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Thursday, September 9, 2004

Session 1: Neuroscience, Brain, and Behavior VI: Neuroscience and the Law

Stephen J. Morse, J.D., Ph.D, Ferdinand Wakeman Hubbell Professor of Law & Professor of Psychology and Law in Psychiatry, University of Pennsylvania Law School


CHAIRMAN KASS: This morning's opening session returns to the topic of Neuroscience, Brain, and Behavior, a topic that the Council has been looking into in various guises over the last six months, informed by the belief that research on the human brain, anatomical, physiological, genetic, pharmacological, that this research is likely to be of profound importance both for human self-understanding, and also for the interventions based upon that knowledge that could do much to relieve human suffering, enhance performance, and control human behavior by working on its neural substratum.   The Council has been looking into important ethical issues likely to emerge.

Thus far, we've had sessions in which we had a general overview of some of these likely ethical questions, a discussion of the neuroscience of moral judgment, Jonathan Cohen; a review of normal brain development and the early development psychologically of cognition and temperament, Tom Jessel, Elizabeth Spelke, Jerome Kagan.

At the last meeting we looked at some specific issues.  On the technical side, on the side of intervention, the use of precise brain ablation and deep brain stimulation in the treatment of intractable behavior disorders, Dr. Cosgrove.  And using a case study thinking about the importance of the knowledge itself, the use of neuro-imaging and the assessment of psychopathology and personal responsibility.

At this meeting we continue the discussion of the last topic, turning to the subject of Neuroscience, Violent Behavior and the Law.  This topic has already been attracting a fair amount of attention, and you have at your place a new publication hot off the press, "Neuroscience and the Law: Brain, Mind, and the Scales of Justice", a AAAS Symposium published by the Dana Press.  It contains an article by our colleague, Mike Gazzaniga, and also by one of our speakers today, and Brent Garland, who is the editor, is with us today.  And thank you very much for providing council members with these copies.

This topic of science and law is not a new topic.  In approaching human behavior, science and law have different objectives and interests.  Science seeks to understand it, law seeks to judge it wisely.  The law which both teaches, and embodies, and enforces the community's shared moral norms and practices seeks to protect the community against dangerous and unacceptable behavior by judging misconduct and punishing offenders.

Although understanding and judging are different activities, efforts to understand criminal behavior and its causes continue to exert an influence on how society deals with criminals, not only in considering guilt and innocence but, for example, in sentencing, decisions about parole, proposals for mandatory treatment, as well as in growing communal efforts to prevent people from becoming criminals in the first place.

In previous generations, science and pseudoscience had been used by people to try to explain why some people commit crimes and others do not.  There were eugenic explanations, there was phrenological explanation.  We've been through a period of psychoanalytic explanations, and socioeconomic explanations, as well.  Today and tomorrow it looks as if neuroscience is going to be one of the major roads of explanation.

And although, as we all know, the law generally holds people accountable for their actions, various accommodations have been made in the past to the findings of those who offer explanations for misconduct.  The criminal law already accepts legitimate excuses that can lead to verdicts of not guilty; for example, by reason of insanity.  It considers mitigating factors in determining sentences.  It uses medical treatments that are made conditions of parole; for example, chemical castration for pedophiles.  And it seems easy to imagine how similar kinds of accommodations and adjustments might be granted for brain-based explanations, should these be forthcoming from neuroscience.  And as the staff working paper and your briefing book points out, neuro-imaging data has already begun to find its way into criminal trials, notwithstanding the immaturity of these findings.  So it seems that it's not premature for us to try to see where we stand on this, and where we might likely to be going in the future.

And to help us with this discussion we have two sessions planned this morning, one from the side of law and one from the side of science.  To begin with, the understanding of responsibility and the approach to judging, punishing, treating, and paroling offenders, and the contributions and challenges of neuroscience.  And in the second session, what can neuroscience contribute now and soon to our understanding of impulsive, violent, and aggressive behavior.

To help us get started on these topics, we're very fortunate to have two very special guests, Professor Stephen Morse, who is the Hubbell Professor of Law, and Professor of Psychology and Law and Psychiatry at the University of Pennsylvania Law School.  His paper from the AAAS volume is in our briefing book, and we presume that it has been read.  And he will make the presentation of the opening session.

Also present with us already, and the speaker in our second session, is Dr. Emil Coccaro, who is the Director of the Clinical Neuroscience and Psychopharmacology Research Unit in the Department of Psychiatry at the University of Chicago. 

Welcome to both of you.  We're very grateful for your presence, and look forward to your presentations.  And let me turn the floor over to Professor Morse.

DR. MORSE:  Good morning, and thank you very much for inviting me to be with you today.  I'd like to start by thanking the AAAS and the Dana Foundation for the opportunity to write about something very directly that I've been writing about more or less directly for about 10 years.  I very much appreciated that opportunity.

The basic message which I want to start with in my presentation is very simple.  We are conscious, rational, and intentional creatures.  That's what we are as biological beings.  Many people think that the task of the neurosciences is somehow to explain that away; that is, to suggest that our mental stuff, our conscious, rational, intentionality is simply epiphenomenal, and that it does no causal work in explaining our behavior whatsoever.

I think the task of the neurosciences is just the opposite.  I think it is to explain precisely how it is possible that a bunch of gray matter up here produces conscious, intentional, and potentially rational creatures.  And that is the task for the neurosciences; not to explain us away, not to just make us a bunch of biophysical mechanisms, although gosh knows, we are biophysical mechanisms to begin with, but to explain how it is that creatures like us are possible.

Now in some people's lexicon, that's called the mind/body problem or the consciousness problem, some people think it's not soluble.  I'm open-minded about that, maybe it is.   And as Dr. McHugh has said famously, that if we ever figure out how the brain enables the mind, it may completely revolutionize our understanding of ourselves as human creatures.  But until the doctor comes, as Jerry Foder says, if we're sure of anything, and as much sure of this as we are of the existence of mid-size objects in our universe ranging from tables to planets, that we are conscious, intentional, and rational creatures.

And I want to start off with a case of my own, something that's adverted to in the Commission's working paper, the case of Herbert Weinstein, who is known previously in the literature as Spyder Cystkof.  By the way, I should say about the Commission paper, that a lot of the cases in which the neural imaging evidence was admitted were trial level cases, trial level decisions that have no strong precedential value.  Indeed, they have no precedential value whatsoever.  It is still an open question how much neural imaging or other forms of neuroscientific evidence will be admitted in courtrooms for purposes of deciding about responsibility.  I'll be talking later about the relevance of this material.

So Spyder Cystkof was a 64-year old semi-retired advertising executive.  He was married to a woman who — and this is all, of course, pseudo-anonymous — called Brunhilde.  They were both on their second marriage.  They were having an argument one evening.  They were each, as it were, dissing the children of the first marriage, which tends to make people very unhappy, and they got into a brawl about it.  And when Spyder would start to get angry, instead of fighting, he withdrew and just wouldn't engage.  And if you have a partner like that, it's the kind of partner that makes a lot of people very angry.  And Brunhilde got very, very angry and she started scratching at Spyder Cystkof, and attacking him physically, at which point he strangled her.  And to the best of our knowledge, strangled her to death, and then tossed her out their 13th story window in an attempt to make it look like a suicide.

Needless to say, the New York City Police - this took place in Manhattan - did not take a very positive view of this, and they arrested him.  He was charged with second degree murder; basically, an intentional killing without thinking about it ahead of time under aggravated circumstances.  But whatever she did was not sufficient provocation probably for the lower homicide offense of manslaughter.

Spyder Cystkopf was a wealthy man.  He was able to really tech-up his defense, and it turned out he had a subarachnoid cyst that was pressing on his left frontal cortex.  This is a cyst — most of you know this — this is a cyst that's on the underside of the middle protective layer around the brain.  He was worked up by Fred Plum's people at Cornell, and by Antonio Demasio at Iowa, so he had very good help in trying to come up with a brain-based defense.  Essentially, PET scans showed that there were metabolic imbalances in the region of the subarachnoid cyst. 

And his defense was legal insanity.  Because of the pressure on the brain and the metabolic imbalances on the left frontal cortex, where executive control is housed, as you know, the argument was he couldn't really appreciate the difference between right and wrong. 

Well, a lot of people want to stop there.  I don't, so let me give you a little bit more history about this man.  He was 64 years old.  This was 1991 at the time.  His neurologic history was this.  In 1948, he had migraine, he had had some disorientation, and he had seizure for which he had been hospitalized.  He was worked up and absolutely nothing was found.  He was discharged with the suspicion that he had a congenital cerebral aneurysm.  That was the end of his neurological history, so from 1948 to 1991, zero neurological history.  He had no psychiatric history.  He had no criminal record.  He had no prior history of violence whatsoever.

That's the case, and I'm going to be referring to it again and again as we go back to think about how we should think about it, because in many ways, it's an iconic case for the neuroscientific view of responsibility for a number of reasons.  We had clear findings here.  We had the best people looking into it.  We actually had a very good history, and we had a clear view of what happened at the time in question.  There was very little doubt about any of that.

By the way, in the Commission paper, for those of you who have read it, you know that what happened was, at the eve of trial, there was a plea agreement - all of you probably have seen "Law and Order," you know how this works in Manhattan.  They pled out to a lesser degree of homicide, voluntary manslaughter.  The Commission paper suggests because the prosecution was afraid of the potential success of the insanity defense.  I think not, I think just the opposite. 

