 All right, I'm sure there's going to be some other people finding their way here slowly, but I want to make sure we've got lots of time for our presentation and discussion. So we'll go ahead and get started. I'm Bob Trug and I'm the director of our Center for Bioethics here at Harvard Medical School. Thank you for being here. This is the first of a, I hope, long series of seminars that we're going to have on topics in ethical, legal, and social aspects of the neurosciences. So you'll always be able to say that you were here for the first one. So thank you for being here for that. And I do want to thank our co-sponsors who have helped us with organizing this and also with funding it. So the Petrie-Flam Center at the Harvard Law School, Center for Law, Brain, and Behavior at Mass General, the Institute for the Neurosciences at the Brigham, the Mind, Brain, Behavior Interfaculty Initiative at Harvard University, the Center for Brain Science at Harvard University, and the Department of Neurobiology at the Medical School. And then our funding has come from the Mind, Brain, Behavior, Interfaculty Initiative. And what used to be called, I guess, the Harvard Brain Initiative, but Deanna, there you are, the new name now is? Because the Obama administration thought we had usurped the name for the, what's it called? The Brain Initiative. The Brain Initiative. Yeah, I guess you couldn't have initiative in there. So anyway, so I'm going to turn it over here to Tos Cochran, who's a faculty member of our center and also an urologist at the Brigham, who's going to moderate the program. Thanks Bob, and welcome to everyone, and God, you all could make it. We're all really excited about this seminar series and the topic that we have tonight. Because this is the first one, I wanted to say a little bit about neuroethics, partly because I'm so excited about neuroethics, it's sort of where my worlds intersect. And so I just wanted to sort of set the scene very, very briefly. So where neuroethics began is a matter of perspective, and you could pick any number of places. But the word neuroethics was probably coined by William Sapphire in 2002. And the definition that he gave was that neuroethics is the field of philosophy that discusses the rights and wrongs of the treatment of or enhancement of the human brain. And that's a pretty good starting point for what neuroethics is. That's a lot of what neuroethics is and does. And it is, in that sense, just a branch of bioethics and medical ethics in general. But neuroethics seems to be something more, and it seems to reach outside of the clinical setting quite a bit. And I think tonight's topic is a great example of how neuroethics is a lot more than just another branch of medical ethics. So tonight's topic is, does brain difference affect legal and moral responsibility? And we're going to have several examples of cases that intersect with medicine and the law and ethics and accountability. This is the way things will work. Brad Siegel is one of our second year medical students. And he has a background in philosophy and ethics, and he's going to present the three cases tonight. You've got handouts, and there are some more up front if anybody's missing one. He's got slides that will picture the cases for you. And as you'll see, all these cases involve people who had neurological or psychiatric disease and who committed acts that were varying degrees of morally or legally wrong. Will then be confronted with the question of how much blame or culpability or accountability to assign to each of them. And then the associated question of what do we do with them, how do we punish them, do we keep them away from the rest of society, etc. And we've got three speakers who are the perfect folks to help us grapple with these questions. They're each going to take a turn commenting on the three cases. They'll have about 15 minutes each. And they'll comment from their particular perspective. The perspectives are the psychological perspective, the legal perspective, and then the clinical forensic perspective as well. First, I'm going to introduce all three, and then I'm just going to let them go in order as we've got them here. So Dr. Fiery Cushman is an assistant professor in the Department of Psychology and the director of the Moral Psychology Research Laboratory here at Harvard. Until last year, he was at Brown University, which I'm told is a superior university somewhere south and west of here. And his work was previously funded by the Mind, Brain, and Behavior Initiative at Harvard University, or still is, or still is so. Amanda Pastilnik is the current senior fellow in law and applied neuroscience at the Petrie Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law. She is a faculty member of the Center for Law, Brain, and Behavior at Massachusetts General Hospital and an assistant professor of law at the University of Maryland School of Law. And then finally, Dr. Judith Edersheim is the co-founder and co-director of the Center for Law, Brain, and Behavior. She has a JD from Harvard Law and practiced law before attending medical school here. She's now an assistant clinical professor of psychiatry at HMS and is an attending psychiatrist in the Department of Psychiatry at Mass General. She has practical experience doing forensic evaluations for the courts in civil and criminal cases. And her research interests have to do with the use of psychiatric and neurological conditions in legal settings. And as you'll see, she has direct knowledge of all of these cases, two of which are real and the third of which has been modified slightly. And so we're very excited. And now I'll invite Brad up to present the cases to us. Thank you, Dr. Cochran. So all three of these cases are on your sheets in front of you. So if something doesn't completely make sense, you can always reference it there. So the first case is about an individual named Jack. So this was a couple years ago. This is before you could buy stocks online. And Jack worked for a financial institution where he was a clearing officer. So his job was forwarding checks that came in to where they were supposed to go to buy stocks. He was in his early 60s. He'd been doing his job for many years and he was fairly well respected at work. And curiously, Jack started putting checks that were, he was supposed to forward into his drawer. Now, he didn't show that he wanted to cash the checks. He made no effort to spend the money. He didn't open a bank account overseas. But over the course of several weeks, he just started putting checks in his drawer. They began to build up. So around this time, he was playing squash with his friend, who happened to be a physician. And the physician noticed that if he hit it to Jack's upper left, that Jack couldn't return the shots. So the physician told Jack that he was worried about a quadrantopsia. And Jack agrees to see a neurologist. But before the appointment, the company discovers them missing checks. And Jack is put under investigation and suspended while they try to figure out what's going on. So when he sees the neurologist, they take a CT of the brain. And so this is a slice that goes straight up and down like this. And this entire area shouldn't be there. So it's a large cranioforengioma. And it's compressing his optic chiasm, which is why he can't see. And they surgically resect it and his vision returns. It seems his behavior returns to normal as well. Because when the investigators come to talk to him after some time, he's just completely embarrassed by his behavior. He recalls putting the checks in the drawer, but he has no idea why he was doing it. He has no insight into what his motivations were at the time. I should note also, we don't really know if any of his other behaviors changed at the time. Like, so we don't know if his wife had noticed that his behavior had changed when he had the tumor as well. So case two, so this is about an individual named Devin. Devin is a male. He has something of a complicated psychiatric history. In his childhood, he was sexually abused. Then in his teens and 20s, he has a series of psychiatric disorders that included major depressive disorder, some type of anxiety disorder, and PTSD. And he may have had others as well. Then in his 30s, he developed a seizure disorder and in the workup, the tumor was discovered in his right temporal lobe. So this is the CT. This time, it's a flat CT. And to orient you, this is the area that was completely taken out, the black spaces, removed at CSF. And he goes on his way, the seizure disorder goes away, and he gets a job at a parking lot as an attending. So it didn't demand a lot of cognitive function. He ends up marrying Jamie, who is his female supervisor at the parking lot, and they move into a trailer park together. So things aren't going well. The neighbors expect that Devin's wife, Jamie, is actually abusing him, that she's seeing other men. And Devin confides in his neighbors. He says that she threatens to have him beat up. She threatens that she's going to have him fired if he tries to leave her. So one night, the neighbors hear a confrontation. They call the police. The police come. They find Jamie dead in the bedroom. She has a blunt trauma to her head. And Devin is in the kitchen with a murder weapon. So Devin is confused, and he has bruises. But he tells the police that he thinks his wife is still alive, that he was unaware that she had been killed. So Devin is arrested. And when he's evaluated, first it's by a neurologist. And the neurologist finds that the only focal findings are those consistent with