Editor's note: The original version of this story contained two errors. The crime committed by Omer Ninham occurred in Green Bay, not Milwaukee. And the U.S. Supreme Court ruling in Graham v. Florida banned life sentences only for juveniles involved in non-capital crimes.
In 2008, Tyler Mills went to court on a charge of child enticement. The charge stemmed from an online conversation with a cop posing as a 14-year-old girl, during which Mills asked her to “de-virginize” him.
When he went to meet the girl, he was met by police.
Mills was convicted, then sought to be found not guilty by mental defect. During that portion of the trial, Mills’ attorney presented scientific evidence that he is missing parts of his brain that would allow him to control his behavior. Included was a brain scan that provided indisputable proof of brain damage, the result of his mother’s alcohol consumption while he was in the womb.
While the jury found that Mills’ fetal alcohol symptoms constituted a mental disease, it also found him guilty after determining that the defect didn’t cause him to commit the crime. Now Mills is an inmate at Oshkosh Correctional Institution, awaiting his mandatory release date of Dec. 8, 2014. When he gets out he figures it’s only a matter of time before he violates the terms of his extended supervision and lands back in jail.
“They’re going to send me back to prison, and I’m going to sit in prison,” he says. “That’s what Wisconsin does.”
It’s not a happy prospect for anyone concerned. Mills is a habitual criminal. At 31, he has an extensive record of petty financial crimes. He’s been caught numerous times peeping at women in public restrooms. And he’s a jailer’s worst nightmare: He throws tantrums and eats objects like pencils, toothbrushes and razor blades. He’s spent most of his adult life in jail, often in solitary confinement for misbehavior, or for his own protection from predatory inmates. Most of his childhood was spent in mental hospitals. Those advocating on his behalf have argued time and again that he doesn’t belong in prison, where he’s rarely received the medications and psychological treatment he needs.
Mills may have been born about 25 years too early. Brain science will soon have a major influence in courtrooms across the nation, and it will likely spell a different outcome for offenders like him.
“There’s a huge amount of activity at the nexus between neuroscience and the law in this country,” says UW neuroscientist Ronald Kalil. “What neuroscience is revealing (about) how we behave and how our brains are wired and structured is causing our common law system to have to revisit many of its assumptions about what to do when people violate the law.”
Kalil and UW Law School professor Pilar Ossorio won approval last spring for a unique program that merges a Ph.D in neuroscience with a law degree — the only one like it in the country.
Ossorio, who has a doctorate in microbiology and immunology, says the UW law school has several professors with backgrounds in science and health, which makes it well-suited to offer such a groundbreaking program. Other law schools around the country are creating centers to study the impact of science on the law.
“There are lots of areas of the law where neurobiology will be more important,” she says. “Science in general is becoming more important.”
Kalil, who also directs a program that combines neuroscience and public policy, says the program is a step toward revisiting the crime-and-punishment model that currently prevails in America’s criminal justice system.
The possibilities are legion. Neuroscience, still in its infancy, is already influencing court decisions regarding juvenile offenders.
Researchers are busily linking criminal acts to tumors and lesions in the brain, drawing links between brain disorders and childhood trauma, and looking at brain activity to detect lies and even predict future criminal activity. And who knows what they will find when they map the vast majority of brain activity that is currently unaccounted for.
How long can it be before brain science becomes a mainstay in the nation’s courtrooms?
The American Association for the Advancement of Science, the largest science organization in the world, is beginning to pave the way by running workshops around the county to bring judges up to speed on how neuroscience is shedding light on criminal behavior, Kalil says, which will undoubtedly influence sentencing decisions and help judges determine when to allow scientific evidence at trial.
So is training neuroscientists as lawyers the first step in transforming criminal offenders from despised outcasts to societal problems to be solved? It’s hard to envision a society that is so bent on punishing wrongdoers someday embracing its most loathed demographic. But Kalil says science and technology are forcing our courts to take a second look at the way they dispense justice. How that plays out will depend to a great extent on the knowledge and skills of those who participate in the criminal justice system.
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Juvenile offenders have for several years been the subject of legal challenges based on scientific research on brain development.
Prompted by research results, in 2004 the U.S. Supreme Court banned capital punishment for juvenile offenders, and last year ruled that lifetime prison terms for adolescents involved in non-capital crimes are unconstitutional.
“In Wisconsin at the present time, if you are as young as 10 years old and you are involved in a capital crime you get swept into the adult justice system,” Kalil says. “Ten-year-olds don’t have brains that are adult. In fact, evidence in the last few years in neuroscience has confirmed that, especially in males, the brain isn’t fully mature until the early- to mid-20s.”
