Sunday, September 22, 2013

Crime and Punishment, Part 2; Where you end up usually depends on where you start

The other catalyst was Steve Earle’s “Ellis Unit One,” written from the perspective of a regular-Joe, death row prison guard who’s not handling the stress of his job real well:

. . .Last night I dreamed that I woke up with straps across my chest,
And something cold and black running through my lungs,
And even Jesus couldn’t save me, though I know he did his best,
But he don’t live on Ellis Unit One.

So he sees elements of his condemned charges in himself, and visa versa.  But the juries who condemned the same men did not experience this same level of commonality.  Instead, those juries saw not shared traits, but “otherness” sufficient to warrant exterminating the menace.  But what is the capacity of juries asked to weigh mitigation evidence to truly appreciate and consider another’s circumstances? According to David Eagleman, PhD, a neuroscientist at the Baylor College of Medicine and director of the Laboratory for Perception and Action ( and the Initiative on Neuroscience and Law (, it’s pretty limited.  In his thought-provoking 2012 article for The Atlantic titled “Brain on Trial,” ( he addresses the precepts of accountability, responsibility, and the punishments that flow from what science is revealing to be the flawed assumptions upon which the criminal justice is grounded:
Many of us like to believe that all adults possesses the same capacity to make sound choices. It’s a charitable idea but demonstrably wrong.  People’s brains are vastly different. 
Every mitigation jury needs to hear this, if not verbatim, than in sum and substance.  What follows is the best two-page summary of how biologically-imposed impediments to free will compel consideration of mitigation evidence in criminal justice sentencing that I have seen.  This section concludes with the following:
It is problematic to imagine yourself in the shoes of someone breaking the law and conclude “Well, I wouldn’t have done that” – because if you weren’t exposed to in utero cocaine, lead poisoning, and physical abuse, and he was, then you and he are not directly comparable.  You cannot walk a mile in his shoes. 
Of course you wouldn’t have done that.  Who would? And why? Eagleman’s article and his research included on the above websites provides science-based answers to these questions that juries asked to evaluate mitigation evidence wrestle with.

He examines not only the concept of free will, but just as importantly, “free won’t” – whether one has the ability not to act, and the concept of “choice” as affected by the spectrum of an individual’s neurobiology, and how those limitations butt up against the mostly one-size-fits-all approach to accountability based on a defendant’s “choices.”

I read in the article a challenge for criminal defense practitioners to do a better job of educating jurors concerning the reasons why the criminally accused acted as he or she did, which not infrequently, as Eagleman notes, are based on “the unique pattern of neurobiology inside each of our heads [that] cannot qualify as choices; these are the cards we’re dealt.”  So are the defendant's deficiencies a product of nature or nurture?  It doesn't matter, as Eagleman notes when consdering accountability, since the defendant had no choice in either one.

Maybe even more important is the idea of helping jurors understand why they are particularly poorly-equipped to accurately weigh the extent and effect of a defendant’s limitations.  I think we generally do a sub-par job of this, perhaps because many of our assumptions and stuff we think we know (assumptions shared by, and taken for granted by jurors as true) are proven, as science advances, to be just plain wrong (think factors in reliability of eye-witness identification: mind like a video camera/never forget a face/better powers of observation under stress ).

David Eagleman’s research provides a empirical basis to address the “pull yourself up by your own bootstraps/self-determinism/wholly independent actor” arguments that, while appealing to juries, are misleading and just plain wrong.  Next time you have to think about mitigation, you could do worse than spending an afternoon on the websites listed above.

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