a partial resection of the right temporal lobe. Then he sees two neuropsychiatrists. The first one, I guess, diagnoses multiple disorders. The first is dissociative identity disorder and multiple personality disorder, ADD, major depressive disorder, PTSD, and a general encephalopathy. Finally, the second neuropsychiatrist sees Devin. And he notes that he has a suspicion of malingering, just given the decline in the course of events. So it's a suspicion that Devin might be faking it. The third case is also a very interesting case. This was a little bit more publicized. It's about an individual named Bradley Waldruf. So he lives in Tennessee in a cabin. He has an estranged wife named Penny. And Penny is coming to drop off her kids for the weekend. She's always nervous when she does this. And so she brings her friend Leslie. When they get there, they find Waldruf intoxicated, reading the Bible with a rifle. Then altercation breaks out. And at one point, Waldruf says to the children, come tell your mama goodbye with the effect that he planned on killing her. And he ends up killing Leslie. He shoots her eight times. And he chases Penny into the woods with a machete. And she's left with multiple lacerations. And she lost a finger. Unfortunately, she survives. So this is how Barbara Haggerty for NPR described the scene at the time. When the police arrived at Waldruf's trailer home in the mountains of Tennessee, they found a war zone. There was blood on the walls, blood on the carpet, blood on the truck outside, even blood on the Bible that Waldruf had been reading before all hell broke loose. And so it really seemed to Tennessee prosecutors like it was a very clear cut, easily winnable case. So they charged him with first degree murder of Leslie, which carries the death penalty in Tennessee, an attempted second degree murder. So his defense hires an expert witness. And the expert witness discovers that Waldruf carries the warrior MAOA gene. Now it just says a bit of a refresher for everyone. So this is monoamine oxidase. So this is the protein that degrades the amine neurotransmitters. So that includes serotonin, norepinephrine, and dopamine. Now what's interesting about Mao is that if you are missing it, then you would think that you would have a buildup of these three neurotransmitters, which are loosely associated with the fight-or-flight response. We know that in both individual, in humans, and in animals lacking MAO completely, they tend to show a very aggressive behavioral phenotype that's characterized by increased aggression, lack of impulse control, and inability to deal with stressful stimuli. We also know that there's a spectrum of Mao expression. That about 1 third of the population has lower levels of Mao, so you would expect higher levels of these neurotransmitters, and 2 thirds is higher expression of the protein. So there's an interesting study where they looked at a very robust cohort from New Zealand, and they asked whether the presence of this protein could be used to predict later aggression in life. And what they found was that there's a statistically significant correlation between individuals who are both maltreated as children and have, as they termed it, this warrior Mao gene and later acts of aggression or serious delinquency, that these individuals were much more likely to commit the acts of aggression than individuals who either weren't abused as children or who didn't have the Mao aging or the combination of the two. So the defense's argument was this. A person doesn't choose to have this particular gene or this particular genetic makeup. A person doesn't choose to be abused as a child. So I think that should be taken into consideration when we're talking about criminal responsibility. So this is introduced into court, and the jury found Walter guilty of voluntary manslaughter, and that was reduced from first degree murder, as well as attempted second degree murder, which was reduced from attempted first degree murder. When the jurors were asked as they were leaving, it was clear that the genetic information had influenced their decision. As one gene put it, a bad gene is a bad gene. Walter was eventually, he was sentenced to 32 years, but that's less than it originally could have been. And so those are the three cases. I'll be leaving this up sort of to help remind you of where we are. And to start, I think we have Dr. Fiery Cushman. OK, wonderful. I'm really delighted to be here. So as was mentioned earlier, my own expertise is in the psychology of moral judgment. That is how ordinary untrained people, people with no background in the law, no background in medicine, would approach cases like these. And I want to just start by saying a word about why we should care, what an ordinary untrained person with no background in the law or medicine would care or would think about these sorts of cases. One of the themes that I think will come out, even in this session, is that the way that ordinary people approach these cases has a lot to do with the way that the law approaches them. And that shouldn't be surprising because the law grows out of ordinary people's intuitions. At the end of the day, there are policymakers, jurists, jury members who are responsible for designing the law or executing the law. And their natural psychology is going to ground the legal principles and their application. And so there's two important points to make about that. The first is that by understanding the ordinary person's psychology, we have a chance to kind of predict how the law might treat cases. And in areas where the law hasn't yet fully developed its answer or where the science is still emerging, we can project forward and say, well, what is a good guess about how we're going to end up treating these sorts of cases? The second thing is that anyone who's spent any time, I don't know, watching C-SPAN or dealing with the IRS knows that humans are not perfect reasoners. We have probably the most remarkable computational device on Earth between our ears, and yet still we're prone to making mistakes. And understanding the ordinary psychology of how we make moral judgments gives us an opportunity to think about where, from a dispassionate perspective, we're getting it right and where we might be getting it wrong, where there's room for improvement. So I'm going to just say a couple of words about ways in which we can sort of project how an ordinary person would deal with these cases, and then a couple of words about ways that people might be making a mistake and we might be able to correct the thought processes. So in terms of projecting how an ordinary person would deal with the cases, the core question that an individual is going to be asking is who is ultimately causally responsible for what happened? Is it the criminal defendant, or is it their biology? Now, that might sound like a ridiculous question on its face. What is a criminal defendant, if not the sum total of their biology? But I want to argue to you that it's not as ridiculous as it sounds. There was a really lovely study done by a colleague of mine, Joshua Noburi, asked a simple question. He said, imagine that you're sitting outside and you have your hand next to a glass of water and a bee lands next to it. And you want to, or maybe even the bee lands right on your hand, and you want to shake the bee off. So you deliberately shake your hand and you knock the glass of water over. Did you cause the glass of water to fall over? And did you cause your hand to shake? And people say, yeah, you caused your hand to shake in that situation. Then he says, imagine that a bee landed on your hand and you were so frightened by the bee that involuntarily your hand was shaking. He said, in that case, would you say that you caused your hand to shake? And people say, no, in that case, you didn't cause your hand to shake. Now, obviously at a biological level, a person sitting next to you didn't cause your hand to shake. But the ordinary psychological faculty that we bring to these situations draws a distinction between behaviors that we perform intentionally and behaviors that are a product of habit or of instinct or in one way or another circumvent our conscious awareness and our capacity for reasoning and deliberate control. And it's that same perspective that people seem to bring to these sorts of criminal cases. A fund study by Darlie Woflock and Robinson a number of years ago, they described a case where a man is on vacation on a sort of a double date and it turns out that his friend has been sleeping with his wife over the course of the vacation. He discovers this, they're on a plane flight on the way home. The plane flight is hijacked by terrorists. The terrorists are just looking for some way to set up a terrorist plotter scheme. I don't know what the motivation was. They put a gun to his head and they say, you need to on videotape shoot this person sitting next to you or else we're gonna crash the plane into the ocean. And one version of this case, the man is described as thinking to himself, oh no, my friend, my dear friend who has been sleeping with my wife and yet I sympathize with. But I've got a gun to my head and they're gonna crash the plane into the ocean. I have no choice. And so he shoots his friend. In another case, he's described as thinking to himself, aha, this is the moment I've been waiting for. This is my moment to exact revenge on the person who's been sleeping with my wife. And so he shoots him in the head and kills him. And people have dramatically different moral judgments of those two cases. They think that