Unfair

by Adam Benforado

  Although both are correlated with criminality, psychopathy and antisocial personality disorder are overlapping but distinct conditions. Jeremy Coid et al., “Psychopathy Among Prisoners in England and Wales,” International Journal of Law and Psychology 32, no. 3 (2009): 134–41, doi: 10.1016/j.ijlp.2009.02.008. The DSM-5 only recognizes antisocial personality disorder and classifies it as “a pervasive pattern of disregard for, and violation of, the rights of others that begins in childhood or early adolescence and continues into adulthood.” Unfortunately, the DSM-5 introduces some confusion into the area by suggesting that “this pattern has also been referred to as psychopathy, sociopathy, or dissocial personality disorder.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th ed. (Arlington, VA: American Psychiatric Publishing, Incorporated, 2013), 659.

  Psychopaths have just the traits: Greely, “Law and the Revolution in Neuroscience,” 692; Kent A. Kiehl and Joshua W. Buckholtz, “Inside the Mind of a Psychopath,” Scientific American Mind (September/October 2010): 22–29, http://cicn.vanderbilt.edu/​images/news/psycho.pdf; Scott O. Lilienfeld and Hal Arkowitz, “What ‘Psychopath’ Means,” Scientific American, November 28, 2007, http://www.scientificamerican.com/​article/what-psychopath-means/; William Hirstein, “What Is a Psychopath?” Psychology Today, January 30, 2013, http://www.psychologytoday.com/​blog/mindmelding/201301/what-is-psychopath-0. The leading measure of psychopathy is the Psychopathy Checklist-Revised (PCL-R), which uses twenty criteria (scored at 0, 1, or 2) to determine whether someone meets the diagnosis (a total score of 30 or higher). Some of the criteria relate to antisocial behavior, while others relate to emotional and interpersonal traits. Kiehl and Buckholtz, “Inside the Mind of a Psychopath,” 28.

  And though they make up only: Greely, “Law and the Revolution in Neuroscience,” 692; The Royal Society, “Brain Waves Module 4,” 23. In addition, a prisoner appears to be about ten times more likely to be classified as suffering from antisocial personality disorder—characterized by a long-term pattern of disregarding moral norms and the rights and feelings of others—than a member of the general public. Mayo Clinic, “Antisocial Personality Disorder,” accessed May 21, 2014, http://www.mayoclinic.org/​diseases-conditions/​antisocial-personality-disorder/basics​/definition/con-20027920; Medline Plus, “Antisocial Personality Disorder,” accessed May 21, 2014, http://​www.nlm.nih.gov/​medlineplus/ency/article/000921.htm; Psych Central Staff, “Antisocial Personality Disorder Symptoms,” Psych Central, accessed May 21, 2014, http://psychcentral.com/​disorders/​antisocial-personality-disorder-symptoms/; Mobbs et al., “Law, Responsibility, and the Brain,” 695.

  The evidence related to traumatic brain injuries: Katherine Harmon, “Brain Injury Rate 7 Times Greater among U.S. Prisoners,” Scientific American, February 4, 2012, http://www.scientificamerican.com/​article/traumatic-brain-​injury-prison/.

  Computed tomography (CT) and magnetic resonance: Medline Plus, “Brain PET Scan,” accessed May 21, 2014, http://www.nlm.nih.gov/​medlineplus/ency/article​/007341.htm.

  Their primary value comes in: Erin D. Bigler, Mark Allen, and Gary K. Stimac, “MRI and Functional MRI,” in Neuroimaging in Forensic Psychiatry, ed. Joseph Simpson, (Oxford: John Wiley & Sons, 2012), 27–28; Bigler, Allen, and Stimac, “MRI and Functional MRI,” 27–28.

