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Neuro-rehabilitation: A vision for a new justice system

In the wake of Troy Davis’ execution, we’re reminded to revisit conversations about the efficacy of our current legal system and notions of justice. Often the arguments for or against capital punishment are weighted with broader moral conversations and convictions than conversations about more specific aspects of our legal system and mechanisms of social justice.

Others, like Will Campbell, say it more plainly, “Capital punishment. I just think it’s tacky.”

When we ask ourselves, “Do you believe in capital punishment?” Two simple answers might come to mind:

  1. “No, killing people is wrong.” and/or

  2. “I believe in ‘an eye for an eye'”: a (mis)interpretation of the Abrahamic Tradition by individuals who want to justify vengeance.
Neither of these responses properly frames the real issues with capital punishment. Capital punishment is part of an antiquated and broken system that is heavily laden with issues of race, social resources and political strategy. These important issues were addressed at the recent Center for Ethics Panel discussion on Troy Davis that was reviewed here.
Some argue that capital punishment is the only way to hold truly depraved individuals accountable for the crimes they have committed. But our current justice system and its use of capital punishment, or even imprisonment, is not necessarily strictly retributive (punishment for what social crime was committed), but prospective (prevention for what social crime might ensue).

Capital punishment does not seem effective when we consider the fact that states with capital punishment do not have lower violent crime rates. In addition, the U.S. imprisons more individuals per population than any other developed country; imprisoning one-quarter of the world’s prisoners. Not to mention, abysmal recidivism rates that range from 40-70%. Here is an opportunity to revisit what responsibility means and what purpose punishment should serve.

David Eagleman, Director and founder of the Initiative on Neuroscience and Law is testing what’s called neuro-rehabilitation. Currently, his initial experiments involve smoking cessation via bio(neuro)-feedback methods for reducing cigarette cravings. He explains these experiments in this video (@ 23min).

His experiments center around the notion that not all people are created equal and, more specifically, not all brains are created equal. One thing to understand about equal rights is that these rights, liberties—or even the concept of freedom—presuppose having equal opportunities to access them. Consider this story:

In 2000, the man began collecting sex magazines and visiting pornographic web sites, focusing much of his attention on images of children and adolescents… When he started making subtle advances on his young stepdaughter, his wife called police. He was arrested for child molestation.

The day before he was to be sentenced to prison, the man walked into the emergency room with a headache. …An MRI revealed the tumor, and it was cut out days later.The man’s behavior began to improve…The man eventually moved back home with his wife and stepdaughter.

About a year later, the tumor partially grew back and the man started to collect pornography again. He had another operation last year, and his urges again subsided.”

This is not to compare this man with Troy Davis, but to point out another instance where our current criminal justice system is currently ill-equipped to handle such a case.

Studies have shown that 45-64% of prisoners have been diagnosed with mental illness. Given our high recidivism rates, we must wonder, if neuro-rehabilitation might be more just.
Who is to blame for this crime? Can the crime be blamed on his brain? Does this mean we don’t have free will? Whereas pedophilia might have been formerly explained as simply a moral failing and weak will, new neurotechnologies offer more to this explanation.

In retaliation to the “My brain made me do it,” a common response is, “Well, then everyone will start blaming some brain malady for their crimes. Someone has got to take responsibility.”
Realizing that brain mechanisms are at the heart of the body’s ability to execute a behavior does not change that the behavior was socially inappropriate or against the law. If you commit a crime, and engage in criminal activity, you are guilty. But, now what do we do with a convicted criminal? Does locking up the criminal change his/her brain or ensuing actions?

Here we must revisit ideas of “individual” responsibility. We say that people must be held accountable for their crimes; that they have a responsibility to society to follow the rules. What about being responsible for the communities around you? Most criminals don’t come from a high socioeconomic status, they don’t come from a privileged class, and tend to not come from what we would call a healthy home. And the society into which we are born and which we defend is often predicated upon these inequalities. We are therefore each responsible for considering the conditions in our communities that facilitate criminal behavior. With such a spectrum of causes and dominant factors involved in individual life circumstances, doesn’t it seem that executing or imprisoning convicted criminals is a primitive proxy for proper mental health care and social rehabilitation?

However, we must be cautious. We don’t want to use neuroscience as a new technique for justifying the disenfranchisement of those that are already marginalized (for example, by using brain imaging as a pre-screening tool for adults or even children). Current neuroimaging techniques can, at best, only describe the subject’s brain at the moment of being scanned and cannot guarantee that an individual’s brain activity patterns before or after the scan will behave in the same manner. By pre-screening children we run into a number of problems, but most significantly that a number of factors can shape brain development and activity. Recent data suggests that the brain continues to develop even after adolescence. In the long run, judicious application of neuro-rehabilitation may prove more productive and less cost-prohibitive than the process that leads to and includes execution or long-term incarceration.

We must also consider what kind of social norms we create when we legally enforce murder. What is the larger consequence to society when we enforce laws that equate death as the most extreme mode of punishment?

Capital punishment reinforces a notion that death is not a natural part of life; that death is something that happens to you when you do something wrong. In this way people become a vessel for delivering a cosmic justice, enforcing a higher power’s supposed infinite wisdom.

In a society where we have an anti-aging industry and one that promotes so-called transhumanism, a perspective said to see beyond the limits of the human body and in doing so creates the possibility for living forever, we have to ask how the demonization of a natural process of life can truly serve society? Death is something that the body is designed to do and something that can happen unexpectedly, and this is still natural. As Steve Jobs put it (Rest in Peace, Mr. Jobs), “Death is very likely the single best invention of life.”

People should not feel punished by the procession of time and its consequent aging. Nor should they be compelled to question how they lost the favor of a higher power when they become terminally ill or when their loved ones die of cancer. The experience of death should not be abused by having it legally equated to a mode of punishment.

Nor should “medicine” be used to kill people, says Emory physician, Dr. Joel Zivot. In a recent interview, Dr. Zivot a physician and anesthesiologist at Emory questioned the role of physicians in advising or assisting to deliver the capital punishment. He is concerned that the State, by associating themselves with community-practicing physicians, attempts to make execution appear more well-regarded. Dr. Zivot goes on to claim that our justice system attempts to execute convicted criminals “humanely,” but reminds us that there is nothing humane about execution. He finds it difficult to reconcile the healing mission of medicine with the use of “medicine” for killing people. He states, “Medicine should not have any other use than medicine.” This misuse of medicine becomes even more difficult to justify in conditions where those who might benefit from these medicines actually can’t get access to those medicines due to drug shortages.

If our plan is to utilize the assistance of physicians and scientists in our justice system, and we should using every resource possible to ensure and expedite a just society, our current methods fail to do so. Perhaps, neurorehabilitation methods, used with scrupulous consideration, could be more on the mark in delivering justice.

–Karen S. Rommelfanger, PhD
Neuroethics Program, Center for Ethics

Want to cite this post?

Rommelfanger, K. (2011). Neuro-rehabilitation: A vision for a new justice system. The Neuroethics Blog. Retrieved on
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Recommended reading:
A fantastic bibilography compiled by the MacArthur Foundation Research Network on Law and Neuroscience.


  1. I think before I jump on the neurorehabilitation bandwagon, I'll wait for the inventor of the technique to stop calling it "science fiction."


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