the first person isn't responsible at all whereas the second person is extremely responsible and should be punished. What's driving the difference between those cases again is the particular set of mental states that is responsible for the person's action. The fact that they formed an intention, that it was consistent with the desires that they had and then acted on that intention consistent with those desires. So that's the kind of lens that I would expect ordinary people would bring to cases like these. Looking at the first two cases, I would think in the case where the individual has been cashing checks away in the drawer, but then is not doing anything to actually spend the money. An ordinary person would look at that and think this doesn't look like ordinary deliberate behavior. This doesn't look like a person who has a plan that they're executing. This looks like somebody who in one way or another is engaging in disorganized behavior more like the person who involuntarily trembles. Not that they didn't have an awareness that they were putting the checks in the drawer, but it wasn't part of an overall plan that you can make sense of. And in the second case, the case where the individual claims that he has no awareness that his wife is even dead. Of course, one might question whether or not that's true, but if you were to accept the premise that he had no awareness that his wife was dead, that looks like it's probably outside of the scope of that person's deliberation and planning. So those are factors that would just isolated by themselves tend to lead people to hold the person less responsible. The case of the warrior gene is a interesting case. There aren't those types of factors that would lead you to think that this person didn't have a plan. To the contrary, it looks like a very planned out behavior and a deliberate volitional action that was consistent with the person's desire to harm his wife. And so the obvious question arises on what basis might have the jurors felt that this person was not ultimately responsible. And here I would draw an analogy to a third study that I wanna tell you about. This was done by Jonathan Phillips. So in this study, he describes a woman whose daughter takes drugs in order to survive. And this woman's mother, the grandmother, also lives in the same house. The grandmother is trying to help out and clean up in the medicine cabinet and she accidentally throws the drugs out. When the woman discovers that the drugs are gone, she lacks the money to buy new drugs for her daughter. Her daughter really needs the drugs to survive so she steals the drugs from the store. People are asked, how morally wrong is that? And people say, well, it's understandable what she was doing but it was morally wrong for her to engage in that behavior. And a second version of the case, what's described is that the grandmother had a plot to get custody of the granddaughter. And the plot was to go into the medicine cabinet and throw out the drugs. And sure enough, the plot worked when the mother noticed the drugs weren't there, she stole the drugs from the drug store and then it was remarkable that this plot succeeded. But sure enough, the plot worked. In that case, how morally wrong was the mother's behavior? And people hold the mother much less responsible in that second case. Now that's really bizarre. From the mother's perspective, everything is identical. She doesn't know that her grandmother was plotting in one case and that nobody was plotting in another case. So we've been trying to understand why is that? Why would you judge the mother differently when in one case she's being manipulated by somebody and in another case, she's just a victim of circumstance? And it looks like the reason this happens is because people are focused on the idea that there was a sort of a goal or an intention that the grandmother had. And that goal encompasses all of the behaviors of the mother. So she just becomes part of the master plan of the grandmother. And I would draw a potential analogy to the role that genes are playing in the MAOA case. In this case, by describing it as a warrior gene, you're describing a gene which you might imagine through natural selection was designed to make people aggressive. In some sense, that aggressive behavior is part of the plan of the genetic makeup. I'm not endorsing this as an accurate biological view, but as a way of thinking about how people might approach that kind of information. It stands in contrast to the first two cases where clearly the nature of the medical case is one of disorder or trauma rather than potentially one that is a product of design. And so I wonder whether that dimension of construing natural selection as having, in fact, designed this gene to make people aggressive could be leading people to assign less responsibility. So those are some thoughts about how people might be projecting or rather how we can project how people might approach these cases from a kind of a lay perspective. The final thing that I want to just do very briefly is to talk about the idea that we might want to protect against characteristic biases in the way that people would approach cases like these. And the funny thing about punishment is that punishment, all of our best evolutionary models of the origins of punishment, explain it by saying what you're trying to do is prevent somebody from doing harm in the future. And yet everything we know about the psychology of punishment suggests that it does not look to the future, but instead looks to the past. This is unique to punishment. If somebody were playing chess, they would never say, this is a bad move in this game, but I feel morally responsible to play the move anyway because it's always worked for me in the past. Or if you were shopping for food, you would never think of saying, I don't need eggplants for this recipe, but I just feel like I have a responsibility to buy the eggplants because they've been good to me in the past. Morality works that way. In morality, you might say, I don't need, it sounds awful for me to even say the words, I don't need this friend anymore, but I feel a responsibility to them because they've always been there for me in the past. Or I'm not worried that this person is ever gonna do harm again, but I feel that they have to go to prison because of what they've done in the past. That's a unique and peculiar feature of the moral domain that even though at an evolutionary level, it's got to be designed to guide our future behavior, we always look backwards to what a person did. I think it's worth asking whether that's the appropriate stance to take. We've been doing research in our lab and I'm not gonna talk about it now because I wanna move on to the next speakers, trying to understand why evolution would have designed punishment to be backwards looking. But as policy makers, it almost doesn't matter what the answer is about the evolutionary story. The question is, do we wanna endorse a view on which punishment should fundamentally look backwards and say, what was the person's mental state before? Or instead of you in which you look forwards and say, well, what is the best way of treating or coping with the person's mental states going forwards? And the first case raises such an interesting example of this because whatever you wanna say about whether the harm was volitional, at the end this tumor is removed and the person's behavior improves. And it provides a really vivid example of where we have to make a choice between the backwards looking view which says, well, you were responsible for the actions that you took or a forwards looking view that says, yeah, but we have no reason to think that something like this is gonna happen again. First, I wanna thank Bob Trug and Brad Siegel for putting together this neuroethics series and to thank you for having us here to discuss these interesting questions. I'm going to speak in a legal capacity about what the law is regarding cases like these and what it could or should be. And thank you to Dr. Kushman for providing the perfect place for me to jump in and talk about why we punish. Why do we punish people? There are multiple reasons why we might think that it's worthwhile to have a criminal justice system and particularly a criminal justice system that inflicts punishment. The two major theories that animate the criminal law are the retributive theory and the utilitarian or consequentialist theories of punishment. We exist in what's called a mixed theory system which means that we pragmatically pick and choose a bit of each or that we're just muddy thinkers and we've never really committed to one versus the other. The retributive theory of punishment is principally backward looking exactly as Dr. Kushman was saying. We ask the question, what has this person done? How morally blameworthy was he or she in engaging in that action? How much punishment would it take to in effect restore balance to the force and payback society for the wrong that this person committed? In fact, retributive comes from the Latin retributo which means I pay back. It is paying your debt to society. Emmanuel Kant, who was one of the principal founders of the retributive school of thought, said that if a society were about to be wiped out, imagine Pompey, he didn't say the Pompey part, but imagine Pompey as the lava is flowing down the mountain side, about to obliterate the society. If there was a prisoner condemned to death for a serious crime, sitting in the prison in Pompey as a good citizen, it would have been your duty to execute him rather than