Behavioral Sciences and the Law

Behav. Sci. Law 25: 263280 (2007)

Published online in Wiley InterScience
(www.interscience.wiley.com) DOI: 10.1002/bsl.751

Decision Making and Free Will:

A Neuroscience Perspectivez
Kelly Burns, J.D.y and Antoine Bechara, Ph.D.*
A thorough analysis of the question of whether we possess
free will requires that we take into account the process of
exercising that will: that is, the neural mechanisms of
decision making. Much of what we know about these mechanisms indicates that decision making is greatly inuenced
by implicit processes that may not even reach consciousness. Moreover, there exist conditions, for example certain
types of brain injury or drug addiction, in which an individual can be said to have a disorder of the will. Examples
such as these demonstrate that the idea of freedom of will
on which our legal system is based is not supported by the
neuroscience of decision making. Using the criminal law as
an example, we discuss how new discoveries in neuroscience can serve as a tool for reprioritizing our societys
legal intuitions in a way that leads us to a more effective and
humane system. Copyright # 2007 John Wiley & Sons, Ltd.

A visit to one of our nations jails or prisons will show rows of humans kept behind
bars, many of whom have returned to prison on a second or third offense, committed
despite their rst-hand knowledge of the consequences of their actions. As a society
we justify the imprisonment of such individuals by our belief that one can avoid
incarceration: that someone sentenced to spend years in prison got there only
through his or her own choices. That is, we possess a freedom of will, and it is misuse
of that freedom that justies restrictions on it.
The question of whether we have free will, whether our actions are determined, or
whether these two possibilities are even mutually exclusive, is one that continues to
be debated in philosophical and scientic circles, but that obviously has important
implications for the foundations of our legal system. Since the core of any free will
that might exist is the ability to make choices, it is important in this debate to think
about the neural mechanisms of human decision making, and whether we have
absolute control over this mechanism or vice versa. Research continues to elucidate
the neural processes underlying how we make our choices, and much of what we
know already about these brain mechanisms indicates that decision-making is greatly
*Correspondence to: Antoine Bechara, Ph.D., Hedco Neuroscience Building (HNB), Suite B26,
University of Southern California, Los Angeles, CA 90089-2520, U.S.A. E-mail: bechara@usc.edu
y
Brain and Creativity Institute and Department of Psychology, University of Southern California.
z
The decision neuroscience research described in this article was supported by NIDA grants DA11779-02,
DA12487-03, DA16708, and by NINDS grant NS19632-23.

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K. Burns and A. Bechara

inuenced by implicit processes that do not necessarily reach consciousness.

Furthermore, neurological evidence suggests that focal brain damage can disturb the
normal operation of some of these implicit processes. In such cases the individual
begins to appear as if aficted with a disorder of his or her will, as evidenced by
repeated decisions and actions that are against the persons best interests, and failure
to learn from repeated mistakes, in spite of perfectly intact intellect, memory and
other cognitions (Bechara, 2003). Thus neuroscience brings us evidence that
questions the idea, which the law assumes, that free will is always intact, and as
long as one is cognitively normal, there is no excuse for a person not to be able to
choose between right and wrong.
While recognizing that the continuing free will versus determinism controversy
makes condent acceptance of either idea naive, the legal system nonetheless has
remained attached to the notion of free will as necessary, in its view, for the
maintenance of social order (Cotton, 2005). The Supreme Court even has called free
will a universal and persistent foundation stone in our system of law, as
compared with a deterministic view of human conduct that is inconsistent with the
underlying precepts of our criminal justice system (United States v. Grayson, 1978).
Several scholars have argued (Cotton, 2005; Greene & Cohen, 2004; Jones, 2003),
however, that neuroscience or other research that seems to undermine the notion of
free will need not be seen as such a threat to our legal system. Rather, this research
provides an opportunity for our society to reexamine the underpinnings of the legal
system, and reprioritize in a way that is more responsive to the facts of human biology
and psychology, and thus more effective.
The following section of this article will outline features of the neuroscience of
decision making that bear upon the question of whether humans have free will. We
will discuss the normal decision-making process, and also focus on a few examples
where this process has been known to break down. In the next section we will explore
the implications of this research for the legal system. While more research is needed
to fully understand the mechanisms of will, what we already know can hopefully
inspire some creative solutions to the societal problems that the legal system
addresses.

