NEUROCRIMINOLOGY AND CRIMINAL RESPONSIBILITY

AUTHOR: ASMITA BOSE, JOGESH CHANDRA CHAUDHURI LAW COLLEGE (UNIVERSITY OF CALCUTTA)

Abstract

This research is aimed at discussing the vast scope of neurocriminology. At first, it talks about how this field of science came into existence. The studies conducted by various scholars help us get some perspective on how differently the brains of criminals and non-violent people work. Also, neurological data is often produced in courts to reduce sentences of convicts. This paper outlines whether such evidence is admissible in courts, and a comparison of the trends followed by the judges in India and the United States of America. There are case laws mentioned which elucidate the implications of such evidence further. Next, we focus upon the linkage between neurological disorders and behaviours that are displayed by criminals. In this regard, there are some differences that need to be highlighted between neurology and psychology, both of which can often be confused by a layman. Courts also have a preference of one over the other. There is also a need to analyse the origin of crime and how criminals come into existence in the society. This is when we try to weigh in both sides of the arguments in the debate for “Nature versus Nurture.” It is pertinent to note that neurocriminology can contribute to identifying future deviants in order to prevent them from commission of crimes. However, this idea too has some flaws. Lastly, this research paper concludes by offering future suggestions for furthering the study of neurocriminology and how it can have a significant impact in lowering crime rates in the society.

Keywords

Neuro-criminology, Punishment, Criminal mind, Criminal brain, Neuro-criminology and Law

Introduction

Understanding the behavior of criminals in order to assess their reasoning and provocation to commit a crime has always been a world of endless debate and contemplation. It was only in recent times that society was able to adopt a more lenient attitude towards criminals. Prior to the introduction of reformative ways of punishment, criminals were found to be nothing more than a burden to society. There were a number of brutal punishments introduced to shun them off from society or to eliminate them completely. These included beating to death, throwing stones, branding on skin, severing heads, being pushed from a mountain cliff, starvation, being shackled, and many more. It was even common to offer capital punishments for petty crimes in the ancient times. During the late 19^th and early 20^th centuries, it was a common belief that criminals were born with a certain set of physical characteristics that predisposed them to committing offences. This theory was mainly propounded by Cesare Lombroso, who was the founder of the Italian school of criminology. It implies that offenders were born the way they were, and there could not be any preventive measures that could be taken to ensure that they do not succumb to their violent and aggressive nature. However, after significant development of neuroscience as a formal field since the 1960s, the notion of atavistic criminality was modified, and the idea of studying the neurological and biological factors of a human being that could possibly contribute to deviant behavior was introduced. The brain structure and functions, hormones, genetics, physiological responses of a criminal were compared to that of a normal person. In certain findings, it was observed that there were, in fact, some glaring differences between the neurological structure of an offender and a non-offender, and even between different kinds of offenders. For example, in a study including examination of brain scans of 800 incarcerated men, co-authored by Jean Decety, a leading neuroscientist of University of Chicago, it was found that individuals who had committed or attempted homicide had reduced gray matter when compared to those who committed other offences. In another study conducted by a group of neuroscientists at King’s College in London, it was found that among psychopaths, the two brain areas responsible for self-control and aggression were abnormal. These findings could possibly explain the antisocial behaviour of criminals.

Hence, we see that brain patterns and neurological disorders of certain types could indeed predispose individuals to criminal tendencies. These recent findings also indicate that as such individuals cannot voluntarily alter their brain chemistry, commission of crimes by them shall be seen as an inevitable outcome of their biological defects. This means that their actions cannot be controlled and hence their accountability for the same also reduces. This is when we delve into the legal responsibility of criminals.

