Majority indictment

There's a fascinating Times magazine article, The Brain on the Stand, that looks at medical research into the physical traces of our thoughts. Essentially, whether someday jurors will routinely review brain scans in trying to determine such things as motivation and intent.

This being the Times, of course, the article doesn't make mention of Minority Report; or, for that matter, the works of science fiction's revered Philip K. Dick, who made a career out of exploring these issues and wrote the novelette the film's based on.

Most of the article explores what happens when what's going on in someone's mind becomes open to parsing in a courtroom.

[Hank Greely, a law professor and head of the Stanford Center for Law and the Biosciences] acknowledges that lie-detection and memory-retrieval technologies like this could pose a serious challenge to our freedom of thought, which is now defended largely by the First Amendment protections for freedom of expression. “Freedom of thought has always been buttressed by the reality that you could only tell what someone thought based on their behavior,” he told me. “This technology holds out the possibility of looking through the skull and seeing what’s really happening, seeing the thoughts themselves.” According to Greely, this may challenge the principle that we should be held accountable for what we do, not what we think. “It opens up for the first time the possibility of punishing people for their thoughts rather than their actions,” he says. “One reason thought has been free in the harshest dictatorships is that dictators haven’t been able to detect it.” He adds, “Now they may be able to, putting greater pressure on legal constraints against government interference with freedom of thought.”

If technology ever allows us to judge people for what they think in addition to what they do, I'd strongly suggest we all read Gandhi.

The Mahatma laid out, in detail, his belief that there is no difference between committing violence in the heart--i.e. thinking it--and committing it in the physical world.

And oftentimes, Gandhi noted, the only thing keeping the latter from flowing into the former was the cowardice of the non-actor; why should someone get credit for being afraid?

For him, someone who found himself on the path of non-violence because of weakness or fear was no better than those who reacted to the same spurs by lashing out violently.

Contray to pop culture's portrayal, Gandhi was actually a remarkable militant. He had unreal expectations for people's courage, expecting them to follow him open-eyed straight into the cudgels and if necessary bullets of the British. He was a moral absolutist, although he himself also confessed to numerous failings in that area (he had a particularly hard time coming to grips with his lust).

An Indian thinker, Sri Chinmoy, had this to say about Gandhi's thoughts on sin:

The world, especially the Christian world, is afraid of the consequences of sin. A Christian is more concerned about his sin than is any other man on earth. The Indian heart in Gandhi speaks about sin: "I do not seek redemption from the consequences of sin, I seek to be redeemed from sin itself."

I'd contend, then, that a system of justice based on thought isn't one that would prove alien to many Hindus, Buddhists and actually even many Christians, Muslims and Jews.

What is religion, after all, but a justice system for the mind; with its universal message that the world of our senses is ultimately immaterial, and what matters isn't just how we act but also how we conduct ourselves in our ongoing dialogue with God.

Things like praying five times a day or going to church are understood to be frail man's attempt to set up a structure within which we can strive toward being one with God.

It's not for nothing that in traditional societies, there was and is no concept of 'religion' as a separate part of life--it was life, everything was tied up in it and inseprable from it It's one reason why the missionary process involves so much death and rarely takes hold until the second generation; in trying to separate someone from his or her beliefs you wind up having to sever them from so much more than what in the West would be simply where they go on Sunday.

Religion in traditional societies is always present, in such everyday activities as throwing a piece of pottery or weaving a cloth; you're always honoring and reflecting God, even without the use of any overt symbols of your 'faith' in your 'work'.

The Times piece, of course, reflects none of this. Instead, it throws in this tidbit, in passing:

The experiments, conducted by Elizabeth Phelps, who teaches psychology at New York University, combine brain scans with a behavioral test known as the Implicit Association Test, or I.A.T., as well as physiological tests of the startle reflex. The I.A.T. flashes pictures of black and white faces at you and asks you to associate various adjectives with the faces. Repeated tests have shown that white subjects take longer to respond when they’re asked to associate black faces with positive adjectives and white faces with negative adjectives than vice versa, and this is said to be an implicit measure of unconscious racism. Phelps and her colleagues added neurological evidence to this insight by scanning the brains and testing the startle reflexes of white undergraduates at Yale before they took the I.A.T. She found that the subjects who showed the most unconscious bias on the I.A.T. also had the highest activation in their amygdalas — a center of threat perception — when unfamiliar black faces were flashed at them in the scanner. By contrast, when subjects were shown pictures of familiar black and white figures — like Denzel Washington, Martin Luther King Jr. and Conan O’Brien — there was no jump in amygdala activity.

The legal implications of the new experiments involving bias and neuroscience are hotly disputed. Mahzarin R. Banaji, a psychology professor at Harvard who helped to pioneer the I.A.T., has argued that there may be a big gap between the concept of intentional bias embedded in law and the reality of unconscious racism revealed by science. When the gap is “substantial,” she and the U.C.L.A. law professor Jerry Kang have argued, “the law should be changed to comport with science” — relaxing, for example, the current focus on intentional discrimination and trying to root out unconscious bias in the workplace with “structural interventions,” which critics say may be tantamount to racial quotas. One legal scholar has cited Phelps’s work to argue for the elimination of peremptory challenges to prospective jurors — if most whites are unconsciously racist, the argument goes, then any decision to strike a black juror must be infected with racism. Much to her displeasure, Phelps’s work has been cited by a journalist to suggest that a white cop who accidentally shot a black teenager on a Brooklyn rooftop in 2004 must have been responding to a hard-wired fear of unfamiliar black faces — a version of the amygdala made me do it.

Phelps herself says it’s “crazy” to link her work to cops who shoot on the job and insists that it is too early to use her research in the courtroom. “Part of my discomfort is that we haven’t linked what we see in the amygdala or any other region of the brain with an activity outside the magnet that we would call racism,” she told me. “We have no evidence whatsoever that activity in the brain is more predictive of things we care about in the courtroom than the behaviors themselves that we correlate with brain function.” In other words, just because you have a biased reaction to a photograph doesn’t mean you’ll act on those biases in the workplace.

I have, of course, written about the IAT before.

And of course the Times soft-pedals the research ('this is said to be'), and tags it controversial--it indicts a majority of our society. And of course Phelps is going to be very careful about what conclusions she draws--that, after all, isn't what she's trained for, as a scientist she presents findings and leaves it to society to decide what to do about it.

As I've said before, the test doesn't show we're all racist; rather, that in our society we are all predisposed to a certain type of repeated racism, and unless we're aware of that and counteract it, we will wind up acting in racist ways. (This, incidentally, is one reason why I really question people whose response to murder and other man-made tragedies is that it's God's will, we should all forbear. Maybe God's will is being perveted time and time again, forcing the same group to always bear the cross, by man's bias).

There's no such thing as a level playing field, according to the IAT, and the sooner we realize that and take active--and it's always going to have to be active, remember this takes place on the subconscious level but is significantly augmented by conscious racism--measures, the less abrupt the redress when non-whites become the new majority in America.

Justice, after all, is a dish never better served cold.