The prosecution was ready to deal because it was going to be an expensive, difficult trial, but I think Herbert Weinstein, Spyder Cystkopf, was willing to plead guilty to what was a very serious stretch of years in prison, about seven years for at that point a 64-year-old man, because he knew he was going to get convicted of murder if he didn't plead.  And I think that's the real thing that happened.  That's certainly what the lawyers thought at the time.  By the way, he was offered at that point to have the cyst aspirated, and he refused. 

The law's concept of a person - you know, we can think of ourselves as biophysical machines, but if I were to ask any of you, any of you, including the neuroscientists in the room, why are you here today - you would not tell me a causal story about mechanisms and brains, and neurotransmitters.  You'd say something like, "I'm a member of this Commission.  I desire to be here because I desire to do good work, and it's interesting and stuff like that, and based on that desire and belief and all that, I formed the intent to come here, and that's why I'm here."

Well, the law thinks of human beings not as mechanisms.  The law thinks of human beings as I described before, as conscious, rational, intentional agents.  Now by that I don't mean that we're all perfect ratiocinators all the time, or anything of the sort.  What I mean simply by that is, if we try to explain our actions to each other, we do it in terms  essentially of what the philosophers of mind and the psychologists call the folk psychology.  The old simple practical syllogisms, desires, beliefs, and intentions.  And so we can, therefore, distinguish between three sorts of phenomena. 

Suppose we're trying to explain my arm going up.  You've all had the paper, so this is familiar to you.  One possibility is - and by hypothesis, Michael Gazzaniga is much stronger than I am, and although I'm trying to keep my arm down, he pulls it up, not my action at all.  I did not intentionally raise my arm.  But now let's change the hypothetical.

Michael pulls out a gun.  He sticks it in my head and he says Stephen, raise your arm or I'm going to blow your brains out.  Guess what?  Now is that intentional?  You bet it's intentional.  What's my desire?  To live.  What's my belief?  If I don't raise the arm, he's going to kill me.  And so I form the intention.

Now suppose something really bad was at stake if I raise my arm.  I really shouldn't have raised my arm.  You might give me an excuse, but not because I didn't intend to raise my arm.

Now the third case, I raise my arm as I did.  Now why did I do that?  I did that because I have a desire to produce a message for you folks.  I believe if I do an adequate demonstration, that will help that.  And, therefore, I formed the intention to raise my arm. 

Notice my arm moves the same in all three cases.  There is a causal explanation.  I'm a materialist.  I'm not a dualist.  There's a causal explanation in all three cases, but those are three different phenomena.  And it simply is bad thinking, I think, to think that they are not different phenomena.  Just because everything has a causal explanation doesn't mean everything is the same.  That's just a mistake.

Now how does that arm go up?  Because that's the action, as it was when there was a gun to my head.  Notice, fully responsible.  No one is going to excuse me for raising my arm as part of the demonstration.  If Michael put a gun to my head, you might very well excuse me.  In the first case, when he pulls my arm up "against my will," people are going to say that's no action at all.  That's not something to be excused or not excused.  It's simply not my action.  It's, we would typically say, Michael's action.  My arm moved, but it wasn't my action.

Now how do those arms get up in the air?  Well, I love as I know I've told you, to ask neuroscientists how that happens.  Well, we know certain necessary conditions about the brain and the nervous system, and the muscular-skeletal system, that if those aren't in place it won't happen.  But let's assume it is in place, you're neurologically and musculo-skeletally intact.  How does that arm get up there?  We don't have a clue.  We don't really have a clue, and that's the most basic thing about us, our intentionality. 

And since this is a Council on Bioethics, I thought I would read to you from literature which can sometimes explain a mystery, as well as anything else.  This is from Ian McEwan's acclaimed 2002 novel, Atonement. A young woman is talking or is being described.  "Brione sat on the floor with her back to one of the tall built-in toy cupboards and fanned her face with the pages of her play.  The silence in the house was complete.  The silence hissed in her ears, and her vision was faintly distorted.  Her hands in her lap appeared unusually large, and at the same time remote, as though viewed across an immense distance.  She raised one hand and flexed its fingers, and wondered, as she had sometimes before, how this thing, this machine for gripping, this fleshy spider on the end of her arm, came to be her's, entirely at her command.  Or did it have some little life of its own?  She bent her finger and straightened it.  The mystery was in the instant before it moved, the dividing moment between not moving and moving, when her intention took effect.  It was like a wave breaking.  If she could only find herself at the crest, she thought, she might find the secret of herself, that part of her that was really in charge.  She brought her forefinger closer to her face and stared at it, urging it to move.  It remained still because she was pretending.  She was not entirely serious, and because willing it to move, or being about to move it, was not the same as actually moving it.  And when she did crook it finally, the action seemed to start in the finger itself, not in some part of her mind.  When did it know to move?  When did she know to move it?  There was no catching herself out.  It was either/or.  There was no stitching, no seam, and yet she knew that behind the smooth continuous fabric was the real self which took the decision to cease pretending, and gave the final command."

I don't think any of us can actually do better than that, although as I said, the task of neuroscience I think is to explain how that happens.

All right.  So if you think about the law's concept of the person as rational, potentially rational, intentional actors, that makes all the sense in the world.  Think what law is, and now I'm going to be really jurisprudentially potted, simple-minded.

It's a series of rules that are meant to guide behavior, that are meant to be used in our practical reasoning for deciding what we should or should not do.  That's what law is, and law can then only be addressed effectively to creatures who are able to use those guiding rules as part of their practical reasoning, as part of figuring out what they have reason to do and not to do. 

Some of the other animal species don't have — where are the chimp legislatures?  Where are the porpoise and Ms. Manners, they don't exist.  There are no rules in the sense that we have rules.  So that's the kind of creature we are for the law.  What are the responsibility conditions? 

First, what is responsibility?  It's an attribution to another human being by a human being about action.  And when I say "action", what I mean here is to give you three criteria for responsibility in law.  Basically, there has to be an action.  Secondly, you have to have - and now I'm mostly doing criminal law, because that's what I know most exercises you folks this morning.  There has to be a culpable mental state that accompanies that action.  I'll explain these in a second.  And thirdly, you have to be in general a morally responsible agent.  And the basic criterion for that is that you have the capacity for rationality. 

Let's go back to Spyder Cystkopf.  He was charged with murder.  The act that's the prohibited act is any form of killing conduct; shooting, poisoning, strangling, throwing her out the window, nunchaku, you pick it.  The law is not very specific.  Any killing action will do.  There has to be a culpable mental state.

In this particular case, he had to intend to kill her.  It had to have been his purpose to kill her.  If he causally killed her accidentally, that wouldn't be a crime, because he didn't have the culpable mental state, assuming he was entirely acting carefully and it was just pure accident.

Thirdly, he had to, in fact, be a potentially rational agent, have the capacity for rationality at the time.  That's what the insanity defense decides, because if you think about his case — did he strangle her?  Did he do that act?  Sure he did.  Did he intend to do it?  Sure he did.  Was he a rational agent at the time, was his rationality compromised by his cyst and potential cerebral metabolic problems?  Perhaps, and we'll talk about how we would understand that.

So those are your essential responsibility criteria.  You've got to act, you've got to have a culpable mental state, and you have to be the kind of creature that has the capacity for rationality. 

Now how much capacity for rationality do you have to have?  That is not self-defining, that's not something that science can tell us.  It's a normative question.  It's a moral question.  It's a political question, and ultimately, it's a legal question.  We could be tough-minded, or we could be tender-minded.  If you're tough-minded, so long as you have even a little capacity for rationality, we may say good enough.  If you're tender-minded, even a little defect may be enough to excuse you.  That's what we decide as a society, ultimately through our legislators and through our legal system.  And these things wax and wane in terms of how tough or how tender we are going to be.  So what is the major excusing condition in law?  It's lack of capacity for rationality. 

Now you can also defeat legal liability by showing you didn't act.  Suppose you could show you were in some kind of automatic state that would also defeat liability, what we call prima facie liability, because you might be able to show I didn't intend to kill a human being.  Suppose - to use a silly example, because this is not how hallucinations work, as you know, but to use a model penal code example - suppose I all of a sudden believe that Paul McHugh is a lemon, the actual citrus fruit.  And I squeeze around, strangely enough, his neck, not his leg, but I squeeze around his neck and I strangle him to death.  And now I'm charged with the intentional homicide of Paul McHugh, and I say I didn't intend to kill him at all.  I intended to squeeze a lemon.  If we believe me, I didn't intend to kill him.  Now I wouldn't believe me, but if we did, I didn't intend to kill.

And by the way, what the law means by intention is nothing fancy, nothing fancy at all.  It doesn't mean your capacity to think through and be a hyper-rational human being.  It just means did you do it on purpose?  And notice, by the way, even little kids do things on purpose.  They intend, and the reason we don't hold little kids responsible, once again, is not because they don't intend.  It's because we don't think they have the full capacity for rationality yet. 

