BioEdge, a bioethics news source, reported on a disturbing case out of Italy. Apparently the Italian court has decided to reduce the sentence of two people due to new evidence from brain scans. The most recent one is discussed in the report: “In 2009 28-year-old Stefania Albertani pleaded guilty to murdering her sister by force-feeding her with psychotropic drugs, burning her body, and later attempting to murder her mother. She was sentenced to 30 years imprisonment.”
New evidence from fMRI scans indicates that Albertani had some discrepancies in her brain structure. The report from Nature provides the technical details:
Albertani’s grey matter volume in the imaging scans is different from that of a control group – 10 healthy women – in the Anterior Cingulate Gyrus and insula areas, among others. Changes in the Anterior Cingulate Gyrus have been linked to reduced inhibition and to the processes that regulate truth-telling; insula changes have been linked with aggressive behaviour… The genetic tests show that Albertani has low MAOA gene activity, which has been linked to violent behaviour.
To translate, her brain is not the same as ten other females who have been deemed “normal” by some set of subjective criteria. There are several issues to consider with this case. Her sentence was reduced from life to 20 years.
The criminal justice system is based on the idea that man acts as a moral agent and is therefore responsible for his actions. This system presupposes that man is more than a product of his environment and genetics, but that he has a free choice to act (or not act). In the case of Albertani, she force-fed her sister drugs, burned her corpse, and a couple of months later tried to kill her parents. Obviously anyone who commits such violent acts against another person has problems, whether those acts are due to anger issues, bitterness and vengeance, or a mental disability. The question becomes: Was the person sinning, or is her mental state such that she has no moral responsibility, similar to an animal, or does she have very little understanding of moral responsibility, like a small child? The only way to truly answer this question is to see inside the perpetrator’s head, not just her brain, but what is going on inside her head. With functional magnetic resonance imaging (fMRI), scientists can practically do that. Of course, my question for the scientists is, “Do you know what you’re looking at?”
Certainly, scientists are able to see many parts of the brain, but the brain is very complex and sometimes scientists are overly optimistic on what they actually know. For example, fMRI can show which parts of the brain are digesting or gaining water faster than other parts of the brain. Scientists say that this part of the brain is “active.” As far as structure, scientists have to arbitrarily decide who is normal, and look at his or her brain and decide that this is what a normal brain looks like. Furthermore, scientists must assume that abnormalities in structure, necessarily lead to abnormalities in behavior. In some cases this has been shown to be true; for example, people with tumors in certain locations will exhibit “odd” behavior. By “odd” this usually means behavior that is out of the norm for the particular person; tumors are usually found because there is a drastic change in the individual’s behavior.
As a bioethicist, this gives me pause. While I admit that there are ways that our bodies are designed that indicate how they are supposed to function, such as the ball-and-socket joint in the leg, there are some cases where “normal” is ambiguous. We know that people who cannot walk have a disability because we know how structures like the leg are supposed to work. The case is different with the brain and with behavior. We don’t know enough about structure-to-action correspondence to make an assessment that “abnormal behavior” corresponds to what may be an oddity in the brain. Furthermore, much of the neuroscience literature seems to indicate that there is a distinction between the mind and the brain, which is still not completely understood. With so many questions, determining what is normal can be quite subjective. Let’s take an example from Carl Elliot’s book, Better than Well. In it he describes how Americans more often than Japanese will take anti-depressants (SSRI’s) even though incidence of depression is similar as well as valuing medicine, pharmacology and health in both of these countries. Part of the reason is that American culture values extrovertism and out-going sociable behavior, while Japanese culture values very controlled, less emotional, and quieter behavior (Elliot, 75, 76). Mental disorders, much like depression, are diagnosed by behavior and mood, which is often very subjective, and may be relative to what the doctor (or jury) considers the cultural norm. I am not describing extreme examples of depression or mental disability, but the more common cases.
Stephen Morse has an interesting paper discussing this topic. He believes that while the context of the mental disorder should be considered in legal cases, for the most part, mentally ill criminals should not be treated differently except in extreme cases. He contends that by treating them differently, they are marginalized and are robbed of liberty and dignity. Morse also makes a very good argument against some of the presuppositions behind a type of determinism that can come out of looking at physical structures (brain or genetics or otherwise) and assuming that it determines behavior. He points out that if we are truly determined by the structure and function of our brain, then why not do away with the criminal justice system all together, and just have a deterrent and detention system? I believe that he makes some valid points on this topic. His insights on preserving the dignity of the mentally ill and criteria for insanity are helpful. He is very intentional in not being reductionistic or deterministic. See his paper, which can be downloaded here.
Insanity pleas were meant to be the exception, not the norm. They were meant to protect those very extreme cases where an individual truly has no conception of actions and consequences. These are rare cases. For most cases, people need to be held accountable for their actions. Not doing so treats the person who committed the crime at most, as a lower-tiered individual in society with fewer rights and liberties than “normal” people, and at worst, as something less than human, whether it is a machine determined by its parts, or an animal that was acting on instinct.