The Myth of Choice_ Personal Responsibility in a World of Limits - Kent Greenfield [21]
According to David Diamond, a professor of molecular physiology at the University of South Florida, this “autopilot” feature of the basal ganglia is responsible for many of the forgotten baby cases. Think of the circumstances facing Raelyn Balfour—the lack of sleep, the stressful phone calls, the child sitting in a different car seat. These kinds of stresses can make the higher-functioning parts of your brain more susceptible to bullying by the basal ganglia. Unless something happens to reboot the hippocampus, the basal ganglia can take over and put you on autopilot. As psychology professor Gary Marcus explains, “When we are stressed, tired, or distracted, our deliberative system tends to be the first thing to go, leaving us at the mercy of our lower-tech reflexive system—just when we might need our deliberative system the most.”8
If you have ever put your dry cleaning in your car on the way to work and forgotten to drop it off, or been asked to stop on your way home to buy a gallon of milk and not done it, then you have felt the power of the basal ganglia autopilot.
And, the experts say, if you can forget your dry cleaning or a gallon of milk, you can forget your child.
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Balfour’s choices that morning were flawed, but in hindsight we can understand what might have gone wrong. The analytic part of her brain was tired and distracted, and the reflexive part of her brain took over with horrific results. She was simply too overwhelmed to think straight, let alone actively decide what to do. Certainly what she did was not “intentional” in the way we generally use that word. To say she “chose” to leave Bryce in her car does not capture what really happened and does not do justice to her situation.
The jury that acquitted Balfour almost certainly had an intuitive understanding of this, even if they had no knowledge of neuroscience. The jurors did not necessarily believe that Balfour bore no fault for what happened that March day. But her level of responsibility was not so great that she deserved to be punished more than she was already punishing herself. She did not deserve to go to jail. If I had been on the jury, I would have voted to acquit, too.
The more difficult question is how much allowance we should give people who make these kinds of mistakes. One of the touchstones of criminal law for centuries has been that people who do not intend to commit an act should not be held responsible for it. The law establishes levels of intent required for various levels of crimes, and the differences among types of crime are sometimes defined solely by differences in levels of intent. Traditionally, a murder is any killing committed “with malice aforethought.”9 But usually the most serious punishment is reserved for first-degree, or premeditated, murder. A murder in the second degree can be the same killing but done “in the heat of passion.” You meant to do it, even though in a calmer moment you would not have. Manslaughter can be voluntary—you intend to commit an act, but don’t intend that it will result in the victim’s death—or involuntary—you acted with “reckless disregard” to whether your action was going to result in someone’s death. These formulations vary somewhat across jurisdictions, but you get the idea.10 Whatever the standard, the case is often won or lost over the question of whether the defendant “really meant” it.11
Our collective sense, reflected in the law, is that the more intentional something is, the more responsibility the person should bear for it. The moral intuition of the common law therefore lines up with our new understanding about the brain. Defendants are more