allow the lava just to kill him or help him to escape on a boat. Why? Because he had done wrong and a civilized society must make that person pay back the wrong to ensure that the moral principle relative to that wrong is honored. The principle that murder is wrong or that theft is wrong. So the retributive theory of punishment is exclusively backward looking. Utilitarian theory, by contrast, is exclusively forward looking. What good does it do to punish? How much will society be helped by punishing this person or this category of wrongs? Can we deter wrongdoing by punishing this category of wrongs and this category of persons? And is that deterrence cost effective for society? If it costs us 100 million units to punish this category of wrongs and actors, but it only gives us a million units of benefit, no, it's not effective. When we actually punish in our criminal justice system, we engage in a mix of both kinds of considerations. And so we engage in argumentation about why the person did what he or she did, was this person truly morally blameworthy? And then we look at considerations, this often bears it on sentencing, of how dangerous is this person? Is he or she likely to do it again? If we understand the context for why the person committed the act, then maybe we can get a better sense of how worthwhile it is to punish this person. And these kinds of cases about brain disorder and psychiatric or mental disability raise questions in the retributive sense and in the consequentialist sense. And they lead us to ask questions about why we have certain kinds of excuses and whether those excuses are continuing to serve us well or whether we could or should redraw them to take into account new knowledge about the relationship between brain and behavior and the specific ways in which certain kinds of brain disorder can affect behavior. So first I wanna say that in imposing punishment, in finding that a person is culpable for what he or she has done, the law has never expected that we have true free will. It recognizes that we all act under constraint. Think for example of the last time you had to click an I agree checkbox to visit a website or use a piece of software or you put your bags on an airplane and you're tacitly agreeing to the conditions of carriage. You didn't have true free choice. You could accept the conditions of carriage or not take your flight. We all make decisions under constraint so the law has never required that we truly be free. What the law looks for in terms of whether we are competent decision makers is whether we are acting knowingly and whether we are engaged in the kind of decision making that is typical for people like us under those circumstances. I shouldn't say people like us. I should say for the reasonable person under the circumstances. Who is the reasonable person you might ask? I'm not sure I've ever met her because she is a composite or he is a composite of not our average self but our slightly idealized self who can make careful judgments, who can control their temper, not an ideal person but perhaps a slightly better than average one of the typical member of society who knows what the typical member of society knows. The criminal law provides certain excuses for people who don't meet that standard of reasonableness. So we have a series of excuses that relate to defects in reasonableness or rationality. These are some negative defenses and some positive defenses. I'll quickly talk about what those are and then I'll apply them to these cases. So the criminal law requires any person, requires for the state to prove that any person in order to be guilty of a crime committed certain acts that were prohibited by a criminal statute and did so with the particular mental state required by the statute. These are known as the voluntary act requirement and the mental state or mens rea requirement. You've probably heard of mens rea, it means evil mind but you need not have had an evil mind. If a statute says that it is a crime to embezzle, to convert the property of another that has been entrusted to you for their benefit to your own use and to do so knowingly, then that's the act requirement. You can't take somebody else's property that was given to you for their benefit and you can't do that intentionally or knowingly. In the embezzlement case, the fellow who was hiding checks in his drawer, those checks were not given to him for his benefit, they were given to him for the benefit of the people who were trying to buy stocks. But he kept them. Now, did he keep them for his benefit? That's unclear. Did he know he was doing that? Yeah, he wasn't. He didn't suffer from some sort of automatism or he was unaware that he was putting them in the drawer. He knew he did it. So there you have what looks like a voluntary act and you have what looks like a knowing mental state and for criminal liability, the state needs to prove that you committed the voluntary act and that you did so where the wreck was at mental state. You have a negative defense if you can prove, pardon me, if the state fails to prove that you either were acting without the required mental state, you didn't know what you were doing or you didn't have the purpose if the statute requires purpose or if the state fails to prove that you engaged in any voluntary act. You were sleepwalking. There are some very dramatic sleepwalking or sleep acting kinds of cases, particularly of people who were taking Ambien or other types of sleep aids and they drive to a shopping mall and do crazy things and come home again all entirely without waking up. There are less dramatic forms of lack of voluntary act. So we might wonder, did this fellow have an involuntary act or did he lack the mental state required by the statute? He might have a negative defense of no mental state. He may have been aware that he was putting the checks in his desk but he may not have had the intent to use them for his own benefit because embezzlement requires that you use the property for yourself. And so the state would fail to prove its case on a lack of intent prong. So those are the negative defenses but there are also what are called affirmative or positive defenses that take into account where a person engaged in a voluntary act and had at least some awareness of what he or she was doing but we have the moral intuition that they are not the kinds of person who deserves blame or at least the kind of person who doesn't deserve the full weight of criminal sanction. You're familiar with the carve outs for juveniles. They're not as broad as most people think they are but we think to some extent as a class, juveniles are less culpable but the major defenses in criminal law are diminished capacity, insanity, and well diminished reasonableness which is like diminished capacity and duress. I'll talk a little bit about diminished capacity and insanity. A diminished capacity defense says that in both diminished capacity and insanity the person acknowledges that he or she committed the act but says that due to a mental disease or defect they should not be held culpable, morally culpable and legally culpable for the act and are less morally blame worthy. The diminished capacity defense says that the person could not form the higher level of mental state typically purpose that was required in a homicide case or let's say a first degree murder case like Mr. Waldrop would be warrior gene so called. First degree murder requires that you had the intent to kill. A person who raises diminished capacity defense may say I didn't have the ability to form intent. I acted and I knew I was holding a gun and I knew I was shooting someone but I had no premeditation, I had no deliberation, I can't be convicted of first degree murder. An insanity defense varies a bit from state to state and at the federal level typically says that a person had no knowledge or appreciation of the wrongfulness of his or her action and in some limited jurisdictions a control prong that says no ability to conform his or her ability, excuse me, his or her conduct to the requirements of law. So there's a knowledge prong, a cognitive prong, what did you know at the time that you were acting and in some jurisdictions, a volitional prong, were you able to control your behavior? That's a really tough standard to meet. A person has to be remarkably psychotic to not know the nature of his or her action. In the check hiding case, he was aware that he was putting the checks in his desk and then he probably, we have in the facts here, he was appalled when he talked to investigators that he had done this. So that shows he was aware that it was wrong. If we think about knowledge of wrongfulness and appreciation, that sort of richer sense of feeling, shame, that what you've done is wrong, he satisfies that, he wouldn't have an insanity defense at least under the cognitive prong and then the volitional prong, first of all, doesn't exist in most jurisdictions, it's incredibly difficult to prove that a person was literally unable to control their actions. We speak in law about the policeman at the elbow test. If this person had had a policeman standing at his elbow, would he still have done that action? The answer in almost all cases is no. And then perhaps psychologically and neuropsychiatrically, inaccurately, the law says, well, if he or she could have controlled behavior with a policeman at the elbow, that shows they had control. So that's why an insanity defense is incredibly difficult to prove and matches very few actual fact patterns out there, although we have a practitioner here who has succeeded