The Best American Science and Nature Writing 2020

by Michio Kaku

  And already, neuroscience had been making its way into the courts. A study by Duke bioethicist Nita Farahany revealed that neuroscience evidence was twice as likely to appear in a judicial opinion in 2008 as compared to just three years earlier. The Supreme Court cited developmental neuroscience to prohibit the death penalty for crimes committed as a juvenile. Mental health courts and veterans courts, which make accommodations for people with brain trauma and PTSD, were cropping up around the country.

  While Conway was in court in 2009, I was particularly taken with a pair of new brain-imaging studies suggesting a network of brain regions responsible for self-control. In one study, researchers at the California Institute of Technology placed individuals already on a diet in brain scanners and asked them to choose between a healthy snack like a granola bar and an unhealthy snack, like a cookie. When a dieter refrained from eating junk food, activity in the dorsolateral prefrontal cortex revved up, but when a dieter gave in to temptation, the dorsolateral prefrontal cortex remained conspicuously quiet. The researchers concluded that the dorsolateral prefrontal cortex acted as a taskmaster, tempering activity in more appetitive brain regions so the dieters could exert self-control. These results corroborated another 2009 study observing brain activity in people with borderline personality disorder who also had intermittent explosive disorder. In that study, the individuals performed a laboratory task designed to provoke aggressive behavior while placed in a brain scanner. Impulsive individuals showed increased activation in brain regions involved in emotion and aggression, such as the amygdala, but less activation—​again—​in the dorsolateral prefrontal cortex. The conclusion of that study was that the dorsolateral prefrontal cortex was the inhibiting brain region, and when it wasn’t active enough, impulses went unregulated.

  The dorsolateral prefrontal cortex was one of the regions injured in my brother (and likely Phineas Gage), so it struck me as logical to conclude that the inhibitory centers in Conway’s brain had become damaged, making it more challenging for him to suppress certain behaviors despite understanding their long-term negative consequences. In other words, Conway’s brain damage made him unable to resist committing the crime. It was just a matter of getting a judge or jury to understand. Even if the brain injury could not eliminate Conway’s legal responsibility, perhaps it could spare him harsh punishment.

  Before Conway’s hearing, I offered my amateur legal opinions to his lawyer, along with my materials on the science of self-control. I waxed poetic about how neuroscience was about to revolutionize our legal system, and how we could be a part of that revolution. The lawyer wasn’t impressed. “No one will take any of this into account in a case like this,” he said matter-of-factly. He instead advised Conway to plead guilty to criminal damage to property, a Class 4 felony, as well as to the misdemeanor battery charge from the snowplow incident, making a case to be released on time served in jail. The stakes were high. If the judge didn’t agree to the release, Conway could face prison time.

  * * *

  In court, Conway sat at a bowed wooden table, jumpsuited and shackled, looking a little angry, a little ashamed. Although the lawyer had ignored the stacks of neuroscience evidence I had offered, he’d brought up the brain injury at an earlier competency hearing, arguing that Conway, while not innocent, was “slipping through the cracks” and was “a person who needs all the help the system can afford him.” The lawyer felt confident the judge would be lenient since Conway had already spent several months in jail. My jaw dropped when the judge handed Conway a two-year sentence in the state penitentiary. Studies estimate that anywhere from 25 percent to 87 percent of incarcerated people report having suffered a TBI at some point in their lives, as compared to 8.5 percent of the general population. Many of them, like Conway, have attention problems, memory problems, and behavioral problems like impulsivity, irritability, and anger that make it difficult for them to follow orders, get along with other prisoners, and then, after release, to keep jobs, homes, families. But my hard-earned knowledge of the brain appeared to be legally useless, Conway’s brain injury legally irrelevant.

  Conway’s neuropsychologist wasn’t surprised he ended up in prison. “It’s just horrendous,” she said. “But I don’t think it’s an unusual outcome.” Once brain-injury patients finish outpatient rehabilitation at the hospital—​which covers basic physical and cognitive therapy—​they get little additional support. “It’s not good what happens after rehab ends,” the neuropsychologist said. “It’s like these people fall off a cliff.”

