Should a student go into criminal justice? Consider the obstacles first.

Recently, I have looked at materialist prescriptions for morality from Sam Harris and Patricia Churchland. Underlying the vacuity is a genuine conviction that human consciousness is an illusion. That impacts criminal justice theory.

Rock star neuroscientist David Eagleman, author of Incognito: The secret lives of the brain (Pantheon, 2011) unpacks what many academics think. Students should know before setting out.

Baylor College of Medicine’s Eagleman offers a simple thesis: “The brain runs its show incognito.”

Hmmm. Strictly speaking, if materialism is true, there is no one for the brain to run its show incognito from. But Eagleman is not a man who encourages us to pause on picky questions. He moves on.

He features huge dollops of first-year psych trivia intended to convince us that we are strangers to ourselves by focusing on stray weirdness, real or imagined, for example people who survived catastrophic brain injuries with significant handicaps. He even perpetuates the lecture-room falsehood, “The Case of Phineas Gage.”

The study of unusual brain injuries has an honorable past history in neuroscience. In its earliest days, seriously injured soldiers provided the first opportunities to begin an atlas of the brain. But given the variety of methods for the neuroimaging of normal brains today, the continued recycling of old stuff wears very thin.

No matter, Eagleman then goes on to his no-free-will views on penal reform. He provides a number of odd examples of people committing murder in “automatic” states. But his reasoning from that occasional fact to the idea that no one is ever really responsible feels very slippery. Most cases going through the criminal courts feature non-psychopaths who perhaps considered their alleged crime a risk worth taking. If neuroscience cannot deal with that fact, so much the worse for neuroscience. It is ultimately a moral issue that cannot be reduced to trivia and special cases.

He goes on to argue that the legal system can dispense with free will because “… we may be able to think about bad decision making in the same way we think about any other physical process, such as diabetes or lung disease.” Can we? Is getting an unsettling diagnosis the same thing, qualitatively, as getting booked for drunk driving?

The reader soon wades from one confusion to the next. We are told, “Those who break the social contracts need to be warehoused, but in this case the future is of more importance than the past.” True, the future is more important, but we don’t know it.

We are also told that a criminal’s actions “are sufficient evidence of a brain abnormality, even if we don’t know (and maybe will never know) the details.” Yes, but one may as well say that a criminal’s actions are sufficient evidence of infestation by Square Circle Disease, even if we don’t know (and maybe will never know) the details. One loses one’s footing here.

Eagleman claims that his approach is not reductionist, and in truth, he doesn’t think clearly enough for that. Essentially, he is unhappy with the criminal justice system and does not believe in free will. But do those two factors taken together give us a useful idea where to go next? Sadly, he is typical of current neuroscience: All puff n’ fluff n’ fads n’ … what else?

In closing, a real handicap in any discussion of criminal justice reform is failure to acknowledge the chief obstacle—the large number of people who now depend on the existing system for their livelihood or business. Consider California:

In a state where more than two-thirds of crime is attributable to recidivism, CCPOA [prison employees union] has spent millions of dollars lobbying against rehabilitation programs, favoring instead policies that will grow the inmate population and the ranks of prison-guard unions. In 1999, it successfully killed a pilot program for alternative sentencing for nonviolent offenders. In 2005, it helped kill Schwarzenegger’s plan to reduce overcrowding by putting up to 20,000 inmates in a rehabilitation program. It opposes any tinkering with the “three strikes law” that might thin the prison rolls.

Yes, and one must throw in all the businesses and their employees that construct and supply prisons as well, as impediments to change.

Today’s student in criminal justice faces a tricky challenge in advocating reform: Many sources claim to want reform, including those who are themselves its perennial key obstacles. Many academics, like Eagleman, see “reform” as adoption of pet crackpot theories. If you have a testable idea and a plan for surmounting these considerable obstacles, you may as well try. But recognize a challenge, and plan for it.