Scientism,Ethics and Evil: From Mens Rea to Cerebrum Reus

“Look at it with your magnifying glass, Mr. Holmes.”

“Yes, I am doing so.”

“You are aware that no two thumb-marks are alike?”

“I have heard something of the kind”

Conan Doyle

In a time of a purported ideology-free and a-theoretical data-driven vision of the world, the science of crime—allegedly value-free—is undergoing a “transformative” event, gradually developing into a repository of information, in the style of what is known as “big data” (Boyd & Crawford, 2012). Data collection is nothing new, and is of course necessary when attempting to describe phenomena. For example, the Research Domain Criteria project (RDoC, 2022) of the NIMH, in the case of mental disorders, wishes to integrate levels of information and coalesce them, in order to focus “on mechanisms, components, and processes that make up human behavior, and what happens when they go awry.” Oddly enough, this should be commonplace in psychiatry, at least since the time of Adolf Meyer and the opening of the Phipps Clinic of the Johns Hopkins Hospital in 1913. Indeed, Meyer’s “Psychobiology” was referred to as “Common Sense Psychiatry,” underlining the impossibility to think of a person in any way but a comprehensive one. This common sense gave way later on at Hopkins, to the “Perspectives” approach of Paul McHugh and Phillip Slavney, underscoring, again, the necessity to consider a person in light of behaviors, life story, disease, and the dimensional quality of both clinical manifestations and temperamental variables (McHugh & Slavney, 1998).

Yet, big data, specifically, refers to a phenomenon of accumulating massive amounts of information and using it, at a multidisciplinary level, to understand the objects from which we are gathering the data itself (Sætra, 2018).

One example, as it pertains to behavior, is the human connectome, a map of the brain’s circuitry, brain areas, their structural connections, and their functional interactions. One of its aims is to redefine clinical populations based on biology rather than phenomenology. Of course, a major challenge will be, once again, to find the features that are most important for defining groups (Craddock et al., 2015). Of concern is the inevitability that the information acquired will be used for purposes other than health, as is the case of contemporary neuromarketing approaches.

No area of human experience is spared the seemingly intrinsic need for classification and ordering. From Thomas Aquinas’ Summa Theologica dated somewhere around 1270 (Summa Theologica, 2022) to the just as pragmatic Diagnostic and Statistical Manual of Mental Disorders (DSM), now in its fifth edition 70 years after its first appearance (American Psychiatric Association, 2013). In his Summa, Aquinas detailed the catholic theological knowledge of his time, in line with scholastic tradition and with Aristotelian categorical thinking. The Summa is a manual of religious certainties in which one can find also a detailed and hierarchical angelic organization: Seraphims, Dominions, and Principalities, each with a specific and well-defined set of traits and skills.

Likewise, the DSM is the result of painstaking pondering over what mental disorders are, providing a classification system which allows for the recognition of extremely complex behaviors and subjective experiences and for a (problematically swift) diagnosis.

Certainly, one is unable to escape the “rigors” and ubiquity of systematic labeling, worldly or heavenly alike.

In our (only apparently) post-metaphysical age, criminology has recently been showing a renewed interest in spirituality (Ronel & Ben Yair, 2018). It is stated, correctly, that modern criminology has generally overlooked religion’s body of knowledge and experience (Ronel & Ben Yair, 2018). This in spite of the indisputable connection religion has with transgression and moral issues, by virtue of its very essence.

Morality, in time, has been replaced by “prosociality” (McKay & Whitehouse, 2015) and even God has been associated with specific neuro-cognitive areas (Schjoedt et al., 2009). While the solid notion of evil has been replaced with deviance (Pickering & Rosati, 2012, p. 8), the mutation of Satan into symbol and Hell into metaphor has left a gap in the West’s coordinates of location (McGrane, 1989, p. 55). The interdisciplinary nature of criminology and the multifactorial genesis of behavior have led to a spurious fragmentation, while struggling over what counts as genuine knowledge.