THE NEUROSCIENCE OF DECISION MAKING

AND WILLPOWER
Willpower, as dened by the Encarta1 World English Dictionary (2006), is a
combination of determination and self-discipline that enables somebody to do
something despite the difculties involved. This is the mechanism that enables one
to endure sacrices now in order to obtain benets later. Otherwise, how would one
accept the pain of surgery? Why would someone resist the temptation to have
something irresistible, or delay the gratication from something that is appealing?
We will argue that these complex and apparently indeterminist behaviors are the
product of a complex cognitive process sub-served by two separate, but interacting,
neural systems: (1) an impulsive, amygdala-dependent, neural system for signaling
the pain or pleasure of the immediate prospects of an option, and (2) a reective,
prefrontal-dependent, neural system for signaling the pain or pleasure of the future
prospects of an option. The nal decision is determined by the relative strengths of
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the pain or pleasure signals associated with immediate or future prospects. When the
immediate prospect is unpleasant, but the future is more pleasant, then the positive
signal of future prospects forms the basis for enduring the unpleasantness of
immediate prospects. This also occurs when the future prospect is even more
pleasant than the immediate one. Otherwise, the immediate prospects predominate,
and decisions shift towards short-term horizons. As suggested by Damasio (1994),
willpower is just another name for the idea of choosing according to long-term
outcomes rather than short-term ones.
We have used the term somatic (Damasio, 1994) to refer to the collection of
body-related responses that hallmark these affective and emotional responses.
Somatic refers to the Greek word soma, i.e. body. Although during the process of
weighing somatic (affective) responses the immediate and future prospects of an
option may trigger numerous somatic responses that conict with each other, the end
result is that an overall positive or negative somatic state emerges. We have proposed
that the mechanisms that determine the nature of this overall somatic state (i.e.
positive or negative) are consistent with the principles of natural selection, i.e.
survival of the ttest (Bechara & Damasio, 2005). In other words, numerous and
often conicting somatic states may be triggered at the same time, but stronger ones
gain selective advantage over weaker ones. With each thought brought to working
memory, the strength of the somatic state triggered by this thought determines
whether the same thought is likely to recur (i.e. will be brought back to memory so
that it triggers another somatic state that reinforces the previous one), or whether the
thought is likely to be eliminated. Thus over the course of pondering a decision,
positive and negative somatic markers that are strong are reinforced, while weak ones
are eliminated. This process of elimination can be very fast. Ultimately, a winner
takes all; an overall, more dominant, somatic state emerges (a gut feeling or a
hunch so to speak), which then provides signals to the brain that modulate activity
in neural structures involved in biasing decisions. This winner takes all view is
consistent with the conception by Strack and Deutsch of competition between motor
schemata (Strack & Deutsch, 2004).

The Somatic Marker Framework

The somatic marker framework provides a system-level neuroanatomical and
cognitive framework for decision making, and for choosing according to long-term
outcomes rather than short-term ones. It suggests that the process of decision
making depends in many important ways on neural substrates that regulate
homeostasis, emotion and feeling (Damasio, 1994).
Somatic states can be induced from (1) primary inducers and (2) secondary
inducers (Damasio, 1995). Primary inducers are innate or learned stimuli that cause
pleasurable or aversive states. Once present in the immediate environment, they
automatically and obligatorily elicit a somatic response. The actual encounter of a
drug by an addicted individual is an example of a primary inducer (Bechara,
Damasio, & Damasio, 2003). Secondary inducers, on the other hand, are entities
generated by the recall of a personal or hypothetical emotional event, i.e. thoughts
and memories of the primary inducer, which elicit a somatic response. The recall
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K. Burns and A. Bechara

or imagination of a drug experience by an addicted individual is one example of a

secondary inducer (Bechara et al., 2003).
We have argued that the amygdala is a critical substrate in the neural system
necessary for triggering somatic states from primary inducers. It couples the features
of a primary inducer with the somatic state associated with the inducer. This somatic
state is evoked via effector structures such as the hypothalamus and autonomic
brainstem nuclei that produce changes in internal milieu and visceral structures
along with other effector structures such as the ventral striatum, periaqueductal gray
(PAG), and other brainstem nuclei, which produce changes in facial expression and
specic approach or withdrawal behaviors. The amygdala is one of our evolutionarily
older brain structures, located deep in the medial temporal lobes. Once somatic
states from primary inducers are induced, signals from these somatic states are
relayed to the brain stem and forebrain. Signals from activated somatic states lead to
the development of somatic state patterns in the brainstem (the evolutionary oldest
areas of the brain) or the cortex (the evolutionary newer areas). The perception of
these patterns at the brainstem level is by and large unconscious, but at the level of
the cortex this perception may become conscious in the form of a subjective feeling.
After a somatic state has been triggered by a primary inducer and experienced at
least once, a pattern for this somatic state is formed. The subsequent presentation of
a stimulus that evokes memories about a specic primary inducer will then operate as
a secondary inducer. Secondary inducers are presumed to re-activate the pattern of
somatic state belonging to a specic primary inducer. For example, recalling or
imagining the experience of a drug re-activates the pattern of the somatic state
belonging to the actual previous encounter of that drug. However, the somatic state
generated by the recall or imagination of using a drug (secondary inducer) is usually
fainter than one triggered by an actual use of that drug (primary inducer). The
prefrontal cortex is a brain structure that is both evolutionarily recent and one of the
last structures to develop fully over an individuals lifespan.

Non-conscious Operation of Somatic States

During the pondering of a decision, somatic states are triggered by primary or
secondary inducers. Once induced, they participate in two functions. In one they
provide a substrate for feeling the induced state. In the other they provide a substrate
for inuencing or biasing decisions. Most intriguing is that the presence of these
somatic states and their inuence on decision making and behavior need not be
conscious.
A study using the Iowa Gambling Task illustrates this point (Bechara, Damasio,
Tranel & Damasio, 1997). In the Iowa Gambling Task, subjects are given four decks
of cards and $2000 in play money with which to play a game, and are instructed that
their goal in the game is to win as much money as possible. Each time a subject selects
a card, she or he either wins or loses some amount of money. Decks A and B are
disadvantageous decks, where the immediate reward is higher ($100 per card) but
the losses are large, and playing more often from these decks leads to an overall loss.
Decks C and D are advantageous, drawing lower rewards per card ($50), but with
smaller penalties such that playing mostly from these decks leads to an overall gain.
While each subject plays the game, measures are taken of skin conductance
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responses (SCRs) to test their non-conscious responses to making card choices.

