In a well-known paper on the role of neuroscience in the court, law professor of Stephen J. Morse opens with the following paragraph:
Brains do not commit crimes; people commit crimes. This conclusion should be self-evident, but, infected and inflamed by stunning advances in our understanding of the brain, advocates all too often make moral and legal claims that the new neuroscience does not entail and cannot sustain. Particular brain findings are thought to lead inevitably to moral or legal conclusions. Brains are blamed for offenses; agency and responsibility disappear from the legal landscape.
From: Brain Overclaim Syndrome and Criminal Responsibility: A Diagnostic Note
Public Law and Legal Theory Research Paper Series Research Paper No. #06-35
Professor Morse is of course punning on the famous line often used in defence of gun rights in America, namely, "Guns don't kill people, people do". This guns rights slogan has the virtue of at least being literally true. No, guns don't kill people; guns just make it enormously easier to do so. Guns are exceptionally efficient facilitators of death. Of course, as an argument in favor of gun rights, it's fatuous. For instance, you never hear anyone say: Atomic bombs don't annihilate populations, people do. Or, how about: weaponized Anthrax doesn't kill people, people do.
But lets return to Morse's line about brains. "Brains don't commit crimes, people do". I confess, I'm a neuroscientist and not a legal scholar, but something seems amiss about this one. Is there kind of logical fallacy lurking about in that line? If the fallacy doesn't jump out at you, maybe the following mini-vignettes will help clarify what I'm talking about.
What is a person? Maybe there is a legal definition, but lets forget that for a moment. Lets say for now that we know a person when we see one. Below are the stories of Joe, Mike, Jim, Jake, and Jack.
"Hey, look at that person over there. Yeah, the guy riding the bike. Nice person. Friendly fellow. His name's Joe." Joe has a head, he's got limbs, a body, he walks and talks, has a social security number, and he typically wears clothes in public. He holds a steady job. He's a citizen of country X.
Now look over there. It's Mike. Mike was in the war. Mike is in a wheelchair these days. He has a head, a body, but is missing some limbs. Everybody agrees Mike's a good guy. Mike is a good person.
Here's someone really interesting. A modern marvel of medicine. It's Jim. Jim has a head, he has limbs, and a body, but several years ago his heart failed him. His heart just stopped working. But he was lucky. He underwent a successful heart transplant surgery. Jim doesn't have his own heart anymore. Jim has Jake's heart. Jake was a good person too. Jake was a good person, but Jake was a little odd. Jake, you might say, was nuts. Jake even believed that he was Jesus Christ, sometimes. Jake had a good heart, though. And now Jim has Jake's heart. But even though Jim has Jake's heart, Jim doesn't think he's Jesus Christ. Jim is just like Jim always was, except his ticker is in tip-top shape.
Jack is a bit of a sad case. Let me tell you his story. Jack was driving out by Corcoran State Prison one night and got in a bad accident. His body and limbs were unscathed in the crash, but his brain was all smashed up. Jack was in dire need of a new brain, he needed a brain transplant. Remarkably, doctors in the emergency room were able to find a fresh brain for Jack. But as a result of an extraordinary series of mix-ups, caused by inept record-keeping and carelessness on the part of medical staff, Jack didn't get the brain he was supposed to get (the brain of a 65 year old female, named Gwen) -- oh no. Jack didn't get that brain, Jack got Charles Manson's brain.
When "Jack" was released from the hospital, "Jack" felt a little sluggish, as one might expect after a brain transplant, but he could walk and talk and eat and drink and generally felt pretty good. Jack didn't feel himself, though. And Jack wasn't acting like himself, either. To the people who knew and loved Jack, Jack wasn't Jack anymore. For instance, when Jack's wife of 30 years, Nancy, welcomed him home for the first time after the brain operation, Jack stared at her with the eyes of a maniac and remarked to her: "I'm nobody. I'm a tramp, a bum, a hobo. I'm a boxcar and a jug of wine. And a straight razor ... if you get too close to me." Needless to say, this frightened Nancy.
By the time the error was detected at the hospital, Jack had already gone on a crime spree involving a series of unspeakably gruesome acts of depravity. What had gotten in to Jack? Everybody wondered whether it was the brain transplant that had caused this terrifying change in his behavior. Eventually, the police caught up with Jack and he was taken in on numerous charges including murder and kidnapping.
Meanwhile, the neurosurgeon that had performed the brain transplant convinced the authorities to let him perform another operation on Jack, to take out Manson's brain and replace it with the healthy female brain. Jack returned to the hospital and left several weeks later, in evident good health and spirits, equipped with a 65-year old female's brain, and expressing a newfound appreciation of Oprah Winfrey, knitting, and flower pattern dresses. Unfortunately, a judge's order sent Jack back to jail to await trial.