The reasons for the progressive dissociation of criminology from religion and its ethical underpinnings, are multiple and beyond the scope of this writing. One may confidently say that the seemingly apostatic stance has more than one root. Criminology was fashioned from a positivist rib, hence its reliance on the certitude of science was in sharp contrast with any faith-based explanation of the world and its affairs. Likewise, psychoanalysis, which had substantial influence on psychiatry and psychology and hence on the interpretation of behaviors, contributed to the distancing with its demolishing of religion as illusory (Freud, 1990), perhaps in an attempt to supplant it with its own fantastic and convoluted belief system. Paradoxically, its Manichaean reliance on an overly simplistic instinctual duality differs very little from classical causal explanations of deviant conduct, as far back as pre-philosophical concepts (Reference is made not to presocratic pre-philosophers but rather to “cultures of myth”) (Morra & Chiurco, 2010) and in a manner not dissimilar from the very religion it questioned.

Notwithstanding, the role once held by religion and to a certain extent, magic, in explaining, and fixing the ails of the world, as well as in forecasting and warning, has been overtaken by science and the pervasiveness of its disciplines.

Science and expertise are central political categories in contemporary democratic societies (Brandmayr, 2021) and crime and delinquency alike are not only matters of law but of policy as well as of political discourse. Concepts which are the object of inquiry of behavior social scientists, over time, inevitably, blend with public philosophies in the form of “standards of evidence” (Brandmayr, 2021). This is no trivial matter as it is the latter “evidence” which fuels public attitudes toward the marginalized, be these mentally ill, offenders, immigrants, or ethnic minorities.

The aim of science is to build and improve knowledge of the natural world. It is said to be reliable because it is tested. However, no differently than prior explanations of the world, it is tested against its own theoretical foundations. In a Kuhnian framework, truth exists but it is only relative to the system it belongs to. There has been no real paradigm change with respect to the explanation of evil. What may have changed is the progressive sophistication of technology but no Kuhnian revolution has taken place (Kuhn, 1962).

Paradoxically, the substantialism inherent in the genetic, neuroanatomical, or neuropsychological explanations of moral behaviors and their alleged anti-relativistic stance, becomes itself, an absolute.

The implicit de-humanization calls agency into question and free will becomes unfree.

Yet one must question if it reasonable and ethical to confine a person within the boundaries of what is measurable. Is science the only way of knowing the world (Mazur, 2020)?

Neo-lombrosian and neo-localization investigators continue, unsurprisingly, to provide neuroimaging evidence aimed at demonstrating that the brain is the not only the organ of behavior, but that it also underlies bad actions.

Virtually every human trait, state and emotion have been studied. Wisdom, happiness and grief (Kakarala et al., 2020; Meeks & Jeste, 2009; Sato et al., 2019) have been run through a functional MRI, seemingly seeking neuroscientific approval for feeling and being in the world.

It has been cogently argued that much knowledge is now produced autonomously by the tools scientists have made, and not directly by the scientists themselves (Sætra, 2018) confirming what Dutch Historian Johan Huinziga bemoaned already in 1935 when he recognized that the “organ of knowledge” is becoming insufficient for its task (Huinziga, 2012, p. 35). In the case of the science of behavior this is not free of consequence. The application of AI (Artificial Intelligence) and machine learning techniques to forensic neuro-prediction for purposes of risk prognostication and recidivism prevention, alongside the use of neuroimaging based algorithmic approaches (Tortora et al., 2020) is not free of ethical problems and cannot guarantee against false-positive determinations.

Concurrently, social and experiential causality is set aside, or at best confined to the ambiguous realm of epigenetic epiphenomena (Meloni & Testa, 2014), and virtually all brain areas involved in planning, executing, inhibiting, and modifying behavior, or the neural circuitry involved in understanding socially relevant information are given responsibility for sanctionable conduct. This is indisputable given that the brain is the “behavior organ” and consequently its observable and measurable machinery must underlie attitudes, emotions, and actions alike.