in some of these kinds of cases. So our defenses of diminished capacity and of insanity don't fit the facts very well of cases where we have even very obvious impairments. Neither do our negative defenses of no voluntary act and no mental, no sufficient mental state. Because in each of these cases, we have a person who acted and was aware of, well, in the first case, we have a person who acted, was aware of acting and was able to experience shame upon discussing his actions so he acknowledged your wrongfulness. I would say that our intuition is that he is not culpable and on a retributive or sort of moral view, we find him not morally blameworthy and on a forward-looking view, he's not going to do it again, as far as we know, probably at the quittest job. So we don't have either retributive or good consequentialist rationales for punishing him, but as a doctrinal matter, this morally obvious case could be a legally close call although Dr. Ratterstein may disagree. On the second case, the question is, did we have a voluntary act and did we have mental state? It depends on whether or not we believe, based on the evidence that this person had a dissociative episode. Who are we convincing? Are we convincing an audience at the Harvard Law School or are we convincing a jury? A man wandering around saying, oh, I killed my wife who was cheating on me and threatened to have me fired while I was in a terrible marriage, sounds a lot like the person in Fiery's hypothetical on the airplane who suddenly, oh, Joy, is able to shoot the man who was cheating on his wife. So that's a tough plausibility pill to swallow. On the other hand, if we're being more dispassionate decision makers and we believe he had a dissociative episode, then we can say there may not have been mental state, there may not have been a truly voluntary act, he may have a negative defense or he may have a really good claim for an insanity defense where he had neither knowledge nor appreciation of the wrongfulness of his act and if we're in a cognitive prong jurisdiction, maybe no ability to control his act. In the third case, I am reminded of a cartoon from this week's New Yorker that said, and I'll wrap up in one minute. Ladies and gentlemen of the jury, neuroscience now proves that the male brain never fully matures. A lot of genetic aspects of a person's makeup could contribute to a propensity to violent behavior. The number one genetic factor that predisposes people to violent behavior is, I have to say, possessed both by Dr. Cushman and by Dr. True, and I can tell just by looking at them. It's a wide chromosome. So what types of genetic variants ought to provide an excuse when we're talking about propensity to violence? First, you'd want to find a very strong correlation, but the correlation between propensity to violence and a certain genetic, a certain genotype is stronger for the Y chromosome than for MAOA, which raises a question of what is the law trying to govern? Who is the typical or reasonable person? Now a male with the short MAOA variants and the environmental loading of a bad childhood has it worst, but the associations are uncertain and I think it would probably open a Pandora's box, but the excuses that we recognize have to do with our theories of criminal law and with that, I'll turn it over to Dr. Edershaw. Well, thank you very much. Following Amanda Pastilnik and Fiery Cushman is no easy job. You've heard their erudition. You've heard their synopsis of what happens in legal theory and in moral philosophy and in the neurobiology and psychology, and now I'm gonna take us from the sublime to the low ground. So, can you hear me? Yes? Closer up. Okay, closer up. How's that? Yeah? No, still no. Okay. I'll hold this. Okay, we'll double mic. So, let me try to take us through some of the more pragmatic and really low ground conditions that occur when you litigate these cases. By low ground, I don't mean to be a disparaging of the legal system. Actually, the law is very wise and doctors should think very carefully when they branch over into the law about being suspicious of that wisdom. It isn't always right, but the process is more faithful and more accurate than you think, and there is some wisdom that judges and juries have that has stood the test of time, and so incremental change in law is very good and incremental careful importation of the science into law is even better. So, I have secret knowledge of some of these cases. They've all been properly disguised so as to be unrecognizable, but I have some facts to fill in when Fiery and Amanda have questions about some behavioral evidence. So, we all picked these cases and knew about them in advance, and they were meant to fall into a certain scheme, and that's the scheme that I'm going to speak about in that order. So, case one, which is this interesting tumor that you can still see up, that is the actual lesion and that is the actual patient that is his CT scan, and the reason that you can see this tumor so well and there are lots of neurologists, I think, in the audience who can help is that a craniopharyngealoma is an old, it's a remnant, it's a histologic remnant of pituitary cells, and so some of them are dental, they're odontoid precursor cells, and so they're very calcified, so you can see this big fat lesion and it has calcifications, but you can see that that tumor, you can understand that that tumor actually might have had biologic and behavioral significance, it's a large tumor, it's pressing on a very sensitive region, it's pressing on the optic chiasm, that's why you have this quadrantopsia, bilateral homonymous, so pie in the sky for every medical student in there. So this literal behavioral manifestation with no particular motive was present in this case. When you look at these cases, you have to also look at the political context and the legal context in the low ground. These cases don't occur in a vacuum, they occur in jurisdictions which have various attitudes towards crimes, which have different attitudes towards people of different genders and races, unfortunately, in crimes, and the political context of this first crime is that it is in loose legal parlance, it is a victimless crime. You have someone who is supposed to be rooting checks, he puts them at his desk drawer, they are then not cashed and they are instead of being rooted properly. There is someone with a lesion, the lesion is putatively causing a behavior change, the lesion is removed and the behavior returns to normal. A conspicuous fact here is that this is not a violent crime and that restitution can be made in monetary terms. The outcome of this was very interesting in terms of looking backwards or looking forwards in Fiery's and Amanda's framework. It came out a very strange way and I think it came out a very strange way because of money. So this was a Wall Street case, you can't be a clearing agent in Peoria, it doesn't make any sense, so it couldn't change that. So the charges were actually criminal charges for embezzlement, civil penalties for violations of securities regulations and suspension of a securities regulation license, which is a, you have to be licensed to participate in brokerage activities under various federal statutes. So the embezzlement charge was dropped, so the criminal prong was dropped. But this is an individual who underwent resection of the tumor, his behavior returned to normal but he was never allowed to work in the securities industry again, which in some sense is backwards under this theory. The neurologists in this room can attest to the fact that on rare occasions, an adult onset craniopharyngeoma will recur, sometimes they become malignant in a very vanishingly rare occurrence. But there could be no assurance that it wouldn't regrow or that his behavior would normalize fully, and so he was never permitted to work again and he retired. So this case was almost like the famous case in the literature of acute onset of pedophilia with a frontal tumor. It is, if you are trying to prove causation, which is really the million dollar question here, you have a clear before and after, you have a medically indicated surgical removal and then you have restoration of behavior. But I would disagree only on one fact, which is, and this was actually a loaded trick for you, because the circumstance Amanda in fairness is that he expressed no awareness of the wrongfulness during the rerouting of these checks. It wasn't until after it was removed that he was surprised at what he had done and wanted to make amends. He had a rather common clinical finding associated with frontal tumors or frontal lesions, hemangiomas, particularly hypothalamic lesions, that of an indifference syndrome, which is clinically recognizable and of course made the case better if it had ever gone to trial because there was a clear clinical syndrome associated with the lesion which is behind the purported behavior. So that I think is best case scenario. When you move on to the multiple psychiatric disorders case, the Devon case, this is where we're faced with a conundrum. We have a very impressive image. That is actually Devon's image. A big right temporal lobe tumor with a big hunk of CSF pooling in the remains of where the removal was, also a clear before and after in terms of neurologic functioning, in terms of cognitive functioning and memory. One of the neuropsychologists did diagnose a general encephalopathy, which in this case was about memory loss and concentration and attention. It's an impressive finding for neuropsychological testing. And then there was a subsequent decline, a