Now there is a second question, besides the lack of capacity for rationality, that goes to responsibility; which is, gee, what about people who seem to be rational, but we say they are compelled or coerced.  So think of my second hypothetical with Michael Gazzaniga who's holding a gun to my head.  What does it mean to say I'm compelled?  Now this is really fraught.  I could spend hours on this, so I am going to give you the really short form.

It's not well understood, but notice there are two different kinds of compulsion.  If he pulls my arm, it's literal.  I didn't act.  If he sticks a gun at my head and says do it or else, the compulsion is metaphorical.  It's not literal.  I could take the bullet and not do what he wants me to do, which is to raise my arm.  It's going to be an extremely hard choice for me, and we might give me an excuse if I yield, but not because I didn't act, not because I wasn't rational.  And what I would like to suggest is what really explains compulsion, separate from the literal compulsion cases, is that we are faced with a very hard choice that we think is too hard for the ordinary human being to resist.  Not too hard in the mechanistic sense, too hard in the gee, we can't expect him to take the hit if he doesn't do it. 

Now if you think about people like addicts, people who have sexual disorders and the like, most of them fall in the metaphorical compulsion.  They don't fall in the literal.  No one forces the addict to shoot up.  No one forces the pedophile to put his hand on a child.  It may be very, very hard for the person not to.  We need to think very carefully about what it means if we say they are "compelled".  It's going to be metaphorical. 

Okay.  When we hold people responsible and we say they deserve praise and reward, or blame and punishment, we sometimes use the terminology of free will.  I wish if I could leave you with a second message, you'd stop talking that way and thinking that way.  Free will is not a criterion for responsibility in the law, despite some loose talking cases about it.  There's no legal criterion called "free will."  When we use free will talk, what we mainly mean by it is a conclusion.  We all know you can't be responsible unless you have free will, so if you say gee, that person lacked free will, what you really mean to be doing is saying to your listener, I think this person shouldn't be held responsible.

But what I say to such people is, well, tell me what it is that that person lacked?  What is this free will that you say the person didn't have?  And what I would like to suggest to you is if you look at criteria in law and morals for responsibility, where you might be inclined to use free will talk, what you're really going to be doing is saying there's some problem about rationality, or there's some problem that you want to call compulsion.

Now here's what's true about us as creatures.  We're all different.  In terms of flying straight, and "controlling ourselves", and behaving well when we have a desire not to behave well, or a temptation not to behave well, you know, for those of us who are fortunately endowed biologically, and fortunately endowed by our environments, in our child rearing, in our communities, on average it's going to be easier for us to fly straight.  We're the lucky ones.

If you're not fortunately endowed by your biology, if you have an unfortunate environment, an unfortunate community and the like, it's going to be harder for you.  But successful human life, successful  human flourishing, it's going to be impossible unless we can live safely, interdependently together.  And when it comes to criminal behavior, we're not expecting a lot of each other.  Not killing, not raping, not stealing.  This doesn't require rocket science ability.  All right.  You don't have to be a genius to figure this one out.  We all understand these things.  We don't expect a lot of each other.  It really isn't a lot to expect.

Now again it's going to be harder for some people than for others.  And when it gets to be harder because their rationality is maybe less good, because they've learned fewer techniques to help them control themselves, we're going to be more sympathetic.  But where we draw the line in deciding who's responsible is a moral question having to do with human beings as I've described them.

Now I'm going to get to the neuroscience, believe me.  But it's impossible to understand the role of the neuroscience, or any other science in thinking about human behavior without having a model in your mind of what we're doing when we're holding responsible.  So now let me add a further bit of background.

What we have in our legal system, not yet fully constitutionalized, and perhaps will never be fully constitutionalized, but the story I'm about to give you is a very good positive description of the way our law works.  We have what I call desert-disease jurisprudence.

If we think about when we can control people who are dangerous, and in a liberal society notice what we do.  We know there are lots of people - and by liberal, I don't mean either wing of either major party.  I'm talking about post-Enlightenment and liberal political philosophy, which as we know, is a very large tent.

In a liberal society, although we know there are lots of people who are dangerous out there, we do not intervene.  We let them be dangerous.  The third-time armed robber about to walk out of prison who says to the warden on his way out - of course, they never have exit interviews, but assume they did.  We've all seen the movie, Pat O'Brien, Jimmy Cagney says, "Warden, as soon as I get out, I'm going to go do another armed robbery."  He walks out the door.  There's nothing we can do.  Why?  We give people a vast amount of autonomy and liberty in our society to pursue their projects, even when we think they may be dangerous.  That's the cost of doing business in a free society.  We could be a less free society, but that's the kind of society we, at the moment, are.

When can we intervene?  If someone commits a crime and they deserve punishment, then we can intervene.  We can arrest them, we can convict them, and we can incarcerate them.  That's the desert jurisprudence.  That's one set of cases.

If on the other hand, we think that they are not responsible for themselves, let's say because they have a mental disorder and they are not rational about their violence, and it's not just the mental disorder.  It's the diminution of rationality that might produce the violence.  Then we can do things like involuntarily civilly commit them.  We don't have to wait for a crime.  We can intervene pre-emptively.  And that basically explains.

Now what that does is it takes creatures seriously, once again, as responsible creatures.  We don't intervene unless you responsibly violate the law.  If you're not responsible, we can intervene.  Now we could have a different story.  We could have what I call the good bacteria/bad bacteria story.

That is, there are biological creatures, the good bacteria in our gut that help it to flourish.  We don't do anything to invade them, they help us.  But we don't ever praise them or reward those bacteria.  And then there are the bad bacteria that cause all the unseemly illnesses of the gastrointestinal system.  Well, we capitally punish them - antibiotics.  And we don't say bad bacteria, you deserve it.

Now we could treat each other that way, good bacteria, bad bacteria.  You're beneficial to me, you're harmful to me.  I'm going to intervene if you're seemingly harmful, and I'm not going to worry about praise and blame, punishment, reward.  But we don't.  We take each other seriously as moral human beings.  So what are we talking about here?

We have to assess behavior.  We have to assess the acting human being.  We don't hold brains responsible.  We don't hold neurotransmitters responsible.  We hold people responsible, and people are conscious, acting, potentially rational human beings. 

Now how is the challenge of the neurosciences different from past challenges to this model?  Well, there are two kinds of challenges.  There are what I call the broad challenges, and the narrow challenges.  The broad challenge is an external critique.  It basically says, given what the neurosciences have to teach us, your whole set of responsibility practices, the whole deep moral, political, legal structure involved in holding responsible and responding to human beings in that way, is misguided ab initio from the get-go.  See, you don't understand, goes the critique.  We're just biophysical creatures.  Responsibility is a myth.  All right.

Now in that respect, the neurosciences as material sciences, are no different in this respect from any other previous allegedly scientific, allegedly deterministic, allegedly mechanistic explanation of human behavior.  Just fill in, as Dr. Kass did for neuroscience, psycho-dynamic explanations, genetic explanations, socioeconomic explanations.  They've all been meant to do the same placeholder work, and what it really is, is it's just the old first year college debate.  If determinism is true, is responsibility possible?  Now here's what I want to tell you.

The best answer to that i,s no one will ever be able to solve that.  There are a number of contenders out there in terms of the metaphysics of responsibility.  There is a perfectly plausible metaphysical answer for why responsibility is possible in a deterministic world.  And by responsibility, I mean real responsibility, I don't mean as-if responsibility.

We can't do that here.  I do some of that in the paper.  You've had access to the paper.  But there's nothing new about the neurosciences here.  There really is not.  The only thing the neurosciences could ever do that would change that would be to show us that, in fact, we are not conscious, rational, intentional acting agents.  Now maybe the neurosciences will show that, but they're nowhere close to showing it yet, and my belief is they're going to be showing just the opposite - how that is possible for us, not explaining it away.

The major error people make when they give a causal explanation for behavior, causal explanation from any domain of causation, from the most fundamental molecular, right up to the sociological.  Because to think if I've got a cause, I've got an explanation, I've got an excuse.  Causation is not an excuse.  If it were, no one could be responsible for anything.  It's the same deterministic misconception.

Causation is not compulsion.  In my three hypotheticals, Gazzaniga pulls my arm up, Gazzaniga puts the gun to my head, and thirdly, I raise my arm as part of the demonstration.  There's a causal explanation presumably using levels of explanation for many domains, that explains all three absolutely.  But only in the first two was I compelled, I was certainly not compelled in the third.  And the forms of compulsion were different, as we've seen, literal versus metaphorical.

So neuroscience does not provide yet an external critique, and I don't think it's likely to.  But how about more narrowly?  Here's where I think the  neurosciences actually get a lot of traction or potentially have a lot of traction.

I've said to you already that the criteria for responsibility, given the model of the person in the law that I've explained are act, mental state, the capacity for rationality.  What the neurosciences or people who want to make claims based on the neurosciences might concede is okay, I'll give you your model of the person.  I'll give you those criteria, but I can now show you that there will be cases where previously you thought people were responsible using those criteria, but now with the neurosciences I can show you they're not.  Perfectly plausible.

Let me interrupt for one second.  We started about ten to a quarter after, Dr. Kass.  Do I have 35 minutes from then?  Okay.  Any time you want me to, just go (snap), and I'll stop.

