The Anatomy of Violence

by Adrian Raine

  The panel decided not to execute him. They accepted the argument that a toxic mix of biological and social factors mitigated, to a degree, Page’s responsibility. It is what I and the defense team had argued for. But is that the right decision? Or is it nothing more than a slippery slope down to a future lawless society that knows no bounds and where all evil acts have some type of “excuse”? Where no one is responsible for anything?

  Retributivists can be reassured that Page was found to be legally responsible for what he did. But what about Mr. Oft? Should he be held responsible for his actions? Would you hold him responsible? Bear in mind that in Donta Page’s case, we are talking about a correlation—not causation—between brain dysfunction and later violence. Yet in Mr. Oft’s case we come much closer to causality—the dramatic temporal sway of orbitofrontal disturbance with the sexual swing of his pedophilic passion. What is your verdict? Take a moment to render your judgment.

  I put this very question to an assembly of fourteen federal and state judges in the Federal Courthouse in Philadelphia on a cold November morning in 2011. It was a seminar organized by the AAAS—American Association for the Advancement of Science—aimed at bringing neuroscientists together with the judiciary.29 I suggested to them that Mr. Oft was legally responsible for his pedophilia. Every one of these judges agreed. It’s not that I have any expertise in law—unlike my good colleague Stephen Morse, at the University of Pennsylvania Law School, who is an international expert on criminal responsibility and who educated me on the case.

  How can that decision possibly be reached when we have a clear-cut case of a medical condition—far beyond the individual’s control, let alone his wishes—that hijacks his brain control center and turns him into a sexual predator? Pedophilia in itself is so “unnatural” that it smacks of a clinical disorder even if there were no corroborative medical evidence.30 How can you turn a blind eye to the on-off tumor growth and the on-off pedophilia?

  The legal answer is relatively simple. In American law, legal responsibility is defined in terms of mental capacity—specifically, the capacity for rational thought.31 Let’s assume that you clearly committed a criminal act. In order not to be held responsible, you need an “affirmative defense.” Here you “affirm” that the crime took place—you did it—but your defense is that you are not culpable or worthy of blame because you lacked “rational capacity.” You could lack rational capacity because you were suffering from a serious mental illness such as schizophrenia, or because you were mentally retarded, or because you were just a young, irresponsible child.32 If you could be shown to lack normal capacity for rational thinking, you would not be held responsible for the crime you committed, even if you freely admit to committing the crime.33 In these cases, you lack substantial capacity to appreciate the wrongfulness of your act.

  To translate this legalese into common parlance, rational capacity requires two basic conditions. First, you knew what you were doing. Second, you knew that what you were doing was wrong. How does Mr. Oft’s mental state line up with these two conditions?

  On the first condition, Mr. Oft knew what he was doing. He freely admitted to the fact that he knew he was going to bed with his twelve-year-old stepdaughter and molesting her. On the second condition, he knew that what he was doing was wrong. It was almost as if he, like me, had a Dr. Jekyll and a Mr. Hyde inside him, with Mr. Hyde having a more telling influence. In reflecting on his pedophilic action with his stepdaughter he comments: “Somewhere, deep, deep in the back of my head, there was a little voice saying ‘You should not do this.’ But there was a much louder voice saying ‘What the heck? Why not?’ ”34

  No matter what you would like to believe—or what you think others should believe—there is no hiding from the legal fact that Mr. Oft is responsible for his pedophilic acts. He was fully aware of his action at a cognitive level.

  Yet how in the course of justice would you compare Mr. Oft to a pedophile who did just the same act—but did not have that whopping orbitofrontal tumor clouding his moral sense and propelling him to those under-the-sheets illicit activities? Are they one and the same? If you agree, Mr. Oft would beg to disagree: “Now, whether I should be held as accountable for it as someone without a tumor? No, I don’t think so.”35 Nevertheless, under current law in the United States, they are both viewed as legally responsible for their acts.

