Host 1: This is Philosophy Bites with me David Edmonds. And me Nigel Warburton. Philosophy Bites is available at www.philosophybites.com

Host 2: Philosophy Bites is made in association with the Institute of Philosophy.

Host 1: One man shoots another. He’s caught. Normally we might think that the punishment should depend on how much the killer was to blame. And blame rests on the notion that the man had free will. He had a choice.

Host 1: He could have chosen not to shoot. But according to neuroscientist David Eagleman, the more we understand how the brain works, the more we realize how choices are actually made, the more the notion of free will is undermined. This has radical consequences for how we should think about punishment.

Host 2: David Eagleman, welcome to Philosophy Bites.

Guest: Hello. Great to be here.

Host 2: The topic we’re going to focus on is morality and the brain. In one sense, it’s obvious that there’s a connection between the two because most of us believe that the brain has a fundamental role in our behavior. But neuroscientists today are making discoveries, it seems to me, which are changing our fundamental understanding of how we make decisions about the things that matter.

Guest: That’s right. I mean, think when we look at morality, we have lots of intuitions about what we might mean. But mother nature has been running experiments for thousands of years where people get brain damage, either because of traumatic brain injury or degenerative disorders, things like that. And we can see that morality is something much more fragile than we ever imagined. And after brain damage, people can have completely different kinds of behavior.

Guest: Morality is not something that is separable from the brain, but instead depends on the integrity of this three pound alien computational device inside our skulls.

Host 2: Could you give an example that of when things go wrong? I mean, a particular example.

Guest: Most people know about the example of Phineas Gage. And the reason he’s a famous case is because he didn’t die. He had a tamping rod go through his head and take away a big part of his frontal cortex, but he lived and that’s why he became a famous case. And then of course, the result was that his personality changed. We have much more modern examples of that that are in the literature all the time.

Guest: There was a paper reported just a few years ago of a man who started becoming a pedophile, and he had been married to his wife for a long time. And she knew him. She knew this wasn’t like him, but he was collecting child pornography. He then made an inappropriate move on her stepdaughter, and she left the house and pressed charges on him. At the same time, he was complaining of worsening headaches.

Guest: And at some point, he was able to get to the physician, and they did a brain scan and discovered he had a massive frontal lobe tumor. So the surgeons took the tumor out and his sexual appetite returned completely to normal. And the strange postscript to the story is that six months later, he started becoming a pedophile again. And he went back to the doctors, it turned out the surgeons had missed a part of the tumor, which was regrowing, they took it out a second time, and his behavior returned completely normal. So when we look at cases like that, which are sort of extreme and clear, and then we even look to things that people do every day where they spike their brains chemicals with alcohol or nicotine or drugs of all sorts.

Guest: They’re doing that in order to change themselves and their decision making and the way they feel and their behavior. And nowadays, when we talk about morality and decision making, think we have to talk about the neural basis of it. Because what’s clear from all of these examples is when the brain changes, you change.

Host 2: And it’s not just that the brain is changing. It’s the most of the changes in the brain are fundamentally inaccessible to us.

Guest: That’s right. There’s this massive operating system that’s running under the hood. Take the example of lifting your arm. So it seems effortless, but there’s this lightning storm of activity that underpins that the same is true with your senses of what’s moral or ethical or the right thing to do in a situation that gets served up by this lightning storm of electrical activity. And all we ever get is the end result.

Guest: And it turns out that the conscious mind is really the smallest bit of what’s happening in the brain. And most of the stuff just gets fed up to you as an intuition about what’s right or wrong.

Host 2: So we’ve got the case of a pedophile who has a detectable organic cause of his behavior, it seems. That there’s a tumor in the brain. There’s a direct link between that and his behavior. Also, you’ve got the ordinary case, the normal brain, where most of what we’re doing is inaccessible to us. If you’re gonna say that the guy with the brain tumor isn’t fully culpable, surely you’re gonna have to say the same sort of thing about ordinary human beings.

Guest: So this is the tricky position that the legal system finds itself in. The more we understand about human behavior, the more we understand how people’s brains came to be the way they are from a very complicated intertwining of genetics and environment. It turns out that if free will exists, it’s really a bit player in what’s going on in the brain. And the reason is your genes, which you don’t choose and your environment, including your in utero environment, and your whole all of your childhood experiences, we don’t choose that these are the things that come together and make your brain the way it is and define a lot of your trajectory in life. And if you have freewill, it can only modulate something that’s already got a lot of momentum in direction in a particular direction.

Guest: When you look at some criminal who’s done something heinous, and you say, Well, I wouldn’t have used my freewill to make that decision. Your brain and his brain are not comparable. You can’t stand in his shoes neurally speaking, because if you didn’t have that set of genes, and in utero cocaine poisoning, and childhood abuse and lead paint in your home and so on, your brain and his brain just aren’t the same. This puts the legal system in this funny situation where we have this increasing understanding that we are inseparably yoked to our biology, including things we did not choose. And the legal system is still asking this question of, well, was it his fault or his biology’s fault?

Guest: And it turns out that that question doesn’t make sense anymore. We can’t ever separate these things out and say, Oh, well, this was not due to your entire biology leading up to this point, but somehow a choice that you independently made of that. So there’s only one solution out of this conundrum, which is we need the legal system to be forward looking, instead of being backward looking, and asking, can we possibly untangle this crazy network of genes and experience, all it needs to be forward looking and say, okay, what do we do with this brain from here? Culpability is the wrong question for the legal system to be asking. It doesn’t matter how you got here.