Okay.  Let's start with the very first most  fundamental criterion, that you have to have an action.  Now there's a book by a very famous psychologist from two years ago, Daniel Wegner of Harvard, called the "The Illusion of Conscious Will".  The argument simply is - and now I'm really going to simplify with apologies to Dr. Wegner, who is a very eminent psychologist - that this notion I've been running of practical syllogisms, desires, beliefs, intentions - is not true.  That sort of mental stuff isn't really doing the work.  We're really all automatons.

Well, one question I have for Dr. Wegner might be — are you telling me, Dr. Wegner, that your brain wrote that book and, therefore, you shouldn't get the royalties?  But okay, is it possible that we're all just automatons?  We're all suffering from sort of the automatic states that sometimes brain disorders or even psychological disorders can sometimes — are we all in hypoglycemic fugue states or something like that?  Well, yes, I guess it's possible, but it's not bloody likely.  And I think to believe that, you'd really have to be half-cocked at this point.  The neurosciences may show us there would be cases that we think we're acting intentionally and we're not, that you could show us that we're in more automatic states than we thought we were.  Fine.  In those particular cases, you've expanded the cases of no action.  I just don't think it's likely we're all going to be shown to be in that state all the time.

It is certainly the case that we often, most of the time, I'll even concede all the time, don't know all the causal explanations for why we behave as we do.  Of course not.  It goes back, if you're a materialist as I am, to the beginning of the universe.  Does that mean we don't act intentionally?  Well, you can act intentionally without knowing why you're doing it, not knowing all of the causal explanation.

I mean, did Herbert Weinstein when he killed his wife, whose real name was Barbara, by the way, not Brunhilde.  When he killed Barbara, did he know all the causal roots?  Of course not.  Did he intentionally strangle her to death?  Of course he did.

So what about the impulsively violent?  Well, let's think about what we mean by the "impulsively violent".  Let's be commonsensical about this.  What we mean by the impulsively violent are those people who, if you will, are steep time discounters, for whom the desire becomes the deed, who don't seem to think very carefully ahead of time.  The second they have the desire, they seem to do it.  That's what we mean by impulsive.  That's the common sense of it.  And we might very well get a very good neurophysiological explanation for why some people are seemingly characteristically impulsive, while other people might be impulsive on a given day or a given time.  Sure.

Does that mean when they act "impulsively", that they're not acting intentionally?  Not at all.  It doesn't follow.  They may not be very seemingly capable of rationality at the time.  They may not be very thoughtful, but it doesn't mean they're not acting intentionally.  That will not have been shown.

So what you're going to have to show is that these folks were in an automatic state, and that is going to be very hard to show in most cases.  Some cases sure, and the neuroscience is going to help us with that.  When people make claims that they were like in a hypoglycemic state or something, the neurosciences could help us with that.

Now what about the neurosciences and the formation of culpable mental states, like intent.  You saw in some of these cases in the briefing paper, gee, the neurosciences have shown us that a person lacked the capacity to form the intent.  In my view, most of those cases are make-weight, and they're just blowing smoke; that in fact when we say the person lacked the capacity to form the intent to do it - I mean, if someone were to tell me that about Herbert Weinstein, I'd say the facts absolutely belie it.  Of course he intended to kill her.  To tell me he didn't have the intent, capacity to form the intent, is simply to be confused. 

In most cases of human action where you've got actual human action, people have the capacities to form these mental states.  They may, again, lack full capacity for rationality and the like, but it's not because they don't intend to do what they do. 

So that brings us to where I think the neurosciences may have the most traction of all, which is to show us in what ways particular brain states, particular kinds of disorders and the like can actually affect our capacity for rationality.  But here you get something very interesting.

When you're trying to figure out something about human beings, you can have test results, but ultimately, we're not assessing brains.  We're assessing human behavior; and, therefore, what we've got to do is look at the acting human being.

Now the famous psychologist, David Wechsler, the founder of the Intelligence Scale, said this: "When there is a difference between a person's intelligence seemingly that you would infer from their behavior and what their IQ score is" - and IQ, by the way, is a very robust measure or a good measure - "always believe the behavior."  And so what I would say about Herbert Weinstein is, okay, he had brain pathology, certainly both structural and physiological, wet and dry. 

On the other hand, if you look at all his behavior, there's nothing to suggest that this is a man who generally lacked the capacity for rationality.  Might he have been a little bit less impulsive?  Might he have been a little bit more together if he hadn't had the brain pathology?  Sure, but there's always an explanation.  We all differ.  Does it mean he was not responsible?  Not necessarily. 

You're going to have to tell me a story, and the brain isn't going to be the whole story.  We're going to have to look at the behavior, so think about John Hinckley, and the question is not whether his sulci were abnormal or not, which was the claim.  The question was did he delusionally believe that Jodie Foster was going to run off with him or not, or did he just in his own twisted way want to have his moment of fame?  And that's the way you think about that case, and these are inferences.

Now what about punishment and things like parole?  A lot here depends on what your theory of punishment is.  Suppose you think that you could make somebody who you thought was responsible - in other words, you've done this whole analysis as I've suggested, and you thought you could make them a lot less dangerous, and a lot more rational by treating them.  Would you necessarily give them less punishment?  Well, if you think people should get what they deserve, and you thought the person deserved the full punishment, you wouldn't.  You might offer it to them in a humanitarian way, but you wouldn't necessarily reduce their sentence.

Suppose, however, you're a mixed theorist.  You also want to save the state money, give people a break if you can.  Well sure, if you thought they were safe to be abroad if you could put conditions on parole you might treat them.  You might do it.  You might offer it as a condition for parole.

A lot here depends on your moral and political theory of what criminal justice is supposed to do.  About that, neuroscience and any other science must fall silent.  This is a moral, a social, and a political judgment.  Should people fully get what they deserve, or should they get less if we think we can make them safe?  It's not a scientific question.  Neuroscience can give us the tools, but it can't answer that moral question for us.

Now I want to add one thing to this frothy brew.  You largely put the commission to me in terms of criminal justice.  But as I've described before in my desert-disease jurisprudence, there's an entirely separate form of social control from criminal justice, which is the civil commitment system. 

Now let me bring to your attention, as some of you may be aware already, something that has happened starting in 1990.  About 20 states in the union have now instituted, starting around 1990, what are known as mentally abnormal sexually violent predator civil commitments.  This is not criminal justice.  This is not punishment for crime.

The notion here is, at the end of a prison term for which someone has done time after being properly convicted as a responsible sexual offender, so properly punished because responsible, these states, fearing letting these folks go, have instituted these forms of civil commitment.  And the  Supreme Court in two cases, a case called Hendricks from Kansas in 1997, and Crane, also from Kansas in 2002, has held these forms of involuntary civil commitment constitutional.  And the reason they've done so is because they say these folks can't control themselves.  That's the non-responsibility condition.  That's what justifies civil commitment, as opposed to punishment.

Now the first thing I'd point out about that is — notice the contradiction.  These people have been responsible enough to be punished.  The worst, most afflictive thing our society can do to somebody, but now they're not responsible enough to be at liberty.  I mean, it seems to me you can't have it both ways, and how did the Supreme Court manage to do that?  I won't do that here.  But notice here, you've got a non-responsibility justification, the lack of control.

Could neuroscience help us understand the difficulties people have in controlling themselves?  Sure it could.  How much control you'd have to have to be responsible or non-responsible, that would be a moral question. 

The neurosciences may be able to help us with predictions of danger.  To the extent we need to predict, any form of science could help us with that conceivably.  Now how good would the science have to be?  The Supreme Court is very, very permissive as a constitutional matter.  Let me just give you one example.  I'm getting near the end now, Dr. Kass.

Barefoot against Estelle, the question in Texas this - for capital punishment, dangerousness was an aggravating factor such that if the jury found dangerousness, you could put someone to death.  The state's evidence of dangerousness was a clinical judgment by a psychiatrist based on hypothetical questions.  He hadn't even examined Mr. Barefoot about whether he'd be dangerous or not.  The argument was, it was an unconstitutional violation of due process to put somebody to death based on such weak evidence of future dangerousness, a clinical judgment.  And as you probably are all aware, clinical predictions are very, very weak.  A statistical prediction is better.  No one is very good on low base-rate events at the moment.  The Supreme Court said no, admissible.  It's just a matter of the weight of the evidence, not admissibility. 

Good neuroscience, even if it's not highly predictive, at least good neuroscience, it's going to all come in sooner or later.  The question about prediction is the same as the question for any other in law for neuroscience: is the neuroscience relevant?  Can you really show answers to the legal question we wanted to answer?  And what I'm suggesting is for most of the criteria I've been talking about, the answer is no. 

For prediction, it may help.  I mean, we might be able to show correlationally that certain brain events are associated with a future risk of violence, and that might help us. 

Then, of course, for these involuntary commitments - remember, this is not criminal punishment.  If we can fix people, then they need to be released, because then they're not non-responsible any more.  And the neurosciences might very well help us to figure out how to help people with problems about violence, including sexual violence.

Okay.  Let's turn in conclusion to Spyder Cystkopf once again with all this in mind.  And this is just a review of what we've been talking about so far.  Was it human action on his part or was he in some sort of automatic state?  We don't know that.  We can interview him, and he can tell us about what was going on, and he did.  And what did he tell us?  He got angry and he lunged at her, and he grabbed her by the throat and he strangled her to death.

