Few criminal cases with a biological defense have succeeded so far in the courtroom, mainly due to the notion of human agency; the choice to carry out a crime remains firmly within the individual. The question remains, can biological factors such as brain injury, poor performing brain regions, genetics, and differences in brain structure remove responsibility and free will for engagement in criminal behavior, particularly violent behavior?
Science and criminal justice are generally quite friendly. The use of forensic evidence, for example, is common inside the courtroom. However, a new field of science is emerging and it is causing ripples. That science is neurocriminology; the use of neuroscience to explore the criminal mind and differences in brain structures which may explain criminal behavior.
Neurocriminology – Biological Explanations for Crime
Studies have suggested that those with less functioning in the frontal cortex of the brain are more likely to commit a violent crime. The frontal lobes of our brains contain all the areas which deal with our impulses, inhibitions, and emotions.
Poor frontal lobe function could reduce our control leading to less socially acceptable behavior. This has been seen and evidenced in frontal lobe brain injury cases. However, as highlighted by Dr. Raine, serial killers, for example, do not fit this mold. Serial killers tend to plan and carefully carry out their attacks. They are often able to carry on with seemingly normal functioning family lives while committing such acts of violence under the radar. They have to be in control of their behavior, actions, and emotions in order to not be caught.
Geneticists have also found themselves at the center of this storm, with studies suggestive of genotypes that could predispose individuals to violent and aggressive behavior. Science, morals, and ethics are overlapping with the issue of criminal responsibility at the core. Biological and neurological explanations for criminal behavior raise key questions for not only how the criminal justice system can incorporate the science of neurocriminology, but if they do, whether criminal punishment as we know it can continue in the same vein. In 2007, behavioral genetics was presented in a courtroom for the first time.
An Italian court reduced the sentence of a convicted murderer by one year due to evidence he had genes which meant he was predisposed to violence. Abdelmalek Bayout received a nine-year sentence instead of twelve years at his original trial due to mental ill-health at the time of the offense.
During an appeal in 2009, Bayout was assessed by two neuroscientists who found abnormalities within is brain scans and five genes which have been linked to violent behavior. The Judge in the case accepted this evidence and reduced Bayout’s sentence to eight years, citing a research study carried out in London as ‘particularly compelling’.
The research he is referring to was carried out by Kings College in London in 2002. Moving neurocriminology into the genetics field, the study looked at a large sample of maltreated males, from childhood to adolescence to see why some developed antisocial behavior as adults and others did not. They found children who had high levels of the MAOA gene expression were less likely to develop antisocial problems and claimed this genotype may ‘moderate the effect of maltreatment’.
In the world of genetics, questions have been raised on the validity of testing one single gene such as MAOA and not knowing the interaction likely with other genes that are present. Nevertheless, the study clearly impacted the Judge in the Bayout case and resulted in a reduction in his sentence.
Psychosocial Factors in Neurocriminology and Criminal Behaviour
Changes and developments in the brain along with genetics are not the sole influences on an individual’s behavior. We know that external factors within the environment are also involved; lifestyle, habits, experiences, abuse, mental health, substance misuse and exposure to violence all need to be taken into account.
A death penalty case in 1999 raised some interesting questions about the role of biosocial evidence within criminal justice alongside psychosocial factors. Mr. Page was convicted of first-degree murder and sentenced to the death penalty. His defense team hired Adrian Raine, a specialist in criminology, to assess Page’s brain and functioning where he found low activation in the prefrontal cortex.
His behavior, it was argued, could be explained by biosocial factors including a childhood characterized by abuse and neglect and poor cognitive functioning with a family history of mental illness. Notably, Mr. Page has a history of mental health referrals but had never received any treatment. Judges decided against the death penalty, commenting that a mix of biological and social factors mitigated Mr. Page’s responsibility for the crime.
The Issue of Causation
Just because something is present, doesn’t mean it is the cause of something else. Many scientists are concerned that implying the idea of underdevelopment in the brain, particularly in the case of juvenile crime, is being used to explain the cause of such terrible criminal behavior when in fact there is no solid evidence to confirm that is indeed the cause.
The fear is that teenage reckless and risky behavior is being bolstered with biological claims to increase its credibility and provide explanations, and some say, excuses for bad behavior.
As a society, we are impressed by neuroscience evidence. When we are shown pictures of active brains and told this is why someone behaves in a certain way, we tend to give it more credibility. This does not mean it is right or that it should be given that level of credibility. David Faigman of the University of California phrases this very well “neuroscience gives the courts a hook”. Psychological evidence based on behavioral patterns can be considered as soft with no solid grounding. As Faigman points out, the neuroscience can only be relevant to the law when taken in along with the psychological behavioral information. If one is ‘soft’ then so is the other.
A Criminal Disorder?
If such evidence were to be incorporated, this suggests a label would emerge. A disorder or a condition which means an individual is predisposed to violent or aggressive behavior. In the Bayout case for example, if evidence of mental ill health at the time of his offense had not been taken into account as a mitigating factor, he would have received a twelve-year sentence rather than nine years. If evidence from neurocriminology were to be characterized in a similar way, as a criminal disorder as such, this would surely have a serious impact on how such individuals were dealt with in the criminal justice system?
Those with mental health issues are often put forward as less responsible for their criminal acts due to their mental health conditions. Whether neurocriminological evidence such as low frontal cortex activity and genetic evidence should be incorporated in the same way is still up for debate.
Such scientific data, if it can be replicated and validated, could become not only important within criminal cases involving criminal justice and punishment but also in the rehabilitation of offenders and trying to break the cycle of offending. Such data could potentially give directional information regarding rehabilitation methods and programs and which may be more effective for some individuals over others.
If there were a better, more accurate and reliable way to predict who may go on to commit a violent crime, could intervention be made earlier to prevent this individual going down that path? Many cases have come to light where a criminal’s previous criminal history has been flagged and their current behavior is an escalation. This is an interesting concept and one that could be potentially ground-breaking in moving our understanding forward along with our effectiveness in dealing with criminal behavior in the future.
- Caspi, A., McClay, J., Moffitt, T.E., Mill, J., Martin, J., Craig, I.W., Taylor, A., and Poulton, R. (2002) Role of Genotype in the Cycle of Violence in Maltreated Children, Science, Vol. 297, Issue 5582, pp. 851-854
Guy, F. (2018, Jun 30).A Criminal Disorder? Advances in Neurocriminology Are Leading The Way. Crime Traveller. Retrieved from https://www.crimetraveller.org/2018/06/neurocriminology/