  A functional magnetic resonance imaging: Bigler, Allen, and Stimac, “MRI and Functional MRI,” 32–35. A positron emission tomography (PET) scan also captures how the brain is working, but employs a radioactive substance (i.e., a tracer) to look at blood flow to different areas of the brain, with higher radioactivity understood to associate with higher brain activity. Medline Plus, “PET Scan,” accessed May 21, 2014, http://www.nlm.nih.gov/​medlineplus/ency/article​/003827.htm; Mayo Clinic, “Position Emission Tomography (PET) Scan,” accessed May 21, 2014, http://www.mayoclinic.org/​tests-procedures/pet-scan/​basics/definition​/prc-20014301.

  This neuroimaging technology has allowed: Morse, “Neuroimaging Evidence in Law,” 344. It is important to grasp how difficult it is to connect the brain to the mind to behavior. Morse, “Neuroimaging Evidence in Law,” 343. The brain is our most complex organ. Boffey, “The Next Frontier Is Inside Your Brain.” Each of our brains contains some 100 billion neurons, each of which is connected to thousands of other neurons. Eagleman, “What Our Brains Can Teach Us.” With a single neuron potentially firing multiple times each second and perhaps 1,000 trillion neural connections in each of our brains, neuroscientists face an immense challenge. Eagleman, “What Our Brains Can Teach Us”; Boffey, “The Next Frontier is Inside Your Brain.”

  Pathological liars, highly aggressive people: Mobbs et al., “Law, Responsibility, and the Brain,” 694.

  There are also links: Mobbs et al., “Law, Responsibility, and the Brain,” 693–94.

  This aligns with other research: Mobbs et al., “Law, Responsibility, and the Brain,” 694; Batts, “Brain Lesions,” 268.

  One of the strangest aspects: Mobbs et al., “Law, Responsibility, and the Brain,” 697.

  Mr. Oft’s case would seem: Michael Kalichman, Dena Plemmons, and Stephanie J. Bird, “Editor’s Overview: Neuroethics: Many Voices and Many Sources,” Science and Engineering Ethics 18, no. 3 (2012): 424; Burns and Swerdlow, “Right Orbitofrontal Tumor,” 440.

  Given the complexities of antisocial behavior: Mobbs et al., “Law, Responsibility, and the Brain,” 694.

  The amygdala, for instance: Mobbs et al., “Law, Responsibility, and the Brain,” 694.

  Neuroscientists have identified this: Mobbs et al., “Law, Responsibility, and the Brain,” 694–95.

  When it is not functioning properly: Mobbs et al., “Law, Responsibility, and the Brain,” 694.

  We have known for a long time: Mobbs et al., “Law, Responsibility, and the Brain,” 693–94.

  Although we’ve been considering: Batts, “Brain Lesions,” 269–70.

  Pedophilia, for example, seems to: Wiebking et al., “Pedophilia,” 108.

  But the location of the abnormality: Mobbs et al., “Law, Responsibility, and the Brain,” 695.

  Those who have deficiencies in: Mobbs et al., “Law, Responsibility, and the Brain,” 695.

  By contrast, those with demonstrated abnormal: Mobbs et al., “Law, Responsibility, and the Brain,” 695.

  Some researchers have argued that: Developmental psychopathy may involve some reactive aggression as well. D.V.B. Mitchell, S.B. Anvy, and R.J.R. Blair, “Divergent Patterns of Aggressive and Neurocognitive Characteristics in Acquired Versus Developmental Psychopathy,” Neurocase 12, no. 3 (2006): 164, http://dx.doi.org/​10.1080/​13554790600611288.

  Those with acquired psychopathy have suffered: Mitchell, Anvy, and Blair, “Divergent Patterns,” 173–74.

  Television shows and movies lead us: For an interesting discussion of the depictions of psychopaths in movies, see Samuel J. Leistedt and Paul Linkowski, “Psychopathy and the Cinema: Fact or Fiction?” Journal of Forensic Sciences 59 (2014): 167–74, doi: 10.1111/1556-4029.12359.

  And the case against our simplistic: Adult experiential and other factors can obviously also play a role.

