On Monday, November 28, 2011, Penn Law (and Psychiatry) Professor Stephen J. Morse delivered the final Hoffinger lecture of the fall semester. Morse’s opening message to the audience was short and to the point: when it comes to the current and near term promise of neuroscience for criminal law, “curb your enthusiasm.” Morse cautioned that psychologists and lawyers have rushed to embrace the promises of functional magnetic resonance imaging (“fMRI”)—a neuroscience technology that is still very much in its infancy—without fully acknowledging its limitations.
Morse used the compelling example of Mr. “Oft” (so named for his orbital frontal tumor), a forty-year-old schoolteacher who, after a lifelong interest in pornography, suddenly developed an obsessive interest in child porn, and started molesting his stepdaughter. On the eve of the start of his prison sentence, Mr. Oft suffered from a headache so severe that he was hospitalized and eventually consulted by a neurologist. (While in the hospital, he exhibited more and more inappropriate and aberrational behavior, including soliciting sexual favors from nurses.) It turned out that Oft had a tumor in his frontal lobe. After tumor resection surgery, Oft’s behavior completely changed and he lost interest in child pornography. Ten months later, when Oft’s obsession with child porn returned, doctors discovered that, sure enough, his tumor had also returned.
Morse cautions that experts who rush to embrace the existence of the tumor as an explanation for Oft’s actions fail to consider the fact that Oft admitted that he knew pedophilia was wrong, but said that the “pleasure principle” simply overwhelmed his reason when he had molested his stepdaughter. As Morse explained, when the molestations first started, Oft exhibited enough rationality to know it was wrong and proved to be capable of hiding it from others for quite some time. Morse had no firm conclusion about whether Oft was criminally responsible for the molestation, but suggested that true understanding of Oft’s case–and his criminal liability–requires this evaluation of his behavior, including his actions and mental states.
In neuroscience, causation is mechanistic everywhere, but in criminal law, we hold some people as responsible and some not. The reason, Morse claims, is that criminal law is about acting human beings. At least at present, we cannot “read” our brains or any subregions of them in any way that is meaningful to the types of folk-psychological questions that drive criminal law. No matter how your brain looks, if you are a rationally capable being, you are held responsible for your actions.
Morse enumerated the weaknesses of neuroscience in its present form, including: (i) the lack of understanding of the connection between the brain, mind and human action; (ii) the usually small sample sizes of the studies that have been conducted; (iii) the use of images that are averaged over a number of subjects; (iv) the ecological validity of the studies; (v) problems with the research design that prevent clear causal inferences; (vi) the lack of replications; and (vii) what Morse terms the “clear cut” problem: that the neuroscience is never better than the behavioral findings and there is usually substantial overlap between the findings among experimental and control subjects.
Yet Morse is not wholly pessimistic. He listed some potential future contributions from neuroscience. It can confirm or disconfirm a bit of the folk psychological wisdom that supports a doctrine; suggest reforms of existing doctrines (e.g. insanity); facilitate individual case adjudication; and facilitate more fair and efficient practices, such as more accurate predictions. Still, the bigger picture of assessing criminality, Morse claims, lies in behavioral observation. Neuroscience, at least in its current state, adds little to the game.
–Student fellow Diana Wang (‘14)