In Wisconsin Omer Ninham, who when he was 14 helped throw a 13-year-old boy to his death from the top of a Green Bay parking structure, appealed his life sentence, arguing that such a sentence is excessive and amounts to cruel and unusual punishment. In a 5-2 decision, the state Supreme Court disagreed and upheld the sentence. His attorney, Byron Stevenson of the Equal Justice Initiative, has vowed to appeal the decision to the U.S. Supreme Court.
But Scott Burns, executive director of the National District Attorneys Association, is not convinced that adolescents who commit horrific crimes should be treated differently than adults.
“We remain of the position that the vast, vast majority of adolescents don’t shoot their parents, don’t stab their brothers and sisters, don’t try to burn down houses,” he says. “It’s the great minority of adolescents that do that, and we’ve never really appreciated any scientific basis for some frontal lobe theory or some excuse for that based on anatomy.”
Burns says he’s not keen on the prospect that science that could hinder prosecutors’ mission to hold criminals accountable for their crimes.
“As a prosecutor I would say no matter what criminal behavior one engages in, one can always come up with an excuse,” says Burns. “Our position is that doesn’t mean it’s excusable.”
But he maintains that he has no problem with neuroscientists trained as attorneys. In fact, he says, the introduction of brain imagery into the courtroom could provide proof of criminal activity. For instance, in cases of child abuse it might be shown that abusers’ claims that children were injured by falls could be shot down by brain scans that show damage so extensive that “it would take trauma more like being slammed against a brick wall.”
While Burns is concerned that the introduction of scientific advances could put dangerous criminals back on the street, Michael Tobin, Wisconsin’s deputy public defender, says there is also the potential for improved public safety.
“In terms of public safety and reducing crime rates, if there is more of an understanding of factors that are leading or tending to lead people into criminal behavior, then those can be treated or addressed,” he says. “Sometimes the crime is so horrible that the judge may find that there’s really no alternative from a public protection standpoint other than long-term incarceration. But in many more cases there is more interest in what would protect the public longer-term because the vast majority of people who are incarcerated will get out.”
As an example, Tobin points to drug courts, which have been set up in several counties, including Dane County, to shift some offenders toward treatment programs rather than prison.
Since there is a growing body of science showing that the brains of people with addictive personalities are different than brains in people without addictions, a brain scan “would be a very good way to determine if you had the right population (in treatment programs) or if you were missing other people who maybe you were screening out,” Tobin says.
Kit Kerschensteiner, the managing attorney for Disability Rights Wisconsin, says those with cognitive deficiencies like Mills can be at a disadvantage in court because private attorneys defending them are often out of their depth. Attorneys may look for a diagnosis to label their client with, she says, which can end up stigmatizing the defendant in the eyes of the jury. It’s a problem that attorneys with a neuroscience background could go a long way in addressing.
“To just stick with a diagnosis, whether it’s fetal alcohol syndrome, manic depression, bipolar, that isn’t enough ... If you don’t really grasp it in-depth and you’re trying to pass it along to a jury, that will impact their ability to get it,” she says. “Bottom line, it comes down to the jury’s opinion.”
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Kalil says he expects the program, which begins in the fall of 2012, to enlist a student or two per year, which means over the course of the seven or eight years it takes to complete it, about 14 to 16 students will be actively pursuing their degrees when it’s in full swing.
And they’ll be working hard.
“It’s only going to appeal to people who are willing to work harder than most students,” he says.
One of those students will likely be Kim Farbota, a 23-year-old from Elgin, Ill., who came to UW for the neuroscience program in public policy. She’ll be finishing her master’s in public policy in the spring, and she plans to begin attending law school in the fall. She’s three years into her Ph.D. program in neuroscience imaging and expects to be done in three more years.
“If we’re going to continue to use neuroscientific-based defenses in a court of law, which is something that is becoming increasingly common, it’s a vantage point that needs attention,” she says.
She sees all three of her disciplines as interconnected — science has applications in the courtroom, and public policy can determine what kinds of science get funding. She’s not sure where she’ll end up, but she’s certain she’ll find her niche.
Kalil says the convergence of all three fields was no coincidence. He envisions a world in which both the courts and those who administer public policy are informed by science.
And, he says, it had better happen soon.
“There are huge issues that need to be addressed,” he says, “and they’re not simple issues.”
For instance, he says, statistics show that in about 30 years, when elderly people outnumber non-elderly people, 50 percent of those who make it to 85 will have Alzheimer’s disease.
“What are the laws going to be to deal with this massive problem?” he says. “You have to have an understanding of the disease that most lawmakers don’t have. All they know is that they have more people coming along that are increasingly likely to be demented, but they don’t know what to do with them. How are you going to develop the means for dealing with this emerging societal problem? You’re going to need somebody who’s fully informed about neurodegenerative diseases and what is realistic in the court of law or the court of public policy to do something about it.”