Abstract
By and large, it can be said that recent technological advances have contributed to the improvement of our daily lives and to advancements in many fields. In the fields of psychiatry and psychology, for example, neuroimaging applied to mental illness has at times corroborated psychiatric diagnoses and improved the treatment of the mentally ill. At the same time, when applied to the criminological and legal fields, and more specifically to criminal responsibility, it has found great difficulty in being accepted. Neuroimaging, with its technological investigative tools such as magnetic resonance imaging, (MRI), functional magnetic resonance imaging (fMRI), and positron emission tomography (PET) scans, has been employed in an attempt to establish whether human behavior is determined by a concatenation of causes or is the product of free choice, free deliberation, or free will. Is it electrical brain impulses or our own volitional thoughts that determine our behaviors? Scholars continue to debate whether the person who commits a crime does so willingly and freely or is subject, like an automaton, to determinate sequential causes (Palermo, in press).
Neuroscientific studies regarding will or determinism as factors in our behaviors find questionable acceptance by the inflexibility of the law. The philosophy of law views humans as rational actors who, after assessing the possible consequences of their actions, are capable of making a free choice to act or not to act, and are responsible for their choice. Obviously, illegal actions should be punished. If, instead, offender misbehavior would be found to be determined by neurobiological factors, the concept of individual criminal responsibility would be abolished and a deterministic view of behavior would take over will-driven conduct. In a totally different approach to criminal jurisprudence, a court of law would become essentially therapeutic and no longer punitive.
Do people possess free will and use free decisional capacity not only in their daily lives but also at the time of the commission of a crime or are their behaviors driven by a concatenation of causes? Ancient and modern philosophers, theologians, and writers, among others, have put forth their varying beliefs that humans have total free will or do not have free will.
Libet and colleagues (1983) tried to find a solution to the problem by repeating an earlier experiment by Kornhuber and Decke (1965), substituting the use of electroencephalographic recordings with fMRI readings. They attempted to pinpoint the exact moment that people become aware (conscious) of their intention to act and the beginning of the Readiness Potential registered with the fMRI. To their surprise, they found that the brain began the activation of the act to be performed 250 milliseconds before the individual consciously initiated the motor act itself, which consisted in moving the hand. The experiment supported the hypothesis that the participant’s actions were determined by the brain itself rather than by his deliberation. Later experiments, however, convinced Libet (1999) that most probably the will still exercised a veto power regarding the execution of the act. Therefore, even if the mechanics of the act were not under the decisional control of the participants’ will, the will, at a certain moment, approved or rejected it. Therefore, the behavior was willed by the participant.
Proponents of determinism assert that people are not responsible for their behaviors. The aggressive psychopath, for example, could be found not legally responsible and not imputable for criminal acts committed or at least would have the possibility of entering a plea of diminished responsibility. In this issue, Urbaniok and colleagues discuss in a scholarly and well-researched article the problems of will and determinism in criminal law. They reach the conclusion that the findings of present neuroimaging studies regarding will versus determinism are not sufficient to support the neurobiological causality that the proponents of the deterministic view of human behaviors espouse. They assert that the observation and analyses of offender behavior at the time of an offense and possibly a compatabilistic view of responsibility are the most reliable assessments of criminal responsibility.
The above view is shared by Morse (2007), who does not accept the deterministic view of behavior. Dysfunctional brains, he wrote, do not decide to do things, people do. That is similar to the saying that it is not guns that kill but the one who pulls the trigger. Nevertheless, psychopathic offenders, similar to other personality-disordered offenders, do have neurobiopsychological deficits and they process information differently than does the average person. Recent advances in neuroscience and behavioral psychology should be taken into consideration when addressing their criminal culpability (Palermo, 2010). Perhaps it is time to take Morse’s advice and at least attempt to translate neuroimaging findings into legal criteria.