Brains, Court Trials and Incarcerated Women

While I was at the Women’s Health retreat, one of the women, who had worked at great length with women in prison, firmly stated that she did not believe in incarceration for women. This surprised me, probably mostly because of my blind faith in everyone’s ability to make informed choices and a need for accountability as upheld by the legal system, and circumstances, well, they fit somewhere in there as well.

These naive thoughts came back to me again, today, as I was reading The Brain on Trial by David Eagleman (an article in the July/August 2011 issue of the Atlantic). It clarified for me some of the shortcomings of the Criminal-Justice System (from the U.S. perspective, though I suspect it compares to our own) given the hard, scientific evidence of brains and behaviour. Though I’ve included it here, he does not include the gender argument in his thesis.

Human behaviour cannot be separated from human biology [...] Perhaps not everyone is “free” to make socially appropriate choices.

Given my stance on social justice, I’m not one to get too caught up in biology as the defining point of self, but I could see where he was going in an integrated view of “nature” and “nurture.”

Eagleman accuses the current Social-Justice System of playing the blame-game, where complex situations leave few black-and-white guilty or non-guilty offenses.

Genetic Probability
He considers the increased probability of certain social deviances (violent crimes, robbery, aggravated assault, murder, and sexual offenses) given particular sets of genes. He continues:

And this feeds into a larger lesson of biology: we are not the ones steering the boat of our behaviour, at least not nearly as much as we believe. Who we are runs well below the surface of our conscious access, and the details reach back in time before our birth, when the meeting of a sperm and an egg granted us certain attributes and not others. Who we can be starts with our molecular blueprints—a series of alien codes written in invisibly small strings of acids—well before we have anything to do with it. Each of us is, in part, a product of our inaccessible, microscopic history. By the way, as regard that dangerous set of genes, you’ve probably heard of them. They are summarized as the Y chromosome. If you’re a carrier, we call you a male.

Certainly, this is not to say that women (non- Y chromosome carriers) are not able to commit offenses, but statistically they are usually of a different variety. According to StatCan (Highlights from “Female Offenders in Canada,” by Rebecca Kong and Kathy AuCoin, 2005, find it here), “When females offended, they tended to commit theft (other than theft of a motor vehicle), common assault, bail violations and fraud.”

And “Females are infrequently repeat offenders and, for those who are, their crimes tend not to escalate in severity.” They also say that women only represent a small minority:

Women in correctional facilities are few. In 2004/2005, they accounted for 6% of offenders in provincial/territorial sentenced custody, 4% in federal sentenced custody and 6% remanded into custody to await court appearances.

Free-will and Free-won’t
Back to Eagleman, he highlights evidence of brain tumours and disorders that lead to disinhibited crimes. Considering the various factors that affect our brain, then affect our behaviours (with or without our conscious awareness) he considers how “the concepts of free-will and personal responsibility begin to sprout question marks.”

Forward Thinking Legal System
Instead of considering only culpability (and the past events), he asks that the legal system judge the future for this person. “How is a person likely to behave in the future? Are criminal actions likely to be repeated? Can this person be helped toward pro-social behaviour? How can incentives be realistically structured to deter crime?”

As well, he points out that despite present use, prisons are not viable mental health care institutions. The belief that the one-size-fits-all of prisons is completely inappropriate given the neural diversity of people. And so, specially tailored sentencing and rehabilitation should be trying to meet the individual needs of people.


There is a very nice run-down of facts and figures related to incarcerated women in Canada presented by the Council of Elizabeth Fry Societies in Canada, that you can find on their website here.