A couple of weeks ago, the New York Times ran an article offering Rochelle Sterling’s perspective on the racist statements made by her husband Donald, owner of the L.A. Clippers. I haven’t followed this story closely, but the essence is that Mr. Sterling’s girlfriend recorded a phone call of theirs in which he made racist statements. After she made the recording public, there was an uproar and the NBA responded by barring him from the league and forcing him to sell the team. His wife also has an ownership interest in the team, and she claims that she shouldn’t be punished for her husband’s behavior. What caught my attention were the following exchanges (edited for brevity):
Q: What is his physical and mental state?
A: I’ve been saying for the last year or so that he forgets things. He forgets people’s names, people he’s worked with for 20 years. I don’t know much about dementia, but it seems like his [sic] forgetting names, his forgetting things — he has different types of moods.
Q: You say you haven’t talked to him recently, yet you were seen leaving a Los Angeles restaurant with him not long after the audiotape surfaced, right?
A: We [Mrs. Sterling and the Clippers’ team president] were just trying to talk him into making an apology, and I guess he was confused. He vacillated between saying, “O.K., what am I apologizing for?” and, “It was a private conversation, and I don’t even know why she taped our conversation.” He was confused.
I just Googled Donald Sterling and dementia and found a bunch of other articles about Mrs. Sterling’s suspicion. Of course, we can not confirm or refute whether Mr. Sterling actually has dementia based merely on his wife’s statements to the media, but if it were true, it would raise interesting questions about his culpability in the matter of his racist remarks and the appropriate response to them.
There is an emerging field of neuro law involving the study of this issue. Here’s an excellent piece from the Atlantic a few years ago. The article describes a few notable cases illustrating the point that a person’s illegal behavior may sometimes have a causal basis in neuropathology. One case actually involved a patient treated by one of my co-residents at the University of Virginia. The patient was a 40 year old man who suddenly took an interest in child pornography. He was eventually convicted, but on the night prior to when he was supposed to report to prison, he presented to our ED with severe headache. Now, you can imagine how that staffing conversation went: “Uh, sorry to bother you, but I’ve got this 40 year old pedophile who’s supposed to go to jail tomorrow presenting with severe headache. Exam’s non-focal [although actually, it wasn’t–read the article]. Probably malingering . . . ”
Sure enough, the patient was admitted to psychiatry, but when he developed balance disturbance, neurological consultation and then MRI were obtained. The former showed subtle left facial weakness, frontal release signs, and constructional apraxia. The latter showed a large right orbitofrontal tumor. His paraphilia resolved after resection. When it subsequently returned, repeat MRI showed tumor recurrence.
On the other hand, sometimes people try to blame their misbehavior on neurological conditions that are not expected to cause such. UW’s own Frank Forster, chair of our department from 1958-1978 and one of the “four horsemen” who founded the AAN, was involved in a famous case. The following passage is taken from an obituary published in the green journal:
In 1964, Dr. Forster testified for the Dallas County prosecution in the trial of Jack Ruby for the murder of Lee Harvey Oswald, after Oswald’s arrest for the assassination of President John F. Kennedy. Famed defense counsel Melvin Belli, representing Ruby, contended that Ruby was not guilty because an uncontrollable epileptic seizure caused Ruby to shoot Oswald. Dr. Forster, as an expert witness on epilepsy, gave evidence to the jury that the 6-second positive spikes seen on Ruby’s EEG did not constitute evidence of epilepsy. He also testified that Ruby’s ability to perform numerous deliberate acts—concealing and then pulling out his gun, aiming, and shooting—were inconsistent with an epileptic seizure. Ruby was convicted of murder.
Assuming that a person does in fact have a neurological condition that causes, or significantly contributes to, illegal behavior, what is the appropriate response? Surely we can’t leave pedophiles in their homes with children around. Eagleman’s view:
Blameworthiness should be removed from the legal argot. It is a backward-looking concept that demands the impossible task of untangling the hopelessly complex web of genetics and environment that constructs the trajectory of a human life.
Instead of debating culpability, we should focus on what to do, moving forward, with an accused lawbreaker. I suggest that the legal system has to become forward-looking, primarily because it can no longer hope to do otherwise. As science complicates the question of culpability, our legal and social policy will need to shift toward a different set of questions: 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 behavior? How can incentives be realistically structured to deter crime?
Let’s assume, for argument’s sake, that Mr. Sterling is, unfortunately, dementing. Does this change our opinion of how the NBA should respond to his racist remarks? Was the league’s decision to force his sale of the team an attempt to assign blame and punishment? To set an example and deter others? Or was it simply to remove him from the public sphere so that he cannot easily offend people or embarrass the league? If the last is true, were there other ways to accomplish this? Perhaps he could have been forced to sell his majority interest to the minority owners, including his wife.
As we learn more and more about the biological underpinnings of behavior, we’re likely to see more cases that challenge our notions of blameworthiness and appropriate response.