Legal Scenario

Sometimes, reports of neuroscientific data are presented in courts in order to justify the actions of an accused, stating that there is an inherent defect in their brains that results in them being morally irresponsible. Unlike in the United States of America, where fMRI (functional magnetic resonance imaging), EEG (electroencephalography), and PET (positron emission tomography) scans are directly admissible in courts by defence counsels. Indian courts rely mostly on the plea of insanity in Section 22 of the Bharatiya Nyaya Sanhita (BNS) to have an offender pardoned. The weightage given to legal insanity is more than medical insanity in Indian courts. Evidence of mens rea, or the presence of a guilty mind and intention is also necessary for the courts to convict a person as guilty of a said offence. The admissibility of neurological data heavily depends on a number of factors. Only neuroscience data is not enough, there needs to be additional defensive arguments accompanying it, such as the crime being an involuntary act, there being an absence of mens rea or the defence of insanity. Thus, it needs to be proved that the person was not consciously performing the actus reus (guilty act) or there was no intention of committing the crime or the person was incapable of understanding the nature of the offence at the time of its commission.

Although both deal with the internal processes of a person, the psychological and neurological aspects of an individual are starkly different. While neurology deals with the brain, nervous system, hormones and genetics itself, psychology deals with the human mind and behaviour that are a result of working of all such neurological factors. In trying to understand the importance of both under the context of providing sufficient evidence regarding mental illnesses, psychological evidence prevails over neurological evidence. Neuroscience data can only act as a supplementary tool for what is already adduced by a proper mental diagnosis. This is because even though certain biological abnormalities can make a person more prone to succumb to deviant behaviour, they do not necessarily mean that is always the case. Abnormalities in the prefrontal cortex and a dysfunctional amygdala may make an individual more susceptible to criminality. However, this does not imply all people with these defects will undoubtedly commit crimes in their lifetime. Hence, mere medical reports of brain scans do not justify anything. It is the nexus between a person’s behaviour and the deformities that can potentially build up a strong case for the defence. An example of a case in the USA where brain injury evidence was successfully admissible in court resulted in mitigation of the convict’s sentence from first degree murder to second degree murder. The court did not directly consider the brain injury but held that the cognitive disabilities arising from the injury as well as Post Traumatic Stress Disorder (PTSD) and depression made the convict very susceptible to external manipulation.

Origin of Crime

Another problem while dealing with neuro criminology lies in the perpetual debate of “Nature versus Nurture.” On one hand, there are many criminologists such as Adrian Raine, Hans Eysenck, and Sarnoff A. Mednick who believed that hereditary, genetic and biological factors often produce criminals, whereas others like Edwin Sutherland, Robert K. Merton and Albert Bandura believed that criminals were not born, but made. So, the question that now arises is whether environmental and sociological factors are the real ingredients for the development of psychopathic tendencies, triumphing over neurological conditions.

Firstly, if we look at this from a bird’s-eye view, we can again say that it is difficult to gauge with certainty that either of the factors shall contribute positively to an offender every time. A person with a disturbed childhood who experienced trauma at a very early age, may overcome such trauma with time by dealing with it in healthy ways. Having education and awareness, exposure to a good social life, proper diet, sleep and exercise, involvement in outdoor activities and indulging in new hobbies are things that a child could do in order to avoid worsening his mental state. On the other hand, if a child refuses or is unable to adopt such healthy habits, coping with trauma takes dangerous forms, such as resorting to violent acts, anti-social behaviour, drug addiction, inability to focus on education, lack of empathy for others etc. Hence, it depends from case to case whether two distinct individuals will follow the same trajectory of life, even while being exposed to the same conditions of living. Similarly, as already discussed previously, similar neurological defects between two people does not mean that both will necessarily exude same behavioural traits, but are rather prone to exuding certain traits.

