Guilty People Aren’t Guilty, Innocent People Are

The man who took the knife and slit the throat of the woman whose money and body he wanted could not help himself. But the judge who sentenced that man to jail for life sure knew what he was doing.

The judge had freedom, he could make a choice. He should have considered that the murderer had none. The murder’s brain made the murderer do what the murderer did (the personal pronoun is out of place here). The judge’s brain was under no constraints. The judge could have let the murder go.

And, no, it’s not that mysterious entity Society which caused the man to wield his knife. That theory is passé! It is so 1970. This is a new century and we’re well into it. Times is modern! We should embrace new and colorful, computer-generated theories of exculpability.

Enter neuroscience and neuroscientists like David Eagleman, who begins with a kernel of truth embedded in hyperbole:

The first lesson we learn from studying our own circuitry is shocking: most of what we do and think and feel is not under our conscious control. The vast jungles of neurons operate their own programs. The conscious you – the I that flickers to life when you wake up in the morning – is the smallest bit of what’s transpiring in your brain. Although we are dependent on the functioning of the brain for our inner lives, it runs its own show. Your consciousness is like a tiny stowaway on a transatlantic steamship, taking credit for the journey without acknowledging the massive engineering underfoot.

From that he moves to two false but fixable statements:

The problem is that the law rests on two assumptions that are charitable, but demonstrably false. The first is that people are “practical reasoners”, which is the law’s way of saying that they are capable of acting in alignment with their best interests, and capable of rational foresight about their actions. The second is that all brains are created equal.

The law is not based on the principle that all are “practical reasoners.” It is based on the principle that people are responsible for their self-directed actions. The law is also not based upon the principle “that all brains are created equal.” The mentally deficient (in the technical sense) are given due consideration.

From these first three (with two false) premises, he announces, “The legal system needs an infusion of neuroscience. It needs to turn away from an ancient notion of how people should behave to understand better how they do behave.” This will not lead to blanket exculpation of those who commit crimes, but to a “refinement of our sentencing” of the guilty.

He concludes, “Currently, our patterns of punishment are founded on the concepts of personal volition and the attendant culpability. But a shift in our understanding of individual differences suggests a move toward prison sentences tailored to the risk of recidivism rather than the desire for revenge.”

This conclusion does not follow from its premises, even assuming they are all true. If we accept that criminals1 (defined as those people who commit a well-defined act) could not help themselves, then locking these people away makes no sense. It is like punishing a snail for leaving a trail of slime.

It frightens me to think that some believe we can predict which criminal will become a recidivist and which not. But assuming we can, then you are introducing the entirely new legal principle that a man should be locked up because some statistical model predicts he will commit a future crime. And why just lock up those who have previously committed crimes? We could apply the same models to everybody and put away any who we predict would commit undesirable acts.

If you assume a criminal could help himself, at least partially, but believe he will not become a recidivist (perhaps he slaughtered his hated father), Eagleman (apparently) argues letting this man go free else his punishment would only be for revenge.

And here we have it, the principle no truly Enlightened person would accept. Instead of revenge, “It is time to let go of our intuitions about how people should behave and pay attention to how they do behave – to run our legal system as rigorously as a science experiment.”

Eagleman, who evidently has no acquaintance with John Locke, has not considered that it was the evolution from personal and family vendettas and blood feuds, to disinterested judges and punishment by the state which gave us civil society. Prison is not revenge, it is the rule of law. It is justice.


1Why just criminals? We all have brains and so are all slaves to our neurons to some extent. We could reorder all of society on firm, neurological grounds. What happiness awaits!


  1. Briggs


    I emailed one of Eagleman’s assistants and offered a rebuttal. His site, which includes many pictures of himself is here. He bills himself as an expert in “neurolaw” and is author of the DVD Six Steps to Avert the Collapse of Civilization.

  2. Speed

    My favorite insight: … we are dependent entirely on our biology.

    Eagleman’s conclusion …

    Careful attention to detail will allow us to clean up the streets with less cost, slow the revolving doors of the penal system and divert resources into effective programmes rather than simply build more prisons. A brain-based approach can be more cost-effective, humane and successful.

    … is an economic one. Economic decisions are argued and justified using numbers which do not appear in this uninteresting piece of pop psychology.

    Next week he’ll write about Nature vs. Nurture. He invented it, you know.

  3. Adam H

    How is the statement that people “are capable of acting in alignment with their best interests” even debatable? It’s not as if he is saying “they are capable of acting in their best interests” or “they act in alignment of their best interest”, both of which are probably false. “Capable”, “alignment”, and “best interests” are subjective enough so that no one could ever persuade me that statement is false. There isn’t even an “always” thrown in there.

    Secondly, I agree that punishment should be doled out free of revenge, but punishing based “risk of recidivism” is just about as slippery as a slope can get. The best and fairest way to determine who deserves punishment are those who have committed a crime, with exceedingly few subjective considerations. Punishing preventatively is a line that should never be crossed.

  4. Ken

    This is a good example of people stepping way outside their areas of expertise.

    Neuroscience shows that much brain activity is under one’s consciousness (e.g. the activities associated with life, such as maintaining & adjusting heartbeats).

    Recent findings in NEUROPLASTICITY show that one’s behavior DOES alter the brain structure. The saying goes, “circuits that fire together wire together,” meaning that neural circuits are malleable (they can “re-wire” themselves in response to stimulie) in what are now somewhat understood & predicatable ways. This works for the better or worse. A person that engages in discipline & control (e.g. dieting) forces the brain to re-wire such that, with time & perserverence, cravings for sweets (etc.) subside. The converse is true, succumb to overeating/indulgence and one’s brain adjusts accordingly–resulting in truly compelling cravings.