  Mr. Oft knew what he was doing. Yet, at another level—at the affective, emotional level—there was something amiss in Oft. As his wife, Anne, comments when she discusses how she confronted Mr. Oft on what he did: “It seemed as though he got that what he was doing was wrong, but he just didn’t seem to get it. He just sort of had this look of ‘What?’ ”36

  Yes, Mr. Oft knew at a cognitive level that what he was doing was wrong, but did he have the feeling that it was wrong? When he wet his pants after admission to the hospital, he did not experience the secondary emotions of embarrassment and shame. That lack of feelings arises after damage to the ventral orbitofrontal cortex.37 Similarly, he did not experience a sense of shame and remorse when committing acts of pedophilia.

  We can place this affective deficit in the context of offenders more broadly. We saw earlier, in chapter 3, how psychopathic offenders fail to show activation of the brain’s emotional circuitry when contemplating moral actions, and we’ve seen how the ventral orbitofrontal cortex is also structurally impaired in offenders. Mr. Oft’s case is just the tip of the iceberg of a much larger group of offenders in whom the brain contributes to crime.

  This in turn leads to a broader and perhaps more troubling question. If you agree that Mr. Oft was not responsible for his actions because of his orbitofrontal tumor, what judgment would you render on someone who committed the same act as Mr. Oft but, rather than having a clearly visible tumor, had a subtle prefrontal pathology with a neurodevelopmental origin that was hard to see visually from a PET scan? Because such a pathology consists of a slowly evolving maldevelopment of this self-control region, there is no rapid switching from brain abnormality to behavioral abnormality. An individual with this kind of pathology lacks self-control from an early age and is always viewed by those around him as a “bad egg.” He will grow up to be your archetypal evil monster. How should we view him with respect to responsibility? If you cut Mr. Oft some slack, why not individuals like that? And if, on further reflection, you would not cut them some slack, would their case make you feel differently about how you view Mr. Oft?

  Regardless of this latter issue, you might view Mr. Oft as not responsible not just because his tumor “caused” his pedophilia, but also because the tumor could be resected and return him to normality. He could be quickly and convincingly treated, unlike most offenders with more subtle brain impairment. His treatability is making you think differently about his culpability—it’s altering your moral evaluation of his act. And yet you would view today’s untreatable offenders with volume reductions in their prefrontal cortex and amygdala as more responsible and worthy of punishment? How could we ethically condone such a difference in our evaluation? Today’s brain-impaired offenders cannot help the fact that we cannot currently reverse that brain impairment in the way we could with Mr. Oft. Would we call that difference in our opinion “justice”?

  Perhaps the majority of you may agree that Mr. Oft was not responsible for his pedophilia. Some will disagree. All I will say for now is that currently the law holds him responsible, standing almost agnosticly to neurocriminology. But what does the future hold for the application of neurocriminology to the law? Stephen Morse has argued that severe psychopaths just do not get the point of morality—just as Mr. Oft could not when questioned by his wife. They are blind to moral concerns and have no capacity for conscience. As such he believes they should be excused from crimes that violate the moral rights of others in society.38

  If we were to agree with this leading expert in criminal responsibility, might there be some basis for applying a similar line of thinking to Mr. Oft? Should the law be changed in the
light of what we are learning not just in a case like Mr. Oft, not just in severe psychopaths, but also in recidivistic violent offenders who also lack this moral sense and feeling of what is right and wrong? And yet we have seen in chapter 5 there is initial evidence for a neurobiological basis to even white-collar crime. Will there come a day when the Bernie Madoffs of the world plead that it’s not their fault—that they were just as biologically predisposed to white-collar crime as Mr. Oft was predisposed to pedophilia?

  This issue on the future applications of neurocriminology brings us to the final chapter, where I will give you my own guarded perspective not just on this issue, but also on other societal values that may have to be reevaluated in the new light of neurocriminology. What does the future hold for us?

  11.

  THE FUTURE

  Where Will Neurocriminology Take Us?