Jack was unhappy in jail and was growing depressed in dark solitary cell. He thought often of his husband, Martin, and how much he would love to return to his garden or just sit in the rocking chair and knit a sweater on a lazy Sunday. The public defender assigned to the case assured Jack that he had a plan. He told Jack:
-- "I know how to win this case. You didn't commit those crimes. It wasn't you. It was Charlie's brain".
-- "But they have witnesses.", said Jack. "I don't remember any of it. They say it was me, though. They all saw me. Blood was on my hands. They have my DNA. Everything points to me. I guess I did it. I'm doomed."
-- "Jack, that wasn't you!"
-- "My name isn't Jack, It's Gwendolyn. Call me Gwen, please!"
Jack sat silently in the courtroom as the trial went on, day after day, another witness describing in gory detail his horrific and senseless acts. Jack often welled up with tears as he listened to this disturbing litany, not remembering any of it, but increasingly resigned to the overwhelming probability of his guilt.
But Jack's lawyer had something extraordinary in store for everyone, an unprecedented legal gambit that he was sure would turn the tide. He called Jack to the stand. Jack testified that he didn't remember any of the crimes, that he had had never seen any of the victims whose pictures, one after the other, were presented to him.
-- "Ladies and gentleman of the jury. There is a reason that Jack doesn't remember any of this, that Jack doesn't recognize any of these faces. It's because Jack didn't commit these crimes. Jack's no murderer. It wasn't Jack, at all ...", pausing for effect: "Ladies and gentleman it was Charles Manson's brain!!!! The person who should be on trial, is resting quietly, awash in formaldehyde, in a 6-litre mason jar."
Everyone in the courtroom gasped. The prosecution objected vigorously: "There is no evidence whatsoever of Manson's brain's involvement, nothing. This is a last ditch effort to derail these grave proceedings by turning this trial into a bizarre farce!" The worldwide news media began covering the trial, referring to the bizarre ordeal as, simply, Mansonstein.
But Jack's lawyer was not done.
-- "Your Honor, I now call to the stand my final witness: Charles Manson's brain!"
-- "Objection!! Your Honor, the witness has not been announced, this is highly irregular -- brains do not commit crimes, people do! "
-- "Objection overruled, I will allow the witness. I am curious to see what Charles Manson's brain has to say."
At that point, Jack's neurosurgeon entered the courtroom carrying a semi-transparent glass jar with a human brain submerged in a yellow-tinged liquid. The surgeon carefully approached the stand, deposited the jar on the seat of the witness chair, and hooked up electrodes that were attached to the surface of the brain to an large electronic device that was itself attached to a pair of speakers."
Jack's lawyer began his questioning. "Mr. Manson, er ... Mr. Manson's brain, where were you the night of the 23rd of August?"
Manson's brain (heard through speakers): "You can't prove anything. There's nothing to prove. Every man judges himself. He knows what he is. You know what you are, as I know what I am, we all know what we are. That cat, Jack, knows what he knows, he's a real deal killing machine, I been locked up in this septic tank, my brain on ice."
Public Defender: "Have you ever seen the inside of Jack's skull?"
Manson's Brain: "Sure I been in there. Had a real good time, caught up with some old friends and played nasty tricks on people. Jack's skull treated me real nice! We had a good ole party and then we parted ways."
Public Defender: "So you committed the gruesome acts of violence attributed to Jack's person?"
Manson's Brain: "Yeah, I did done that, those things. Laddaddada!! I'm your Huckleberry, now get me out of this god-forsaken brain tank and let my spirit free again!!"
The courtroom is stunned. There is a hushed silence and then murmuring and then a isolated shouts and then a gathering chorus: "Free Jack! Free Jack! Jack is innocent, Jack is innocent!"
And the curtains close.
"Brain's don't commit crimes, people do". It begs the question: what is a person? One thing seems clear: when we start swapping tangible person-defining attributes between two hypothetical persons, A and B, there's only one attribute that, when swapped, makes any real difference. Swapping kidneys, doesn't convert person A to person B. Swapping social security numbers doesn't do it either. But swapping brains? Yep, that will convert person A to person B every time. It's absolutely foolproof. So it's precisely brains that commit crimes. Who commits crimes? Brains do, it's the brains.
So, what is the implication of this principle of person-attribute substitutability? It means that the essence of a person is his or her brain. Everything else is inessential decoration. That means, in effect, personhood is reducible to brains. Substituting terms, then we get:
"Brains don't commit crimes, brains do".
And there Morse's fallacy is laid bare. Yes, it's all a bit obvious, isn't it? Of course, it's brains that commit crimes. It's not fists, it's not guns, it's brains.
And what about that other slogan: "Guns don't kill people, people do"? We can be a little bit more precise with that one too, sharpen it up a little. It really means: "Guns don't kill people, brains do". After all, trigger fingers don't kill people, kidneys don't kill people, lungs don't kill people: brains do.