Neurochemistry and neurogenetics, for example with the conceptualization of the so called “warrior gene” (Sohrabi, 2015), are invoked as explanatory for aggressive behavior. An after effect of the “post-genomic condition” which followed the complete sequencing of the human genome in 2003 (Reardon, 2017), this furthers what has been referred to as “a simplistic, deterministic, and atomistic understanding of the relationship between genes and human characters” (Stevens & Richardson, 2015). Certainly, there seems to be a cry for a “reduction of individuals to standard classifications that demarcate the normal from the deviant and authorize varieties of social control” (Jasanoff, 2006, p. 14).

Going back to Thomas Aquinas and his Summa in which he states “veritas est adequatio rei et intellectus” (“Truth is correspondence between reality and intellect”) (Summa theol. Ques. xvi, Art. 1, 3), one can reasonably say we are far from the truth but stuck in the realm of truism. Indeed, Chaslin, in noting that psychiatry was a poorly developed language, warned in the early 1900s that “. . .l’imprécision du terme n’est pas due ici à autre chose qu’à l’imprécision des idées. . .” (The imprecision of terms is due to the imprecision of ideas) (Berrios, 1996). In fact, the abstractions we employ to describe reality do not, in and of themselves, represent reality. Moreover, with Wittgenstein, “the first requisite of an ideal language would be that there should be one name for every simple” and “a name is a simple symbol in the sense it has no parts which are themselves symbols” (Wittgenstein, 1999, p. 9). It is easy to agree that in the case of psychiatric and psychological nosology, the latter statement is far from being applicable.

Finally, psychiatry itself, given its focus on human behavior, which is multifactorial by definition, is by its own nature an imprecise science with a still underdeveloped epistemology (Marková & Berrios, 2012). Also, it remains to be determined if some criminology-relevant diagnostic categories, specifically antisocial personality disorder and pedophilia, should continue to be included in our current clinical nosographic systems (Münch et al., 2020) not meeting entirely the criteria of an illness altogether.

When it comes to “evil,” the lion share in terms of mental disorders and deviance belongs, most certainly, to psychopathy. Psychopathy refers to a constellation of behavioral, emotional, and interpersonal deficits, including antisocial behaviors. The history of the concept is complex and characterize by recurring formulations all sharing a pejorative connotation and a grim outlook (Arrigo & Shipley, 2001). Its original description by Cleckley (1955) did not, however, emphasize “criminal predisposition” but rather characteristics more in line with a troubled personality structure and with difficulties with what has been later defined “theory of mind.” Said lack of reciprocity leads to consequent lack of remorse, alongside overall limitations in the degree of emotionality. The notoriety of the construct owes much to the development of the PCL-R (Psychopathy Checklist-Revised) (Hare et al., 1990), a diagnostic inventory developed and validated in prison and forensic psychiatric samples, and considered the “gold standard” for the identification of the characteristic combination of traits and behaviors of the condition. But probably more importantly for Psychopathy’s fame is its association with serious crime and severely deviant behaviors, to the point of being thought to embody crime in a single framework (DeLisi, 2009).

While an explanation of everything remains—realistically—unable to explain anything in particular (Groys, 2010, pp. 17–18), and general theories of crime remain elusive (Madfis, 2012) the construct has been criticized as being tautological and its nature remains inconclusive (Skeem et al., 2011). Undoubtedly, the PCL-R captures quite well the behaviors, interpersonal style, and affective traits of a chronic, crystallized, and competent violent offender. Indeed, one would expect nothing less of a violent unscrupulous repeat offender than to show little remorse and have little empathy. The construct may thus be descriptive, and accurate as such, but certainly not specific relevant to causality.

