, Coleman, J. Genetics and responsibility: to know the criminal from the crime. Law and Contemporary Problems Vol. 69, p. 115, June 2006, Vanderbilt Public Law Research Paper No. 06-14, Duke Law School Legal Studies Paper No. 110
Neuroscience and the law focus: what's the point of regulating advertising?
I have no doubt after reading the article entitled “The advertising effect – how do we get the balance of advertising right?” published today by Compass by Zoe Gannon and Neal Lawson that the major thesis of the authors that unregulated advertising is likely to be dangerous for society, and could have a massively detrimental effect.
I really liked this article, as I think that it is one of the few articles which seemed to have an understanding of the modern neuroscience involved in tackling a problem of huge cultural significance, maybe using legal measures. As someone who tends to read the introduction and conclusion of article, I found it most helpful that Gannon and Lawson summarized the gist of their argument successfully in the conclusion,
“If you go to an advertising company to sell a product or service their planners will strip the issue down to bare essentials before building a campaign around it. It is the essence of the message they are after, the essence of the advertising industry is that new technologies, new science and new psychology have put the industry increasingly out of social and political control. Advertising regulations now need to catch up with the reality of the advertising effect on us and our planet.”
On the other hand, I found Jackie Ashley’s response lacked any depth to an analysis of the problem from either a neuroscience or legal perspective (1). However, arguably, one of the most interesting enticing paragraphs begins with the sentence,
“Meanwhile neurologists are working out what images will trigger the buy button in our brains.”
Gannon and Lawson provide that “machines are being used to shed light on brain mechanisms that play a central role in consumer behaviour: circuits that underlie reward, decision making, motivation, emotions and the senses of self.” This would indeed seem to make sense, as the subjective experience of being the target of advertising probably has the same underlying neural basis as our euphoria on sex or drugs of abuse. Indeed, one of the many successes of neurological research in the last century has been to identy a neurobiological mechanism mediating behavior motivated by events commonly associated with pleasure in humans. These events are termed “rewards” and are viewed as primary factors governing normal behavior. The subjective impact of rewards (e.g., pleasure) can be considered essential (e.g., Young, 1959) or irrelevant (e.g., Skinner, 1953) to their effect on behaviour, but the motivational effect of rewards on behavior is now universally acknowledged by experimental psychologists.
In addition, the authors give due credit to one of the most important papers on the subject of “neuromarketing”, a relatively new field. A cognitive neuroscientist (Read Montague) postulated that, if people preferred the taste of Pepsi, the drink should have dominated the market. It didn’t. So in the summer of 2003, Montague gave himself a ‘Pepsi Challenge’ of a different sort: to figure out why people would buy a product they didn’t particularly like. Neuromarketing is effectively the study of the brain’s responses to ads, brands, and the rest of the messages littering the cultural landscape.
Montague had his subjects take the “Pepsi Challenge” while he watched their neural activity with a functional MRI machine, which tracks blood flow to different regions of the brain. Without knowing what they were drinking, about half of them said they preferred Pepsi. But once Montague told them which samples were Coke, three-fourths said that drink tasted better, and their brain activity changed too.
Coke “lit up” the medial prefrontal cortex (a part of the brain very much involved in higher cognitive processes). Montague’s hypothesis was that the brain was recalling images and ideas from commercials, and the brand was overriding the actual quality of the product. For years, in the face of failed brands and laughably bad ad campaigns, marketers had argued that they could influence consumers’ choices. The paper was a substantial contribution to the literature. Montague published his findings in the October 2004 issue of Neuron, and a new field of the neurosciences was born: neuromarketing. (1)
However, there are still some problematic unanswered questions from a neuroethics perspective.
(1) What effect did the Coke label have on the brain that the Pepsi label did not?
(2) What other evidence suggests that taste alone does not determine your favorite cola? Obesity is epidemic in America, and sugared soft drinks are one of the primary culprits.
(3) How might this research help doctors fight obesity?