Guest: If you were abused as a child, that encourages us to come up with social programs to prevent child abuse, but it doesn’t allow us to say that you shouldn’t be taken off the streets if you’re dangerous. So the legal system should be saying given the brain in front of the bench, what can we do from here in terms of risk assessment, in terms of the probability of recidivism. And the surprising part is there’s a lot more power in the numbers in the statistics than anyone would have guessed. In other words, when you look at large groups of offenders coming out of prison, and you follow them out for years to see who re offends and who does not, it turns out that some people are quite dangerous, some people aren’t so dangerous and everywhere in between. And there are factors that have some predictive power for this.

Guest: Now, some people say, Well, where’s the humanity in bringing science to sentencing? And my answer to that is compared to what? Compared to the lousy way that we do it now, people who are ugly get longer sentences than people are good looking. Of course, minorities get much longer sentences than the majority population.

Host 2: You’re talking about calibrating the punishment or treatment to the criminal, the particular criminal’s brain.

Guest: That’s exactly right. So the idea is as we have a better biological understanding of why people behave the way they do, this isn’t going to exculpate anybody because we still have to take dangerous people off the street. But people break the law for many different reasons. And some people, we need to take off for a longer time others for shorter and others, we can do something to help them. People think that about a third of the incarcerated population has mental illness.

Guest: Well, that’s not the appropriate thing to do with people who are say schizophrenic throw them in prison. What many jurisdictions are doing is they’re starting a mental health court system where if you’re mentally ill, people have realized it’s both more humane and more cost effective to root them off on a different path and say, okay, well, we’re gonna try to help you instead of just putting you in this revolving door of prison. So yeah, the idea is that the punishment should fit the brain.

Host 2: Seems to me we’ve always had a concept of diminished responsibility. But you’re not talking about degrees of responsibility. It seems to me that you’re saying that nobody is morally responsible for their crimes.

Guest: It’s not that we have to say nobody’s morally responsible, which seems like a provocative statement. But instead, we get to redefine what we mean by things. The question of culpability is the wrong question to ask. So remember, there are two phases to a criminal case, there’s the fact finding part where you decide guilt or innocence. Then there’s the sentencing phase.

Guest: And that’s where this issue of culpability comes in where we say, Well, was it his fault? How blameworthy is the person and this is the it’s the second phase that neuroscience comes in. Obviously, people don’t get off of a crime. If they’ve committed the crime, then they are guilty of it. It’s a matter of saying, how can we help?

Guest: How can we do customized sentencing? What I’m suggesting is asking the question of culpability is simply the wrong question. It doesn’t matter because we’re never going to be able to untangle the genes and the environment and everything that’s led a person to be the way that they are. There’s no suggestion here that somebody with no chance of recidivism will get off scot free. But I do wanna point out that the suggestion I’m making is one that’s already embedded in the legal system.

Guest: So for example, a crime of passion is treated with much more leniency than a premeditated murder, even though they’ve both ended up in somebody being dead. Why? Because a crime of passion is understood as something that depending on the circumstances has a much lower chance of recidivism in the future, whereas premeditated murderer tends to be much more dangerous. So it’s already the case that we have this in the legal system, and I think appropriately so.

Host 2: Now we’ve been talking about the morality of punishment, but seems to me a lot of what you’ve been discussing would also apply to the morality of praise and celebration of people’s achievements. Most of the things that make us capable of doing something successful are, again, outside our control.

Guest: You know, I’ve been thinking a lot lately about the concept of virtue and what we mean by that. The brain is a team of rivals. You have a lot of competing networks, all of which think they know the best way to accomplish something. It’s like people in parliament that all love their country but might have very different approaches to things. That’s what’s happening in the brain.

Guest: One of the major rivalries that happens in the brain is short term impulse gratification versus more long term reasoned decision making. And these are always locked in battle. If I put a chocolate chip cookie in front of you, part of you wants it, part of you wants to muster the fortitude to forego it. Once we understand issues like that in the brain, and we we can use neuroimaging to understand the networks underlying this, What that means is I think we can start getting traction on some of these philosophical issues like virtue. Virtue seems to be when someone has a temptation and overcomes it.

Guest: If somebody does not have the temptation at all, we don’t really think of him as a virtuous person. I think this gives us new way of of approaching the problem about what things we’d like to praise in people.

Host 2: Someone like Jean Boulsartre would say, this is just self deception. What you’re doing is looking for excuses for behavior all the time. The concept of what it is to be a person, which is to be fundamentally free and shaping your own life, just disintegrates so that one model of humanity, the existentious model, can’t live with neuroscience at all.

Guest: That’s right. Sartre is an example of a very smart person who lived before the blossoming of modern neuroscience. I think it’s very difficult to maintain this illusion that we make all of our own choices when you see brain damage of all sorts. Because when you look at people who have brain damage due to, know, fifty different things we can name, you see that it changes their capacity for decision making, it alters their ability to understand consequences and simulate possible futures, It changes their risk aversion. It changes the kind of choices they make and the kind of people they are.

Guest: We have to admit in the end, even though it’s uncomfortable sometimes, that what we call choice is absolutely dependent on the integrity of this three pound organ in our skulls.

Host 2: David Eagleman, thank you very much.

Guest: Thank you. There’s now

Host 1: a Philosophy Bites book published by Oxford University Press. For more information, go to www.philosophybites.com