Now was he operating with his full cool rationality intact at the moment?  Of course not.  But so do people who get angry without having anything wrong with their brains, and no one, I hope, is going to argue that anytime people get angry there's something wrong with their brains.

So anger, of course, diminishes rationality, whether that anger is produced by a brain problem, by the kind of child-rearing you've had, or whatever other reason, but he certainly acted, and he acted intentionally.

Now we all get angry, and sometimes when we're angry we want to hurt people.  Simply because his anger was caused by, let's assume in part, a diminution in control function having to do with his metabolic imbalances and the pressure on his cortex generally, does that mean he's different from anyone else who has a "anger problem", let's say produced by child-rearing?ot necessarily, and how much diminution in rationality would there have to be to hold you non-responsible?  So what I want to say is I want to look at Herbert Weinstein/Spyder Cystkopf's whole history, and I see nothing in his history that suggests to me that he has a significant diminished rationality problem.

Now what you might want to say is, well, gee, the switch flipped at that very instant.  His brain was doing just fine, thank you very much, and it's almost like a heart attack.  Finally it closed up and he had his brain freeze.  We don't have that kind of evidence yet.  There's no reason to believe that.

Spyder Cystkopf lost it.  If he hadn't had the brain stuff, would he have been a different person and maybe not have lost it?  Sure.  If you had different parents, you'd be a different kind of person from who you are, and maybe you wouldn't lose it.  If you'd been brought up in a nurturing community maybe you would be a different kind of person, and you wouldn't lose it.  Whereas, if you were brought up in a non-nurturing community, maybe you would lose it.

Now what should we do with Spyder Cystkopf?  Last point.  Well, he got seven years.  If you're a retributivist, you believe people should get what they deserve.  And that's what you think he deserves, he gets seven years, even if we could have reduced the tumor by aspirating it, and that would have made him somehow less impulsive, less dangerous.  He's probably not dangerous again.  We could probably let him out now.  If all you're concerned with is social safety, we could let him out now. Again, those are moral questions, those are political questions, and ultimately, those are legal questions.  End of sermon.

CHAIRMAN KASS:  Thank you very much.  One of our Council Members has actually had a long and distinguished career touching on these questions.  In fact his little book, Moral Judgment, I recommend to all of you.  I've asked Jim Wilson to open up the discussion with comment.

PROF. WILSON:  Thank you, Steve.  That was an extremely interesting and informative, and intelligent review.   Let me ask you two sets of questions, one drawing from your knowledge of psychology, and the other drawing from your knowledge of the law.

Suppose my friend, Leon Kass, is driving a car on a crowded highway.  And suppose, and this is implausible but bear with me for a moment, that he does not know that he is subject to grande mal epileptic seizures.  Suppose if he did know it and was driving a car nonetheless, he would be arrested for reckless endangerment, in my view, but he doesn't know it.  He seizes up, the car wheel turns and he injures or kills a pedestrian.

The law would have a way of handling this.  Are there other mental states that would produce what I think exists in this case; namely, the absence of rational choice?

DR. MORSE:  I would describe the case somewhat differently.  By the way, you've got the law exactly right.  If he knew he was subject to grande mal seizures and he was driving without taking his medication or without legal permission then, in fact, if you think about it, his culpable act was getting in the car and driving.

PROF. WILSON:  Right.  Exactly.

DR. MORSE:  But let's assume he had no idea this was coming, no history, no reason to know it whatsoever, so he's acting as a human being entirely blamelessly, as we would expect of each other as moral human beings.  What I would say was wrong was not that he lacked rational choice.  I would say he didn't act at all.  I would say when that car went up on the sidewalk and killed people or whatever, he wasn't acting, because it was not conscious intentional behavior on his part.  And that would block liability at the act level, and that's the way it would be handled in every state in the union.

Now what we would do with him at that point varies from state to state.  Some places, he conceivably could be committed for treatment, but mostly what we would do with someone like that is just say from now on you take your meds and you can't drive.   Now could states like that be caused by other things?

Here's an example of how it could be caused normally.  Maybe some of you have had this experience.  You're driving on the highway and you've gone about 10 miles, and all of a sudden you say where did those 10 miles go?  You've been on automatic pilot, what we call highway hypnosis. 

Now suppose while you're in highway hypnosis and seemingly driving very carefully at the time, you ran into somebody, would you have a defense?  And the answer there would be no.  Why?  Because you were capable always of paying careful attention, not going into the state of highway hypnosis, and it's your duty as a citizen not to let that happen to you.  Now luckily when it happens to most of us, we manage to do very well and it doesn't happen.

Now you could be in that state because of hypoglycemia.  There are cases of this where people are in hypoglycemic states and do wicked things.  If they don't know about this ahead of time is a possibility, then it's exactly your case again.  If they know about it ahead of time, it's their responsibility to make sure they don't get into those states.  So that's the short answer, and neurosciences may show us that there are a wider range of conditions that would produce states like that.  If that is the case, that's going to block the ascription of action from the get-go.

PROF. WILSON:  My second question has to do with the law.  Carter Snead, who is General Counsel to this Committee, has prepared a long list of cases, and in my book I prepared a long list, and your testimony contains other cases.  And as I look through these cases, I would say that in well over half of them the effort to introduce neuroscientific evidence to reduce what they regard as the concept of responsibility has failed; the judge hasn't admitted it, or the jury heard it and did not believe it.

In maybe a quarter of the cases, it has according to the written evidence succeeded, and in the other quarter of the cases, it's too hard to tell.  But even though it's only succeeded in a quarter of the cases, we have thousands of such cases every year.  What, in your view, could be done by legislatures or others to establish clear barriers to the improper introduction of neuroscientific evidence that might misleadingly guide the jury or the judge?

DR. MORSE:  That's a wonderful question.  The first thing judges ought to do is do their job, which in my view, sometimes they do not; which is always to ask, even if the scientific evidence or the clinical evidence is good science, or good clinical evidence, does it answer the question we are asking?  They need to ask the relevance question.  And too often, they don't.  Too often they simply accept a doctor saying well, I can tell you from this bit of evidence that something is true about intent, or something is true about rationality; when, in fact, they can't.  And what I think needs to be done, is there needs to be a lot of hearings outside the hearing of a jury where the judge really pursues the evidence question carefully and says to the proponent of the evidence, you need to show me precisely how that evidence is relevant.  And that often will be extremely hard to do.

Let me give you a case from my own experience.  This was a case where a fellow claimed both that he didn't intend to kill, and that he was legally insane even if he did intend to kill.  Five psychiatrists had said that he lacked the capacity to  form the intent to kill.  Here is the story.

He said that he - and his story changed slightly - he either heard the Lord's voice, or he saw the Lord's light, and he knew that the Lord wanted him to put these two people he killed out of their misery, so he took his knife out of his pocket and he slit their throats, both of them. 

Now five psychiatrists said he lacked the capacity to kill.  It is perfectly plausible to believe that we might be able to show today - we couldn't have when this case occurred - with good neuroscience evidence that maybe he suffered from some abnormalities. 

Given those facts as I have just put them to you, could it conceivably be relevant to the question of intent, whatever the brain stuff showed?  No.  Think about why.  Why did he kill those people?  He wanted to put them out of their misery, and that's what caused him to form the intent to kill. 

I was an expert witness in that case.  As I said to the jury, what was it, an accident when he took out his knife and went and slit their throats to put them out of their misery?  Of course not.  It was intentional human action.

The courts and the legislatures have already done what needs to be done, because there is a relevance requirement.  The problem is that the lawyers and the judges need to hold the legal system's feet to the fire to make sure the relevance is shown.  That's what needs to be done.  And in cases where the facts are so clearly contradicting the alleged report of the evidence, or where the proponents of the evidence can't show the clear relation, it ought not to be admitted, even if it's good clinical stuff, even if it's good neuroscience. 


DR. CARSON:  Yes, just one question.  What role does subsequent action after having committed the act play in the whole judgment?  For instance, in the case of Spyder, after he killed her, he threw her off the balcony to make it look like suicide.  Obviously, he knew it was wrong.

DR. MORSE:  Yes.  Subsequent behavior, I believe, should be used just like previous behavior.  It helps us make an inference about what the person's mental states were at the time.  Now, obviously, a person's mental state could be unique.  In other words, they could look like they had the capacity for rationality previously, and they could look like that afterwards, but for some reason there was some event that deprived them of the capacity for rationality at the time.  That's always possible. 

But the best we can do - and remember, in the law we're always going to be doing whatever evaluation we're doing after the event has occurred.  No one has got a picture of the brain at the moment of the crime, so what is always a possibility is, anything we might find out about the brain happened after, as opposed to at the moment.

Now it's perfectly possible for one reason or another in a given case we have evidence of the person's brain before, for instance, if they had been worked up for some reason, and we have evidence after, and it looks the same, so we can obviously make the inference that the brain looked the same at the time of the event itself.  But even then we couldn't be sure, so we're just making inferences.  And so again, subsequent behavior helps us.

Now this comes up in insanity defense cases all the time.  What about people who seemingly are crazy after they have, in fact, done their crime?  Does it mean that they were suffering from a severe mental disorder and lacked the capacity for rationality at the time of the crime?  Well, certainly it helps us, but one thing that's possible, is the stress of, in fact, being involved in criminal behavior and being arrested and things like that, actually causes people to decompensate.  We can never be sure.  We're just drawing the inferences.  Subsequent behavior helps us in that respect, as well. 

