The Final Five Percent

If traumatic brain injuries can impact the parts of the brain responsible for personality, judgment, and impulse control, maybe injury should be a mitigating factor in criminal trials — but one neuroscientist discovers that assigning crime a biological basis creates more issues than it solves.

Tim Requarth| Longreads | October 2019 | 27 minutes (6,723 words)

* Some names have been changed to protect the privacy of individuals.

When the motorcycle accident dealt my brother’s brain an irreversible blow, he and his wife were living in their newly purchased farmhouse on the fringes of suburban Chicago. Conway* had been waiting to move out of the city’s inner-ring suburbs for years, and each morning on the forested property he woke up exuberant. Shortly after moving in, he built an extraordinary tree house some 60 feet in the air, spanning two trees, with sliding joists under the floor to accommodate sway and a hammock to lie in during sunsets. He loved riding his motorcycle, and before work he’d sometimes take his bike out for a spin on the open roads just a few miles away. His wife, Caroline, loved antiques, and the area was full of shops. They were in their 50s and living in a house they planned to grow old in together. Then, after dinner on a fall day in 2007, Conway hopped on his Harley Softail Classic to go buy ice cream and cigarettes. A drunk driver barreled into him. Conway’s left femur snapped and his skull struck the traffic-warmed asphalt, splattering blood all the way to the road’s shoulder. 

Conway’s body was battered, but the real threat, the injury warranting a helicopter ride to the closest hospital with a neurosurgeon on call, was a hemorrhage beneath the subarachnoid membrane, a thin sheath of triple-helixed collagen fibers intertwined with blood vessels that protects the brain’s private chemical harbor of cerebrospinal fluid from the open waters of the body’s blood. The sons of a doctor ourselves, my brother and I had heard stories about neurosurgeons called in at midnight, and those stories didn’t have happy endings.

In the weeks after the accident, I watched Conway wake, recognize familiar faces, and begin to walk. Some signs of progress were cause for celebration; other developments were more worrisome. He’d rarely ever raised his voice at Caroline, but now he called her a “worthless cunt” and a “bitch.” He was lewd to the nurses, exposing himself and laughing. When a speech therapist gently reminded him that she would return for another session later that afternoon, Conway retorted, “No you won’t, because I’ll be fucking you in my van outside!”

At first, the doctors assured us that this inappropriate behavior was a passing recovery phase of traumatic brain injury, or TBI. The lewd remarks eventually subsided, but his behavior took another ominous turn. “He always had a wild streak,” Caroline told me. It’s true that before the accident, Conway had loved flouting the rules. He’d cut across an empty park on his motorcycle to avoid traffic, or build a towering bonfire in his backyard for kicks. “But there was no violence,” she said. After the accident, Conway flew into rages so vicious the hospital staff put a cage over his bed to contain him. When he finally left the hospital, Conway attempted to return to his former life, but he struggled to run his business and pay the bills. He and Caroline’s marriage began to fray. Hopes for a full recovery waned, and eventually Conway’s neuropsychologist confirmed our fears that the personality change might be permanent. “He’s recovered 95 percent brain function,” she said, “But the final 5 percent, it might never return.”

Conway found himself with a lot of time alone, and the wooded property suddenly felt large and isolating. He started to miss his old suburban block, where he’d been the neighborhood handyman. At the farmhouse, no one came with leaf blowers to fix or chairs to mend. He had no one to show his remarkable tree house to. So one Saturday morning after a heavy snow, Conway drove his pickup truck back to the old neighborhood to plow everyone’s driveways, just like he used to do. But there was one neighbor, Dale, whose driveway Conway didn’t intend to plow. Years earlier — before the accident, before Conway moved away — their relationship had soured, escalating into a monthslong quarrel that involved calls to the police, surveillance cameras (Dale), and Christmas lights in the shape of a giant middle finger (Conway). 

Conway told me when he passed Dale’s house that day, he thought, “What the hell, I’ll let bygones be bygones, and plow his driveway too.” But Dale was there, shoveling snow. It’s not clear what happened next. According to the police report, Conway didn’t plow Dale’s driveway; he piled snow in front of it. Dale said Conway then tried to run him over with the snowplow. Dale said he had to grab the top of the plow blade to avoid being knocked over, clinging to it while Conway pushed him several feet through the snow. Dale jumped out of the way but was clipped on the head by the truck’s mirror. Conway maintained his truck never touched Dale, but the police must have believed otherwise. Conway was charged with misdemeanor battery.

