The Fault Line: Why Blameworthiness is the Wrong Q

The Fault Line: Why Blameworthiness is the Wrong Question
Consider a common scenario that plays out in courtrooms around the world: A man commits a criminal act; the legal team detects no obvious neurological problem; the man is jailed or sentenced to death. But something is different about the mans neurobiology. The underlying cause could be genetic mutation, a bit of brain damage caused by an undetectably small tumour or stroke, an imbalance in neurotransmitter levels, a hormonal imbalance - or any combination. Any or all of these abnormalities may be undetectable by contemporary technologies. But they can lead to abnormalities in behaviour.
An approach from the biological viewpoint does not mean that the criminal will be exsculpated; it merely underscores the idea that his actions are not divorced from the machinery of his brain. We don't blame the sudden paedophile for his detectable tumour just as we don't blame the frontotemporal shoplifter for the degeneration of his frontal cortex. In other words if there is a measure able brain problem, that buys leniency for the defendent. He's not really to blame.
But we do blame someone if we lack the technology to detect a biological problem. And this gets us to the heart of the argument: that Blameworthiness is the wrong question to ask.
Imagine a spectrum of culpability. On one end of the scale we have the patient with frontotemporal dementia who exposes himself to school children. In the eyes of the judge and jury, these are people who suffered brain damage at the hands of fate and did not choose their neural situation. On the blameworthy side of the fault line is the common criminal whose brain receives little study and about whom our current technology can say very little anyway. The overwhelming majority of criminals are on this side of the line, because they have no obvious biological problem. They are thought to be acting with free will. Drug addicts are generally viewed near the middle of the spectrum: while there is some understanding that addiction is a biological issue and that drugs rewire the brain, it is also the case that addicts are often interpreted as responsible for taking the first hit.
The spectrum captures the common intuition that juries seem to have about Blameworthiness. But there is a deep problem with this. Technology will continue to improve, and as we grow better at recognising problems in the brain, the fault line will drift towards the not blameworthy side - that is into the territory of those who currently hold full accountability. Problems that are now opaque will open up to examination through new technologies, and we will find certain types of bad behaviour will have a meaningful biological explanation. As has happened with schizophrenia, epilepsy, depression and mania. Currently we can only detect large brain tumours but in a hundred years time we will be able to detect defects at currently unimaginably small a scale of microcircuitry that correlate with behavioural problems.
Besides all this, if we can't blame a man for a large tumour that causes him to commit a crime, how can we blame a man for any condition of brain? It is crucial we break free from the primacy of consiousness. It is a blind alley. It is likely hood of recidivism that ought to dictate punishment. Punishment is in fact the wrong term. It is as stupid as punishing a man for the colour of his skin.



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