  Some scientists have claimed that: Gareth Cook, “Secrets of the Criminal Mind,” Scientific American, May 7, 2013, http://www.scientificamerican.com/​article/secrets-criminal​-mind-adrian-raine/; Kiehl and Buckholtz, “Inside the Mind of a Psychopath,” 28. Of course, we cannot look at the human genome and say, here is the gene for aggression or psychopathy or general criminality. Valeo, “Legal-Ease,” 39; The Royal Society, “Brain Waves Module 4,” v. However, we know genes can matter a lot. Greely, “Law and the Revolution in Neuroscience,” 691.

  All things being equal: Greely, “Law and the Revolution in Neuroscience,” 691.

  And psychopaths and pedophiles: Kiehl and Buckholtz, “Inside the Mind of a Psychopath,” 28; Wiebking et al., “Pedophilia,” 102.

  A good example of the interplay: “ ‘Warrior Gene’ Predicts Ag
gressive Behavior after Provocation,” Brown University, last modified January 19, 2009, http://news.brown.edu/​pressreleases​/2009/01/hotsauce.

  Scientists have suggested that: It is important to note that we are still learning about the effects of this genetic condition and the research remains controversial. S.Z. Sabol, Stella Hu, and D. Hamer, “A Functional Polymorphism in the Monoamine Oxidase A Gene Promoter,” Human Genetics 103, no. 3 (1998): 273–79, doi: 10.1007/s004390050816; Thomas Nadelhoffer and Walter Sinnot-Armstrong, “Neurolaw and Neuroprediction: Potential Promises and Perils,” Philosophy Compass 7, no. 9 (2012): 636, doi: 0.1111/j.1747-9991.2012.00494.x.

  On a more general level: The Royal Society, “Brain Waves Module 4,” 13.

  Some of those experiences have to: Adrian Raine, The Anatomy of Violence: The Biological Roots of Crime (Toronto: Random House, 2013), 207.

  A wealth of evidence: Raine, The Anatomy of Violence, 207.

  Even micronutrients appear to matter: Raine, The Anatomy of Violence, 218.

  If your mother smokes: Raine, The Anatomy of Violence, 277.

  And similar patterns emerge: Raine, The Anatomy of Violence, 277.

  Particularly disturbing are the elements: Raine, The Anatomy of Violence, 223–29.

  There is growing evidence: The evidence has come from efforts combining neuroscientific evidence with econometric studies correlating regional exposure levels and later crime statistics. Alex Knapp, “How Lead Caused America’s Violent Crime Epidemic,” Forbes, January 3, 2013, http://www.forbes.com/​sites/alexknapp/2013​/01/03/how-lead-caused-americas-violent-crime-epidemic/.

  The theory is that kids: Knapp, “How Lead”; Raine, The Anatomy of Violence, 223–25; Jonah Lehrer, “The Crime of Lead Exposure,” Wired, June 1, 2011, http://www.wired.com/​2011/06​/the-crime-of-lead-exposure/.

  As a result, two decades later: Knapp, “How Lead”; Raine, The Anatomy of Violence, 223–29.

  It matters what your parents: Michael Shader, Risk Factors for Delinquency: An Overview (Washington, DC: U.S. Department of Justice, 2004): 3–8, https://www.ncjrs.gov​/pdffiles1/ojjdp/frd030127.pdf.

  Having a mother and father: Shader, “Risk Factors for Delinquency,” 4–8.

  And many of these risk factors: Shader, “Risk Factors for Delinquency,” 3.

  We know that people in: Mobbs et al., “Law, Responsibility, and the Brain,” 698.

  A recent survey from: Mobbs et al., “Law, Responsibility, and the Brain,” 698.

  The frontal lobes, particularly: Mobbs et al., “Law, Responsibility, and the Brain,” 698; The Royal Society, “Brain Waves Module 4,” 13–14; John Monterosso and Barry Schwartz, “Did Your Brain Make You Do It?,” New York Times, July 27, 2012, http://www.nytimes.com/​2012/07/29/opinion​/sunday/neuroscience-and-moral-responsibility.html?_r=2&hp&.