Subjects are also asked at intervals during the game whether they understand what is
going on in the game, to compare their conscious development of strategy to any
unconscious strategizing that might be underway.
The results of this experiment demonstrate the operation of covert somatic states
in biasing decisions. In the Iowa Gambling Task, normal subjects began to select
advantageously before they consciously developed an understanding of which decks
were advantageous. In addition, these subjects generated an anticipatory SCR before
choosing a card from the disadvantageous decks, and likewise started generating this
response before having conceptualized that these decks were disadvantageous.
Responses can be broken down further into four stages. In the pre-punishment
stage, before encountering losses, subjects preferred the higher-gain decks. In the
pre-hunch stage, subjects began to generate SCRs to decks A and B, but all
indicated that they had no clue what was going on in the game. All normal subjects
expressed a hunch by about card 50 that A and B were riskier; we called this the
hunch stage. Eventually most normal subjects expressed an understanding of
which decks were riskier (this was usually by about card 80), in what we called the
conceptual period. Notably, even subjects who never reached the conceptual
period actually made advantageous choices in playing.
The fact that normal subjects can make advantageous choices without having the
factual knowledge required to logically support those choices has interesting
implications for our understanding of the decision making process and free will.
Research indicates that in the striatum somatic states operate implicitly, using
knowledge without awareness. Other areas of the brain (the anterior cingulate,
and perhaps the adjacent supplementary motor area) bias decision making using
knowledge with awareness; that is, they engage in our common-sense version of
the decision-making process using conscious and explicit knowledge of a decisions
consequences. So while both conscious and unconscious knowledge are contributing
to the process of choice, the fact that the generation of somatic states can guide us
toward benecial behaviors without any input from our conscious deliberations
indicates that much behavior that seems to be free will may be determined by the
routine operation of a healthy neural mechanism. What happens when something
goes wrong with this process elucidates this point further.

Neural Mechanisms of Willpower

Based on the somatic marker framework, we have proposed that willpower (or lack
thereof) emerges from the dynamic interaction between two separate, but
interacting, neural systems: (1) an impulsive system that triggers somatic states
from primary inducers and (2) a reective system that triggers somatic states from
secondary inducers. The reective system controls the impulsive system via several
mechanisms of impulse control. However, this control of the reective system is not
absolute: Hyperactivity of the impulsive system can overwhelm or hijack the
inuence of the reective system.
It is important to note that at the process level the characteristics of the
impulsive and reective neural systems are similar to the two-system view of
Kahneman and Tversky on intuition versus reasoning (Kahneman & Tversky,
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1979), or that of Strack and Deutsch on reective and impulsive determinants of

