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JUDICATURE BOOK REVIEW 77 Why do we do the things we do? ithin the next decade, Behave chapter “Biology, The Criminal Justice ries to millennia before.” He apologizes will be a book that most System, and (Oh, Why Not?) Free for all this groundwork with occasional educated people have read (or Will.” In it, Sapolsky recounts that he charming asides, but he is right to make Wwill feel obligated to give the impres- proposed a symposium on whether the the reader go through the lengthy process sion they have read), joining likes of The criminal justice system should “be abol- of understanding the biology of fear, Prince, A Brief History of Time, The Second ished.” The resulting interdisciplinary reward, disgust, cognitive inhibition, and Sex, and The Western Canon. In Behave, meeting was fun, stimulating, and, other structures in the brain and larger Robert Sapolsky is considering Big he writes, “frustrating to me, because endocrine system upon which humans Questions, all of which gesture towards I kind meant the title of the proposal necessarily rely to make our way through the biggest one, which is what it means I had written. The current criminal the world. Without this painstakingly to be human and to live in this world. justice system needs to be abolished and presented background, Sapolsky’s further He does so, however, in such an engag- replaced with something that, while conclusions on behavior would be inter- ing and disarming way that the reader having some broad features in common esting but not persuasive. is grateful rather than resentful for the with the current system, would have The length of the exposition is book’s 700-page length. utterly different underpinnings.” redeemed by a writing style that keeps Sapolsky is a neuroscientist (or, more But before we dive into this treat, moving, is frequently funny and often specifically, a neuroendocrinologist) the reader has to get through those self-deprecating (as in his parenthetical, and a primatologist who is a professor underpinnings. I understand his central after referring to a colleague’s studies of biology, neurology, and neurosurgery aim in this exercise is to demolish the in “haptics,” that he “had to look that at Stanford. A MacArthur Foundation traditional bifurcation between thought up”), and proffers dozens upon dozens “genius award” recipient, he is known and action, which he argues is unsci- of engaging and ingenious experiments. as a pioneer in neuroscience and also as entific, misleading, and useless if not Among those that stand out for me were a popularizer (in the best sense) of that dangerous. He divides this analysis into the “brain on metaphors” — subjects field. Reading Behave is like taking a the neurological and endocrinological sitting on hard chairs evaluated inter- college course with a favorite professor processes that occur “one second before” viewees as being “rigid” and “inflexible,” who is excited by his subject and by a thought or action, “seconds to minutes subjects given hot tea or coffee evaluated teaching it, whose generous and enter- before” a thought or action, “days to interviewees as being “warm” — and the taining spirit makes worthwhile the months before,” and eventually “centu- professionally depressing study show- 4 hard work of learning something new (and it is hard work). BEHAVE: The Biology of Humans at Our Best and Worst Of particular interest to judges and BY ROBERT M. SAPOLSKY PENGUIN PRESS 2017 the legal profession generally is his REVIEW BY JAMES GRIFFITH 78 VOL. 101 NO. 4 Sapolsky points out that the foundation and scientifically uninformed notion of parties before me. Sapolsky deals with free will. He discusses the uneasy tension the dopaminergic brain systems crucial of most criminal in the relationship between mental illness to understanding addiction concisely and and punishment, and the unsatisfying authoritatively. law is a simplistic jurisprudence concerning responsibility No review is complete without some of juveniles, the cognitively impaired, criticism. Sapolsky occasionally drops a and scientifically and delusional people. His most striking line, such as a quip about the Supreme uninformed notion analogy is to a medieval technique for Court “giving” the 2000 election to identifying witches: Upon being told the George W. Bush, which sets teeth on of free will. story of the Crucifixion, a woman’s fail- edge and invites an “it’s-actually-a-lot- ure to weep was conclusive evidence she more-complicated-than-that” response was a witch (which of course had serious from a judge. However, even those false consequences). In 1563, a Dutch physi- notes are useful, in that I can imagine ing that judges made harsher decisions cian wrote a book noting that elderly Sapolsky’s jaws tightening up upon hear- the longer it had been since they had women often had atrophy of their lachry- ing a judge say to an addict, “Just say last eaten. The importance of this level mal glands which rendered them unable ‘no’.” Each represents a lack of nuance of detail, for me at least, is that it makes to cry, moving the physician to counsel and basic knowledge outside of one’s area Sapolsky’s eventual conclusions persua- not burning some older women because of expertise. I also am disappointed that sive and perhaps to some unavoidable, of bad tear ducts. Sapolsky suggests this Sapolsky did not give more attention to as opposed to merely providing another is a bit like what we are doing now in the legal implications of brain science perspective, which is the way judges criminal courts. He also points out beyond criminal justice. Behave only often consider complicated science. over and over that despite his bleed- indirectly comments on the jurispru- As indicated, Sapolsky’s wit and ing-heart liberalism, he is unashamed to dence of neglect of children, commercial conversational tone make all this not endorse the goal of keeping dangerous negotiation and dispute resolution, and only bearable but enjoyable. His warn- people away from the rest of us. (For civil commitment of the “insane,” among ings that “the next part is hard,” his a condensed version of his thoughts other important issues. Perhaps he leaves helpful recapitulations, his occasional on this, find Alan Alda’s interview of those for us. Finally, on the broader jokes (worthy of a stand-up comic), and Sapolsky on YouTube, in which he says, issue of the interface between law and references to recent events and popular among other things, that we don’t think science, he provocatively mentions that culture supplement but do not distract of a car with bad breaks as evil or having “we neuroscientists and the legal people from his clarity and purpose. He avoids made bad choices, we just want it off the use ‘possible,’ ‘probable,’ and ‘certainty’ the off-putting mistake many populariz- road until it’s fixed, if possible.) differently.” He said nothing more on ers of scientific material make of being too I was drawn to Sapolsky’s approach, that, and I wish that he had. hip and breezy, which invariably comes which, as I understand it, would focus on I commend Behave to every judge, across as affected (“hey, I’m a regular guy identifying causes of antisocial behavior as both a professional education and a just like you”) and ultimately unserious. and treating them. Much of my caseload pleasure. Despite its ominous length, Importantly, Sapolsky doesn’t shy involves juvenile justice, and that is the it is not a forced march; it’s more of a away from acknowledging that his strategy New York uses with juveniles strenuous hike on an undiscovered path subject is complicated. Understanding (even if we only belatedly recognized with a fascinating companion. As with human behavior requires a recognition 16- and 17-year-olds as such). We do that kind of hike, you’ll be a little sorry that we are the products of (the clichéd) not approach them as bad or evil and when it’s over. nature and nurture in ways remarkably deserving of punishment, but as people more complex than we imagine. Along whom we can help — while protecting JAMES GRIFFITH the way, he convincingly undermines the community — with different kinds is a judge in the behaviorism, genetic determinism, of treatment to help them overcome their Oneida Family and several other ism’s that, while not bad breaks of brain physiology, genet- Court in Rome, NY, simple, are too reductionist for modern ics, and early childhood development. and a member of the neuroscience. My caseload also pushed me to learn Class of 2018 of the Returning to the criminal justice the science of addiction, about which, Duke Law Master of system, Sapolsky points out that the foun- despite its pervasiveness, I initially knew Judicial Studies program. dation of most criminal law is a simplistic nothing — much to the detriment of the .

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