  As you’d expect from looking: Mobbs et al., “Law, Responsibility, and the Brain,” 698.

  Lacking the fully formed quick-decision-making: Mobbs et al., “Law, Responsibility, and the Brain,” 698. For more on gist-based decision-making and adolescents, see Abigail A. Baird and Jonathan A. Fugelsang, “The Emergence of Consequential Thought: Evidence from Neuroscience,” Philosophical Transactions of the Royal Society of London, Series B: Biological Sciences 359, no. 1451 (2004): 1797–1804; Valerie F. Reyna, “How People Make Decisions That Involve Risk: A Dual-Processes Approach,” Current Directions in Psychological Science, 13, no. 2 (2004): 60–66; Valerie F. Reyna and Frank Farley, “Risk and Rationality in Adolescent Decision Making,” Psychological Science in the Public Interest, 7, no. 1 (2006): 1–44.

  According to one theory: The Royal Society, “Brain Waves Module 4,” 13–14.

  From an evolutionary perspective: David Dobbs, “Beautiful Brains,” National Geographic Magazine, October, 2011, http://ngm.nationalgeographic.com/​print/2011/10/​teenage-brains/dobbs-text.

  One bright sign is that: Graham v. Florida, 560 U.S. 48 (2010).

  In both Graham v. Florida: Graham, 560 U.S. at 63; Roper v. Simmons, 543 U.S. 551, 569 (2005). Likewise, in the 2012 case of Miller v. Alabama, the Supreme Court barred automatic life sentences for juveniles convicted of murder. Miller v. Alabama, 132 S. Ct. 2455 (2012). Unfortunately, as discussed in more detail later in considering our motives to punish, some states have actively evaded these changes by simply providing juveniles with automatic sentences of seventy or eighty years without parole. Erik Eckholm, “Juveniles Facing Lifelong Terms Despite Rulings,” New York Times, January 1, 2014, http://www.nytimes.com/​2014/01/20/us/​juveniles-facing-lifelong-terms-despite-rulings.html?_r=1.

  Just look at the Bulger boys: Christine Chinlund, Dick Lehr, and Kevin Cullen, “Senate President: A Mix of Family, Southie, Power,” Boston Globe, September 18, 1988, http://www.boston.com/​news/local/massachusetts​/articles/1988/09​/18/senate_president_a_mix_of_family_southie_power/?page=full.

  They were raised in South Boston: Chinlund, Lehr, and Cullen, “Senate President.”

  The elder James had lost: Chinlund, Lehr, and Cullen, “Senate President.”

  Whitey and Bill shared a room: Chinlund, Lehr, and Cullen, “Senate President.”

  Though the project has since: Chinlund, Lehr, and Cullen, “Senate President.”

  The Bulgers did not have much: Chinlund, Lehr, and Cullen, “Senate President.”

  Whitey stayed local and fell: Chinlund, Lehr, and Cullen, “Senate President.”

  The boys he hung out with: Chinlund, Lehr, and Cullen, “Senate President.”

  Whitey was fourteen when: “Whitey Bulger Biography,” Bio, accessed May 21, 2014, http://www.biography.com/​people/whitey-bulger–328770#capture-and-trial&awesm=~oEWyGCLDWfHOKb.

  In short order he would: “Whitey Bulger Biography.”

  Age fourteen was similarly pivotal: Chinlund, Lehr, and Cullen, “Senate President.”

  While Whitey was brawling: Chinlund, Lehr, and Cullen, “Senate President.”

  Later, while Bill was immersing: Chinlund, Lehr, and Cullen, “Senate President.”

  Bill went off to law school: Chinlund, Lehr, and Cullen, “Senate President.”

  As a legislator, he fought: “UMass Presidents: William M. Bulger,” University of Massachusetts, last modified June 30, 2011, http://www.massachusetts.edu/​presidents/bulger.html.