social behavior (Strack & Deutsch, 2004). In all cases, the distinction is between the
operations of one system that are typically fast, automatic, effortless, implicit and
habitual, and the operations of another system that are slow, deliberate, effortful,
explicit and rule governed. The distinct characteristic of our view is the assignment
of neural substrates and physiological mechanisms for the operations of these
systems.
More specically, exposure to primary inducers (e.g. drugs) triggers fast,
automatic, and obligatory somatic states via the amygdala system. Somatic states
triggered by the amygdala are short lived and habituate very quickly (Buchel, Morris,
Dolan, & Friston, 1998; Dolan et al., 1996; LaBar, Gatenby, Gore, LeDoux, &
Phelps, 1998). Secondary inducers trigger somatic states via the ventromedial
prefrontal cortex from perceived or recalled mental images. While the amygdala is
engaged in emotional situations requiring a rapid response, i.e. low-order
emotional reactions arising from relatively automatic processes (Berkowitz, 1993;
LeDoux, 1996), the ventromedial prefrontal cortex is engaged in emotional
situations driven by thoughts and reection. Once this initial amygdala emotional
response is over, high-order emotional reactions begin to arise from relatively
more controlled, higher-order processes involved in thinking, reasoning and
consciousness (Schneider & Shiffrin, 1977). Unlike the amygdala response, which is
sudden and habituates quickly, the ventromedial prefrontal cortex response is
deliberate, slow, and lasts for a long time. Thus the prefrontal cortex helps predict
the emotion of the future, thereby forecasting the consequences of ones own actions
(see Figure 1).
Once somatic states are triggered via the amygdala or the prefrontal cortex, a
large number of channels can then convey body information to the central nervous
system (e.g. spinal cord and vagus nerve). Furthermore, early evidence suggests
that the biasing action of somatic states on behavior and cognition is mediated, at
least in part, by the release of neurotransmitters, such as the neurotransmitters
dopamine (DA), serotonin (5-HT), noradrenaline (NA) and acetylcholine (Ach).
Indeed, the neurons that manufacture these neurotransmitters are situated in
such a way that, on one end (the dendrite end), they can convey somatic state
signals, which then inuence the pattern of neurotransmitter release at the other
end (the axon terminals end). In turn, changes in neurotransmitter release can
modulate synaptic activities of neurons subserving behavior and cognition within
the reective system. This chain of neural mechanisms provides a way for somatic
states to inuence activity in a variety of neural regions important for decision
making. Thus the signicance of this neural arrangement is that, regardless of how
somatic states are triggered, i.e. impulsively (primary induction) or reectively
(secondary induction), once they are triggered, they can gain access to cortical and
subcortical neurons subserving cognition. Thus, depending on their strength, they
have the capacity to modify and inuence cognition, especially decision making
(see Figure 1).
Early in life, the reective system is poorly developed and willpower is relatively
weak. Behavior is more dominated by the impulsive systemchildren tend to
behave in a manner that they do what they feel like doing right now, without much
thought about the future. However, through learning they learn to constrain many
desires and behaviors that conict with social rules, and that lead to negative
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consequences. This is the rst sign of the development of willpower, and an example
of how the reective system gains control over the impulsive system. This ability, i.e.
to choose according to long-term outcomes, and resist immediate desires, requires
the normal development and normal triggering of somatic states by the reective
system, which signal the value of long-term outcomes. Deprived of these somatic
states, the reective system loses its control, and willpower breaks down. Indeed, this
is exactly what happens when areas of the ventromedial prefrontal cortex are
damaged. However, it appears that there is more than one mechanism through which
the reective system exerts control over the impulsive system.
The functional evolution of the prefrontal cortex appears to involve an
incremental increase in its capacity to access representations of events that occur
in the more distant future. This enhanced futuristic capacity coincides with the
development of more rostral/anterior regions of the ventromedial prefrontal cortex.
Comparative studies of the frontal lobes in humans and non-human primates have
revealed that the major advancement in the size, complexity and connectivity of the
frontal lobes in humans relates primarily to Brodmann Area 10, i.e. the frontal pole
(Semendeferi, Armstrong, Schleicher, Zilles, & Van Hoesen, 2001), and not so
much to the more posterior areas of the ventromedial prefrontal cortex
(Semendeferi, Lu, Schenker, & Damasio, 2002). For this reason, we have argued
that there is a distinction between two broad mechanisms of behavioral and cognitive
control.
(1) Decision making, which reects a tendency to think about the consequences of a
planned act before engaging in that act. It requires knowledge about facts and values,
and it involves conscious, slow and effortful deliberation about consequences that
may or may not happen in a distant future. An example requiring decision making is
nding a briefcase containing $100 000 in a dark alley. The decision to take or not
take the money may require some deliberation about the ethics, morality and
consequences of such an action. The critical neural region for this mechanism of
control is the more anterior region of the ventromedial prefrontal cortex, i.e. that
involving the frontal pole and Brodmann Area 10 (Bechara, 2004). This area is
particularly the cortex area that has evolved so much further in humans than in other
animals, including non-human primates, and this gives us distinguishing cognitive
abilities such as projecting into the future, understanding probabilities and having
the ability to decide and act upon them, and being motivated by abstract principles
beyond daily survival needs.
(2) Impulse control reects inhibition of a pre-potent act (motor impulse control), or a
pre-potent mental image/thought (attentional impulse control). The learning to quickly
and automatically inhibit such a pre-potent act (or thought) is due, in large part, to
the triggering of a somatic state, which signals the immediate and certain nature
of the consequences. An example of this quick, automatic and implicit mechanism
of impulse control is nding a similar amount of $100,000 spread out on a table
inside a bank. Normally, any thought, intention or impulse to grab the money is
inhibited automatically and effortlessly. The critical neural region for the
mechanism of motor impulse control is the more posterior region of the
ventromedial prefrontal cortex, i.e. that involving the anterior cingulate (Bechara,
2003, 2004). The critical neural region for the mechanism of attentional impulse
control is the lateral orbitofrontal and dorsolateral (inferior frontal gyrus) region
(Bechara, 2003, 2004).
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Loss of Willpower
The complex system that we have outlined above carries with it several distinct but
interrelated ways in which it can fail or be compromised. Choosing according to
long-term outcomes rather than short-term ones requires that the somatic states
triggered by the reective system dominate those triggered by the impulsive system.
Two broad types of condition could alter this relationship and lead to loss of
willpower: (1) a dysfunctional reective system and (2) a hyperactive impulsive
system. The neural regions of the reective system, which exert top-down control
on decision making (anterior ventromedial prefrontal cortex), motor impulse control
(anterior cingulate), and perceptual impulse control (lateral orbitofrontal and
dorsolateral), are all targets for the neural systems that convey bottom-up
inuence of somatic signals. The inuence of these somatic signals could be
non-conscious and implicit, or conscious and explicit, i.e. accompanied by a certain
feeling of urge. The example of substance dependence, and our research with
dependent individuals, demonstrates how various dysfunctions can affect this
process.

Reective System Dysfunction

Our research has demonstrated that individuals who are substance dependent, or
those who have suffered bilateral damage to the ventromedial prefrontal cortex, show
similar behavior patterns related to dysfunction of the reective system. Two
characteristics in particular are relevant to this discussion. First, both groups often
are in denial or unaware that they have any problem. Second, individuals in both
groups tend to act in such a way that brings about immediate reward, even when that
comes at the risk of incurring extremely negative future consequences, which may
include loss of job, home, important life relationships, and reputation, and often
troubles with the law. Such individuals act seemingly in ignorance of this risk.
Examples of this pattern related to substance use cause family strife nationwide and
can be seen in the newspapers every day. The most famous case of prefrontal cortex
injury, if not the most famous case in neuroscience, is that of Phineas Gage. In 1848,
Gage survived a freak construction accident that sent a metal rod through his brain,
obliterating his ventromedial prefrontal cortex without ever causing loss of
consciousness. Gages life functions and intellect were miraculously unaffected
by the injury. However, his co-workers described him after the injury as no longer
Gage, seeing that a man who once had been responsible and a role model for other
workers had become obnoxious, crass, and foolish, and able to behave only in ways
that were sure to bring about personal ruin.
Though at the time of Gages injury the neural reasons for this personality change
were unknown, modern neuroscience explains how his cognitive processes had been
disturbed. While normal subjects executing the Iowa Gambling Task generate SCRs
while they consider drawing a card from a disadvantageous deck, subjects with
bilateral prefrontal damage do not generate this response (Bechara et al., 1997). In
other words, their reective systems are not generating somatic states that help bias
the response away from disadvantageous decisions. The outcomes of these subjects
decisions are as we might expect: They do not begin to choose advantageously during
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the pre-hunch or hunch periods. In fact, these subjects do not even choose
advantageously when they reach the conceptual period, despite the fact that, when
asked, they describe with accuracy what strategy will win the game! Substance
dependent subjects behave on the Iowa Gambling Task just as prefrontal cortex
lesion patients do, and also do not generate SCRs biasing them away from bad
decisions (Bechara, Dolan, & Hindes, 2002). Research in which substance
dependent subjects executed other, similar decision-making tasks has yielded
similar results (Bartzokis et al., 2000; Grant, Bonson, Contoreggi, & London, 1999;
Grant, Contoreggi, & London, 1997, 2000; Mazas, Finn, & Steinmetz, 2000; Petry,
Bickel, & Arnett, 1998; Rogers et al., 1999).
The absence of somatic response is an example of a dysfunction in the
decision-making control mechanisms. The reective system can also exhibit a failure
or disability in its perceptual or motor impulse control mechanisms. Again using
substance abuse as an example, a substance dependent person might be unable to
suppress the thought of taking the drug, if perceptual control is faulty. If the decit is
in motor impulse control, the person might act so quickly in response to the drug
stimulus that the person does not even have a chance to think about it.
One way to test impulse control mechanisms is to ask subjects to perform tasks in
response to changing stimuli, and measure their response times. For example, in the
stop-signal paradigm, subjects are shown left and right pointing arrows and are asked
to respond to the arrows, but to inhibit their response when the color of the arrow
changes (the stop signal). The color changes come occasionally but unpredictably. When this experiment was performed, substance dependent subjects exhibited
quicker response times than normal controls, but signicantly longer response times
to the stop signal, reecting problems with impulse control (Crone, Cutshall,
Recknor, Van den Wildenberg, & Bechara, 2003). Other studies also have
demonstrated difculties of impulse control associated with drug and alcohol
addiction(Crone et al., 2003; Noel, Van Der Linden, Verbanck, Pelc, & Bechara,
2003; Noel, Van Der Linden, Verbanck, Pelc, & Bechara, 2005).