rather precipitous decline, and there was a question of malingering. Now there are a couple of things which are immediately different, apparent to everyone in this field and every other field about case two versus case one. Case two is a murder. And the scrutiny will be evident because it's not just about a murder, it's also about motive. There is a motive in this case, what someone in the trade would consider a non-psychotic motive, a motive known to other people, which is that this was an abused spouse who had significant diminished abilities in various realms. And the analysis would be in the low ground for this case. Experts would come in on each side and make their best ethical guess, best case circumstances, an ethical evaluation of whether they think, looking at all of these impairments that the mental diseases and defects represented by this patient's history had a causal nexus to this crime, or this crime was the result of anger and motive, which are not obviously exculpatory. Now this case actually, criminal jurisdictions vary from state to state and criminal laws are the province of the state. The state gets to decide on how it's going to protect its citizens from crime. And in the particular jurisdiction that this case happened, there was no available diminished responsibility defense. It was either insanity or nothing, an all or nothing proposition. And so in order to mount an insanity defense, you have to admit that you committed the act because you have to say, when I did this thing, my mental state was like that. So you have to admit that you committed the predicate criminal act. And so if you're going to mount an insanity defense, then you're going to give up an innocence plea in those circumstances. So it's a high stakes proposition in this state and that has nothing to do with neurology or morality. It has to do with the state's criminal jurisdictions. So this case presents us with a neurologic conundrum and a behavioral conundrum. Can you piggyback conditions like one from column A and two from column B and cobble them together and call it causation? Or does this person have a significant hole in his head, neurologic deficits, and a colorable claim to an insanity defense for the inability to conform his behavior to the requirements of the law or a defect of reason and cognitive prong would be satisfied. So let's put that in the middle, which is why we put it in the middle. So now I will be a little less measured with the Waldrop case. What the Waldrop case faces us squarely with the problem of what are you going to do with genetic propensity evidence? What if we really had a clear view that your genes determined your destiny or at least shifted your destiny to the right or to the left and that actually there were genetic markers for the propensity for violence? 10 to 15 years ago, people were saying that that was true with monoamine oxidase A, that if you had the short allele and a certain number of variable number of tandem repeats upstream from the part of the gene that was going to be transcribed, that you would have the low activity variant of the gene and that would make you have a propensity for violent crime. And this was a finding that really swept the nation. You could actually go online now and look up warrior genes and you will find every claim in the book. So Fiery's description of perhaps this makes you more aggressive and it is a biological determinant of aggression. People were talking about captains of industry and screening for the military using warrior gene propensities and were you a warrior in sports and you could send in your blood sample and they would test you and determine whether you were a warrior. Well, 35% of Americans, Caucasian Americans would be positive for this warrior gene. So right away that should have perhaps alerted people to the fact that it might not be the best determinant of violence because violence in this society has a very low base rate for the population. And this case was transformed from a certain conviction for capital murder with multiple witnesses, prior threats, a motive as big as Tennessee to a case where with a relatively low sentence because of propensity evidence. So the argument went this way. This is someone who was less blame worthy because he didn't have a choice as to his genetic makeup and if it's of a genetic makeup plus a bad childhood means you are more likely to be arrested and commit a crime then that should be relevant to whether you're blame worthy or not. So the problem was really two-fold, the first being the science. After this trial was over, it was quite clear that, and if you had asked Jordan Smoller or any magnificent psychiatric geneticist, actually Josh Buckholt has a nice paper on this very finding, that taking a single gene out of an entire genome and using it to predict a complicated human behavior is not going to be very fruitful. We don't really operate on Mendelian genetics anymore. Single gene knockout explanations for any behavior, and this wasn't even a knockout, this was an allele variant. A single gene knockout perhaps in Parkinson's disease might explain the evolution of motor behaviors but we haven't found any gene or any 20 genes or any 100 genes. Human behavior is typically influenced by thousands of genes. It's a misunderstanding of population science, of what it means to have a hereditary factor versus an individual factor. So this analysis was wrong on many levels and it brings up systemic problems in the importation of new science into the courtroom. How will we actually allow juries to understand population based genetics versus a finding in an individual? What will we describe as the causal links between genes and behavior? I can make the case for saying monoaminoxidase A was wrong, but what about the next wave which is really going to be addiction evidence? It is plausible to say, and perfectly biologically and neurobiologically valid to say that some people by virtue of heredity and a genetic loading have a propensity or at least a vulnerability to becoming addicted to substances at a greater rate than someone who isn't so predisposed. Many, many crimes are either related to or done in service of an addiction and we have very good evidence about the morphologic changes, the histologic changes, the neural network changes, which happen when people become addicted to substances. How is that going to be dealt with by the law? We still have to live in the low ground of understanding that crimes often have motives, not just genes, and we look carefully at causation and I do submit that monoaminoxidase, and I've written publicly about it with Jordan Smoller and Bruce Price, that monoaminoxidase A is not a valid consideration in terms of single individual criminal cases and we'll have to see what the future brings in other cases. So first I want to just thank our speakers for a great set of presentations. The second thing I want to do is a little housekeeping detail. If you're watching this on the webcast, you can tweet questions at HMS Bioethics and we've got somebody monitoring the Twitter feed, Matt Baum is watching and may be able to offer some of your questions up for us. I'll take the liberty of asking the first question. So whenever I think about this topic, I wrestle with my own psychology regarding retribution and I think Dr. Krishman could probably explain to me in detail why when I think about some of these cases, I get this psychological sense that retribution is required and in particular case three is one where I think I can try and isolate my own retributive sense of justice and see how much work it's doing for me and I'd love to see what you all can say about how the law would do this. So the thought experiment I want to propose is imagine that in case three, the MAO A patient defendant, that I have a cure, right? He comes to the court and I've got a cure and this is pretty plausible because we've got MAO inhibitors, et cetera, we can boost amines in the brain and imagine that I could fix him perfectly so that his likelihood of committing a heinous crime in the future is the same as the rest of us. Well he's in the court, he's done the crime. It feels to me intellectually that I should, if I've now magically cured him and made him back to a normal person, that maybe we should let him go but something feels really wrong about that, right? And maybe that's just my sense of retribution that's endowed to me by my own evolution. What I'm curious about is, so I don't know what to do with that and so I'm curious what the law would do with that. Imagine that we had a perfect cure for a case like three where I think we would all share this sense of retribution is required and I'll leave that to anybody who wants to try and tackle it. I'm gonna hear what the other panelists have to say on this too. I like your hypothetical, I'm going to tweak it slightly. Because it is extremely unlikely that MAOA was the cause of this transaction and I'm going to say so unlikely that it was, we can just say it causes it. I'm going to give us a psychopath instead. Let's say that there is a relatively well-described neurobiological basis for psychopathy and there are neuroscientists like Kent Keele who are doing some imaging work that suggests that there is. And it's not the psychopath's fault that he was born with the brain of a psychopath any more than it is the fault of a person who's born with another well-described neurobiological abnormality like a trisomy that causes mental diseases, I shouldn't say disease, that the law would recognize as causing mental disease or