  Can you remember Kip Kinkel? Probably not. He’s easily forgotten amid all the other mass killers in America and elsewhere.

  You certainly won’t recall Howard Unruh, who shot thirteen people in New Jersey in 1949. I doubt you’ll recall the tragic murder of sixteen Scottish primary-school children in 1996. You’ve probably never heard of One Goh, the Korean-American who killed seven people at his Christian college in Oakland, California, in April 2012. You might remember the twelve students and one teacher killed in Columbine High School by Eric Harris and Dylan Klebold—or Seung-Hui Cho, the Korean-American who killed thirty-two at Virginia Tech in 2007. You’ll very likely recall James Holmes killing twelve people during the midnight showing of The Dark Knight Rises. It may be some time before you forget Adam Lanza’s gunning down of twenty schoolchildren at Sandy Hook Elementary School in Newtown, Connecticut, on December 14, 2012. But the rest become a blur—it’s really hard to keep track of them all, and they go back a long way. They are outrageous and completely unacceptable in any society. But heinous killings are not going to go away—unless we take fairly radical steps.

  It’s in this context that I want to explore with you the possible directions neurocriminological knowledge may take us in the future—for better or for worse—in preventing these and other tragedies. I want to explore how a public-health approach to violence can help create a healthier future for us all. But before we begin our exchange of perspectives, I must first refresh your memory on Kip.

  Kip Kinkel was a fifteen-year-old schoolboy in Springfield, Oregon, and he loved guns. That’s not uncommon, especially in the rural American Northwest. So he was delighted when his father, Bill, bought him a 9-mm Glock semiautomatic handgun. Bill bought it because he had difficulty connecting with his son, and he thought maybe a gun would help. He’d already given Kip a .22 rifle, and enrolled him in gun-safety courses so that his son could safely channel his enthusiasm for firearms. Kids like Glocks because they are easy to fire, lightweight, and stylish. But Bill never thought Kip would bring a gun to school. Kip was caught with a loaded, stolen handgun in his locker. In England it’s cell phones that bother teachers in the classroom. In the United States it’s guns. Kip was suspended from school and faced expulsion.

  His parents were absolutely distraught. Both Bill and his wife were highly respected teachers in their middle-class community, and now their son had been arrested on a felony charge. Bill collected Kip from the Springfield Police Station, where he had been booked, and they drove together to their secluded rural home. It was the middle of the afternoon. Bill sat at the kitchen counter drinking coffee, no doubt contemplating what could be done for Kip, wondering what on earth would happen next with his son.

  What happened next was that Kip delivered a single bullet to the back of Bill’s head, behind his right ear, using a rifle that he had retrieved from his bedroom. Kip then waited anxiously for about two hours for his mother, Faith, to come home from work.1 As she walked into the house Kip first told her that he loved her. Just as Adam Lanza shot his mother four times in the face before killing twenty schoolchildren, Kip fired two bullets into the back of his own mother’s head. But she was still alive. So Kip fired three bullets into her face, one into her forehead above her left eye, one through her left cheek, and one close up in the center of her forehead. Yet she still moved. Kip put the sixth and final bullet into her heart.

  Kip then put the theme song from the 1996 movie Romeo and Juliet, which had starred Leonardo DiCaprio, onto continuous play. He had watched this classic romantic tragedy in his English class. The next morning, on May 21, 1998, he drove to his high school dressed in a trench coat and armed with an arsenal of weapons. Kip walked into the cafeteria of Thurston High, where 150 students were having breakfast. Shooting from the hip with his semiautomatic rifle he got off forty-eight rounds in one minute and very quickly killed one teenager and wounded twenty-six others. One of those wounded later died at the hospital. He would have killed more, but as he was reloading, a wounded member of the high school wrestling team, enraged that his girlfriend had been shot, tackled him. Kip quickly got out his Glock and managed to fire just one more round before six other students fought him down to the ground. He was arrested and charged with four counts of aggravated murder and twenty-six counts of attempted murder.2

  Kip’s attorneys had a dilemma on their hands. They could have entered an NGRI plea—not guilty by reason of insanity—because there was evidence that Kip was mentally ill. Yet a jury might not easily accept going soft on a wayward teenager who had killed so many in cold blood.

