Reviewing Biological Theories In The Courtroom Criminology Essay

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Biosocial criminology is the study of how how genes and other internal and external factors interact to cause crime. It is a relatively new subfield of the discipline of criminology, although based on the earlier "Positivist" school founded by Lombroso. It has wide philosophical implications that could affect how crime is defined and punished. Various biosocial theories and effects have been brought forth in the courtroom and their influence on sentencing only seems probable to increase over time as more correlations and causations are found and traced between biology and criminal behavior.

Biological Theories in the Courtroom: Legal Defenses

Biosocial criminology is the successor in many ways to the old positivist or "Italian" school, which was a form of biological criminology. Founded by Lombroso, this school held that some people were born criminal and that criminals could be identified by certain morphological traits. This was in contrast to the Classical school that held that people had free will and that biology played no part in crime (Schmalleger, 2006). Over time, according to Diana Fishbein (1990, pg. 27) "In the past, theories of the biological aspects of criminal behavior were marked by a general lack of knowledge regarding the human brain and by serious methodological shortcomings (see, e.g., Glueck and Glueck, 1956; Goddard, 1921; Hooten, 1939; Jacobs et al., 1965; Lombroso, 1918; Sheldon, 1949). Indeed, "biological criminology" was eventually discredited because its findings were largely unscientific, simplistic, and unicausal. Biological fac­tors were globally rejected due to the inability of theorists to posit a rational explanation for the development of criminal behavior". Positivist biological theories had other implications that made them unpopular. For one, strict determinism meant that deterrence was unlikely to work, thus punishing criminals was pointless. For two, positivist biological theories tended to be associated with policies of radical eugenics. Because of the foregoing factors, political and sociological perspectives on criminology such as the Chicago School dominated the 20th century in both Europe and the US (Fishbein, 1990). However, within the past 20 years this has slowly begun to change. Biosocial criminology takes the position that both human biology and the environment interact in ways which produce crime. This newer formulation of biological criminology allows for limited determinism instead of strict determinism and has much more sophisticated analytical and technical tools to use for experiments. However, the old debate between determinism and free will is far from settled. Some even argue that morals have evolved and can be found in the brain (Gommer, 2010) and thus, the entire question of how and whether current legal theories need to be changed to accommodate the new studies is wide open among biocriminologists. Some, such as Peters (2010) argue for radical legal reform to emphasize intervention and prevention. Some such as Pinker (2002) still argue the value of deterrence. The field of biosocial criminology still makes many people uncomfortable for political and philosophical reasons, so it is not the dominant school of criminology in the present day (Monaghan, 2009).


What is defined as a crime and what kind of punishment a society imposes for violating that law is a function of the criminological philosophy behind that society. Our current society still operates on ideas of free will that can be traced to the Classical school. This means our punishments and defenses to conviction are based on concepts of rationality and self-control and do not explicitly recognize any form of determinism. Nonetheless, even with old and competing philosophical concepts, our laws do recognize some defenses that enable one to bring in elements of biology, and there will probably be more such defenses in the future. Examining these defenses and proposed defenses is what this paper is about. We'll start with insanity.


Probably the most well known biological based defense is insanity. The insanity defense basically states that the defendant was not in his or her "right mind" when the crime was committed. According to Phelps (2006, II)" Put simply, the insanity defense asserts that the criminal DEFENDANT is not guilty by reason of insanity. The theory behind the defense is persons who are insane cannot have the intent required to perform a criminal act because they either do not know that act is wrong or cannot control their actions even when they understand the act is wrong. But this theory is controversial because insanity itself is difficult to define, and the circumstances in which insanity can be used to excuse criminal responsibility are difficult to define." This takes into account the defendant's state of mind, which implicitly recognizes that a diseased or disabled mind does not allow for a true rational exercise of free will. Over the years several legal standards have been developed in order to attempt to test if a defendant was truly insane. These rules (the M'Naghten, irresistible impulse, Durham, and ALI Model Penal Code test) all purport to be legal ways that point the way in which a test by a doctor, or a psychologist or a psychiatrist could examine the defendant in a scientific manner in order to ascertain if the defense is justified. In practice, this has proved very hard to do not only because of the very primitive state of psychological and neurological science until recently, but also because the insanity defense itself is a bit of a political animal with the standards constantly being raised in order to claim it. As a result, according to studies fewer than twenty-five percent of those who claim the defense are able to convince a jury that they are insane and get civil commitment rather than incarceration (Phelps, 2006). In principle, however, as science progresses the methods of determining insanity should get more accurate. XYY Defense