Impulsive System Hyperactivity

It is also possible for the impulsive system to exaggerate the somatic response of
reward stimuli, resulting in it becoming exceedingly difcult for even a well
functioning reective system to generate somatic responses that bias the person
toward inhibiting action, or executing will. We might conceptualize this as a
hijacking of the execution of willpower by an overactive impulsive system, where
will becomes guided by the amygdala rather than by the prefrontal cortex. Research
using varieties of the Iowa Gambling Task has shown exactly this hypersensitivity to
reward in substance dependent subjects. In one experiment, skin conductance
responses in substance dependent subjects were higher in magnitude when
anticipating rewards as compared with normal controls, whereas SCRs when
anticipating punishments were relatively weak (Bechara et al., 2003, 2002). This
concept of impulse control is also supported broadly by some of the prominent work
on impulsivity, such as that by Moeller, Barratt, Swann, and their colleagues
(Moeller, Barratt, Dougherty, Schmitz, & Swann, 2001).
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We have used the example of substance dependence as an illustration of the ways

in which decision-making processes can be compromised. It is important to note that
we are not making any assertions about the roots of substance dependence or coming
to conclusions about whether decision-making impairments are a cause or a result of
the prolonged substance use. Rather, this explanation serves to highlight the
similarities between substance dependent persons and individuals with prefrontal
cortex damage in executing decision-related tasks about subjects that are unrelated
to substance use. The high degree of similarity indicates that, regardless of cause or
prognosis, both populations serve as good examples of what can go wrong in decision
processing, and therefore shed light on what is happening in all cases of
decision-making functioning.

So do we Have Free Will?

