Imagine being a member of a jury. The defendant is accused of a horrible crime — the cold-blooded murder of a young woman during a robbery at the store where she worked. He shouldn’t be found guilty, he certainly shouldn’t be given the death penalty, his attorney argues, because his genes predisposed him do it.
The first defense using bio-determinism as an argument was made some 15 years ago. In that case the jurors were unswayed. But earlier this year, Bradley Waldroup was spared the death penalty, and found guilty of manslaughter not murder, at least in part on the basis of such genetic testimony. As DNA testing, brain scans, and our understanding of nurture vs. nature deepens, we are likely to see a surge in the genetic determinism defense strategy.
Neurolaw, and its basic premise that our genetic make up removes or at least mitigates personal responsibility, poses an ethical challenge to our legal system and to the ethical systems of many world religions. If we agree that a man with a MOA-A gene that limits his response to calming effects of serotonin, or whose DNA causes his brain to have lowered activity in the orbital complex (the portion of the brain that appears to be connected to moral decision making and impulse control), is less culpable than one whose genetic makeup is more “normal”, we are left with some thorny ethical issues.
Brad Waldroup’s jury decided that because of his genetic makeup he should receive a lesser punishment. They figured he was predestined to snap, sooner or later, not much he could do about it, thus he deserved a lighter jail term than someone who did have more control over themselves.
A different jury might see it in the opposite way, and decide that his genes necessitate a far stricter sentence — life imprisonment or even the death penalty — for the safety of society. After all, a man whose genes predispose him to violent crime, and who has actually committed such a crime, surely cannot be left running loose on the streets. Personally, I can see both approaches having validity, though I will sleep a lot sounder if the latter prevails.
Another question such differentiated sentencing raises is at what point do you draw the line. Does someone with 50% of “normal” function (however one might define normal, which is a sticky prospect in and of itself) deserve differential punishments? Or should it be at only 25%, or perhaps as high as 75%? These kinds of questions are tricky, and will surely be fought over in the court of law, as well as in the court of public opinion. Our courts currently treat mentally retarded individuals differently than they do people of normal IQ; someone had to draw the line in the IQ chart. If we accept the validity of neurolaw, we will have more lines to draw.
And is genetics sufficient to warrant differential treatment under the law, or do we need other mitigating factors, such as a childhood scarred by abuse? According to Kent Kiehl, a neuroscientist who has studied criminal brains, genetics alone is not a sufficient predictor, but the combination of genetics and childhood trauma corresponds to a 400% greater likelihood of being convicted of a violent crime. How complex a personality profile will we agree to demand for each defendant facing charges?
Perhaps most importantly, the use of genetics in legal arguments poses challenges to the notion that we are all equal before God and the law. Does limiting or augmenting culpability on the basis of differing genetics violate the principle that we are all equal, or does it actually represent a deeper understanding of that concept, allowing for an equalization of the playing field since no one has identical genetic potential? In Islam we are assured that God takes into account personal (and presumably this includes genetic) differences; that no one is charged with a burden more difficult than he or she can bear. In an ideal world, the law would do the same. Deciding how fine a comb to sift with though, is no easy task.