  Instead, the defense decided to cut a deal with the prosecution: Kip would plead guilty to murder and attempted murder. But while he normally would receive twenty-five years for each of the four murders, the prosecution agreed to recommend that the sentences run concurrently instead of consecutively. That way he would get a maximum of twenty-five years. Thus, with the support of the prosecution, Kip could be out at the age of forty. The defense had found the presiding judge, Jack Mattison, to be fair, reasonable, and rational. They were confident about their case. Because Kip pleaded guilty there was a six-day hearing at Lane County Circuit Court instead of a trial by jury.

  Speaking for the defense of Kip Kinkel was Richard Konkol, the chair of pediatric neurology at Kaiser Permanente and also adjunct professor in neurology and professor of pediatrics at Oregon Health & Science University. Konkol had conducted a functional brain scan on Kinkel and documented poor functioning in several areas of the brain.3 Konkol convincingly pointed out that the most striking dysfunction were “holes” that appeared in the ventral or underside of the prefrontal cortex. These were not physical holes but areas of poorer functioning.4 Both sides of the orbitofrontal cortex showed much-reduced functioning, but the right orbitofrontal cortex was particularly impaired.

  Dr. Konkol buttressed the brain-scan findings with his own neurological examination of Kinkel, which revealed multiple signs of neurological disorder. His examination included tests of cranial nerve functioning, neuromotor functioning, tone and muscle functioning, reflexes, sensory functions, and neurocognitive functioning. He testified that the neurological findings concurred with the imaging findings of frontal and temporal lobe abnormalities, and argued that the impairment was neurodevelopmental in nature. The prosecution elected not to cross-examine Dr. Konkol.

  Psychiatric experts also testified for the defense. Kip had suffered from depression the year before the killings and had had nine sessions with a therapist. His mother, Faith, had been concerned with his temper and obsessive interest in guns, knives, and explosives. He also had police reports for shoplifting and throwing a rock at a car from an overpass. The therapy focused on depression and anger management. After the sixth session he was put on Prozac. Prozac worked so well in lifting Kip’s depression and emotional problems that after three months his therapist, his mother, and Kip jointly decided he could be taken off it. That may have been a well-meaning mistake.

  It was after the seventh therapy session that Bill bought his son the Glock semiautomatic. In hindsight, it sounds like a really irresponsible thing to do, but Bill was a
sensible and rational man who was desperately trying to improve the strained relationship he had with his son. He was careful to create very strict operational guidelines for its use and storage. This cherished parental present was to become one of the guns that Kip took to school to execute his murderous plan.

  Several psychiatrists testified that Kip was suffering from paranoid schizophrenia at the time of the homicides and that he heard voices resulting in command hallucinations. One voice told him to “Shoot him!” when he had arrived back home with his father. Another voice said “Go to school and kill everybody. Look what you’ve already done” after he had killed his father.5

  It was also revealed by psychiatrists that Kip suffered from delusions. He believed China was going to invade the United States, and in preparation he kept explosives under the house. Disney was going to take over the world, with Mickey Mouse’s effigy stamped on the new world’s currency. Experts testified about his learning disability, particularly with respect to reading and spelling. Kip was dyslexic. He first started hearing a voice when he was eleven, a voice that had told him, “You are a stupid piece of shit. You aren’t worth anything.” Another psychiatrist documented that there were multiple cases of mental illness in Kip’s family history, including schizophrenia.

  The prosecution took only four hours to present its case. It did not contest any of the psychiatric and neurological evidence. It was going to be up to the judge to agree or disagree with the prosecution’s and the defense’s joint recommendation that the sentences should run concurrently for a total of twenty-five years.