  He was later appointed: “UMass Presidents: William M. Bulger.” Over the years, Bill also served on numerous boards, from the Boston Public Library Board of Trustees to the Massachusetts General Hospital Board of Trustees to the Museum of Fine Arts Board of Trustees. “UMass Presidents: William M. Bulger.”

  After he was released: Helen Kennedy, “Notorious Gangster Whitey Bulger Was Inspiration for Jack Nicholson’s Character in ‘The Departed,’ ” NY Daily News, June 23, 2011, http://www.nydailynews.com/​news/national/notorious-gangster-whitey-bulger-inspiration-jack-nicholson​-character-departed-article-1.131159.Drugs, bookmaking, loan sharking—Whitey controlled it all. “Whitey Bulger Biography.”

  When Osama bin Laden was killed: Dick Lehr and Girard O’Neill, “Whitey Bulger: Secrets behind the Capture of the FBI’s Most Wanted Man,” Salon, February 24, 2013, http://www.salon.com/​2013/02/​24/whitey_bulger_secrets_behind_the_capture_of_the_fbis_most_wanted_man/. At one point, he had a $2 million price on his head, the largest ever for a nonforeign target, and his own dedicated Bulger Task Force. Lehr and O’Neill, “Whitey Bulger”; “James ‘Whitey’ Bulger Captured: Media Campaign Leads to Top Ten Arrest,” FBI, last modified June 23, 2011, http://www.fbi.gov/​news/stories/​2011/june/bulger_062311​/bulger_062311.

  After authorities finally caught him: Milton J. Valencia, Shelley Murphy, and Martin Finucane, “Whitey Bulger, Boston Gangster Found Responsible for 11 Murders, Gets Life In Prison,” Boston Globe, November 14, 2013.

  All that said, we shouldn’t: Asma Khalid, “Whitey and Billy: A Tale of Two Boston Brothers,” WBUR, June 2, 2013, http://www.wbur.org/​2013/06/02/​whitey-billy-bulger-brothers.

 
Our surroundings often exert: Miller, The Social Psychology of Good and Evil, 2.

  That seems uncontroversial enough: Miller, The Social Psychology of Good and Evil, 30-31; Shankar Vedantam, “Behind a Halloween Mask, Even ‘Good’ Kids Can Turn into Candy Thieves,” NPR, October 31, 2012, http://www.npr.org/​blogs/thesalt/2012/10/31/164030718​/behind-a-halloween-mask-even-good-kids-can-turn-into-candythieves.

  In one experiment, a group: Miller, The Social Psychology of Good and Evil, 30. Some of the games were benign in nature and some required physical confrontation in order to win. Miller, The Social Psychology of Good and Evil, 30.

  In the “anonymous” second set: Miller, The Social Psychology of Good and Evil, 30.

  It seemed to be the costumes: Miller, The Social Psychology of Good and Evil, 30–31.

  As a follow-up, the researchers decided: Vedantam, “Behind a Halloween Mask.”

  In the experiment, young trick-or-treaters: Vedantam, “Behind a Halloween Mask.”

  The person who greeted the children: Vedantam, “Behind a Halloween Mask.”

  So what did the kids do: Vedantam, “Behind a Halloween Mask.”

  Well, lots of them stole: Vedantam, “Behind a Halloween Mask.”

  Some groups took the entire: Vedantam, “Behind a Halloween Mask.”

  But there was an interesting twist: Vedantam, “Behind a Halloween Mask.”

  We have all heard: Jill Filipovic, “The Conservative Philosophy of Tragedy: Guns Don’t Kill People, People Kill People,” Guardian, December 21, 2012, http://www.theguardian.com/​commentisfree/2012​/dec/21/guns-conservative-philosophy-tragedy.

  Clutching a weapon: Jessica Witt and James Brockmole, “Action Alters Object Identification: Wielding a Gun Increases the Bias to See Guns,” Journal of Experimental Psychology: Human Perception and Performance 38, no. 5 (2012): 1159, doi: 10.1037/a0027881.