The sons of a doctor ourselves, my brother and I had heard stories about neurosurgeons called in at midnight, and those stories didn’t have happy endings.

Time passed, but Conway couldn’t move on. If it weren’t for the brain injury, Conway later told me, “I wouldn’t have done what I was about to do. I would have thought, ‘This is over with, I don’t care.’” But instead, he climbed up into his tree house and got to thinking about “that motherfucker Dale” and how he was going to “pay him back.” Before the accident, Conway had never been violent. But now, all bets were off. “I thought it was right to kill him,” he later told me. “He deserved it.” Conway climbed down from the tree house, loaded a container of battery acid into the back of his truck, and headed to Dale’s. 

Dale wasn’t home, but his surveillance camera filmed Conway, with his unmistakable limp from the injured femur, pouring acid on Dale’s neatly manicured lawn and splashing it on his car, vapor swirling upward as acid reacted with paint. I’ve asked Conway whether his original intention was to attack Dale with the acid, or just to douse his yard and car. Conway vacillates; one day he would never hurt a person, another day he could. Most of the time, though, he tells me he simply felt compelled. “I both felt it was right,” he said, “yet I knew it was wrong. I guess I didn’t think too hard about it. I just thought, ‘This is what I’ve got to do,’ and did it. It was like I just couldn’t stop myself.” The next morning Dale called the police, and a week later, Conway was in jail.   

* * *

When Conway was adopted as an infant by my father and his first wife in late 1955, they were told he was deaf. But then, after a few months in his new home, his mother noticed that he startled when she clapped her hands, something he hadn’t done before. To this day, no one can explain why he started to respond to sound a year into his life — or what pre-adoption circumstances caused him to appear deaf in the first place. 

Growing up, Conway struggled with school. He assumed the role of class clown, relishing the attention he’d draw every time he gathered a crowd in some muddy spot after a fresh rain to drop wriggling earthworms into his mouth, grinning while the other kids squealed. Conway’s outlandishness made him popular with his peers, but teachers were less impressed. They nearly flunked him in every subject, making it clear to him that he was just another cutup with no promise. He managed to graduate from high school, but then drifted from city to city. He worked odd jobs and took some college classes in Idaho toward a nursing degree to prove his teachers wrong and dispel the unspoken suspicion of disability that had haunted him since infancy. Maybe Conway worried that these suspicions were true. Maybe that’s why, when he had his first seizure as a young adult and was diagnosed with epilepsy, he wanted to keep it a secret.

Conway worked to get his epilepsy under control and a few years later moved to the small town of Cheney, Washington, to apprentice as a motorcycle mechanic. That’s where he had his first motorcycle accident, when he was in his mid-20s. One day, he was testing out a customer’s bike when an elderly woman backed out of her driveway without seeing him. The trunk of her car clipped the motorcycle, catapulting him into the air. He crash-landed in a heap 50 feet down the road, leaving him in a wheelchair for weeks. He also suffered a brain injury that made it more difficult for him to concentrate and possibly worsened his epilepsy but — unlike the later drunk-driver collision that left his brain in shambles — didn’t seem to change his personality. 

After months of rehab and a full physical recovery, Conway left Washington, eventually moving to Chicago in the early 1980s to try his hand at trading commodities. A friend introduced him to Caroline, who seemed different from the other women he knew. She owned a condo in a tony suburb, had lived in Europe, loved to cook elaborate meals, and was studying commodity trading in her spare time while managing the accounting for a film company. Conway felt he’d hit the jackpot — she didn’t treat him like the women who had loved him before, women who had left him because they dismissed him as too wild, too unstable, and too stubborn to change. “Conway was different from the other guys,” Caroline told me. “He was fun. He would try anything. I loved dancing and he danced like you wouldn’t believe — that’s to say, terribly. But it didn’t stop him. I loved it.” Conway’s commodity trading effort failed to get off the ground, so he bought a Snap-on tool franchise — a perfect fit for his automotive know-how and entrepreneurial spirit. Caroline landed a job in the R&D department of a major corporation. The future was bright, and three years later they were married. In Caroline, Conway had finally found someone who realized that his good traits outweighed his bad ones.