  If the end of rehab was Conway’s cliff, prison was the hard ground at the end of his fall. The guards seemed to mistake his memory and attention problems for defiance. Conway and Caroline told me his outbursts provoked others in the prison. Conway told me he was beaten up, which I could only imagine would worsen his brain injuries. Before prison, Conway had been prescribed an experimental epilepsy drug because it was the only medication that controlled his seizures; he continued taking it even after the revelation of deadly side effects led to an FDA recommendation that it be pulled from the market except to treat the most intractable cases. But the prison physician switched to a cheaper drug over Conway’s objections, and he began having seizures—​which aren’t good for the brain, either. Conway began to break down. One day, in anger, he punched his cell wall so hard it fractured his hand. A few weeks later, he was found wandering the showers, pants around his ankles. He was unresponsive, his eyes staring blankly into space. Later that day he had a five-minute grand mal seizure in his cell. He was placed in an isolation cell for monitoring, where he continued to have seizures. At one point they had to use a defibrillator to reset his heart rhythm. The medical staff’s assessment of Conway’s nervous breakdown and obliterative, seizure-filled day? “Ineffective coping.”

  In June 2010, after serving four more months (because of time served in jail), Conway was released on parole; two and a half years after the accident, he seemed more brain-damaged than ever. Caroline was too frightened to pick him up, so he was sent to a homeless shelter. That same day, he had another seizure and was taken to the hospital. He tried to call Caroline, and, on July 4, she finally came to see him at the shelter. They went for a ride in the car, and while heading north on the Edens Expressway, she told him she wanted a divorce. Conway was devastated. According to Caroline, he grabbed the steering wheel and tried to run them off the four-lane highway. She regained control, but Conway opened the door and tried to jump out of the speeding car. Caroline rushed him to the emergency room, where he was committed to the psych ward. Medical records indicate that when released, he said he would commit suicide by throwing himself in front of a train.

  I’ve always wondered what might have become of Conway if, after the injury, he’d had the support he needed, rather than just gradually losing what little stability he had. Near the end of my graduate studies, I learned that Phineas Gage may have recovered more than textbooks had led me to believe. According to Malcolm MacMillan’s An Odd Kind of Fame: Stories of Phineas Gage, little in the historical record suggests that Gage’s impulsivity or aggression lasted for more than a short period following his accident. Only a few years after the injury Gage began working in a New Hampshire livery stable, then moved to Chile to work as a stagecoach driver for seven years. His ability to hold down these jobs is highly inconsistent with the Gage presented in textbooks, and MacMillan speculates that the structured environment of steady work may have helped Gage improve. Gage’s real story might not be about losing self-control, but how to regain it. A modern American prison, although technically structured, is probably not the kind of environment MacMillan envisioned.

  “The first tragedy was that Conway got hit in the head,” Caroline later told me. “The second was the one the system inflicted.”

  * * *

  A “biologically informed” legal system as imagined by neuroscientists like Eagleman was the one I had wanted for my brother. It had seemed to me that the law was, at best, slow to adapt to new
scientific advances, and, at worst, hopelessly obtuse—​and in its ignorance responsible for my brother’s fate. But is it a good idea to reduce all criminal behavior to misfiring neurons? It’s one thing to claim a brain abnormality—​such as my brother’s TBI—​contributed to criminal behavior. It’s another thing to say that if someone commits a crime, then it must have been the result of a brain abnormality—​which is exactly what scientists like Eagleman are saying when they reimagine crime as a form of neurological disease.

  Biological theories of crime have a long and troubling history. In 1876, Cesare Lombroso, sometimes called the father of modern criminology, wrote an influential book called Criminal Man. In an account later told by his daughter, he was dissecting a bank robber’s brain and noticed a “hollow,” like those found in the brains of “the lower types of apes, rodents, and birds.” The discovery, she wrote, hit him like “a flash of light”: criminals were born, not made. He concluded that the criminal brain “differs essentially from that of normal individuals,” strongly resembling that of “primitive races.” For many, “primitive races” meant people of color, making it reasonable to assume that anyone who was not white had a higher probability of innate criminality.