    Thus, the assertion, “My brain made me do it,” is partly true…but the undeniable fact remains that we humans (absent some injury or disease) have the ability to exert free will to make choices that lead to measurable changes (leading to: “My brain cannot any longer make me do it”).

    David Engleman either does not know this, or, chooses to ignore it — which means he’s inclined to endorse any half-baked concept that absolves him of culpability for adverse consequences.

    Clearly an ego at work given his profuse use of self-promotion. Quite probably a narcissist (who are characterized by a number of negative qualities, including grandiosity–belief in their above-average capabilities, and, a firm refusal to admit [even privately] shortfalls, etc.). This, coincidentally, is also a theme associated with very Left-leaning liberals — a desire for unaccountability, degeneration to hedonistic pursuits deviod of accountability for resulting repercussions, etc. … all of which are symptomatic of particular personality disorders & related mental health issues.

    For an easy to read book about neuroplasticity I recommend: The Brain That Changes Itself; If you know anyone that’s suffered a stroke, even a debilitiating one, this shows just how radically one might be capable of rebounding despite the literal destruction of significant portions of brain matter.

    To appreciate & identify narcissists Sam Vaknin has a good reference (, much of which is freely available online: Root around that & one will quickly see the futilty of even bothering to get an objective conversation, much less rebuttal, from such an individual.

    Of course I can’t omit the reference: “The Liberal Mind: The Psychological Causes of Political Madness,” by Dr. Rossiter & available for immediate download (*.pdf) at the bargain basement price of about $10 at: I highly recommend it to any having even slight interest in the subject (and for the underlying psychological factors skip to Chapters 42-46).

  5. George Steiner

    If what Mr. Eagelman means is that the neurons operate their own programs and that these programs are fixed than I disagree. Computers operate fixed programs. Chemical computers such as the brain do not operate fixed programs.

    These chemical networks are capable of connecting themselves in a very large number of possible ways (perhaps infinite). The electrochemical influences on the connections are not understood only suspected.

    Mr. Eagelman is looking for fame and fortune on similar grounds to the global warmists. I hope he doesn’t succeed.

  6. Noblesse Oblige

    Yes Neurolaw. When we invented ‘ecopsychology,’ we could expect a whole slew of ‘eco-‘ prefixes to existing fields. Then, “PUFF” we have an instant new field whenever we add ‘eco-‘ to anything. Grants, fame, and election to the NAS follow. So to pick just one, we have ecoradiology, a branch of nuclear engineering (?), to protect us from nuclear leaks and all that. Back to ecopsychology; take in this Wiki entry which wins an instant prize for meaningless babble: But don’t underestimate the mischief these people can cause. Here is a blurb on a 2009 conference to discuss the obvious psycho-problems resident in the deniers of global warming. Yes Virginia, this is a step to Soviet-style institutionalization of those who don’t go along with the prevailing dogma — there must be something wrong with them.

    Now we have the potential for Neuro- prefixes on another suite of fields, culminating in the obvious synthesis: Neuroecology. We can’t help destroying the planet. Our neurons made us do it.

  7. DAV

    The knife wielder shouldn’t be quarantined because he was sick? What does revenge have to do with it?

  8. Ironically, his arguments fail to his own assumptions. According to him, I can assume: 1) He is not a a practical reasoner, and 2) his mind is unequal to the rest of us. Therefore, I can conclude his arguments are not even worth consideration.

    BTW, I have found that when a seemingly rational fellow makes no sense, it is often a case of incompatible assumptions. That is, arguing will do no good.

  9. Hwan

    And what is justice? It used to be defined as the administration of that which is just. Just means righteous. So Justice means righteousness. Humanists and lawyers may not understand this…but…the source of all righteousness is God.

    If you base justice on man’s logic and experience then you ultimately have a justice system that has no right or wrong. You have socialism. You have the perfect system for revenge type justice. You have a system where one group can subjugate others by the court system.

  10. Rich

    Ken says, Thus, the assertion, “My brain made me do it,” is partly true…but the undeniable fact remains that we humans (absent some injury or disease) have the ability to exert free will to make choices that lead to measurable changes (leading to: “My brain cannot any longer make me do it”).

    My favourite example of this is reading. Having trained my brain to read I cannot now stop it doing it. Road signs approach and my brain has read them and presented me with its conclusions in a blink. I cannot stop it. I cannot see a road sign as a content-free jumble of coloured shapes however hard I try.

    But there was no unconscious process driving my learning to read. “John has the ball. See John run”. I worked hard to get my brain to do this. The personal pronoun is indispensable here.

  11. ErisGuy

    I have heard arguments like Eagleman’s (great name) so often I name it the “mad dog theory.” For some reason people think that if we believe criminals are deficient in some way that they deserve mercy. That’s a laugh. If their brains are defective, they should be executed even for minor crimes.

  12. David

    Remember the movie “Minority Report” with Tom Cruise? The future is now…

  13. Silly stuff indeed. First, he offers only two possible reasons for punishment of criminals: correction of the individual criminal and revenge. What about the third: to discourage others?

    And, as someone else pointed out, if our actions are merely mechanistic, if we cannot choose, then there should be no moral qualms to acting in a purely utilitarian way. If utility is maximised by putting down law breakers, then why not do so?

    Unless, of course, you think that humans have some inherent value in themselves. But that might involve recognising such uncomfortable trails as agency, self control, moral choices.

  14. Sander van der Wal

    I do not want to be killed by somebody who kills people out of free will, and I do not want to be killed by somebody with a broken brain either. Whether I do not want to be killed because of my free will, or because my neurons are broken too is immaterial.

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