Certainly, disjunctive categorical thinking allowing for the summation of concepts as different as traits, subjective feelings, and behaviors, results in a construct which by necessity is reductive, hindering any specificity. And the association of feelings and behaviors to underlying anatomy tells us only that specific parts of the brain contain pathways necessary for the awareness of feelings and execution of behaviors, but nothing relevant to causation. Indeed, what we see are not anomalies, but evidence of the utilization of brain structures underlying given behaviors. It is the behavior that is anomalous. The brain works perfectly well.

However, we are not reducible to our brains. Cognition involves our entire body and it is embedded in a social and physical environment. It is enactive, even in the case of a seemingly passive process such as perception and it is extended in that it moves beyond the body to use features of the environment for learning (Glock, 2020).

Notwithstanding, psychopathy has come to be associated with harmful and wrongful behaviors in light of the use of the PCL-R in prison populations and vis à vis some of the cardinal traits present in the condition as measured by the inventory, that is, callousness, manipulativeness and the propensity for antisocial behaviors.

The so-called psychopath, based on the evidence provided, becomes the epitomized “poster-person” for evil. The dangerousness associated with someone thought to genetically lack the capacity for moral behavior, to be unemotional and predatory, renders the psychopath the ideal candidate for futuristic early detection strategies and life-trajectory modification approaches (Pickersgill, 2011) in hopes they will not, at some point, express their “natural tendency.”

In 1880, Henry Maudsley wrote: “Anomalies when rightly studied yield rare instruction; they witness and attract attention to the operation of hidden laws under new and unknown conditions; and so, set the inquirer on new and fruitful paths of research.” (Harris, 1995).

The key to Maudsley’s statement perhaps is “rightly studied.” Not meaning studied with the proper tools, but remembering not to succumb to mereological fallacy. Mereology is the system of rules that govern our reasoning about parts and wholes (Harré, 2012). Ascribing mental properties and dispositions to brains and their constituents is an example mereological fallacy. It is ascribing to the parts of something, attributes which make sense only when ascribed to the whole form, from which those parts have been extracted. The same, in a way, holds true for contemporary clinical neuroscientific discourse when attempts are made to “blame,” the common term for casual attribution, a complex behavior which developed over the course of a lifetime characterized by a multiplicity of experiences, on a given part of the whole of a person.

Furthermore, the attribution of causal significance via association of discrete anatomical parts with complex behaviors may not reflect reality and may suffer from an implicit selection bias, no matter how well a study is designed.

In the third edition of “The Criminal,” positivist criminologist Havelock Ellis (1907), reported that “the prominent ears of criminals were more generally recognized than any other abnormality” (p. 71).

A more recent example, is the Cavum Septum Pellucidum (a fluid filled version of a small centrally located anatomical brain structure, the Septum Pellucidum), a frequent incidental finding during neuroimaging in routine neurological and neuropsychiatric practice and quite prevalent in the general population (Dremmen et al., 2019). While thought to be a neuroanatomical variant it has been frequently associated with psychiatric illness, including psychopathy. However, this has not been conclusively demonstrated (Crooks et al., 2018) and its only systematic association is with chronic traumatic encephalopathy of professional boxers and repetitive head injuries (Smith et al., 2013). The latter, however, is of importance given the frequent history of repeated head injuries, even mild, in individuals with a history of antisocial behavior and psychopathy.

Obviously, the brain is the “behavior organ” as the lungs are the “respiratory organ,” but just as air is not of the lungs, behavior is not of the brain. The brain allows us to process information that we receive through experience. And experience has a profound impact even on anatomy. But we are not our anatomy. And furthermore, we may not learn behaviors in a linear fashion but, rather, rhizomatically, making it even more complicated, if not impossible, to understand timing relevant to causation and consequently ascribe meaning to a given purported event or risk-factor.

The social versus biological dichotomy in the pathogenesis of behavior, and of deviant behavior in particular is, therefore, clinically impossible and generalization of biological evidence carries the implicit risk of stereotyping and its possible socially relevant consequences (Horstkötter et al., 2012). One unforeseen consequence may be of furthering a situation of dehumanization while fostering de-responsibilization of all agents involved, offenders, and rehabilitators alike.