Given all of this information about the neural mechanisms of human decision
making and some of the ways these mechanisms can go awry, what does this tell us
about whether we have free will, and how the legal system should deal with this?
Really, this breaks down into two, related questions. (1) Does the average human
have free will? (2) Does the average person who becomes involved with the legal
system have free will? A negative answer to either of these questions requires us to
revisit the strong assumptions of free will under which our legal system operates.
The second question is perhaps easier to address, as much of the research cited
above is directly pertinent to this question. Though it is by no means true that all
people who commit crimes are substance dependent or mentally ill, the fact that
substance abuse and mental illness plays a role in the behavior of a large percentage
of offenders is undeniable. To consider just one statistic on this relationship, the
Bureau of Justice Statistics reports that in 2002, 68% of jail inmates reported having
symptoms that satised the criteria for the DSM IV denition of substance
dependence during the year prior to their admission to jail (Substance Dependence,
Use, and Treatment of Jail Inmates, 2002). Our research has shown that substance
dependence is associated with impairment of the neural processes subserving
decision making and that this impairment is global (i.e., it applies to many decisions,
not only decisions about whether to engage in substance use) (Breiter, Aharon,
Kahneman, Dale, & Shizgal, 2001; Breiter & Rosen, 1999). Therefore, well over half
of people who are arrested and held in jails may be operating with an ability to decide
and exercise willpower that is lower than that of the average person.
It is important to note, however, that there is much more research that needs to be
done regarding the neuroscience of human decision making, and while substance
dependence is a relatively easy condition to identify and test it is only one example of
a neurological prole that results in decreased decision-making capacity. This point
is demonstrated by our recent work comparing the decision-making proles of
inmates convicted of different criminal offenses with each other, and with the proles
of normal controls, substance dependent subjects, and orbitofrontal cortex lesion
patients. We found that the proles of individuals convicted of drug, sex, theft and
intoxicated driving offenses mirrored those of substance dependent subjects, while
the proles of those convicted of assault and murder resembled the proles of brain
lesion patients (Yechiam et al., 2006). The research revealed this pattern, but was
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not designed to assess why this result occurred, and thus leaves many questions open
for further study (e.g. At what point in the lives of these offenders did this prole
emerge? Due to what causes? What role did substance use by the offenders play in
creating these proles? Why is it not then true that all brain lesion patients go on to
commit violent crimes? etc.). What is important to note for the purposes of this
article is that this pattern does exist, leaving us both with evidence that many more
people involved in the justice system may have gotten there operating with faulty
neural mechanisms, and that similar impairments may exist in other, as yet
unidentied, population subgroups that are also operating with less than full free will,
by any denition.
This understanding applies as well when we are talking about non-offender
populations: Can we say, knowing what we do about the neural mechanisms of
choice in healthy adults, that our choice is free? As stated above, there are many
further avenues for research that will continue to teach us about the neuroscience of
willpower, and with those discoveries still in the future, we are reluctant to issue a
gross statement declaring that we do or do not have free will. Particularly relevant for
the issue of legal responsibility, more research could be done regarding the
decision-making processes in healthy individuals who are under stress, as is often the
case when choices that result in legal system involvement occur. We have focused
thus far on individuals who are across the board normal, or who are subject to
conditions such as substance dependence or neurological disorder that affect them at
all times. A full understanding of the operation of the process of choice will include
the various states of mood, health and environment through which all human beings
cycle. As is the case in most disciplines, there is likely to be a continuum of
impairment in the exercise of willpower rather than a black-or-white state of
dysfunction or health.
This said, what we do know about the process of choice indicates that there is a
strong deterministic element to actions that appear to us to be indeterminist or freely
chosen. The exceptions, noted above, of impairments of willpower prove the rule
that our exercise of will, presumably in the service of being able to survive and thrive,
is inuenced in large part by the automatic and involuntary functioning of particular
neural pathways. Recalling our discussion of the Iowa Gambling Task, lesion
patients who could accurately explain to researchers what a winning strategy for the
game was were nonetheless unable, due to neurological decit, to follow that
strategy. This phenomenon demonstrates that it is more than an intellectual
understanding of consequences, morals and ethics that guides a persons actual
behavior in the real world. It is also the operation of neural mechanisms that generate
somatic states, automatically and obligatorily, that exert enough of a bias on behavior
to render irrelevant the ability to know one should behave otherwise. What states
are actually generated depends on a complex network of all the stimuli a person has
ever encountered, all the responses she or he has ever had to those stimuli, and all the
brain patterns that these stimulusresponse pairings have created.
Perhaps, then, the most important question is yet a third one: Do we possess the
kind of free will that justies not only legal responsibility, but the stigma and
disapprobation that are associated with failures to conform to societys laws? The
compassionate answer to this question must be no. How this might play out in a
reexamination of our societal assumptions is the subject of the next section of this
article.
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LEGAL IMPLICATIONS OF THE NEUROSCIENCE OF

DECISION MAKING: HOPES AND DIRECTIONS FOR
FUTURE INTERDISCIPLINARY RESEARCH
Before moving on, it is a good time to take note that although the examples we have
used so far, and on which we will continue to focus, come from criminal law,
decision-making research and what it reveals about free will has implications in many
areas of the law. Contract law, for example, is based on the premise that two or more
parties can decide upon a course of action and make commitments to each other to
follow rules of interaction that they set out for their relationship, and tort laws
emphasis on duty and negligence presupposes some ability to control ones behavior.
The criminal law example is perhaps particularly compelling because it is in criminal
law alone that the assumption of freedom of choice justies relieving citizens of their
basic rights to liberty or even life. However, the call for society to view those who
break the law with understanding applies whether they violate criminal prohibitions,
contract provisions or duties of care to their fellow citizens.
Though courts embracing free will have done so because they have deemed it a
necessary assumption for an operable justice system, most scholars who have
addressed the issue have agreed that any scientic discoveries that undermine free
will do not therefore undermine all the foundations on which the criminal legal
system is based. Rather, they call for a reprioritization of values, better alignment
between the stated and actual reasons for the systems character, or a commitment to
resolving some of the tensions that are already at play in the system and are only
highlighted, not created, by discoveries in the social and biological sciences (Cotton,
2005; Greene & Cohen, 2004; Jones, 2003). Examination of the four justications
for punishmentdeterrence, incapacitation, rehabilitation, and retributionin
light of decision-making neuroscience lends further support to this way of
approaching the issue.

The Tenability of our Justications for Punishment

Each of the four classic justications for punishment expresses at least one facet of
the collection of interests that come into contact in the justice system. Since many of
these interests focus on theories of how to inuence choice, or what is the correct
ethical response to bad choices that harm others, the research cited in this paper on
the neuroscience of choice has obvious implications for several of these justications.
Indeed, rather than threatening the foundations of the system, it is our hope that the
research and its implications can be seen as a means to harmonize these justications
into a more unied and workable whole by inspiring further research into the many
unanswered questions that remain to be answered as neuroscience researchers focus
more closely on forensic populations.

Retribution
The retributive impulse behind the features of the criminal justice system are
evident, if not in the facts of the system itself, then in the rhetoric of tough on
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crime political platforms and the ever-increasing harshness of proposed sentencing