When I was a teenager and Conway was in his 40s, our father’s mind fogged over with dementia and Conway became the closest thing I had to a dad. On a family vacation, he showed me how to drive on country backroads before I turned 16 (I hit a mailbox). A few years later, he taught me how to ride a motorcycle in a parking lot (this time, a tree). Conway didn’t see the point of many social conventions, which as a teenager I found refreshing. When he locked himself out of the house one night, he just shattered one of the door’s glass panes and fixed it the next day. He used a circular saw to cut pork roasts. I remember him once crawling under the table at an upscale restaurant to play hide-and-seek with a bored kid. After college, he bought me a motorcycle and we would take weekend camping trips to the northern reaches of Michigan.

By 2006, a year before his personality-shattering collision, Conway and Caroline were 20 years into their marriage, living in a two-story house in the suburbs filled with furniture Conway made after teaching himself carpentry. Conway’s business had been decidedly a success — his office walls were decorated with plaques for some of Snap-on’s top sales awards — and Caroline was approaching the end of her career. That spring, they bought their 19th-century farmhouse and prepared to retire. That’s when Conway hopped on his motorcycle one evening to get ice cream and cigarettes and didn’t come back.

* * *

My first day of neuroanatomy class was just weeks after Conway’s accident. While he lay in the hospital in restraints, lashing out indiscriminately, I’d just begun graduate school in neuroscience — a career I was pursuing because I thought it would help me make sense of our father’s dementia. And now I thought it would help me make sense of my brother’s brain injury. I donned a smock in the chilled air of the basement dissection laboratory and fished a rubbery gray-brown brain out of a bucket of foul-smelling formaldehyde. After placing the brain on a metal table, I ran my gloved hand across the rounded corrugations and traced their grooves, feeling a slight pressure as the clefts parted to allow my finger to pass. I found the precentral sulcus, a deep fissure roughly dividing the prefrontal cortex from the rest of the brain, and followed it forward to the inferior frontal sulcus, a lesser cleft demarcating the prefrontal cortex’s outermost third. I paused on this region. It seemed familiar. It was the dorsolateral prefrontal cortex. I had my finger on one of the brain regions damaged when Conway’s skull collided with the pavement.

The dorsolateral prefrontal cortex is part of the frontal lobe, a massive chunk of tissue behind our eyes involved in so much of what makes us human: cognition, movement, memory, personality. The frontal lobe is also the brain area injured in one of the most famous cases in neuroscience. In the forested hills of Vermont on a fall day in 1848, 25-year-old Phineas Gage crouched over a hole, holding a 13-pound iron rod. The foreman of a team excavating for a railroad, Gage was preparing to blast away rock by filling a hole with an explosive powder, piling on sand, and tamping it down. His three-and-a-half-foot-long iron tamping rod, tapered to a javelin’s point, must have hit a rock, sparked, and ignited the exposed powder, sending the rod flying. It sailed through an inventory of body parts I would soon be quizzed on — the zygomatic arch of his left cheek, the left orbit, the cranial vault, the Sylvian fissure — before piercing his frontal lobes and exiting the top of his skull. The rod landed 60 feet away on the forest floor, “greased with the matter of the brain.” The exact anatomical damage Gage suffered is difficult to reconstruct (though neuroscientists have tried) and far more extensive than what my brother suffered. But there is little doubt that the iron rod penetrated Gage’s frontal lobes, the same region damaged in my brother’s brain. 

I paused on this region. It seemed familiar. It was the dorsolateral prefrontal cortex. I had my finger on one of the brain regions damaged when Conway’s skull collided with the pavement.

According to his doctor, John Martyn Harlow, Gage had been “a great favorite” with his men and in possession of “a well-balanced mind … a shrewd, smart business man.” After the accident, he was “fitful, irreverent, indulging at times in the grossest profanity … impatient of restraint or advice when it conflicts with his desires … at times pertinaciously obstinent, yet capricious and vacillating, devising many plans of future operation, which are no sooner arranged than they are abandoned.” His doctor observed that, “The equilibrium … between his intellectual faculties and his animal propensities, seems to have been destroyed.” His friends simply declared that he was “no longer Gage.” Textbooks indicate that Gage then drifted from job to job, including appearances at Barnum’s American Museum in New York with his iron rod by his side. He confabulated, brawled, drank, and acted impulsively, showing little concern for the future. About a dozen years later, Gage ended up under the care of his family in San Francisco, and after a series of sudden convulsions at the dinner table, died.