The concept of association is a risky one as it is transformed easily into causal certainty. And while medical diagnosis is by definition probabilistic in the absence of a clear pathogen linked to a symptom, for example, a streptococcus recovered from the sputum of a patient with pneumonia, in criminal law certainty of an association becomes of extreme importance. Just as smoking is associated with lung cancer but not all smokers develop malignancies, certain individuals with a given anatomy might engage in criminality, one of the many behaviors in humans’ repertoire, but not necessarily in light of their brains.

Indeed, misconceptions relevant to determinism in the case of antisocial behaviors (Berryessa et al., 2013) may put into question the validity of the concept of responsibility (Farahany & Bernet, 2006; Morse, 2011). And while it is argued that behavioral genetics studies are meant to find a correlation between behavioral and genetic differences on a population, not individual, level (Berryessa et al., 2013) this may be irrelevant when it comes to the popular stigma attached to a diagnosis, as has been seen repeatedly in the history of medicine, for example, as has been the case of Tuberculosis, AIDS, Epilepsy, and Schizophrenia.

Psychopathy is a compound word comprised of the Greek words psyche psykhē, “mind” and pathos, “suffering.” The root word pathos, in fact, implies illness. But is the psychopathic person ill? More specifically, is the psychopathic offender sick and requiring care? Who should care for them, if ill (Pickersgill, 2011)?

Can crime itself fall within the medical model? Certainly, two forms of deviance figure in the notion of illness, biological, and social (Veatch, 1973). In principle, therefore, if a model is a complex and integrated system of meaning, used to view, interpret, and understand a part of reality, then criminal behavior can be studied within the medical model. But does an offender, otherwise not afflicted by medical or surgical disorders, qualify as patient? Are prisons to change into “moral hospitals,” as advocated by Havelock Ellis over 100 years ago? If the illness of crime is, inevitably, inextricable from the illness (as in dis-ease) caused to the social system, do we have two “patients”?

Provocatively, one might question if a psychopathic person is a moral agent altogether. Indeed, could the various anomalies described through neuroimaging studies imply a lack of autonomy in decision-making and choice? Irrespective of whatsoever rational insight (Miller et al., 2011), is the psychopathic person unable to do otherwise, lacking free will (Meynen, 2011)?

Whether the psychopathic person may unquestionably lack the capacity for moral decisions (Cima et al., 2010) is yet to be confirmed, and it is likely that, regardless of “brain,” behaviors are purposeful and goal-directed. Furthermore, current evidence may also not support the notion of a diminished or lack of criminal responsibility (Jurjako & Malatesti, 2018).

Supposing, though that there is a lack of autonomy with respect to responsibility, can this prevent the psychopathic person from accepting or allowing treatment of an “atypical” brain? Can, therefore, a corrective intervention, provided there is one, be mandated (Tuck & Glenn, 2021)?

It has been argued that medicalization is justified in the case of a condition which has proven “treatment-resistant” to “non-medical” interventions (Jurjako et al., 2019) and that conceptualizing psychopathy and antisocial behaviors on the basis of a specific bio-cognitive profile, or “fingerprinting” (Brazil et al., 2018) may provide for the biological and “scientific” basis for identification and effective individualized treatment of antisocial individuals, beyond mere observational and descriptive approaches.