(4) Suppose both the Coke and the Pepsi labels triggered the same reaction in the brain. What conclusion would you draw?
For a long time, marketing experts have relied on behavioral studies for guidance. In the USA, some companies are taking the practice several steps further, commissioning their own fMRI studies consistent with the research above. For example, in a study of men’s reactions to cars, Daimler-Chrysler has found that sportier models activate the brain’s reward centres as well as activating the area in the brain that recognizes faces, which may explain people’s tendency to anthropomorphize their cars. Steven Quartz, a scientist at Stanford University, is currently conducting similar research on movie trailers. And in the age of poll-taking and smear campaigns, political advertising is also getting in on the game. Researchers at the University of California, Los Angeles have found that Republicans and Democrats react differently to campaign ads showing images of the Sept. 11th terrorist attacks. Those ads cause the part of the brain associated with fear to light up more vividly in Democrats than in Republicans.
Gannon and Lawson in their scholarly article appear to develop their case that, if unregulated, this is dangerous:
“Excessive advertising turns a never ending series of new needs into new wants, and crowds out the space for other visions of the good society, where time and relationships matter more than what we buy. Advertising encourages us to run ever faster on the treadmill of modern consumer life; in so doing it contributes to growing consumer debt, a number of social problems which this report discusses, and to the very real prospect of climate change beyond our ability to manage. So the report calls for a tax on all advertising that encourages greater consumption to limit its scope and slow the pace of growth for the good of society and the future of the planet.”
There are in fact seven ways which Gannon and Lawson perceive as perhaps being capable of solving the problem: e.g. banning advertising in public spaces, controling advertising on the Internet, tax advertising, and probably, most contentiously, introduce statutory regulation of the advertising industry. This would be yet another example of where cognitive neuroscience meets the law in some way – exciting times indeed. If advertising is so rampant, should we spend money researching it like cancer?
References
(1) Jackie Ashley. Let’s take on the ads that fuel such waste, debt and misery. The Guardian, Sunday 24th February 2009.
(2) McGlure SM, Li, J, Tomlin, D, Cypert KS, Montague LM, Montague PR. Neural correlates of behavioral preference for culturally familiar drinks. Neuron 2004 Oct 14;44(2):379-87.
Neuroscience and the law: the mens rea of the criminal mind
“Law in its earliest days tries to make men answer for all the ills of an obvious kind that their deeds bring upon their fellows” (Pollock and Maitland, A history of English law, 3rd edition 1899)
The law has for a long time been wrangling with need to identify the “ills of an obvious kind”, as they are needed to work out whether a criminal offence has taken place. The constituent elements of the criminal act can normally be easily identified for any criminal offence. In England and Wales, the terminology is as follows. The “actus reus” is the act of the crime itself, such as the fraud, theft or murder. The “mens rea” – the Latin term meaning “guilty mind” – is usually (not always) one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in terms of Sir Edward Coke’s classic statement ‘actus non facit reum nisi mens sit rea’ – this translates as ‘the act does not make a person guilty unless their mind is also guilty’.
Despite some heated discussions of the definition of the mens rea particularly during of the course of last century, the basic importance of the mens rea is not in dispute any more. For example, in the case of R v Tolson [1889]: “Ordinarily speaking, a crime is not committed if the mind of the person doing the act in question be innocent” (1). Furthermore,in his seminal work, Sir James Stephen took this idea further, reflecting on his understanding of classical law:
“The maxim is sometimes said to be a fundamental principle of the whole criminal law, but I think that, like many other Latin sentences supposed to form part of the Roman law, the maxim not only looks more instructive than it really is, but suggests fallacies which it does not precisely state. It is frequently, though ignorantly, supposed to mean that there cannot be such a thing as legal guilt where there is no moral guilt, which is obviously untrue, as there is always a possibility of a conflict between law and morals.” (2)
Fundamental to the “criminal mind” in law is therefore intention. Frustratingly, intention has been given never been given any statutory definition by the judiciary, and its meaning must therefore be worked from a series of judicial decisions. A number of different words are used to express intention in the various criminal laws, and whilst the full definition of intention is clearly outside of the scope of this article, it is worth noting that intention can be either “direct”, where the defendant intends a particular consequence of their act; or it can be “oblique”, where the defendant foresees the certainty of a consequence of their act even if it is not their main objective. In some unique, transferred malice occurs, this when the intention to harm one individual inadvertently causes a second person to be hurt instead. In other words, the brain must somehow be capable of making an appropriate intention, and how the brain might do this voluntarily or not will be the subject of future articles.