CHAIRMAN KASS:  Robby George.

PROF. GEORGE:  Stephen, thanks for that wonderful paper and perfect presentation.  I had a couple of questions that go to the issue of materialism.

In your analysis here in the paper and this morning, and in your other work, there's a very strong theme of anti-reductionism.  It came out today in the  critique of Wegner.  It was evident in your very strong statement about us holding not brains or neurotransmitters responsible, but people responsible.  So anti-reductionism does a lot of work in your analysis, and contrasts you with a number of other leading people in the field.  But both in the paper once, and then a couple of times today, you also went out of your way to stress your commitment to a belief in materialism, which doesn't seem to do much work in the  analysis.  But I gathered you make the point simply to indicate that the commitment to anti-reductionism, or the rejection of reductionism shouldn't be interpreted as meaning a rejection of materialism.

So my first question is, even though it doesn't seem to do much work in the argument here, why the commitment to materialism?  Is it a matter of a kind of faith?  Is it a postulate of neuroscience?  And if it's a postulate of neuroscience, is it something that someone has to be committed to in order to be a member of the fraternity, to be genuinely doing neuroscience?  Or is it possible that one could be a non-materialist who, nevertheless, does neuroscience, and would that mean there comes a point at which one has to be at least open to the possibility that while neuroscience takes us this far, and then it's time for some other discipline to come in?  So that's my first question.  I'll go ahead and ask the second one, unless you want me to stop there.

DR. MORSE:  No, I'd rather you stop there because I can barely do one thing before breakfast.  Okay.  What is the -- let me make sure we're all on the same page here.

The materialist postulate simply says this universe is completely a matter-first universe.  It is not a mind first universe; that is, that anything we see in this universe can be explained by lawful material processes.  And everything, every last thing.

Now how can people believe that or not believe that?  I have, if you will, a sort of what is a warranted belief?  That's my epistemology.  When am I well-warranted in believing something?  When I look at the world around me, it seems to me that is the best explanation of the world I see around me.

How would we ever know that materialism is true?  We will never know that it is true, because the only way to know the way the world metaphysically really is, is to get outside the universe and look in.  Now most of us are professors, and we think we have a lot of power, but we don't have that much power.  We'll never know for sure, so what are we warranted in believing?  And I think materialism is the best explanation as I see it.

Now do you have to believe in materialism to be a good working neuroscientist?  And I think the answer is yes, but not all the way; and here's why.  I find this particular stance I'm about to take a little bit hard to understand, but it's not mine, but I fully appreciate it, as it were.  One could take the position that this was a mind-first universe, that there was a creator that started a bunch of physical processes going.  You could take that position. 

Once those processes were going, they operated according to particular laws, et cetera, et cetera.  But unless that mind-first decided to interfere, it was just all going to work lawfully as that mind had originally set it up.  Well, if you believe that, I suppose you could be a neuroscientist and not be thoroughly a materialist, but then you're good enough for government work materialists because unless you believe the creator or that mind is intervening, it's as good as materialism.

Now let me say one more word about materialism, and I'll take your second question.  And I've got a little riff on this in the paper.  Suppose you were convinced, as the reductionists are, that you could do an absolute one-on-one reduction of mental states to brain states, that mental states were nothing other than brain states.  And let's go all the way and be eliminative materialists; that is, that not only are brain states and mental states the same, that's pure materialism, but that our mental states are not as they seem to us, they do no work whatsoever.  We don't even really have them, we're somehow deluded or something of the sort.  Let's assume you believe that, and you came fully to believe that based on the best science.  What do you do now?

The way I do this in my classes is this; I sit on the table, and I sit very, very quietly and I don't move.  I try not even to blink.  And finally after I let that go on until the students get anxious, I say to them now, you're wondering what I was doing.  I was waiting for my neurotransmitters to fire to tell me what to do.

What are you going to do now?  What kind of world do you want to have?   Do you want to have Communism or do you want to have Capitalism?  No, do neurotransmitters tell you the answer to that question?  I don't think so.  Rob, you had a second question.

PROF. GEORGE:  Now to narrow it down a bit also on the question of materialism, now narrow the discussion to the analysis of consciousness, and even more specifically, intention, and even to the explanation of intention.

At one point, you contrasted your own thought - I'm sorry, you contrast in your own thought here between materialism and what's not materialism.  Well, it's dualism.  And I'm wondering if you are treating as exhaustive the options of materialism as you've just explained it, and dualism where dualism is explained as the idea that human beings are ghosts in machines.

Now if those are the options, then there's a very interesting question about what you do with what has always at least put itself forward as the third alternative.  We might call it the AAA alternative, because it's the tradition that extends from Aristotle though Aquinas, and its modern form, in Anscombe in her famous book, a 1958 book on intention where materialism is certainly rejected, but so is the Cartesian conception of the self as a ghost in the machine.  What do you make of the third option?

DR. MORSE:  Well, again, we don't know the answers to these questions.  There are contenders for each one of these positions, and very, very smart contenders for each one of these positions.  I'm a third way person myself, although I wouldn't ally myself precisely with Elizabeth Anscombe. 

I mean, the way I now talk about this is we have what I call a mind-brain.  I believe that our mental states are as they seem to us.  I believe they have causal efficacy.  I believe they cannot be explained except materially.  How this actually happens, we don't have a clue.  I don't think there is an immaterial ghost in the machine that somehow, as Descartes thought, somehow makes contact with the material world.  That just metaphysically seems to me to be a non-starter, although there are still people who argue for it.  So since I'm not a pure reductionist, because it doesn't seem to be the best explanation, I'm a third way person, as well - a AAA person, as well.

I don't have an explanation for you.  No one does.  It seems to me, as I've said, the task of the neurosciences is going to be precisely to explain why the third way is right, and not material, you know, pure reductive materialism.  Materialism, yes - reductive materialism, no.

PROF. GEORGE:  Thanks, Steve.

DR. KRAUHAMMER:  Leon, could I just follow up with a question on that?

CHAIRMAN KASS:  The President's Council on Metaphysics is going to continue down this road.  Yes, Charles, please. 

DR. KRAUTHAMMER:  Well, I'm sorry.  I was provoked.  If you don't believe in the ghost in the machine explanation and there's a third way, wouldn't that third way involve you sitting at the end of your chair and waiting for the neurotransmitters to kick in?

DR. MORSE:  No, I don't think so because we are creatures -- I mean, when I ask why are we seemingly at the moment top dogs on this planet?  Now we may blow ourselves up, of course, and no longer be top dogs, but why are we for the moment top dogs?  Are we the fastest?  Are we the strongest?  Do we have the longest teeth, the sharpest claws?  And the answer is no.  What do we have?  We have our rationality.  That has been our comparative advantage.  That's why there are so many of us, and why seemingly, if you believe this, we're doing so well.

I can't wait for the neurotransmitters to fire because the kind of creature - and I think there's a perfectly plausible evolutionary story for why this should be so - because the kind of creature I am is the kind of creature that must deliberate.  Now here's why that must be so.

First, we are the sorts of creatures that care about what happens to us.  I won't deliberate if I don't care.  Virtually everyone cares about what happens to them, even if only at the most basic level of pleasure/pain.  You don't want to have pain.  How do you avoid pain?  Not by sitting there and waiting for your neurotransmitters to fire.  It's by living your life in a way that maximizes the possibility that you won't have pain.  And here's what I also know, if I know anything.

I know that my desires, beliefs, and intentions make a difference in this world.  And I can't wait simply for my neurotransmitters to fire.  I've got to deliberate, and I will.  And that's the kind of creature I am.  And once again, I'm waiting for the neuroscientists to explain to me how that happens, which I believe is possible they will.

Now a lot of, as those of you who are philosophers or have a background, know, there are a lot of philosophers who think as a conceptual matter, we'll never be able to solve that.  I'm totally open-minded about that.  I think we will be able to solve it, but not yet.

CHAIRMAN KASS:  Gil Meilaender.

PROF. MEILAENDER:  I thought the presentation was very helpful and useful, and so I don't really want to question it exactly, but just explore something with you.

Once I had to take the Minnesota Multiphasic Personality Inventory, and was amused to find a question recurring at various points along the way about whether when I walk down the street I heard voices telling me what to do. 

Now if somebody told us that they heard voices sometimes telling them what to do, would you think it was at least possible, or perhaps likely, that they lacked the capacity for rationality?  I'm going to follow up then, but I'm trying to get clear here.  That would be just a behavioral kind of --

DR. MORSE:  Sure.  And in fact, if you look at the diagnostic criterion throughout DSM-IV-TR, they're virtually all behavioral, by which I mean perceptions, thoughts, beliefs, feelings, actions.  DSM-IV criteria are not about brains and nervous systems.  So now we have somebody who has - and let's assume - an auditory hallucination, and they hear voices telling them what to do.  Well, clearly they're out of contact with reality.  That is a major rationality defect.  The question then would be, are they responsible for behavior they do, depending on what the voices tell them to do, and that's a very interesting moral question. 