defect. And this psychopath is a serial killer and but for his psychopathy he probably wouldn't have been a serial killer and there we have clearer causation. It's very unusual to find serial killers who aren't psychopaths so we can infer that there's a causal relationship in a way that we wouldn't or shouldn't with the MAOA gene. Now we have the anti-psychopath zapping technology. Transcranial magnetic stimulation or your pill. Should we still punish the psychopath? First of all, I want to say we can't say that your retributive impulse is wrong, it just depends on why punish. If the only reason to punish is to prevent future harm, then you're right. We should let him go, he's fixed. But punishment serves important normative functions in society. The criminal law is a sort of compromise manifestation of the interests of many competing stakeholders. If we want to send the signal generally that as a society we value life and that murder is wrong, then there is a good rationale for punishing people who kill, even if they will never kill again. We could have a slightly less sympathetic case. There's a man who really hates his wife who also happens to have a really large insurance policy. So he kills her and he swears he'll never get married again and now we can impose the condition that he'll never marry again. He'll never get to kill his wife again if he never marries again. He poses no future risk of harm to future wives, right? But do we want to send the signal that the lives of disliked wives with big insurance policies are valueless? No. So for the signaling function of the law to show that lives are valued and that murder is not condoned, we still have to punish this person. The deeper question or a deeper question that you might be asking is, did this abnormality cause the person's behavior in such a way that he was in effect an automaton or a puppet? If we think about Fiery's hypothetical wonderful one with the bee on your hand. I have this water here. It's a terrible crime to knock over the water but I have an anaphylactic reaction to bee stings and when the bee lands on my hand, it's imperative that I get the bee off. So I prioritize shaking off the bee knowing that I knock over the water. Should I have an excuse for that? Maybe I should because I needed to preserve my own life and we recognize that as valuable. But with the autonomic shaking, maybe we provide an unquestioning excuse to that because the person really could not have done otherwise and is psychopathy more like I prioritized shaking my hand and getting rid of the bee because I had a compelling biological difference from other people, my anaphylactic reaction to bee stings or is it more like the autonomic shaking? And that's the fundamental causation question that might inform your intuitions about moral blame. I just wanna add one low ground comment. So Amanda is absolutely correct on all of the moral permutations of this. I should say in the low ground that once your pill becomes available and your zapping becomes available, every psychopath must then take it because they are a notice of the downstream effects of your behavior. So the law is very wise and it will say and it does in terms of the best analogy is voluntary intoxication. That voluntary intoxication buys the person who drinks every downstream consequence of what he or she does. Not because they literally foresaw the bad things that happened because all of us are charged with knowing that when we become intoxicated, bad things might happen. So once there is a definitive diagnosis and treatment for this issue of psychopathy, then young psychopaths will either receive that treatment or be held to the consequences of what their illness is wreak. You managed to reframe retribution as a forward looking philosophy for me, which is very nice, that helps me a lot. It sends a signal to the rest of society for the future. So thank you for that and I'm ready to take some questions. Please. Yeah, so I spent today at the Jnaya trial and I'm thinking about how we're gonna handle 19-year-old brain, whether it's probably not gonna be professional testimony about that. But it is still a 19-year-old brain, which is only incrementally different than an 18-year-old brain which has some legal protection. Maybe we can think about that and just as an add-on about this conversation about something that can fix people's criminal actions, well, we sort of have that with giving people luberant because it does fix a lot of the ability and intent to sexually transgress against particularly children. We're gonna talk about those two things, wrestle with those two ideas. I can wrestle with a few of them. Those are obviously important big questions. So let's take Lupron first. We have a problem with, and this is a beautiful analogy. So I made, so we were talking about propensity evidence. What will the law do? The law is committed to punishing people for what they've done, not who they are. And that is a fundamental principle of American law, and it is meant to focus on behavior rather than attributes to confine. And there are elaborate edifices of evidence set up to make sure that propensities are not what's on trial because that tends to invite bias and vindictiveness, but just focus on what someone did. And we veer very far away from that in my view when we talk about sexual offenses. Those are a category of crimes which raises the specter of community sanction and dislike, of personal views, of religious views, of political views, and the discourse around them tends to be complicated and permeated by that. So one of the problems is that we don't know what to do with sexual offenses because at the moment they're very difficult to treat. Sexual offenders and parapherias or sexual desires, abnormal sexual desires are very difficult to treat. So the legal system is faced with understanding that people who commit sexual offenses have very high recidivism rates and they want to keep the public safe. So there is a kind of a fusion of the idea that you're convicting someone for what they have done and for who they are. And it is a prediction of recidivism and dangerousness. And the science is all over the map. But in theory, I'm not sure it's there yet, if someone was motivated para-filically by a desire to commit an act which was an urge, a motivated by an abnormal sexual desire. That's the category. Then you could try to control those impulses with Lupron which is an anti-androgen or a whole host of, there have been orcheectomies, there have been a whole host of anti-androgen medications. And if you were convinced that those had 100% effectiveness and you could monitor compliance with them, that would provide a convincing way to say, well, this person is no longer dangerous. One problem with that set of offenses is that we haven't been able to actually separate out para-filic offenders who are motivated by sexual urge and dominance rage offenders who are motivated by anger, rage and submission. And so it becomes a very complicated field but I understand the analogy and I think it's a good one. I'm gonna be very brief with respect to Zarnayev and then turn this over. So there was an issue raised about whether there would be some neurobiologic argument about the range of maturity of juveniles and their brains and the fact that the Supreme Court has taken notice of the fact that juveniles are different, that they have rehabilitation potential, that their brains in very loose speak haven't reached the maturity of a 30-year-old person, for example. But this brings up the problem of propensity in terms of group to individual. We know that as a whole, on a bell curve, juveniles as a whole have the capacity to make good decisions and they often make poor decisions under known circumstances. So that is a group finding and applying it to an individual is a much trickier business. It raises the specter of monoaminoxidase problems which is applying a finding across a whole group doesn't mean that the individual before you, whether it is Zarnayev or anyone else, falls into the middle, the low end or the high end. So anyone individual 19-year-old may have the functional brain of a 25-year-old or may have the functional brain of a 16-year-old in terms of the neural network of decision-making capacity. And so bridging that finding from group to individual is very tricky. Yeah, I mean, I guess I would jump in on both of the last two questions. And to just return to the idea that the critical question about causation is not going to rest just with the degree of statistical association, which is one of the topics that we've returned to again and again in the MAOA case, what is the degree of statistical association between the gene and a behavior? But it's also gonna rest on the particular causal mechanism. So let me give you a pair of cases that might illustrate this. Imagine that there's a patient who undergoes a medical procedure and the doctor makes an error which causes the patient to have a seizure. And the patient's seizure, in fact, causes the patient to strike out and hit the doctor in the face, maybe break his nose. I think most people would say that the patient is not responsible in this case because they had no control over swinging their hand out and breaking the nose, even though there'd be a very low statistical association between having a seizure and breaking a person's nose. In a contrasting case, suppose that the patient wakes up and has a seizure and then gets really angry at the doctor, realizes that the doctor has screwed up the medical procedure and left them with a propensity for