  And biological theories of crime have an inevitable end point: biological solutions. Lombroso’s theory contributed to the scientific rationale for eugenicists to propose the “legal, authorized elimination” of what they viewed as born criminals. In the early to mid-twentieth century the United States government forcibly sterilized at least 60,000 people deemed criminal, “feeble-minded,” or sexually deviant (an expansive list that included people who masturbated, queer people, and women who had children while unmarried). People of color, immigrants, and poor women were disproportionately targeted. In 1935, Antonio Egas Moniz performed twenty surgeries destroying the frontal lobes of people “who had previously been violent.” His procedure—​the lobotomy—​transformed them into patients who were “calm, tractable, and generally easier to manage.” In 1936, an American named Walter Jackson Freeman II toured the country in what was later dubbed the “lobotomobile,” charging $25 to scramble people’s frontal lobes with an ice pick inserted through the eye socket. By 1949, when Moniz won the Nobel Prize for his procedure, 10,000 lobotomies had been performed in the United States. As recently as the 1960s, in the midst of nationwide race riots, prominent doctors suggested the civil unrest was caused in part by “brain dysfunction in the rioters” and called for surgical solutions for “the violent slum-dweller.” In 1972, it was revealed that the California Department of Corrections had recently turned to neurosurgery to address what it called “the problem of the aggressive, destructive inmate.” Using a makeshift metal head restraint built by prison craftsmen, the DOC implanted electrodes in the brains of three prisoners, destroying their amygdalae. I wonder if in another era Conway, as an out-of-control teenager and then a troubled young adult, would have been one of Freeman’s patients. If he had been an “urban rioter” in the 1960s, would he have been a candidate for an electrode?

  Trapped by the logic of biologizing crime, scientists today also propose biological solutions. Using the example of a pedophile, Eagleman says that rather than reflexively incarcerating people who act on sexual urges toward children, scientists should instead consider neurofeedback treatments to “give more control to neural populations that care about long-term consequences—​to inhibit impulsivity, to encourage reflection.” Perhaps the most incorrigible offenders should be confined, but with a “prefrontal workout,” he claims, in a flourish of neuro-optimism, they can harness “the natural mechanisms of brain plasticity to help the brain help itself. It’s a tune-up rather than a product recall.”

  Eagleman eschews invasive interventions, but others aren’t so reticent to relive the past. Researchers have called for deep brain stimulation as “a treatment strategy” to reduce sex drive in people with “abnormalities” in sexual urges who are at “a serious risk of sexual offending.” In this case, the troubling twist is these patients would be subjected to the procedure before committing a crime. In 2013, researchers inserted probes into the posterior hypothalamic regions of seven men to reduce “aggression and disruptive bouts.” Although deep brain stimulation, which can be toggled off, isn’t as irreversible as lobotomy or ablation, any biological treatment essentializes criminality to an individual, turning what should be a verb (committing a crime) into a noun (a criminal).

  The neuroscientific legal revolution I’d been so enthusiastic about began to make me feel deeply uneasy, and made me wonder if I’d been woefully naive. Because I had wanted courtroom neuroscience to save my brother, I avoided considering its implications. I’d never questioned science’s inheritance of what society considered “normal” and “abnormal” behavior. But it’s clear that what’s “abnormal” or “criminal” shifts over time, culture, and place. Although pedophilia seems inherently criminal to us, men in ancient Greece had socially acceptable sexual relations with adolescent boys. Would they show the same patterns of brain activity as modern-day pedophiles? If they had brain scanners in ancient Greece, would those patterns be declared “normal”?