Suppose what the voices tell them to do is something that is obviously wrong versus obviously right.  Suppose the voices tell them give alms to the poor, versus the voices tell them kill the first unoffending stranger you see coming up in the street.  All right.  Let's just take that case, because if you just give alms to the poor, they're going to take them.  They're not going to say I don't want your money if the voices told you.  They're going to take them, and no one is going to question you.  So now we have the case where you've killed somebody, and you say why did you kill that person?  And you say well, the voices told me to do it.  The case comes up all the time, actually.  Often enough the voice is the voice of God, and that raises even more interesting moral questions, but let's take it as a non-God voice that tells you to kill.

Some people would say you lack the capacity to make a rational judgment because part of your reasons for action are based on some kind of abnormality you have that is out of touch with reality.  That is one plausible moral response to the case, and some people take that view.

Here's another plausible moral response to that case.  You had a reason that was out of touch with reality, but you knew what you were doing.  You knew you were killing a human being.  You knew that was wrong to do both morally and legally and, therefore, you shouldn't have done it, even if it was caused in part by an abnormality.  Now notice we're all accepting the same facts.  We just have two plausibly different moral responses to that case.

PROF. MEILAENDER:  But here's what I want to know.  Let's suppose that some of us think that it is a fairly good reason for thinking that we shouldn't hold them responsible in the same way.  I'm not saying I do, but let's just hypothesize that which you granted was one way that some people would think about it, but you don't necessarily find it persuasive.

Now suppose we found in the future that something connected in the brain was very strongly correlated with hearing voices to tell you do something.  And we asked Spyder, whoever had done something did you hear the voices again this time?  He says well, I really can't remember anything.  I don't know.  But we know from studying him that he's got this condition that is very strongly correlated with that.

If we're those people who tend to think that this is a reason for thinking you have a very diminished capacity for rationality, would we now have a reason kind of excusing condition in place even in the absence of any report of the behavioral manifestation?

DR. MORSE:  First, let's go back to your initial question.  If someone says they want this to be an excusing condition, that you heard voices and those were part of your reasons for action, we need to find out what is the excusing condition.  What is your theory of excuse that leads you to use that?

Now what sometimes people will say is, well, gee, if people act in response to voices, they can't help themselves.  And then I want to say well, what do you mean by that?  And they need to explain that to us. 

Let's assume that people could come up with a coherent moral theory for why we should excuse.  Let's assume we could do that.  They didn't just wave their hand and say well, people can't help themselves when they hear voices, because that is simply question begging, so you need to come up with a really good moral theory.

Let's assume you've got one.  And as I said, I think there is a plausible one.  Now you've got the case you put to us where the person is unable to report the behavioral phenomena that might bear on that question, but we have good neuroscientific evidence to suggest that it is very possible that the person was suffering.  Well, let's think about that for a second.  Let's think about what the neuroscience evidence would have to look like.

If you've got the neurological correlate, does that mean you're always hearing the voices, sometimes hearing the voices, hearing the voices 40 percent of the time?  How strong is that correlation?  How sure can we be from finding that neurophysiological finding that people with that finding, almost certainly from everything we know about the way the brain and behavior works, is people could have behaviors without a particular brain correlate, and vice versa.  It's not going to be a necessary and sufficient condition.  It's going to be predisposing.

So the question would be what percentage of people actually have it?  Among those who actually have the voices, what percentage of the time do they hear them?  And what I'm suggesting to you is, depending on the neuroscience, what the statistics look like, we might be quite sure that the person was probably hearing voices at the moment, versus gee, it's really pretty improbable that they were hearing the voices at the moment, even if they've got the correlational finding, so that's the way I would approach that case.

CHAIRMAN KASS:  Actually, I was next in the queue  and it follows Gil's comment.  I'm very sympathetic to  the thought behind the presentation and the presentation, but I also think you may have made things somewhat easy for yourself, so I would like to try to make it more difficult.

I mean, the case you cited and which you referred to often is the man who has no previous history of similar sorts of things.  But in response to Jim Wilson's question about epilepsy, you acknowledged that there might be brain-based grounds for recurrent behavior, which you say would, in a way, not be action because the person was having a fit and was possessed by something, or in the grip of something.

It does seem to me that there might be comparable kinds of fits that don't manifest themselves in tonic-clonic motion, but manifest themselves in a kind of explosive rage.  And that never mind whether somebody who knew he had this becomes somehow more culpable by not taking his medication.  But simply speaking sort of neurophysiologically, we might come to understand that  there are brain storms or fits that get a hold of people, and in which the kind of case you've cited isn't somehow a proper precedent.  That would be the first point.

Second, take the example of the sexual predators for whom there is now increasing tendency to regard these people as - whatever you think of their moral responsibility, we think we can treat them pharmacologically, and we make certain kinds of treatment a condition of their parole.  To the extent to which one comes to see that intervening medication can affect the impulse, might we not come to reconsider the question of their ability to be able to control themselves in the first place?

In other words, I think there are various things afoot here which would lead one to wonder about the confidence that we can continue to have in the traditional way of understanding these matters.  And a final point, which really goes to the business about rationality.

The Model Penal Code developed by the American Law Institute has this formulation.  "A person is not responsible for criminal conduct if at the time of such conduct, not at other times, but at the time of such conduct, as a result of mental disease or defect he lacks substantial capacity (a), to either appreciate the criminality of his conduct, or (b), to conform his conduct to the requirements of law."

The second doesn't look to me as if it was simply a matter of rationality.  It might be that one simply cannot at that particular time, owing to some abnormality of the brain, be capable at that particular juncture of conforming ones conduct to the matter of law. 

All of those things suggest to me that we might be on the threshold of seeing a whole bunch of new things, which would affect the way we think about this.  Never mind the question now of guilt or innocence exactly as a legal requirement, but simply how we would understand this behavior; and, therefore, how we would come to judge it and treat the people subsequently.

DR. MORSE:  Okay.  I actually think questions two and three are very much the same question, so I'll structure my answer accordingly. 

The brain storm case, the person who's in impulsive rage.  He's standing at a bar, somebody looks at him cross-wise, and the next thing you know he takes his beer bottle, he breaks it and he sticks it in someone's throat just like that.  Might we be able to show with the neuroscience that at least some people who react that way to perceive slights, whatever provocations, whatever you want to call them, that at least some people like that are seemingly incapable of bringing reason to bear, seemingly incapable of bringing whatever are the self-control techniques we all use to bear, is it possible that neuroscience will show us that some people really don't have the right stuff?  Sure.  But I would be very, very surprised if it were the case that everyone who reacts in anger, impulsively, were to be shown to be suffering from that same defect.  Some yes, some no, and for those for whom the answer is they have the defect and it really does seem to "compromise" their executive function and the like, we might very well think that they suffer from diminished rationality, or perhaps not from rationality at all and ought to be excused.

Now notice how you'd respond to those people is very interesting. If you know you're like that, maybe you better not go to bars.  And the thing about yourself that you know is, you have a history as a human being.  You know, if it's happened to you before, you better do whatever it takes.  If you're a loose cannon on the deck, maybe you better lock yourself up in a cork room.  And if you don't lock yourself up in a cork room, maybe we as a society have a right to, in a sense, confine you. 

And by the same token, this is like Jim Wilson's question, you know you're like that.  Maybe you are responsible, maybe not at the moment.  It's what philosophers sometimes refer to as synchronous responsibility.  At that moment you're not, but by putting yourself in harm's way, you were responsible.  You shouldn't have gotten in that car and driven knowing you have epilepsy, so finding this out would not answer our question about responsibility.

Now what about this treatability question?  Dr. Kass is absolutely right.  Every time we find that with some therapeutic technique - and notice, by the way, it doesn't have to be chemical - it could be a psychological technique, it could be a sociological technique - that we are able to reduce a person's risk of behaving in a particular way, we tend to think immediately mechanism is at work, and the person wasn't responsible.  But that, in fact, is simply a conceptual fallacy. 

We tend to think that way, is it true, but that's a danger.  Just because there are causal explanations for why you did what you did, and if we change the causal chain, you would have behaved differently, does not mean you were not a rational actor at the time. 

Now again, we may want to let people out early.  We may want to put conditions of control on and stuff like that because this is a sensible way of using scarce social resources, but it might suggest nothing about the responsibility for action at the time.

Now what about these folks who can't control themselves, the sexual offenders - this is really hard to understand.  And I confess to having the same difficulties, and Dr. Kass and I were discussing this just prior to the meeting, as well.  Let's take LeRoy Hendricks, the first Supreme Court case, who is basically going to spend the rest of his life in jail, who had a lifelong history of molesting small children.

Interestingly, enough by the way, he didn't rape them.  It was more of the sort of "taking advantage of", but he was doing it.  And what he would way is, especially when I get stressed, I just can't help myself. I can't control myself, and the only thing that's going to cure it is death. 

Well, let's ask ourselves the following question.  Suppose I was walking around with LeRoy Hendricks, and let's assume he wants to live, and that seems to be not a very strong assumption.  It's a weak assumption.  And I'm walking around with him, and I hold a gun to his head and I say, Mr. Hendricks, if you touch a child, I'm going to blow your brains out.  Now is he going to touch a child?  I don't think so.  So we're not talking about literal compulsion.  We're talking here about metaphorical compulsion.