seizures. And so when the doctor walks back in the room, he punches him in the nose. Now the seizure is equally causally responsible. If it hadn't been for the seizure, the patient never would have punched the doctor in the nose. It's equally causally responsible and you could imagine that there would be an equal statistical association that is a rather low statistical association between the seizure causing the broken nose by accident versus deliberately. But it's gonna make all the difference in the world in people's retributive intuitions. And so that's why I feel that in each of these cases, one difficult question to ask is what is the degree of statistical association? But another equally difficult and also equally important question to ask is, is the influence of the gene, the neurotransmitter, the lesion, whatever it is, is its influence operating directly on behavior in a way that bypasses any degree of volitional control? Or is it giving a person a motive that the person then acts on volitionally? In the cases of sexual offense, by and large I think our intuitive theory, and my guess is that it's an accurate theory, is that any disposition that a person has is a disposition that gives them a motive and then they act on that motive rationally. But one can imagine other sorts of disorders that don't have that characteristic. I'll comment very briefly on the Sarnayev issue. The law does not require very much of our criminals. They need not have perfect prospection and a deep understanding of the meaning of their acts. And so while we could say that a 19-year-old engages in more temporal discounting, that is, he thinks a lot more about the present than about the future, and that in general teens have less empathy and less of an ability to put themselves in the shoes of the other than people who are fully mature. If a lack of empathy or limited empathy and an emphasis on the present instead of thinking clearly about future consequences were an excuse, almost every criminal would have an excuse. This doesn't mean we shouldn't treat juveniles differently, but just keep in mind that it's a relatively low bar for the mental states that defendants need to have in order to be convicted. I wonder if the panelists could say something more about what it means to deliberate like a reasonable person in the following sense. It strikes me that on the one hand, you might think of kind of executive function reasoning and causal reasoning. What's going to be the consequence of my action? And then there's an additional concern about whether those consequences are bad, right? So you might think, oh, if I do this, someone will die. And you might think additionally, that's not so bad or that is bad. And so it strikes me that I'm not really clear on what this reasonable person deliberation means and whether that requires moral judgments or normative appreciation of the moral values and whether that also might possibly carry some cultural baggage as well. We're supposed to think like a reasonable person in our society. And then you also suggested that the reasonable person is an improved version of the average, right? Which I hadn't heard before. I don't know a lot about the law. So I'd like to hear more about that, please. I was gonna take something very mundane, which is in terms of what the law requires, usually it's everything that follows from a defined mental state. So you aren't allowed to choose which pieces of the law you're capable of following. The mental states that are required of you are often set forth by statutes. So if you looked at the murder statutes of most states, you would see premeditation with malice of forethought, which means nothing to a neuroscientist and means everything to a criminal lawyer or some prescribed mental state. So the mental state requirement for you will be that which a reasonable person must live up to. And the criminal law will only take small account of your shortcomings in that regard unless they rise to the level of mental disease or defect. So there are threshold levels. That's my first mundane cut on that one. So what does it mean to be what the law means by the reasonable person? If I'd ask each of you, what does it mean to be a reasonable person? You'd probably have your own definitions. It is highly culturally dependent exactly as you suggested. And so different communities will have different conclusions about who the reasonable person is and how the reasonable person acts. It's also temporarily, historically contingent. It changes a lot over time. We have expectations in the law of how the reasonable person would act when he or she was in the shoes of the defendant and also in the shoes of the victim. How does a reasonable victim behave under certain circumstances? Used to be believed that a person who suffered a sexual assault would report promptly. Then a large wave of social science showed us that people who were sexually assaulted for a whole variety of reasons, particularly if they were sexually abused as children, might wait years. And now we have a different view of the reasonable person who has been sexually assaulted. So the criminal law creates numerous categories or sort of bucket words that it allows jurors, judges, prosecutors, ordinary decision makers, Nancy Grace, to fill in with meaning. The reasonable person, the typical person, the ordinary person of reasonable firmness, are black letter terms in the law that have no specific black letter definition that we are supposed to intuit our way toward. The reasonable person is supposed to be a person from our culture, knowing what people from our culture know. So if it is reasonable from your home culture to engage in a certain form of disciplinary practice against your children or your wife, but it is not reasonable in this culture, and you have immigrated to this culture, then you don't have a reasonable person defense. And what else does the reasonable person, the reasonable person is not an average of the community because you might find that in some communities, the average person is sexist or racist or homophobic, but the reasonable person legally is none of those things. So when I say the reasonable person is meant to be better than the typical person, the reasonable person is not supposed to have our typical flaws. But what is reasonable under the circumstances is a tremendous ground for debate, and this has come up hugely this year and last year and the last couple of years in terms of when the reasonable person feels threatened such that acting in self-defense is appropriate. And so in a self-defense context, we ask, would the reasonable person have thought that his or her life was imminently in danger such that they had to respond with lethal force? And this has come up in the Trayvon Martin-George Zimmerman case and numerous other cases, it's an issue in a lot of the standard ground law cases. And that really raises the question of is the reasonable person covertly the typical white person in that community who might be afraid of minorities who dress or look a certain way or is it our better angels? It's open for debate, thank you. Poor knowledge of the situation or the wrong facts and the person who doesn't care. And you could call those, that's one would narrowly would, police and designers. And a lot of psychological research contrasts those two kinds of lethal states and asks which is important in making a moral evaluation. It's easy to tell. So imagine, for instance, that I poisoned you because I believed that putting sugar in your coffee is actually poison. But if I had known that it was poison, I had no desire whatsoever to harm you. And then Amanda makes you a cup of coffee. She knows that it's poison that she's putting in your coffee and she doesn't care at all. In fact, she's delighted she had this bad desire, abnormal desire. So I've got the wrong belief and the right desires. She's got the right belief and the wrong desires. And the question is, which one of us is morally responsible and the answer is quite clear, that Amanda, there's a lot of psychological, so I really should have turned that around. I apologize. He knows better than you think. In the ultimate sense, he's responsible. So there's a lot of psychological research that supports that. I think it has an analogy to the law, but not a perfect one, in the distinction between a mistake of fact and a mistake of law. You generally, in the law, you're held not responsible if reasonably you had to stay in fact in that situation. But it is not an excuse to say, oh, I just wasn't aware that that was a wrong thing to do. Now, there's a slight difference between saying a person fails to have appropriate desires or motivations and saying they weren't aware of the law. But there's a certain alightness as well. Maybe one of the reasons that we don't admit that we mistake our law is because we think that most people ought to have their desires intuitively aligned with the same sorts of things that put the law. And if they don't, they could be bad, or alternatively, they could have a losing in their brain. And that I think is the topic. Yes, that's right. So I hate, hate, hate to cut this short, but we are a little bit over the hour a lot of time. For those of you who RSVP'd for the dinner, and I'm sorry, only those who successfully RSVP'd for the dinner, we are gonna have a chance to engage the speakers a bit more. I'm sure that for a few minutes we'll be here and can take some questions from the others. But before we break, I just wanna take one more chance to thank our speakers so much for a great presentation.