Not all defenses based on biosocial criminology will succeed. An infamous failure was the so-called "XYY" defense. In 1965 and early 1966 some researchers led by Dr. Patricia Jacobs of Western Hospital in Edinburgh, Scotland thought they had discovered that males with an extra "Y" chromosome due to a mutation in spermatogenesis tended to be taller, sometimes had bone deformations, and had personality traits that made them likely to commit crimes. However, though several cases were tried using the defense that the abnormal chromosomes had lessened the degree of the defendant's guilt, none of these cases were ever successfully argued in the US. This is probably well, for studies of the general population revealed that the vast majority of XYY males live perfectly law abiding and normal lives. So the "Super Male" syndrome went into history as a potential criminal defense (Denno, 1994). This isn't particularly surprising. Genetic knowledge was still rather primitive in 1965, DNA having been decoded only twelve years prior, and the original studies on XYY were small of scale in terms of subjects. However, cases like these point out the need to be cautious in accepting and interpreting biosocial criminological studies, as much is not understood about the human body and mind to this day. According to Monaghan (2009) speaking of issues with biocriminal research one researcher has some second thoughts: "…and led him to take stock of some difficult issues in biocriminology. One was that while the biosciences require an extremely high level of statistical significance in findings of, say, genetic links to disease, biocriminologists accept weak indications of causation. A second stumbling block appeared crippling: Small population samples yield questionable results; and yet, as sample sizes grow, researchers are less and less able to control for the environmental factors that might influence behaviors. " These things must be taken into account when conducting or reviewing such studies. Lead Poisoning

While there are currently no biosocial internal or external defenses for lead poisoning per-se the extent and duration of the problem mean that there have been many attempts to devise laws or revise the current system to let in a reduced culpability defense either during the trial proper, or during the penalty phase. Lead is a neurotoxin and has many deleterious effects on the human body. In children, depending on dosage, it can lead to birth defects, low-IQ, asthma, mental retardation, impaired coordination, and stunted growth. In adults linked to low sperm counts in men, miscarriage or stillbirth for women, hormonal changes, kidney damage, gout, inhibited immune system, inhibited calcium absorption, hypertension, Lou Gehrig's Disease, and liver problems. This is because the body treats it like calcium , one of the vital nutrients, and so it easily can permeate every tissue and type of cell (Rosania, 2005). No known amount of lead is considered safe as it does not serve any function in the human body and seems to only cause harm even if, in really low dosages, this is only on the cellular level. Children, particularly poor black children seem to be especially vulnerable as they are growing and lead poisoning can interfere with the proper growth process. Children and adults are exposed to lead usually due to lead based paint that is common in many older homes and apartments. Some children will eat the lead paint chippings, and be exposed via direct oral ingestion. Other times as the paint slowly flecks it enters the air, and is breathed in at small amounts. Such can build up over time. Yet another common way to be exposed to lead poisoning is to have an open wound and get lead paint flecks on or near that. Cuts are not unknown during house cleaning or remodeling, so this is not as rare as it may seem. Lead poisoning can be hard to treat, though the lead itself may be removed from the body via chelation therapy, which is administering substances into the body in order to bind to the lead so that it may be safely excreted rather than accumulating in tissues.

It is speculated that because of these known impacts on the human body, lead poisoning has been linked to many crimes. Denno (1993) on page 400 lists the predictors of adult crime, juvenile crime, and disciplinary problems in school according to the results of the famous Biosocial Study. Lead was correlated as the 4th most important cause in adult crime, 3rd most important cause in juvenile crime, and the first and most important cause in predicting school disciplinary issues. The amount of children potentially affected is huge: according to Rosania (2005, pg.12):" It is estimated that 2.2 percent of all children under age 5 in the U.S., totaling approximately 434,000 children, have elevated lead levels sufficient to interfere with their neurological development, and 2 million kids under age 5 in the U.S. live in homes with deteriorated lead paint (CDC 2003)". Because the amount of potential crimes is so huge this would seem to have implications for the criminal justice system and indeed, both Denno and Rosania have ideas on legal policy changes they would like to see implemented. Denno notes that while we recognize internal biological factors as defenses, we do not have any valid external (read: environmental) defenses to criminal culpability. She finds this problematic, because to her its clearly been shown that environmental lead poisoning causes or at least strongly helps to cause criminal behavior. Yet because we are not able to directly trace how lead causes a particular crime, criminal law defenses based on the mere presence of abnormal high levels of lead in the tissues or blood are not available. She proposes either keeping internal defenses like insanity and allowing external defenses as well or removing all internal and external factors from the law entirely. In short, criminal defendants would have no excuses to use in court to avoid being convicted; internal and external factors would come into play only at the end of the trial during the sentencing phase. Rosania in her article argues differently. In her discussion of issues the "brain damage mitigator" presents for the justice system (pg. 85 -87 of her thesis) she suggests that lead poisoning might be considered the same way that mental retardation is considered by the law. If tests of blood lead levels are high enough in juveniles or children or tests of bone lead content high enough in adults then (pg. 87) "…there would be sufficient proof of causation, and these offenders could be prohibited by the Supreme Court from receiving a death sentence in the manner of Atkins and Simmons. Also, the prohibition of capital punishment would be reserved only for serious cases of brain damage due to lead poisoning, where lead is a real factor in the actions of the offender". Lower levels might lead to treatment instead of punishment though a conviction be obtained, Rosania strongly believes that crimes by people who have lead poisoning should be treated as a medical health issue, and not a criminal justice one.