and other criminal legislation. Some scholars credit retribution as being the primary
justication for punishment, as it is the one that best explains the actual features of
the system currently in operation (Greene & Cohen, 2004, pp. 17761777). Yet it is
perhaps the justication most undermined by any hypothesis of limited free will,
because who deserves punishment for the involuntarily action of neural
mechanisms?
Greene and Cohen provide a thorough analysis of this point in a recent article,
concluding that as advances in neuroscience reveal more about the mechanistic
nature of decision making, individuals in society will cling less rmly to their
retributive impulses and beliefs. Moreover, as more individual attitudes change, so
will the law. In their words, The law will continue to punish misdeeds, as it must for
practical reasons, but the idea of distinguishing the truly, deeply guilty from those
who are merely victims of neuronal circumstances will, we submit, seem pointless
(Greene & Cohen, 2004, p. 1781). We believe that the decision-making processes
discussed in this article exemplify exactly the type of discovery to which Greene and
Cohen refer in their work, and that the implications are indeed as they predict.
That the moral intuitions and commitments (Greene & Cohen, 2004, p. 1778)
of society are changing in this way can be seen in the tensions that already exist in the
system as it is. Michelle Cotton, in another recent paper, outlines the historical
incursions determinism has made into the courtroom, driven by sympathies for those
who wind up in court due to behaviors that only make sense given their respective
mental developmental states (e.g. the mentally ill, youth, intoxicated persons). In
most areas, however, with some exceptions in juvenile law and the insanity defense,1
Cotton contends that the fear of the slippery slope led courts and legislatures to
banish any vestiges of determinism from our practical philosophy of criminal
responsibility. The result is what she calls a foolish consistency, which does not
take the realities of human psychology into account, and thus leaves us with a system
that neither inspires condence nor achieves results (Cotton, 2005).
There is further tension between the sympathy that new understandings of human
behavior engender, and the retributive impulse that is not just a principle of law but is
itself a psychological phenomenon. Matthew Jones notes, in a piece discussing the
impact of genetics research on the law, that legal scholars predicting the end to the
current criminal justice system are misguided . . . [because] they do not take into
account the considerable role that punishment plays in acting as both a healing
device and an outlet for revenge (Jones, 2003). Greene and Cohen, while
expressing optimism that society can learn to move past the retributive impulse, cite
recent primate studies demonstrating that revenge, or a sense of justice, might
inherently be with us from our evolutionary beginnings, presumably having aided the
survival of the species (Greene & Cohen, 2004). Thus while decision-making
1

For a good review of the difculties in applying the insanity defense to defendants with frontal lobe
dysfunction see the work of Seiden (2004). The author discusses the emphasis the Virginia insanity
defense (which is similar to U.S. Supreme Court precedent and other state law) places on cognitive ability
and moral sense/reasoning, which is not impaired in frontal lobe patients, and the resulting challenge in
applying the defense to frontal lobe dysfunctional capital defendants. Similarly, an insanity defense is not
the best way to address questions of free will in the law, as this defense is (and should be) designed to carve
out a very small population of defendants, whereas we have argued that the questions for free will are not so
easily limited.
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research does give us cause to pull back on our legal systems notion that we operate
with a will that is completely free, it is important to note that it has not addressed all
the biological processes that are behind the conict between our retributive and our
altruistic natures.
What decision-making and other behavioral neuroscience research does allow us
to do, however, is to appreciate this tension scientically. Guilt and innocence, fear
and revenge are principles that by their nature arouse emotions that make it
challenging for a society always to create the best solutions to the problems they fuel.
Perhaps by providing us with some healthy distance from these emotions, a
society-wide understanding of the neural mechanisms of will can contribute to a
more popular appreciation of the complexity of the notion of responsibility. We have
discussed the retribution justication rst because the new temperance in exacting
retribution that neuroscience may inspire is important to keep in mind when
considering some of the shortcomings of the other three justications.

Deterrence
The punitive systems goals of deterrence require that people be able to act on the
prohibitions that the law denes, so an assumption of determinism may seem to
render this a futile aim. However, decision-making research reveals more than just a
disembodied mechanism of brain control. The mechanism we are discovering is one
that in healthy individuals is inextricably linked to the stimuli that historically have
existed in a persons environment, which would of course include laws, experiences
of seeing the results of others violating laws or violating them oneself, and
experiences of learning moral lessons about the activities that are the subjects of the
laws. In other words, we are discovering one of the mechanisms by which deterrence
operates, over the long term of an individuals neural development.
On the other hand, we have seen in the cases of impaired will that, nonetheless,
neurological conditions exist that result in people essentially ignoring experiences of
punishment. That the cognitive prole of violent offenders is so similar to that of
patients with just these conditions makes us wonder how, whether and to what
degree punishment is working as a deterrent with any particular person. Perhaps the
phenomenon of general deterrence (the deterrent effect that the possibility of
punishment has for society) accounts for more of the concepts usefulness than does
specic deterrence (the deterrent effect that being punished has on a particular
offender). That is, in reforming our system, the biological foundations of the exercise
of will may favor a forward-looking focus on how our justice system impacts the
development of law-abiding behavioral patterns, over the more backward-looking,
retributive focus that currently exists. This and similar hypotheses deserve further
examination as decision-making research advances. The extremely high recidivism
rates we experience in the US speak for themselves as evidence that imprisonment
does not completely deter crime. In addition, the fact that criminal activity peaks in
the late teens and early 20s, and drops off in the 30s and 40s for the vast majority of
offenders, suggests the presence of additional deterrent factors that operate over
time. These factors may be predominantly environmental (either natural, such as
increased family responsibility, or imposed, as in punishments) or physiological (for
example, maturation of the prefrontal cortex, which continues into the 20s). Our
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hope is that decision-making research will shed light on what are the most effective
deterrents, and whether we can help their impact to be felt earlier in life.

Incapacitation
On the surface, the incapacitation justication is relatively unaffected by any
research regarding choice and will. It is a practical justication: People who commit
crimes need to be taken off of the streets, so that they are prevented from committing
more crimes. The decision process that led to the crime is not explicitly relevant.
However, the justication does rest to some degree on the assumption that there is a
type of person who commits crimes, rather than a person who happens to have
committed a crime, and so is also interrelated with the nal justication,
rehabilitation.

