David Kamper: Neuroethics changes the game

Sunday, October 8, 2017 - 3:04pm

First, it’s just a bit of light flashing in front of your eyes and a nebulous blue-black amoeba swimming in your vision. Then after a bit of clouding, your thinking begins to slow, with no particular pain. Your reactions? They’re just a millisecond behind. Your throw? Just slightly to the left. Your hearing? Just a bit muffled. Sometimes you stumble out of the area of play, wander over to put your head in your hands. Though it isn’t particularly painful, you’re taken aback by how dull everything feels, as if a fog descended over your face.

As someone who has experienced quick, powerful hits to the head in close succession, these are the immediate symptoms that arise. These types of hits to the head have brought about a commonplace discussion on the rise of Chronic Traumatic Encephalopathy cases reported in players of football, rugby, hockey, soccer and a variety of other sports.

CTE is a degenerative brain disease caused by a history of repetitive brain trauma. When too many hits are made to the head in one’s lifetime, a protein is produced in greater quantity than normal, causing the brain to deteriorate. It can lead to depression, psychosis, dementia and even death.

When Aaron Hernandez — the former New England Patriots football player who was convicted of murder in 2015 — was diagnosed with CTE after his suicide, much of the world saw another reason to question football’s place in our society. Was the style of play too violent? Were there enough “checks and balances” to ensure player safety? Only 27 years old when he died, Hernandez’s autopsy found he had already experienced very progressive CTE.

With such brain trauma, I certainly began having suspicions correlating his behavior to his diagnosis. From reports, his emotions fluctuated often, which certainly could lead to crime and suicide. Even more disturbing, previous players found with CTE were known to have erratic off-field behavior. I was taken aback that much of the CTE focus was directed at the sport. The demise of football isn’t the question we should be asking. CTE is opening the door to a realm of "neuroethics" that must be addressed; otherwise, our judicial system will be faced with an extreme ethics crisis.

A major aspect of the vast and quickly developing field of neuroscience is that it is still highly correlational. With that notion comes a foggy line on what brain patterns and chemical interactions exactly yield certain behaviors. Nevertheless, even without total and complete justification for the actions, its presentation has certainly already made its appearance in courtrooms across the nation. Since 2005, the appearance of arguments based on neuroscience in courtrooms has more than doubled and is quickly rising. More importantly, it shows a major flaw in how we approach science in the courtroom.

John Oliver’s latest piece on forensic science highlighted this flaw, and it certainly has alluded to the neuroethics that should be highlighted in cases about CTE. The legal practice has progressed (in my opinion, through a realization of collective mistakes) developments in our society’s conscience that can be highly inconsistent and rather subjective. By contrast, the field of neuroscience is far more absolute, looking for concrete statements and conclusions based on highly developed and systematic approaches. I posit that we find the latter far more appealing, which is why, even with the fogginess in the correlation between behavior and neurological makeup, it is rather convincing to demonstrate that “science” is the reason why such abhorrent actions occurred.

The problem with CTE arising in the case of Aaron Hernandez might not be entirely obvious, but where exactly does one place blame? Is it the NFL? Is it his environment off the field? Or is assigning blame even what we should be considering? 

If someone does something abhorrent, certainly there must be some blame assigned. As a part of our societal makeup, too often I find the need to blame is written into our culture. Nevertheless, I counter that it might not be the best way to see “justice” in our legal system. As David Eagleman, a leading neuroscientist at Stanford, explains, “The choices we make are inseparably yoked to our neural circuitry, and therefore we have no meaningful way to tease the two apart. The more we learn, the more the seemingly simple concept of blameworthiness becomes complicated, and the more the foundations of our legal system are strained.” The rise in conversation surrounding CTE, and how the disease might have affected Aaron Hernandez’s behavior, will soon be confronted with questions of what and who to blame, and a collective debate must ensue.

Along with “blameworthiness,” another issue is that CTE — as well as many other brain disorders — are found only after the perpetrator was deceased. Certainly advancements in neuroscience technology might fix this issue, but at the moment it leaves a possible hole in how the legal arguments are framed and designed. When the perpetrator commits the crime, what activity in their youth could contribute to issues in brain function, leading them to commit a crime? Did they have a disease that has not been diagnosed?

With more flaws rising in the legal structure, the questions on CTE certainly make me question the future design of law. To address these issues, one must recognize that the law is currently designed as an adjustment to the present. The structure of our legal system is to take an issue that is presently occurring and push the discussion through the courts until the doctrine modifies to the norms. Let me suggest that the legal system begin questioning ways it can adjust its viewpoint from adapting to the present to developing for the future: to the questions of free will, what or who is to blame and what it means to be human.

David Kamper can be reached at dgkamper@umich.edu