Gage’s case has since taken on mythic proportions in neuroscience as the first to link brain damage to personality change. And because Gage became impulsive, his story more specifically suggested that the frontal lobes were the seat of self-control. 

As I watched Conway fail to return to his previous life, phrases from Gage’s report ticker-taped across my mind (“impatient of restraint … capricious and vacillating”). Conway and Caroline’s relationship strained because of Conway’s volatility (“fitful, irreverent, indulging at times in the grossest profanity”); his once-successful business (“a shrewd, smart business man”) slowly fell apart. Conway had always had a devil-may-care attitude, but the brain damage intensified it. He became far more impulsive, making poor decisions even when he could clearly articulate the pros and cons of each choice (“the equilibrium … between his intellectual faculties and his animal propensities … destroyed.”). I foresaw a life, like Gage’s, filled with drifting and frustration. 

* * *

By January 2008, three months after the accident, Conway had come home. He had physically improved and was eager to return to work — with good reason. He hadn’t been working during the months of recovery, and as a small-business owner without any employees, that meant no revenue. Then, in the midst of the financial crisis, Caroline’s R&D job was eliminated, so she was let go after 24 years, just months before she would have been eligible for full retirement benefits. They had to borrow to cover the farmhouse’s mortgage payments.

They came up with a plan: Caroline would drive the Snap-on tool truck and accompany Conway on his route. Conway’s customers greeted him with cards, packs of cigarettes, Playboy magazines. They opened doors when they saw him limping. But the goodwill soon began to fade. Customers would request tools and Conway would forget to order them, or bring the wrong ones. He mixed up accounts, overcharging some customers and forgetting to charge others. When customers would challenge him, Conway didn’t handle mistakes the way the old Conway would, with jokes and a little store credit. He became defensive, calling his customers idiots. He would skip stops on his route because of a petty quarrel with a single mechanic in the garage. Some days he never showed up to any stop at all.

Caroline attempted to mitigate the damage by helping out with the bookkeeping and trying to repair his deteriorating relationships, but he was too much to contain and the business too new to her. Soon, almost no one was buying tools from Conway anymore. Increasingly frustrated, he started taking it out on Caroline, often yelling at her in front of his few remaining customers. One night at home, Caroline told me, Conway hit her. It was only a matter of time before his 23-year-old business shuttered. Both Conway and Caroline were now unemployed. Foreclosure threatened. 

In June 2008, after a decade of dementia, our father passed away, and Conway’s downward spiral accelerated. He began driving his pickup truck and riding a motorcycle again, without a license or insurance. On the way to our father’s funeral, he was stopped for going 30 mph over the speed limit with an open bottle of Kahlua in the car. Later that year, the day after Christmas, he got a DUI. Pre-accident Conway hadn’t been a heavy drinker. But over the next several months, Conway drank ferociously and drove recklessly. One night, he came home bloody and belligerent at 2 a.m., his pickup truck abandoned in a nearby field with a broken windshield — events he never could explain. A year after the funeral, almost to the day, Conway was on his way to Dale’s with a canister full of acid.

* * *

No one questioned that Conway decided to load battery acid into his truck and drive to Dale’s. In this strict sense, Conway alone was responsible for his actions. But what ultimately caused him to act was a more complicated question, and I found the answer depended on where I decided to look. Was the most recent brain injury responsible? Or did this one compound the effects of the previous brain injury suffered two decades earlier, tipping him over the edge into criminal behavior? Did the neurological toll of a lifetime of epilepsy figure in? What about the circumstances that caused him to appear disabled at birth? Were there any genetic factors? Could you make a case that the lack of support beyond three months in hospital rehab caused the crime? That he wouldn’t have done it if the financial crisis of 2008 hadn’t led to Caroline’s job loss and their foreclosure, stirring up Conway’s anger and sense of injustice? It seems futile to sort out these complexities and determine the degree to which an individual is responsible for an action. And yet, this is exactly what the criminal justice system does when assigning blame.

“Blameworthiness should be removed from the legal argot,” writes neuroscientist David Eagleman, one of the most vocal proponents of what he calls a “biologically informed jurisprudence.” Instead of haggling over the degree of culpability, he continues, “we should focus on what to do, moving forward, with an accused lawbreaker.” A more humane legal system will “parlay biological understanding into customized rehabilitation, viewing criminal behavior the way we understand other medical conditions such as epilepsy, schizophrenia, and depression — conditions that now allow the seeking and giving of help.” By reimagining crime as a form of disease, he proposes “statistically based sentencing,” one day using brain scans to confine those most likely to reoffend and rehabilitate those most likely to change. 