Back to the jurisprudence of the mens rea, the nature of the criminal decision has, however, been clarified by the case law of England. David Ormerod in Smith and Hogan’s Criminal Law provides that, “While there is a moral basis for the notions of fault and degrees of fault in the criminal law, legal “fault” does not necessarily involve moral blameworthiness according to the English case of R v Kingston [1994] from the House of Lords.” In this textbook, sometimes cited itself in judgments in the House of Lord, Lord Mustill is quoted from the judgment of that case which provides that, “I would therefore reject that part of the respondent’s argument which treats the absence of moral fault on the part of the appellant as sufficient in itself to negative the essential mental element of the offence.”
That the moral aspect of an action is irrelevant may seem odd as it can be argued that moral responsibility is a particularly relevant area of philosophy and psychology to the law and the criminal justice system (5). Philosophical reflection on moral responsibility has historically relied upon one of two broad interpretations of the concept: (a) the merit-based view, according to which praise or blame would be an appropriate reaction toward the candidate if and only if she merits—in the sense of ‘deserves’—such a reaction; or (b) the consequentialist view, according to which praise or blame would be appropriate if and only if a reaction of this sort would likely lead to a desired change in the agent and/or her behavior. Versions of the consequentialist view have continued to further concept of moral responsibility, and have increasingly focused on offering alternative versions of the merit-based view and questioning the assumption that there is a single unified concept of moral responsibility (6). Therefore, recent contributions from cognitive neuroscience and moral responsibility have a potentially important role in evolving further our definition of the mens rea in law.
References:
(1) 23 QBD: 185-6
(2) History of the Criminal Law (1883)
(3) R v Kingston 1994 3 All Er 33 [House of Lords]
(4) Smith and Hogan’s Criminal Law. Ed. David Ormerod 9th Ed. Oxford University Press: Oxford, UK.
(5) Dennett, Daniel, 2003. Freedom Evolves (New York: Viking Press).
(6) Strawson, PF (1974) Freedom and Resentment. Proceedings of the British Academy 48; Reprinted in Freedom and Resentment and Other Essays. Oxford 1974, pp. 1-25. References are to the reprinted version.
Neuroscience and the law: the current insanity of the insanity law in England
While we wait even longer for the English Law Commission to deliberate on the future of the insanity defense, it is worth noting that events have supersed my last blog. Two years ago, a “devoted husband” who said he killed his wife because he thought she was an intruder has been freed by a judge, who told him he bore no responsibility (the news item dated 20 November 2009 is on the BBC website here).
Brian Thomas, 59, admitted killing Christine, 57, in their camper van, but blamed his rare sleep disorder. The judge told the jury to declare Mr Thomas, of Neath, not guilty over the death in Aberporth, Ceredigion in 2008.
The case involved automatism as a cause of ‘insanity’. Automatism is essentially a legal defense, arguing that a person cannot be held responsible for their actions because they had no conscious knowledge of them. It is a legal defense in the sense that the correlates of what is happening in the brain are poorly understood, therefore leaving psychiatrists with some difficulty in providing evidence on it for thecourts.
They drew attention to the fact that the present law derives from a work written in 1797. The current test uses out-of-date language (the accused has to be suffering from ‘a complete alienation of reason’). This terminology cannot be easily understood by persons who have to apply it, such as psychiatric experts or jurors. Clearly, this definition does take into account the rapid advances in cognitive neuroscience, nor in legal academia about the nature of responsibility.