However, if one is to follow a medical model, it may be helpful to remember that there are a number of reasons in the practice of medicine and psychiatry that underlie “treatment-resistance”: diagnostic inaccuracy, lacking awareness on the part of the patient, disagreement relative to the presence or absence of an illness, non-compliance with a given treatment regimen and lacking a shared goal toward healing and, probably the most important, the absence of establishment of a fiduciary relationship based on trust and beneficence. It is easy to see how virtually all of the elements necessary to prevent “treatment resistance,” when translated in to a penal setting, are lacking. One may argue that this is unavoidable given the profound difference in circumstances. Yet it is also inevitable, if persisting along the lines of antisocial conduct as clinical condition, to revert to a profession combining medical practitioner, law enforcer, psychologist, and priest, in one role—the medicine-man priest (Veatch, 1973), committed to healing, controlling, explaining, and moralizing. Certainly, to paraphrase Malinowski, science is akin to magic based on man’s confidence that he can dominate nature directly (Malinowski, 1954) and in spite of technological determinism (Dafoe, 2015), or perhaps in light of it, it seems arduous for some to resist what I will refer to as a totemic temptation.

Notwithstanding, can medical correctives, be these pharmacological or otherwise, alter an established set of traits (Barn, 2019) or are these beyond change? In addition, if the purpose of cure is a restitutio ad integrum that is, the restoration of integrity of body or mind, to which original state of integrity shall the offender be brought back to?

Moreover, in a manner not dissimilar from the ethical considerations of altering a “fortuitous” genetic makeup by subordinating our being a body to our having a body (Habermas, 2003, p. 50), can corrective measures be considered curative and suggested in the case of an imprisoned offender who is, by definition, in a reduced state of autonomy? Indeed, following Beccaria, “There is no freedom, in truth, whenever laws allow a person to become an object and dealt with accordingly” (Sapienza, 2017). For all intents and purposes, investigations into the neurophysiology of offenders may be no different than the participation of mental health professionals in police and intelligence work (Janofsky, 2006) and should probably be avoided.

Also, provided insight is indeed reached at the intellectual level vis à vis self-understanding of one’s own “faulty neuro-moral apparatus,” is this a guarantee for the motivation to change (Gelso & Harbin, 2007), hence for desistance (Rocque, 2021)?

Can a change in meaning relative to one’s circumstances, derive solely from learning the intricacies of one’s neuroanatomy or is it, instead, related to a series of emotional experiences, including regret? Reflection, as in cogitation, be it religiously or therapeutically guided, or based on self-understanding, is the key to change, and is the only way toward experience-mediated self-transformation.

Are psychopathic persons, in light of their neural make-up, excluded from the possibility of change? Does insistence on hard-wired neurobiology rob them of the possibility to alter their life story? In other words, could the “brain variable,” by suggesting anatomical and physio-pathological poor prognosis, feed an inescapable bias and lower, automatically, the aim, when it comes to rehabilitation and reintegration, and even to sentencing (Pyun, 2015)?

Moreover, can current scientific information alone, relevant to brain function in offenders truly inform risk assessment in the absence of contextualization (Prins & Reich, 2021)?

Finally, in knowing that the very nature of the prison environment may be destabilizing and foster impairment in self-regulation in terms of executive skills and impulse control, both considered risk-factors for recidivism (Ligthart et al., 2019), should such evidence not inform the structuring of the carceral milieu in general and for the psychopathic offender in particular?

Is translational criminology’s translation of scientific explanations for offending behavior ineffective, or is the neuroscience data irrelevant altogether (Flier & Loscalzo, 2017) in everyday experience, as is the case for many multifactorial health conditions requiring behavior modification (Biglan & Levin, 2016) and a will to change?

As the Mens Rea has been replaced by a Cerebrum Reus, can a psychopathic mind be stronger than a psychopathic brain?

Questions remain unanswered and today’s certainty is tomorrow’s mistake and yesterday’s concept. Aristotle (388–322 BCE) over 2,000 years ago wrote: “. . .a change in the state of the soul produces a change in the shape of the body, and conversely: a change in the shape of the body produces a change in the state of the soul” (Popper & Eccles, 1977, p. 176).

So, as one may see, nothing is new under the sun.

When he has finished,

He sits facing the prison for a long while.

Lights arise, lights fade, lights come back,

Lights fade and come back again.

The Prisoner Peter Brook and Marie-Hélène Estienne (2018)