Secondly, taking into consideration Robert K. Merton’s strain theory, the notion of having to follow certain rules and regulations in a law-abiding society can often put a strain on individuals to conform to societal norms. A society that institutionalizes a person’s goals and desires within the societal structure may induce norm-violating behaviour in individuals to actualize those aspirations. For example, when an unemployed person is unable to afford basic needs for his children, his failure to acquire a job in order to feed his children may provoke him to resort to other methods of fulfilling his monetary needs. The person may see no other choice but to aid himself with illegal activities such as gambling, thievery and robbery. His norm-violating behaviour may be attributed to the sociological cause of joblessness and unemployment. However, it is also possible for this person to possess some abnormalities in his brain or genetics. This is when it becomes difficult to tell whether his actions are solely fuelled by his inability to support his kids, or if he was already predisposed to anti-social behaviour irrespective of his external environment. Thus, this takes us back to square one.

Finally, we can say that both nature and nurturing could be equally responsible for the birth of a criminal in society. What is important is that proper research should be carried out in understanding the patterns that lead to criminality. And on the basis of said research, early symptoms of psychopathy should be identified in an individual to provide them the proper medical help or counselling required to prevent them from committing an offence. Identifying a potential offender who may pose a threat to the society before they get a chance to inflict grave injury to a victim can help decrease crime rates in the society and lessen the burden of criminal courts and prison cells. The predictive power of neurological imbalances to determine criminal behaviour has its various complexities. It is found that children with reduced electroencephalogram (EEG) activity at age three were more likely to manifest aggressive behaviour by age eleven. Also, children with early cognitive impairments coupled with socio-environmental disadvantages are reportedly at a higher risk for persistent offending later in life. As a person with a certain neurological disorder may not necessarily commit a crime, relying solely on the reports for the same may result in a lot of false positives.

From a legal standpoint, juveniles are offered less stringent punishments for offences in order to offer them a chance for reformation. Juvenile detention centres offer a reformative approach towards minors (below the age of 18 years), ensuring that after serving their time in such centres, they are able to become a normal part of their community. This is done because brain chemistry and composition of children can alter with time, once they grow into adults. The prefrontal cortex of the brain, which plays a significant role in decision-making, is not fully developed till the age of 25. The way children process information and emotions can also change with due time. After undergoing proper counselling and therapy, the child is expected to attain a better understanding of the society and understand moral responsibility. After attaining sufficient maturity, the delinquent can be expected to refrain from committing similar acts of violence in future. In this way, chances of recidivism are significantly reduced. In the first landmark case of juvenile justice in India, the Supreme Court observed that juvenile delinquents could not be treated as adult criminals, as it would be detrimental for their growth and development. Thus, it is presumed that children still have the scope of rectification, which adults have outgrown.

Conclusion

In conclusion, neurocriminology is a field that has ample scope to facilitate research on the working of the criminal brain. It is a dynamic subject that requires careful considerations of individuality and different nuances that every person possesses. The problem occurs when there is a presumption that what is applicable for a certain group of people, is applicable universally. We must remember that human neurology in general involves several complications. There is no strait-jacket formula that can be applied to positively identify criminals. This is why courts are reluctant to rely too much on neurological data. As the same brain patterns between two individuals can result in two completely different behaviours, it is difficult to consider brain scans as conclusive proof of anything. However, we see that with the development of science, these reports are being taken as valid supporting evidence to corroborate various psychological and sociological conditions of an offender. Thus, the increasing role of the findings of neurocriminology cannot be undermined even legally. Serious sentences such as life imprisonment can be mitigated if there is sufficient evidence to show that the actions of the convict were performed involuntarily due to some pre-existing biological conditions.

The attitude of the society towards people with neurological disorders may also change. There can be better understanding that can be gained towards abnormal behaviour patterns displayed by certain individuals. Ostracization of such people from community groups is another major reason as to why they hold a natural aversion against society. Instead of isolating them, if they are provided sufficient help at an early age, a lot of criminal activities can be prevented well before time. A society comprises all kinds of different individuals. But at the core, there always lies a sense of humanity and belonging that binds us all together. Every human being deserves to live a life with this sense of belonging, no matter how uniquely our bodies and minds are shaped.

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