Incognito (25 page)

In other words, if you carry these genes, you’re eight times more likely to commit aggravated assault, ten times more likely to commit murder, thirteen times more likely to commit armed robbery, and forty-four times more likely to commit sexual assault.

About one-half of the human population carries these genes, while the other half does not, making the first half much more dangerous indeed. It’s not even a contest. The overwhelming majority of prisoners carry these genes, as do 98.4 percent of those on death row. It seems clear enough that the carriers are strongly predisposed toward a different type of behavior—and these statistics alone indicate that we cannot presume that everyone is coming to the table equally equipped in terms of drives and behaviors.

We’ll return to these genes in a moment, but first I want to tie the issue back to the main point we’ve seen throughout the book: we are not the ones driving the boat of our behavior, at least not nearly as much as we believe.
Who we are
runs well below the surface of our conscious access, and the details reach back in time before our birth, when the meeting of a sperm and egg granted us with certain attributes and not others.
Who we can be
begins with our molecular blueprints—a series of alien codes penned in invisibly small strings of acids—well before we have anything to do with it. We are a product of our inaccessible, microscopic history.

By the way, as regards that dangerous set of genes, you’ve probably heard of them. They are summarized as the
Y chromosome. If you’re a carrier, we call you a male.

When it comes to nature and nurture, the important point is that
you choose neither one
. We are each constructed from a genetic blueprint and born into a world of circumstances about which we have no choice in our most formative years. The complex interactions of genes and environment means that the citizens of our society possess different perspectives, dissimilar personalities, and
varied capacities for decision making. These are not free-will
choices
of the citizens; these are the hands of cards we’re dealt.

Because we did not choose the factors that affected the formation and structure of our brain, the concepts of
free will and personal responsibility begin to sprout with question marks. Is it meaningful to say that Alex made bad
choices
, even though his brain tumor was not his fault? Is it justifiable to say that the patients with frontotemporal dementia or Parkinson’s should be
punished
for their bad behavior?

If it seems we’re heading in an uncomfortable direction—one that lets criminals off the hook—please read on, because I’m going to show the logic of a new argument piece by piece. The upshot will be that we can have an evidence-based legal system in which we will continue to take criminals off the streets, but we will change our reasons for punishment and our opportunities for rehabilitation. When modern brain science is laid out clearly, it is difficult to justify how our legal system can continue to function without it.

On August 20, 1994, in Honolulu, Hawaii, a female circus elephant named Tyke was performing in front of a crowd of hundreds. At some point, for reasons masked in elephant neurocircuitry, she snapped. She gored her groomer,
Dallas Beckwith, and then trampled her trainer,
Allen Beckwith. In front of the terrified crowd, Tyke burst through the barriers of the arena; once outside, she attacked a publicist named
Steve Hirano. The entire series of bloody events was captured on the video cameras of the circusgoers. Tyke loped away down the streets of the Kakaako district. Over the
next thirty minutes, Hawaiian police officers gave chase, firing a total of eighty-six shots at the elephant. Eventually, the damage added up and Tyke collapsed, dead.

Elephant gorings like this are not rare, and the most bizarre parts of their stories are the endings. In 1903, Topsy the elephant killed three of his handlers on Coney Island and, in a display of new technology, was electrocuted by Thomas Edison. In 1916, Mary the elephant, a performer with the Sparks World Famous Shows, killed her keeper in front of a crowd in Tennessee. Responding to the bloodthirsty demands of the community, the circus owner had Mary hung on a massive noose from a railroad derrick car, the only known elephant-hanging in history.

We do not even bother to ask the question of blame in regards to an off-kilter circus elephant. There are no lawyers who specialize in defending elephants, no drawn-out trials, no arguments for biological mitigation. We simply deal with the elephant in the most straightforward manner to maintain public safety. After all, Tyke and Topsy and Mary are understood simply to be animals, nothing but a weighty collection of elephantine zombie systems.

In contrast, when it comes to humans the legal system rests on the assumption that we
do
have free will—and we are judged based on this perceived freedom. However, given that our neural circuitry runs fundamentally the same algorithms as those of our pachyderm cousins, does this distinction between humans and animals make sense? Anatomically, our brains are made of all the same pieces and parts, with names like
cortex
,
hypothalamus
,
reticular formation
,
fornix
,
septal nucleus
, and so on. Differences in body plans and ecological niches slightly modify the connectivity patterns—but otherwise we find in our brains the same blueprints found in elephant brains. From an evolutionary point of view, the differences between mammalian brains exist only in the minute details. So where does this freedom of choice supposedly slip into the circuitry of humans?

As far as the legal system sees it, humans are
practical reasoners
. We use conscious deliberation when deciding how to act. We make our own decisions. Thus, in the legal system, a prosecutor must not merely show a guilty act, but a guilty mind as well.
¹¹
And as long as there is nothing hindering the mind in its control of the body, it is assumed that the actor is fully responsible for his actions. This view of the practical reasoner is both intuitive and—as should be clear by this point in the book—deeply problematic. There is a tension between biology and law on this intuition. After all, we are driven to be who we are by vast and complex biological networks. We do not come to the table as blank slates, free to take in the world and come to open-ended decisions. In fact, it is not clear how much the conscious
you
—as opposed to the genetic and neural you—gets to do any deciding at all.