The neuroscience of crime has flourished in recent years. Some researchers have claimed that psychopaths’ brains have defects in what has been called the paralimbic system. Other researchers have claimed that reduced activation in areas of the prefrontal cortex and hypothalamus may contribute to pedophilia. Yet another team concluded that perpetrators of domestic violence had “higher activation in the anterior and posterior cingulate cortex and in the middle prefrontal cortex and a decreased activation in the superior prefrontal cortex.” Scientists have posited telltale neural signatures for “intent” and “recklessness.” As a graduate student, I felt emboldened by this knowledge and dismissive even of the law’s scientific ignorance. 

And already, neuroscience had been making its way into the courts. A study by Duke bioethicist Nita Farahany revealed that neuroscience evidence was twice as likely to appear in a judicial opinion in 2008 as compared to just three years earlier. The Supreme Court cited developmental neuroscience to prohibit the death penalty for crimes committed as a juvenile. Mental health courts and veterans courts, which make accommodations for people with brain trauma and PTSD, were cropping up around the country.  

While Conway was in court in 2009, I was particularly taken with a pair of new brain-imaging studies suggesting a network of brain regions responsible for self-control. In one study, researchers at the California Institute of Technology placed individuals already on a diet in brain scanners and asked them to choose between a healthy snack like a granola bar and an unhealthy snack, like a cookie. When a dieter refrained from eating junk food, activity in the dorsolateral prefrontal cortex revved up, but when a dieter gave in to temptation, the dorsolateral prefrontal cortex remained conspicuously quiet. The researchers concluded that the dorsolateral prefrontal cortex acted as a taskmaster, tempering activity in more appetitive brain regions so the dieters could exert self-control. These results corroborated another 2009 study observing brain activity in people with borderline personality disorder who also had intermittent explosive disorder. In that study, the individuals performed a laboratory task designed to provoke aggressive behavior while placed in a brain scanner. Impulsive individuals showed increased activation in brain regions involved in emotion and aggression, such as the amygdala, but less activation — again — in the dorsolateral prefrontal cortex. The conclusion of that study was that the dorsolateral prefrontal cortex was the inhibiting brain region, and when it wasn’t active enough, impulses went unregulated. 

The dorsolateral prefrontal cortex was one of the regions injured in my brother (and likely Phineas Gage), so it struck me as logical to conclude that the inhibitory centers in Conway’s brain had become damaged, making it more challenging for him to suppress certain behaviors despite understanding their long-term negative consequences. In other words, Conway’s brain damage made him unable to resist committing the crime. It was just a matter of getting a judge or jury to understand. Even if the brain injury could not eliminate Conway’s legal responsibility, perhaps it could spare him harsh punishment. 

Before Conway’s hearing, I offered my amateur legal opinions to his lawyer, along with my materials on the science of self-control. I waxed poetic about how neuroscience was about to revolutionize our legal system, and how we could be a part of that revolution. The lawyer wasn’t impressed. “No one will take any of this into account in a case like this,” he said matter-of-factly. He instead advised Conway to plead guilty to criminal damage to property, a Class 4 felony, as well as to the misdemeanor battery charge from the snowplow incident, making a case to be released on time served in jail. The stakes were high. If the judge didn’t agree to the release, Conway could face prison time.

* * *

In court, Conway sat at a bowed wooden table, jumpsuited and shackled, looking a little angry, a little ashamed. Although the lawyer had ignored the stacks of neuroscience evidence I had offered, he’d brought up the brain injury at an earlier competency hearing, arguing that Conway, while not innocent, was “slipping through the cracks” and was “a person who needs all the help the system can afford him.” The lawyer felt confident the judge would be lenient since Conway had already spent several months in jail. My jaw dropped when the judge handed Conway a two-year sentence in the state penitentiary. Studies estimate that anywhere from 25 percent to 87 percent of incarcerated people report having suffered a TBI at some point in their lives, as compared to 8.5 percent of the general population. Many of them, like Conway, have attention problems, memory problems, and behavioral problems like impulsivity, irritability, and anger that make it difficult for them to follow orders, get along with other prisoners, and then, after release, to keep jobs, homes, families. But my hard-earned knowledge of the brain appeared to be legally useless, Conway’s brain injury legally irrelevant.