The Scottish Law Commission further argued that the reformed defense should require the presence of a mental disorder suffered by the accused at the time of the alleged offence. The existence (or non-existence) of a mental disorder in a particular case would normally be a matter for expert, psychiatric evidence. The core element of the defense should be that, by reason of a mental disorder at the relevant time, the accused was unable to appreciate the nature or wrongfulness of his or her conduct. Now the hard part! What would the defendant or his lawyer need to prove that this was the case at the time?
The problem is obviously the defendant can be made subject to all sorts of complicated tests. For example, it is known that many legal diagnoses of insanity actually correspond to a diagnosis of psychosis or schizophrenia. However, for such patients, an electroencephalogram or MRI (advanced brain scan) can be normal. And what about proving that the defendant suffers from some abnormality in moral thinking? The group led by Josh Greene at Harvard has only just begun to develop such tests, and to find out how the brain processes moral behaviour. Or could it be a problem with impulse control? Or could it be that the defendant simply has no idea about his own mental state, what the neuropsychiatrists called “anosognosia”?
The upshot is that the law is ripe for reform. People, however, disagree how. One valid view is that the defense of insanity should be simply abolished. Abolition of the defense has been considered in academic literature for some time. Furthermore as a reaction to the Hinckley case in 1982 some states in the USA enacted measures to abolish the insanity defense.
There is now the added issue of how the English law can be reconciled with European law. Article 5(1) of the European Convention of Human Rights provides for a general right to liberty and security of a person and states that no one “shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.” One of the specified cases is in paragraph (e) of that article which provides for “the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrant.”
A fascinating legal journey has now begun, and at present the destination is unclear. Watch this space!
@legalaware has a Ph.D. in cognitive neuropsychology from the University of Cambridge and a LL.M. in international legal practice from the College of Law. The events reported here are true to the best of the knowledge of the author, according to published reports currently available.
Free will, neuroscience and the law
I very much welcome the document by the Royal Society on ‘Neuroscience and the law’. In a short series of articles, I consider the scope for synthesis in these disciplines.
The crux of the legal mens rea in many situations is an intention to act. Neuropsychological theories have offered a number of different theories mostly involving the frontal lobes, how this intention to act based on a decision takes place. One influential theory by Norman and Shallice (1986) proposed a computational model of the selection of routine actions based on competitive activation within a hierarchically organised network of action schemas. An explanation of an “intention to act” depends on a thorough analysis of the question of whether we possess “free will” requires that we take into account the process of exercising that will: the cognitive neuroscience of decision-making. Decision making, which reflects a tendency to think about the consequences of a planned act before engaging in that act.
In another view of how the mind and body might achieve decision-making, Damasio’s “somatic marker hypothesis” provides that, during the pondering of a decision, somatic states are triggered by primary or secondary inducers. Once induced, they participate in two functions. In one they provide a substrate for feeling the induced state. In the other they provide a substrate for influencing or biasing decisions. Most intriguing is that the presence of these somatic states and their influence on decision making and behavior need not be conscious. So while both conscious and unconscious knowledge are contributing to the process of choice, the fact that the generation of somatic states can guide us toward beneficial behaviors without any input from our conscious deliberations indicates that much behavior that seems to be “free will” may be determined by the routine operation of a healthy neural mechanism.
Within this framework, it is entirely possible that impulse control reflects inhibition of a pre-potent act (motor impulse control), or a pre-potent mental image/thought (attentional impulse control). The critical neural region for the mechanism of motor impulse control is the more posterior region of the ventromedial prefrontal cortex, i.e. that involving the anterior cingulate (2,3,4). The critical neural region for the mechanism of attentional impulse control is the lateral orbitofrontal and dorsolateral (inferior frontal gyrus) region (2,3,4). However, decision-making research is a double-edged sword in a conversation about rehabilitation. One the one hand, a deterministic view of the choice process seems to undermine the very idea of rehabilitation. On the other, the more we understand the brain, the greater our ability to design interventions that make the possibility of rehabilitation real for many whom the law writes off today.