Now he says to us it's very, very hard for me not to.  Let's think about what he means by that, just phenomenologically.  He doesn't mean gee, I don't want to touch a kid, but someone takes my hand and puts it on a kid.  What he means is, my desire builds up.  It gets stronger.  You have a desire for things.  You get really, really hungry, you really desire sex too sometimes, whatever it is.  My desire builds up.  Unfortunately, I have been dealt a very bad hand in life.  I want something that society says I can't have, and so I'm in a really tough spot.  So my desire builds, and my desire builds, and my desire builds. 

Now is there another desire unit where all of a sudden the switch is flipped, and all of a sudden this hand jumps out?  No.  He's an intentional human agent.  Now how does he get into that state? Why does he have these intense desires, and why for kids?  Well, maybe neuroscience can help us out with that some day, and we could even figure out ways to help him control that.  Maybe we can just by giving him an injection, or by giving him cognitive therapy, or whatever else it might be.

But when he does it, how do I explain that case?  Not that he becomes an Automaton.  Here's what happens.  This is my current best explanation, and it's just provisional.  And most of us have had this experience.  When the desire builds, and builds, and builds for something you want desperately, at a certain point, some of you may have been smokers, you can't think about anything else.  It's just a buzzing in your ear, a song you can't get out of your head.  And when that happens, it becomes very hard to think about the good, moral, and prudential reasons why maybe you ought not to do that.  All you can think about is doing it.  And so the way I conceptualize these cases is they produce a rationality problem.

Now does this mean that he's not responsible?  Well, it's a little bit again, like Jim Wilson's case, or like the case of the person with impulsive rage - LeRoy Hendricks was 52-years old.  He knew he did this.  My friend, you've got to do whatever it takes to take yourself out of harm's way, because here's what's true about him.

When he's in the refractory phase, when he's quiescent, which is most of the time, he knows he's going to do this.  He knows it's wrong.  He knows he shouldn't, and then it's his responsibility, in my view - now I'm talking my morals.  It's his responsibility as a human being, it's what he owes all of us and our children.  You take yourself out of harm's way, buddy.  And if you can't, we're entitled to punish you as harshly as the law deserves.

CHAIRMAN KASS:  I still have a -- the queue is long.  I'm going to ask some people to wait until the next, but we've got Peter and Michael now, and Diana and Bill, I'm going to ask you to hold your comments.  The conversation will continue after Dr. Coccaro's presentation.   Maybe Peter and Michael will ask questions together, and then Professor Morse can comment, if that's okay.

DR. LAWLER:  Sir, that wonderful answer you just gave about moral responsibility can come right out of Aristotle's Ethics.

DR. MORSE:  Absolutely.

DR. LAWLER:  And in general, when I read your article and heard your presentation, my reaction was this wise man is nothing but an Aristotelian.

DR. MORSE:  Guilty as charged. 

DR. LAWLER:  I'm going to hold you responsible.  For example, the basic thrust of your article seems to be this.  Natural science properly understood poses no real threat to the indispensable premises of our legal system.  Not only that, your general project seems to be this, to show according to nature why human beings are different, why we're rational, why we're deliberate, why we use practical syllogisms, and why we're political animals, among other things.  Right?  And so I liked your remark about where are the chimp legislators, where are the dolphin judges?  These are good questions, good questions most of your colleagues in actual rarely raise.

So going back to Professor George's point, your materialism seems to be a rather ambiguous materialism because you want to have materialism that preserves the phenomena, but at this point you only have faith that there's materialism that preserves phenomena, and it will be a heterogeneous materialism, and it's one physicists couldn't join in.  But do you think any physical explanation will ever explain why there are no chimp legislators?

DR. MORSE:  Well, you're absolutely right.  I mean, in fact, people who are religious are often fond of saying to people who are not religious whatsoever, saying well, your belief and your knowledge of the world, and the material view of the world and science is a way of getting to understand the world, is based on a faith.  I mean, you have no external evidence, external to ourselves as human beings.  You haven't stepped out of the universe.

Well, it's always sort of pretentious to quote Wittgenstein, but I will.  He says in the Philosophical Investigations, "Here I turn my spade.  You have to make certain pre-commitments with which to start."  And those pre-commitments for us are going to be based on our best understanding of the world we live in.

My best understanding, as I said, is material.  It seems to be the best explanation we're going to get.  I think in principle that the neuroscientists and the evolutionary biologists and psychologists are someday going to explain to us why human beings have legislatures and chimps don't.  But you know what, I may be wrong, and I don't know.  But that's my best explanation of that for the moment, and certainly the law follows from what I believe.  And it seems to me that in terms of a flourishing human existence, a life worth living that we care about, that this is something, a view of ourselves we don't want readily to give up.  Not yet.

CHAIRMAN KASS:  Michael Sandel, an answer, and then we'll break.

PROF. SANDEL:  You've brought us the reassuring, comforting anti-reductionist news that neuroscience hasn't banished moral and legal responsibility, and apparently that it won't.  What's unclear is what the argument is for that, what the basis of this good news consists in.  And to explain why that seems unclear, and to invite you to respond, I'd like to go back to the involuntary civil commitments that you said some states had adopted after a conviction, holding people who posed a clear danger.

And this is puzzling, this practice, for two reasons; one of which you mentioned.  As you said, if we can attribute responsibility to them at the phase of punishing them, why do we not attribute sufficient responsibility to them now at the civil commitment stage?  That's one puzzling thing.

A second puzzling thing from the opposite point of view is, in so far as we want to protect society from people whom we know are predictably dangerous, why restrict the civil commitment to convicted criminals?  Suppose we could come up with ways of predicting who will be dangerous that are more reliable than the ones used for the convicted criminals.  Maybe there are other correlations that we could come up with, so it's puzzling on both of those grounds.

And you could extend the second scenario to the extreme in a way that was done in the book, and then in the movie, Minority Report.  The scenario in Minority Report is, it's a science fiction society where it's possible to predict with certainty who's going to commit a violent crime before they commit it.  And to go out and apprehend the person so that there is no crime in the society.  And the system works, and it works thanks to what they call "precogs", who are these creatures who have these prescient, predictive abilities.  They live in vats all day and somehow they figure it out, and they get the information to the law enforcement people, Tom Cruise and his friends.  And that's how it works.

Now suppose we had a Minority Report capacity to predict, not based on the precogs in the vat, but based on Gazzaniga's figuring out the brain scanning to such a degree of certainty that we could have universal brain scans and predict perfectly so that we could apprehend the would-be criminals before they commit the act.  The apprehension, the incarceration would no longer be punishment, because there would be no question of moral dessert or responsibility. It would be a kind of civil commitment replacing punishment as an institution.  That's the scenario.

Now you would be skeptical about this scenario.  You would hesitate to embrace it presumably because it would be reductionist, it would banish moral and legal responsibility.  And my question is why?  Is it on moral grounds that you want to hang on to dessert and responsibility for moral reasons, or is it on scientific grounds that you just don't think the neuroscience could ever be that good, or is it on metaphysical grounds?

DR. MORSE:  Well, that question does go to the heart of the project, and I thank you for it.  I actually didn't know about Minority Report.  In a 1995 article, I addressed just that scenario, so here's my short answer.

The kind of material predictive understanding that your hypothetical posits is so far beyond our present science addressed to the entire population, that it seems to me that to get there, we could do this, and do it for all of us without any kind of behavioral history or something of the sort, which is what we now by and large use, would be to perhaps reach the stage that Dr. McHugh talks about, where we really do now understand how the brain enables the mind, and we've reached a new level of understanding.  And here's what I think about that scenario.

When we get there, I don't know how we're going to think about each other as human beings.  I just don't know.  I think all moral, legal bets will conceivably be off.  I think it's perfectly conceivable we'll have an entirely new view of ourselves.  I mean, imagine this - would you sign on to putting yourself into a vat - suppose we could all put ourselves into a vat and hook ourselves up to the pleasure principle machine, you know, the Orgasmatron of Woody Allen - would we all do it or not?  We could decide not to do it, even though we had the capacity to do it.

We could decide, as a moral matter, either to hook ourselves up, or not hook ourselves up in Professor Sandel's example.  I don't know what we'd decide then.  I just don't know, because we're going to have an entirely different view of ourselves.  And I am perfectly open to the possibility that the neuroscience will get sophisticated enough that reductive materialism will turn out to be the best explanation, and I don't know what the debate is going to look like then, so I can't predict.

All I can do is look at the world I live in now.  In the world I live in now, purely reductive materialism does not seem to be the best metaphysical explanation of the mind-brain relation.  We certainly can do a lot of predictive work.  We still don't allow that predictive work because we do take this dessert-disease jurisprudence seriously. 

I'm glad we do.  I'm a create of my time.  I have a particular morals, a particular politics.  I don't know what my morals and politics would look like in a world that Professor Sandel envisions.  When we get there, if I'm around to look at it, we'll talk about it.

CHAIRMAN KASS:  Thank you very much.  Apologies to the people in the queue.  I will get you to the front of the line.  The topic will be addressed coming from the other end.  Let me ask Council Members for a change to return promptly in ten minutes, so that we don't keep our guest waiting.  Thank you.

(Whereupon, the proceedings in the above-entitled matter went off the record at 10:50 a.m. and went back on the record at 11:09 a.m.)


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