In other words, Conway’s brain damage made him unable to resist committing the crime. It was just a matter of getting a judge or jury to understand.

Conway’s neuropsychologist wasn’t surprised he ended up in prison. “It’s just horrendous,” she said. “But I don’t think it’s an unusual outcome.” Once brain-injury patients finish outpatient rehabilitation at the hospital — which covers basic physical and cognitive therapy — they get little additional support. “It’s not good what happens after rehab ends,” the neuropsychologist said. “It’s like these people fall off a cliff.”

If the end of rehab was Conway’s cliff, prison was the hard ground at the end of his fall. The guards seemed to mistake his memory and attention problems for defiance. Conway and Caroline told me his outbursts provoked others in the prison. Conway told me he was beaten up, which I could only imagine would worsen his brain injuries. Before prison, Conway had been prescribed an experimental epilepsy drug because it was the only medication that controlled his seizures; he continued taking it even after the revelation of deadly side effects led to an FDA recommendation that it be pulled from the market except to treat the most intractable cases. But the prison physician switched to a cheaper drug over Conway’s objections, and he began having seizures — which aren’t good for the brain, either. Conway began to break down. One day, in anger, he punched his cell wall so hard it fractured his hand. A few weeks later, he was found wandering the showers, pants around his ankles. He was unresponsive, his eyes staring blankly into space. Later that day he had a five-minute grand mal seizure in his cell. He was placed in an isolation cell for monitoring, where he continued to have seizures. At one point they had to use a defibrillator to reset his heart rhythm. The medical staff’s assessment of Conway’s nervous breakdown and obliterative, seizure-filled day? “Ineffective coping.”

In June 2010, after serving four more months (because of time served in jail), Conway was released on parole; two and a half years after the accident, he seemed more brain-damaged than ever. Caroline was too frightened to pick him up, so he was sent to a homeless shelter. That same day, he had another seizure and was taken to the hospital. He tried to call Caroline, and, on July 4th, she finally came to see him at the shelter. They went for a ride in the car, and while heading north on the Edens Expressway, she told him she wanted a divorce. Conway was devastated. According to Caroline, he grabbed the steering wheel and tried to run them off the four-lane highway. She regained control, but Conway opened the door and tried to jump out of the speeding car. Caroline rushed him to the emergency room, where he was committed to the pysch ward. Medical records indicate that when released, he said he would commit suicide by throwing himself in front of a train.

I’ve always wondered what might have become of Conway if, after the injury, he’d had the support he needed, rather than just gradually losing what little stability he had. Near the end of my graduate studies, I learned that Phineas Gage may have recovered more than textbooks had led me to believe. According to Malcolm MacMillan’s An Odd Kind of Fame: Stories of Phineas Gage, little in the historical record suggests that Gage’s impulsivity or aggression lasted for more than a short period following his accident. Only a few years after the injury Gage began working in a New Hampshire livery stable, then moved to Chile to work as a stagecoach driver for seven years. His ability to hold down these jobs is highly inconsistent with the Gage presented in textbooks, and MacMillan speculates that the structured environment of steady work may have helped Gage improve. Gage’s real story might not be about losing self-control, but how to regain it. A modern American prison, although technically structured, is probably not the kind of environment MacMillan envisioned. 

“The first tragedy was that Conway got hit in the head,” Caroline later told me. “The second was the one the system inflicted.”

* * *

A “biologically informed” legal system as imagined by neuroscientists like Eagleman was the one I had wanted for my brother. It had seemed to me that the law was, at best, slow to adapt to new scientific advances, and, at worst, hopelessly obtuse — and in its ignorance responsible for my brother’s fate. But is it a good idea to reduce all criminal behavior to misfiring neurons? It’s one thing to claim a brain abnormality — such as my brother’s TBI — contributed to criminal behavior. It’s another thing to say that if someone commits a crime, then it must have been the result of a brain abnormality — which is exactly what scientists like Eagleman are saying when they reimagine crime as a form of neurological disease.