Whilst it can be argued that “determined” and “inevitable” are not synonymous, it has been of interest whether abnormalities in free will are something that select individuals are born with. An interesting example of variations in genes that promote abnormal responses to fear inducing behaviors is that of Williams syndrome, a condition that has been recognized for very many years. (5) Aside from the striking physical features of this disorder—short stature, malformation of the heart, and distinctive facial markings— Williams children also possess unusual cognitive and behavioral capacities. They have IQs in the range of 40–100, yet frequently show normal linguistic competence, a heightened ability to recognize faces, and a profound love of music, sound and rhythm. The personality of children afflicted with Williams syndrome is not usual. They tend to be hypersocial, which may be caused in part by their heightened ability to recognize faces. This is a moot point. More significant than hypersociability, these children generally lack approach inhibition, a feature that is present in normal children and adults to varying degrees. Children with Williams Syndrome seem unable to differentiate between those who have kind and friendly intentions towards them and those who harbor evil intentions. This is comprehensively reviewed elsewhere. (6)
Moreover, there exist conditions, for example certain types of brain injury or long-term drug substance misuse, in which an individual can be said to have a disorder of the will. Examples such as these demonstrate that the idea of freedom of will on which our legal system is based is not supported by the neuroscience of decision making. The question of whether the average person who becomes involved with the legal system has ‘normal’ free will therefore becomes a highly relevant question. Though it is by no means true that all people who commit crimes are substance dependent or mentally ill, the fact that substance abuse and mental illness plays a role in the behavior of a large percentage. According to the UK Sainsbury Centre for Mental Health, approximately 70% of prisoners have either a psychosis, a neurosis, a personality disorder, or a substance misuse problem. (7)
On the other hand, other cases of impaired free will exist in neurological conditions exist that result in people essentially ignoring experiences of punishment (8). That the cognitive profile of violent offenders is so similar to that of patients with just these conditions makes us wonder how, whether and to what degree punishment is working as a deterrent with any particular person.
References
(1) Cooper, R, T Shallice. (2000) Contention scheduling and the control of routine activities. Cognitive Neuropsychology 17 (4), 297–338
(2) Bechara, A. (2003). Risky business: Emotion, decision-making and addiction. Journal of Gambling Studies, 19(1), 23–51.
(3) Bechara, A. (2004). Separate neural substrates underlie different mechanisms of performance monitoring and behavioral control. In M. Ullsperger, & M. Falkenstein (Eds.), Errors, conflicts, and the brain: Current opinions on performance monitoring (pp. 55–63). Dortmund: Max Planck Institute for Human Cognitive and Brain Sciences, Leipzig.-Munchen.
(4) Bechara, A., & Damasio, A. R. (2005). The somatic marker hypothesis: A neural theory of economic decision. Games and Economic Behavior, 52(2), 336–372.
(5) Albert Galaburda et al. (2001) Dorsal Forebrain Anomaly in Williams Syndrome, 58 Arch Neurol. 1865–1869. See also Allan L. Reiss et al., Brain Imaging in Neurogenetic Conditions: Realizing the Potential of Behavioral Neurogenetics Research, 6 Mental retardation. Developmental Disabilities Research Nev. 186–197 (2000).
Much of what we know about these mechanisms indicates that decision making is greatly influenced by implicit processes that may not even reach consciousness.
(6) The neuroscience of free will. Laurence Tancredi. Behavioral Sciences and the Law Behav. Sci. Law 25: 295–308 (2007)
(7) From the Inside Experiences of prison mental health care Graham Durcan. Sainsbury Centre for Mental Health.
(8) Decision Making and Free Will: a Neuroscience Perspective. Kelly Burns and Antoine Bechara.Behavioral Sciences and the Law. Behav. Sci. Law 25: 263–280 (2007)
@legalaware has a Ph.D. in cognitive neuropsychology from the University of Cambridge and a LL.M. in international legal practice from the College of Law.
