28 January 2014

Crime—a criminal justice problem or a health problem?

Place your finger on your forehead, just above the eyebrows toward the right side. It is now within centimetres of your conscience. Our conscience is not, as long thought, a theological abstraction, but is in fact an organ resident in our skulls. Furthermore, it can be measured and observed in action through brain-scanning techniques.

Our moral compass lies in our orbitofrontal cortex and in its communication with other structures in the brain. Here lies our social intelligence, our emotional regulation, our impulse control—our conscience. If the orbitofrontal cortex and associated regions are damaged, or if our neuronal communications are malfunctioning, we are unable to properly regulate our emotions and reactions; our behaviour may be inappropriate, even antisocial, even criminal.

According to the Journal of Neurology, Neurosurgery & Psychiatry, “Case studies as far back as 1835 have reported the onset of antisocial personality traits after frontal lobe injury. Such cases typically involve damage to the orbitofrontal cortex, which clinical observation has associated with ‘poor impulse control, explosive aggressive outbursts, inappropriate verbal lewdness, jocularity, and lack of interpersonal sensitivity.’”

This is intriguing but not surprising. We might expect that people who engage in antisocial behaviour would have different brains. The question is what we should do about it. The traditional answer is to label the more antisocial behaviour “crime” and subject its perpetrators to the criminal justice system.

But is this just? After all, no one chooses to have an abnormal brain. Whether the abnormality is the result of faulty genes, fetal alcohol syndrome, infant or child abuse, or head injury, the victim does not choose his or her fate. Is it just to punish someone for something over which they have no control?

We must always, of course, protect the public. And for more serious crimes, that will mean incarceration, but perhaps it's time to start thinking about incarceration less as a punishment and more as a form of quarantine in the same way we sequester people with contagious diseases. People with impaired brains have, after all, already been punished.

Unfortunately, We do not yet know how to repair a damaged conscience. We are a long way from abandoning the criminal justice system. All we can offer at this time is early diagnosis and therapy—empathic approaches rather than punitive ones. Nonetheless, our knowledge is steadily increasing. We are already recognizing that we can prevent much crime by reducing the incidences of fetal alcohol syndrome and infant and child abuse—healthy pregnancies and healthy infancies produce healthy brains. Drug and psychological therapies, even electronic implants, hold promise that one day we will be able to repair a malfunctioning conscience, perhaps even cure a serial killer.

As we gain ever greater knowledge of the brain, aberrant behaviour may eventually be considered more a health problem than a crime problem, and crime considered more a symptom than a sin. The very idea of punishment may become obsolete.


  1. The mens rea element of criminal law isn't based on conscience but on one's ability to distinguish right from wrong. You don't have to appreciate the distinction or embrace it, you simply must be mentally capable of recognizing it.

    You can be quite mad but if you remain able to grasp the wrongness of a criminal act, then your state of mind is no defence although it may factor into sentencing.

    What is a lack of conscience? Is it an impairment of intellect? How does sociopathy compare?

  2. Sociopathy is an interesting case. Sociopaths are often described as not having a conscience. Due to brain abnormality, they lack empathy and therefore cannot appreciate the harm they do to others. Consequently, they relentlessly pursue self-interest, regardless of how it affects those they interact with.

    They do not choose to be sociopathic, so is it just to punish them for their actions? If it discourages them from doing further harm it may be necessary, but it isn't just and they are still sociopathic.

    A just solution would be to deal with their mental problem. Unfortunately, we cannot yet cure sociopathy, but eventually we may be able to, perhaps simply by inserting a chip in the victim's orbitofrontal cortex.

    A cured sociopath would provide a much better social outcome than one rotting in prison. This I suggest should be our goal.