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.