Neuroscience, Free Will, and a New Wave in Criminal Law?


The Atlantic features an article by neuroscientist David Eagleman (Baylor College of Medicine, USA) entitled “The Brain on Trial.”  In it, he argues that neuroscience and genetics today offer a way of approaching criminal behavior that potentially promises to both make society more secure and rehabilitate offenders.  He advocates we adopt a more scientifically nuanced, actuarial-based perspective when considering not only issues like guilt and innocence, but also sentencing.  He is especially critical of the casework and clinical approaches of parole boards and psychiatrists:

So researchers tried a more actuarial approach. They set about recording dozens of characteristics of some 23,000 released sex offenders: whether the offender had unstable employment, had been sexually abused as a child, was addicted to drugs, showed remorse, had deviant sexual interests, and so on. Researchers then tracked the offenders for an average of five years after release to see who wound up back in prison. At the end of the study, they computed which factors best explained the reoffense rates, and from these and later data they were able to build actuarial tables to be used in sentencing.


Which factors mattered? Take, for instance, low remorse, denial of the crime, and sexual abuse as a child. You might guess that these factors would correlate with sex offenders’ recidivism. But you would be wrong: those factors offer no predictive power. How about antisocial personality disorder and failure to complete treatment? These offer somewhat more predictive power. But among the strongest predictors of recidivism are prior sexual offenses and sexual interest in children. When you compare the predictive power of the actuarial approach with that of the parole boards and psychiatrists, there is no contest: numbers beat intuition. In courtrooms across the nation, these actuarial tests are now used in presentencing to modulate the length of prison terms.

Eagleman tends to portray all this as the result of recent discoveries in neuroscience and genomics, but students of forensic psychiatry and criminology know that these arguments are hardly new.  They can be traced back to “social defense” theory, the “modern school of law,” and the criminal biology of the nineteenth- and early-twentieth-centuries.  It should also be pointed out that the claim that these methods are proven to be more accurate and effective than clinical assessment is something a number of prominent criminologists have called into question (among them, Bernard Harcourt and Karen Franklin).

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