  When it comes to criminal behavior, what brain activity is normal or abnormal is not a biological question. It’s a question of social norms, and this is a fatal flaw in the neuroscience of crime. Researchers begin with social definitions of “normal” and “abnormal” behavior, then find distinct patterns of brain activity that match up with those behaviors. They speculate that abnormal brain activity caused the abnormal behavior they defined at the outset. In a circular process, scientists transmute social mores into natural science.

  I don’t think neuroscientists have bad intentions; I think Eagleman truly believes a “biologically informed jurisprudence” will lead to a more humane justice system. But he fails to grapple with how easily science can absorb prevailing prejudices to justify oppressive forces rather than fight them. After learning more about the troubling history of neuroscience and the law, I had to question not only what I wanted to be true about Conway, but also what I wanted to be true about neuroscience. I realized that many neuroscientists, for all our sophisticated understanding of the electrical properties of neurons, are naive when it comes to how the field might affect complex social problems—​and equally naive when it comes to how social norms might shape science. I felt adrift, sensing a fissure in the previously coherent worldview whose explanatory power had given me so much comfort. My experiments became less meaningful; the academic battles over minute details of brain function felt quaint. After a decade of training, I left it all behind.

  * * *

  My most recent visit to Conway, now sixty-five years old, was almost three years ago, nearly a decade after the drunk driver left him mangled on bloody concrete. He and Caroline had gotten back together and were living in a modest house in the Chicago suburbs, where Conway greeted me with a toothy grin and a silver-streaked goatee. As he struggled to open the front door, I noticed his hands—​the hands that could fix motorcycles, build furniture, mend windows, the hands that knew when to apply force and when to work delicately. Three fingers were gone, stubs now, his right hand a pincer of thumb and forefinger. He had accidentally chopped them off with a table saw. Following him into the living room, I noticed his limp was much more pronounced. A year earlier, he had accidentally set himself on fire while using a lighter to burn away the frayed ends of the jeans he was wearing; Caroline saw his pants in flames on the lawn and rushed to put them out with a garden hose. Conway’s leg was burned so severely that his Achilles tendon was exposed.

  Reminders of their former life were scattered about their new home: the wooden hearth from the farmhouse was propped up in the living room, and what was left of Conway’s tool collection hung in the kitchen. Although Conway can still lose his temper, that happens less often than it once did. Thanks to powerful medication—​its own form of biological intervention—​Conway has become a gentler version of himself. That n
ight, he placed a glass of water on the nightstand near my bed, and replaced it with a cup of coffee first thing in the morning. He was friendly with the neighbors, but had trouble following conversations. He filled in memory gaps with fantasy. In quiet moments, which were most of Conway’s moments, he was depressed. Sometimes, he contemplated suicide.

  For reasons I still can’t grasp, Conway—​a brain-damaged burn victim with seven fingers—​never could qualify for disability. Caroline was managing their day-to-day lives while working a low-wage job as a medical courier, picking up extra shifts when she could to offset Conway’s ongoing medical and legal expenses. The family pitched in for housing and other expenses. “No matter what happens, I’ll still be there for Conway,” Caroline said. “Even if it kills me.” She knows that without her constant care, Conway would either return to prison, get himself killed, or both. “I mean, if I leave, I might as well take a gun and shoot him.” But she also struggles daily with the injustice of the situation foisted upon her: “This is my prison sentence.”

  Conway knows his actions contributed to the bear-trap circumstances of their lives. He struggles with where to place the blame. “Some days I’m really mad at the driver, and some days I’m mad that I didn’t wear a helmet,” he said. “Some days I’m mad at the judge for sending me to prison, and some days I’m mad because I went over to Dale’s in the first place.” He sighed and took out rolling papers and a pouch of tobacco. With his newly disabled hand, it was difficult for him to position the tobacco in the crease of the paper.

  “Mostly I’m just mad that Caroline has to go through all this.” He looked at me and shook his head. A pile of fine brown tobacco leaves littered the floor by his feet. “I don’t know how to explain it—​one moment I think it’s my fault for everything, and I get really down. And the next I think it’s not my fault for anything, and I get really angry. And then,” he laughed, “I just stop thinking at all.”