One of our favorite topics here at the Criminal Lawyer has been the interaction of brain science and criminal law. So it’s with a pleased tip of the hat to Mark Bennett that we have the video linked above, an excellent summary of modern neuroscience as it applies to deep policies of our jurisprudence — Culpability, free will, the purposes of punishment, and how (or whether) to punish. The lecture was given about a year and a half ago by David Eagleman, a neuroscientist with a gift for explaining the stuff to non-scientists like us.
Most popularized science is weighed down with histories of how we got here, rather than discussions of where “here” is and where we might be going next. It’s a necessity, but unlike most popularizers Eagleman manages to cover that ground in just the first half of the lecture, rather than the more usual first 80%. So if you want to cut to the chase, you can skip to around the 15-minute mark. We enjoyed watching it all the way through, however. Once he gets going, he neatly and clearly presents ideas that many should find challenging — not because they undermine criminal jurisprudence, but because they challenge much that it merely presumes.
One particularly challenging idea of his is that, as we understand more and more how the brain works, and especially the smaller and smaller role that free will plays in our actions, the less focused on culpability we should be. Rather than focusing on whether or not an individual was responsible for a criminal act, the law should instead care about his future risk to society. If he’s going to be dangerous, then put him in jail to protect us from him, instead of as a retroactive punishment for a crime that may never happen again. The actuarial data are getting strong enough to identify reasonably-accurate predictors of recidivism, so why not focus on removing the likely recidivists and rehabilitating the rest?
Of course, as we mentioned the other day, there’s an inherent injustice when you punish someone for acts they have not yet committed, just because there’s a statistical chance that they might do so at some point in the future. That kind of penalty must be reserved for those who have actually demonstrated themselves to be incorrigible, those who reoffend as soon as they get the chance. Punishment must always be backwards-looking, based on what really happened, and not on what may come to pass.
We have quibbles with some other points he makes, as we always do when people from other disciplines discuss the policy underpinnings of criminal jurisprudence. But on the whole, this is a worthwhile watch, and we’d like to hear what you think of it.