Biological theories of crime have a long and troubling history. In 1876, Cesare Lombroso, sometimes called the father of modern criminology, wrote an influential book called Criminal Man. In an account later told by his daughter, he was dissecting a bank robber’s brain and noticed a “hollow,” like those found in the brains of “the lower types of apes, rodents, and birds.” The discovery, she wrote, hit him like “a flash of light”: Criminals were born, not made. He concluded that the criminal brain “differs essentially from that of normal individuals,” strongly resembling that of “primitive races.” For many, “primitive races” meant people of color, making it reasonable to assume that anyone who was not white had a higher probability of innate criminality. 


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And biological theories of crime have an inevitable end point: biological solutions. Lombroso’s theory contributed to the scientific rationale for eugenicists to propose the “legal, authorized elimination” of what they viewed as born criminals. In the early- to mid-20th century the United States government forcibly sterilized at least 60,000 people deemed criminal, “feeble-minded,” or sexually deviant (an expansive list that included people who masturbated, queer people, and women who had children while unmarried). People of color, immigrants, and poor women were disproportionately targeted. In 1935, Antonio Egas Moniz performed 20 surgeries destroying the frontal lobes of people “who had previously been violent.” His procedure — the lobotomy — transformed them into patients who were “calm, tractable, and generally easier to manage.” In 1936, an American named Walter Jackson Freeman II toured the country in what was later dubbed the “lobotomobile,” charging $25 to scramble people’s frontal lobes with an ice pick inserted through the eye socket. By 1949, when Moniz won the Nobel Prize for his procedure, 10,000 lobotomies had been performed in the United States. As recently as the 1960s, in the midst of nationwide race riots, prominent doctors suggested the civil unrest was caused in part by “brain dysfunction in the rioters” and called for surgical solutions for “the violent slum-dweller.” In 1972, it was revealed that the California Department of Corrections had recently turned to neurosurgery to address what it called “the problem of the aggressive, destructive inmate.” Using a makeshift metal head restraint built by prison craftsmen, the DOC implanted electrodes in the brains of three prisoners, destroying their amygdalae. I wonder if in another era Conway, as an out-of-control teenager and then a troubled young adult, would have been one of Freeman’s patients. If he had been an “urban rioter” in the 1960s, would he have been a candidate for an electrode?

Trapped by the logic of biologizing crime, scientists today also propose biological solutions. Using the example of a pedophile, Eagleman says that rather than reflexively incarcerating people who act on sexual urges toward children, scientists should instead consider neurofeedback treatments to “give more control to neural populations that care about long-term consequences — to inhibit impulsivity, to encourage reflection.” Perhaps the most incorrigible offenders should be confined, but with a “prefrontal workout,” he claims, in a flourish of neuro-optimism, they can harness “the natural mechanisms of brain plasticity to help the brain help itself. It’s a tune-up rather than a product recall.” 

Eagleman eschews invasive interventions, but others aren’t so reticent to relive the past. Researchers have called for deep brain stimulation as “a treatment strategy” to reduce sex drive in people with “abnormalities” in sexual urges who are at “a serious risk of sexual offending.” In this case, the troubling twist is these patients would be subjected to the procedure before committing a crime. In 2013, researchers inserted probes into the posterior hypothalamic regions of seven men to reduce “aggression and disruptive bouts.” Although deep brain stimulation, which can be toggled off, isn’t as irreversible as lobotomy or ablation, any biological treatment essentializes criminality to an individual, turning what should be a verb (committing a crime) into a noun (a criminal).

The neuroscientific legal revolution I’d been so enthusiastic about began to make me feel deeply uneasy, and made me wonder if I’d been woefully naive. Because I had wanted courtroom neuroscience to save my brother, I avoided considering its implications. I’d never questioned science’s inheritance of what society considered “normal” and “abnormal” behavior. But it’s clear that what’s “abnormal” or “criminal” shifts over time, culture, and place. Although pedophilia seems inherently criminal to us, men in ancient Greece had socially acceptable sexual relations with adolescent boys. Would they show the same patterns of brain activity as modern-day pedophiles? If they had brain scanners in ancient Greece, would those patterns be declared “normal”? 

When it comes to criminal behavior, what brain activity is normal or abnormal is not a biological question. It’s a question of social norms, and this is a fatal flaw in the neuroscience of crime. Researchers begin with social definitions of “normal” and “abnormal” behavior, then find distinct patterns of brain activity that match up with those behaviors. They speculate that abnormal brain activity caused the abnormal behavior they defined at the outset. In a circular process, scientists transmute social mores into natural science.