Rehabilitation
Decision-making research is a double-edged sword in a conversation about
rehabilitation. One the one hand, a deterministic view of the choice process seems to
undermine the very idea of rehabilitation. On the other, the more we understand the
brain, the greater our ability to design interventions that make the possibility of
rehabilitation real for many whom the law writes off today. For example, research
into the pharmacology of the different decision-making pathways indicates that the
pathways that operate using non-conscious knowledge work using the neurotransmitter dopamine, whereas conscious knowledge pathways make use of
serotonin (Bechara, Damasio, & Damasio, 2001). This discovery raises the
possibility of pharmacological interventions for individuals who suffer from chemical
imbalances interfering with their ability to make adaptive choices. Of course,
reversing the chemical deciency is not enough; therapy that enables the relearning
of coping strategies in the presence of normal pharmacology is probably the most
effective treatment. More research is necessary into clinical applications of the
knowledge discussed in this article, which will create yet more rehabilitative
opportunity.
In discussing rehabilitative options, it is important to avoid pathologizing all
things related to choice, conict and crime, a tendency that we nd in our society as
psychological research advances in all areas. Moreover, discussion of rehabilitative
therapies that are designed to effect how people exercise their will directly and
alarmingly raises ethical questions including the following. Who is making the
decision about what is a good exercise of will? Is the very notion of rehabilitation
paternalistic? How much autonomy will society grant to offenders, especially violent
offenders, in choosing not to submit to pharmacological or other intervention?
Adequate discussion of these questions is outside the scope of this article, but should
be foremost on our minds whenever we see the issues of free will and behavioral
modications come together in any state-sponsored program. The issue of what to
do when offenders either cannot or do not want to be rehabilitated remains despite
what we learn from neuroscience, and should be considered in light of the
understandings we have gained about the other justications for the criminal law
system.
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K. Burns and A. Bechara

CONCLUSION
Our exploration of the biology of human will and its implications for the legal system
has highlighted the complexity of the interaction between the two. Like the other
authors whose work we have cited, we are optimistic that society can embrace these
and other discoveries in the behavioral and social sciences as an opportunity for
creative reform rather than as a threat to our systems foundations. The law often
changes slowly and conservatively, but we have already seen changes come in
response to new understandings of human behavior, and expect that this pattern will
only continue. Examples from the juvenile justice eld demonstrate how this
evolution can work.
The juvenile system has throughout its existence been dealing with precisely the
questions that this article has been addressing about the extent to which our will is
free versus the extent to which our environment and constitution determines our
behavior. The separate juvenile system was in fact conceived with an understanding
of the determined nature of the behavior of youth (Cotton, 2005), and has
maintained this avor notwithstanding punitive changes that have been made in
response to public fear of gang-involved youth. In recent years this characterization
has been buoyed by greater understanding of the course of brain development, and
the fact that even late in the teen years a persons judgment abilities are limited
because the prefrontal cortex (exactly the area of the brain on which we have focused
so much attention here) is not fully developed until the early 20s. This is not to say
that the juvenile system is perfect; far from it: It suffers much from the unresolved
issues of will and determinism, which affect whether we conceptualize the juvenile
system as more criminal and punitive, or more civil and analogous to child welfare
systems.2
We do, however, see a greater willingness to innovate in the juvenile system, which
likely is due to a corresponding willingness to release our retributive impulses,
knowing what we do about youth psychology. For example, there is a movement
toward introducing restorative justice models, based on the reconciliation
commissions that have been successful in conict-torn regions, in our criminal
justice system, which has made some progress in the youth justice eld. This model is
reective, though perhaps unwittingly, of some of the brain science insights we
proposed above for the justications of punishment. It is less harshly retributive,
viewing offenses instead as occurring in a social and psychological context. It is more
forward looking, as we suggested neurologically speaking might be a preferable way
to inspire deterrence, and is open to more creative and collaborative notions of
rehabilitation. Signicantly, the Supreme Court also recently invalidated the juvenile
death penalty (Roper v. Simmons, 2005), in response to changing societal notions of
what are appropriate ways to deal with crime. These and other compassionate and
creative possibilities exist for making our legal system compatible with the evolving
denitions of responsibility, and better understandings of the neural mechanisms

See, for example, McKeiver v. Pennsylania (1971), a case in which the Supreme Court held that juveniles
do not have the right to a trial by jury because of the differences between the juvenile and criminal system,
reversing a trend toward granting juveniles in delinquency cases the constitutional protections afforded
criminal defendants.
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underlying choice will hopefully inspire greater openness to such innovations for
juveniles as well as the adults they grow up to be.

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Figure 1. A schematic diagram illustrating key structures belonging to the impulsive system (red) and the reective system (blue). An emergent dominant pattern of
affective signaling can modulate the activity of several components of the impulsive and reective systems, which include regions involved in (1) representing patterns of
affective states, e.g. the insula and somatosensing cortices, (2) triggering of affective states (e.g. amygdala (A) and VMPC), (3) memory, impulse, and attention control
(e.g. lateral orbitofrontal, inferior frontal gyrus, dorsolateral prefrontal (DLPC), hippocampus (Hyp), and anterior cingulate (AC)), and (4) behavioral actions (e.g.
striatum and supplementary motor area). We have proposed that the mechanisms that determine the valence of the dominant pattern of affective signaling are consistent
with the principles of natural selection, i.e. survival of the ttest. In other words, numerous and conicting signals may be triggered simultaneously, but stronger ones gain
selective advantage over weaker ones. Over the course of pondering a decision, positive and negative signals that are strong are reinforced, while weak ones are eliminated.
This process can be very fast, and ultimately a winner takes all, i.e. an overall, more dominant, pattern of affective signaling emerges.