Death Penalty

In an excellent article for the journal The National Association of Criminal Defense Lawyers Champion , John Fabien (2009) gives a comprehensive account of the assessment of neuropathology in death penalty defendants and how a lawyer should represent them. First, he outlines some of the many risk factors for criminality that have been identified including exposures to toxins (e.g. lead), poor maternal health, low birth weight, substance abuse, or physical abuse during childhood. Then he elucidates various brain structures and their functions and how injuries to those areas can affect psychological, social, physiological, and emotional development. He advises that in a capital case it is best that an attorney get his client tested for neurophysiological issues as well as look into the defendant's past history for evidence of one, as most capital criminals do have them. Following that, he gets into a discussion about free-will, emphasizing that the prosecutor will almost certainly paint the defendant as having total freedom over his actions and thus attempt to assign her or him blame in the opinion of the jury. The defense attorney must combat that with mitigating elements in order to spare the defendant.

In the next two sections of his article, Fabien goes into detail about cognitive dysfunction and the concept of free will and substance abuse and free will and gives various explanations of the different symptoms that may indicate the presence of an addictive or neurological disorder.

Next is a section on forensic neuropsychological expertise in capital cases. This section is important because often in order to make biosocial arguments concerning mitigating factors in a courtroom one must have a level of expertise about human biology and psychology. To that end, one of two experts are recommended to be called at a trial: forensic psychologist, or forensic neuropsychologist. Both types are competent to administer the battery of psychological testing recommended in order to establish that the defendant is of lower cognitive functional ability than the general population. It is no defense to show that the defendant has a neurological disorder, rather one aims to show that the defendant has impaired cognitive ability compared to the general US population in hopes this makes him or her a sympathetic enough figure that a jury will consider sparing their life.

Though not a day by day account, Fabian's paper shows some of the considerations that a criminal defense lawyer must take into account when preparing and trying a case involving capital punishment where a defendant has an external , possibly biological, disorder. Conclusion

There are still many aspects of crime that biosocial criminology and other biological perspectives seem to be powerful tools with which to investigate; far too many to be listed in this paper. One of the big ones is research into psychopathology and much work has been done into investigating this trait which tends to correlate with certain types of crime. Robert Hare (1999) has much to say on this topic. There are many theories as to why psychopaths lack empathy the way they do but since the none of the theories have been proven, the law takes no notice of them either in terms of proscribing or prescribing remedies or punishments. Because the field is still relatively new, and still in some ways, in its infancy, many areas of the law (as an example, contract law) totally ignore it. This will almost certainly change in the future as according to Monaghan more an more criminology and biology students are choosing to go into the field or are taking approaches to their studies that contribute to it. Of course there could be problems ahead, given that there are so many political and philosophical questions raised by this approach to justice that our system isn't prepared for. Monaghan again: "Could the increasing sophistication of biological and behavioral information lead the public to accept early-childhood screening for criminal tendencies, and the medication of children with certain genes? To genetic engineering or the abortion of fetuses identified as having problematic genes or hormones? What might be done under the banner of "helping people"? Certainly, says Rafter, the new findings will provoke policy debates. " Policy debates about crime are sometimes conducted with more emotion than reason and politicians often find themselves in situations where they will be sure to make some of their constituents angry no matter which way they come down on the subject. Anything involving child sexual abuse, rape, or murder is bound to cause constituents of any given politician to argue as these tend to be so-called "hot botton" issues. Thus , many politicians would seem to prefer to ignore criminal law questions as much as they can and when they do get involved it is often to toughen penalties because as an the old saying goes you can't be too tough on crime. There would also seem to be political incentives at least in the US to ignore biocriminological findings at least insofar as they seem to implicate society or other factors rather than the individuals freely made choices. One can often read of Governors who hardly ever give parole or pardon esp. for violent offenses as the political fallout from such decisions especially if they go wrong can be considerable. In short, our criminal justice system is more politically based than scientifically based and this will slow the adoption of biocriminological perspectives in terms of criminal laws and policies. But if history is any guide, while scientific findings -even of human behavior- can be slowed, they can't be stopped. The future looks bright for the biocriminological perspective of criminology.