Because I had wanted courtroom neuroscience to save my brother, I avoided considering its implications. I’d never questioned science’s inheritance of what society considered “normal” and “abnormal” behavior.

I don’t think neuroscientists have bad intentions; I think Eagleman truly believes a “biologically informed jurisprudence” will lead to a more humane justice system. But he fails to grapple with how easily science can absorb prevailing prejudices to justify oppressive forces rather than fight them. After learning more about the troubling history of neuroscience and the law, I had to question not only what I wanted to be true about Conway, but also what I wanted to be true about neuroscience. I realized that many neuroscientists, for all our sophisticated understanding of the electrical properties of neurons, are naive when it comes to how the field might affect complex social problems — and equally naive when it comes to how social norms might shape science. I felt adrift, sensing a fissure in the previously coherent worldview whose explanatory power had given me so much comfort. My experiments became less meaningful; the academic battles over minute details of brain function felt quaint. After a decade of training, I left it all behind. 

* * *

My most recent visit to Conway, now 65 years old, was almost three years ago, nearly a decade after the drunk driver left him mangled on bloody concrete. He and Caroline had gotten back together and were living in a modest house in the Chicago suburbs, where Conway greeted me with a toothy grin and a silver-streaked goatee. As he struggled to open the front door, I noticed his hands — the hands that could fix motorcycles, build furniture, mend windows, the hands that knew when to apply force and when to work delicately. Three fingers were gone, stubs now, his right hand a pincer of thumb and forefinger. He had accidentally chopped them off with a table saw. Following him into the living room, I noticed his limp was much more pronounced. A year earlier, he had accidentally set himself on fire while using a lighter to burn away the frayed ends of the jeans he was wearing; Caroline saw his pants in flames on the lawn and rushed to put them out with a garden hose. Conway’s leg was burned so severely that his Achilles tendon was exposed.

Reminders of their former life were scattered about their new home: the wooden hearth from the farmhouse was propped up in the living room, and what was left of Conway’s tool collection hung in the kitchen. Although Conway can still lose his temper, that happens less often than it once did. Thanks to powerful medication — its own form of biological intervention — Conway has become a gentler version of himself. That night, he placed a glass of water on the nightstand near my bed, and replaced it with a cup of coffee first thing in the morning. He was friendly with the neighbors, but had trouble following conversations. He filled in memory gaps with fantasy. In quiet moments, which were most of Conway’s moments, he was depressed. Sometimes, he contemplated suicide. 

For reasons I still can’t grasp, Conway — a brain-damaged burn victim with seven fingers — never could qualify for disability. Caroline was managing their day-to-day lives while working a low-wage job as a medical courier, picking up extra shifts when she could to offset Conway’s ongoing medical and legal expenses. The family pitched in for housing and other expenses. “No matter what happens, I’ll still be there for Conway,” Caroline said. “Even if it kills me.” She knows that without her constant care, Conway would either return to prison, get himself killed, or both. “I mean, if I leave, I might as well take a gun and shoot him.” But she also struggles daily with the injustice of the situation foisted upon her: “This is my prison sentence.”

Conway knows his actions contributed to the bear-trap circumstances of their lives. He struggles with where to place the blame. “Some days I’m really mad at the driver, and some days I’m mad that I didn’t wear a helmet,” he said. “Some days I’m mad at the judge for sending me to prison, and some days I’m mad because I went over to Dale’s in the first place.” He sighed and took out rolling papers and a pouch of tobacco. With his newly disabled hand, it was difficult for him to position the tobacco in the crease of the paper. 

“Mostly I’m just mad that Caroline has to go through all this.” He looked at me and shook his head. A pile of fine brown tobacco leaves littered the floor by his feet. “I don’t know how to explain it — one moment I think it’s my fault for everything, and I get really down. And the next I think it’s not my fault for anything, and I get really angry. And then,” he laughed, “I just stop thinking at all.” 

* * *

Tim Requarth is a freelance journalist, as well as Lecturer in Science & Writing at New York University. His writing has appeared in publications such as the New York Times, The Nation, The New Republic, Slate, Foreign Policy, and Scientific American. He received his PhD in neuroscience from Columbia University, and for nine years he directed NeuWrite, an international network of workshops for scientists and writers. He was a 2018 UC Berkeley-11th Hour Food & Farming Journalism Fellow.

Editor: Michelle Weber
Fact checkers: Sam Schuyler and Jason Stavers
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