We’ve reached the crux of the issue. How exactly should we assign culpability to people for their varied behavior, when it is difficult to argue that the choice was ever really available?

Or
do
people have a choice about how they act, despite it all? Even in the face of all the machinery that constitutes you, is there some small internal voice that is independent of the biology, that directs decisions, that incessantly whispers the right thing to do? Isn’t this what we call free will?

The existence of free will in human behavior is the subject of an ancient and heated debate. Those who support free will typically base their argument on direct subjective experience (I
feel
like I made the decision to lift my finger just now), which, as we are about to see, can be misleading. Although our decisions may seem like free choices, no good evidence exists that they actually are.

Consider a decision to move. It feels as though free will leads you to stick out your tongue, or scrunch up your face, or call someone a name. But free will is not
required
to play any role in
these acts. Take
Tourette’s syndrome, in which a person suffers from involuntary movements and vocalizations. A typical Touretter may stick out his tongue, scrunch up his face, call someone a name—all without
choosing
to do so. A common symptom of Tourette’s is called
coprolalia, an unfortunate behavior in which the person bursts out with socially unacceptable words or phrases, such as curse words or racial epithets. Unfortunately for the Tourette’s patient, the words coming out of their mouths are usually the last things they would want to say in that situation: the coprolalia is triggered by seeing someone or something that makes the exclamation forbidden. For example, upon seeing an obese person they may be compelled to shout “Fatso!” The forbidden quality of the thought drives the compulsion to shout it out.

The motor tics and inappropriate exclamations of Tourette’s are not generated with what we would call free will. So we immediately learn two things from the Tourette’s patient. First, sophisticated action can occur in the absence of free will. This means that witnessing a complicated act in ourselves or someone else should not convince us that there was free will behind it. Second, the Tourette’s patient cannot
not
do it: they cannot use free will to override or control what other parts of their brain have decided to do. They have no
free won’t
. What the lack of free will and the lack of free won’t have in common is the lack of “free.” Tourette’s syndrome provides a case in which the
zombie systems make decisions and we all agree that the person is not responsible.

Such a lack of free decisions is not restricted to Tourette’s. We see this also with so-called
psychogenic disorders in which movements of the hands, arms, legs, and face are involuntary, even though they certainly
look
voluntary: ask such a patient why she is moving her fingers up and down, and she will explain that she has no control over her hand. She cannot not do it. Similarly, as we saw in the previous chapter,
split-brain patients can often develop
alien hand syndrome: while one hand buttons up a shirt, the other hand works to unbutton it. When one hand reaches for
a pencil, the other bats it away. No matter how hard the patient tries, he cannot make his alien hand
not
do what it’s doing. The decisions are not “his” to freely start or stop.

Unconscious acts are not limited to unintended shouts or wayward hands; they can be surprisingly sophisticated. Consider
Kenneth Parks, a twenty-three-year-old Toronto man with a wife, a five-month-old daughter, and a close relationship with his in-laws. Suffering from financial difficulties, marital problems, and a gambling addiction, he made plans to go see his in-laws to talk about his troubles. His mother-in-law, who described him as a “gentle giant,” was looking forward to discussing his issues with him. But a day before their meeting, in the wee hours of the morning of May 23, 1987, Kenneth got out of bed, but did not awaken.
Sleepwalking, he climbed into his car and drove fourteen miles to his in-laws’ home. He broke in and stabbed his mother-in-law to death, and then assaulted his father-in-law, who survived. Afterward, he drove himself to the police station. Once there, he said, “I think I have killed some people … my hands,” realizing for the first time that his own hands were severely cut. He was taken to the hospital, where the tendons of his hands were operated upon.

Over the next year, Kenneth’s testimony was remarkably consistent even in the face of attempts to lead him astray: he remembered nothing of the incident. Moreover, while all parties agreed that Kenneth had undoubtedly committed the murder, they also agreed that he had no motive for the crime. His defense attorneys argued that this was a case of killing while sleepwalking, known as
homicidal somnambulism.
¹²

At the court hearing in 1988, psychiatrist
Ronald Billings gave the following expert testimony:

Homicidal sleepwalking has proven a difficult challenge for the courts, because while the public reaction is to cry “Faker!”, the brain does in fact operate in a different state during sleep, and sleepwalking is a verifiable phenomenon. In disorders of sleep, known as
parasomnias, the enormous networks of the brain do not always transition seamlessly between the sleeping and waking states—they can become stuck in between. Given the colossal amount of neural coordination required for the transition (including the changing patterns of neurotransmitter systems, hormones, and electrical activity), it is perhaps surprising that parasomnias are not more common than they are.