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Irresponsible brains? The role of consciousness in guilt

In the second instalment of Biology and Blame, Neil Levy considers how neuroscience can affect legal judgements. Can human beings still be held responsible in the age of neuroscience? Some people say no…

Philosophers argue that people are not over and above the systems involved in information processing –we are our brains, plus some other, equally physical stuff. Tom Blackwell/Flickr (reszied), CC BY-NC

In the second instalment of Biology and Blame, Neil Levy considers how neuroscience can affect legal judgements.


Can human beings still be held responsible in the age of neuroscience?

Some people say no: they say once we understand how the brain processes information and thereby causes behaviour, there’s nothing left over for the person to do.

This argument has not impressed philosophers, who say there doesn’t need to be anything left for the person to do in order to be responsible. People are not anything over and above the causal systems involved in information processing, we are our brains (plus some other, equally physical stuff).

We are responsible if our information processing systems are suitably attuned to reasons, most philosophers think.

There are big philosophical debates concerning what it takes to be suitably attuned to reasons, and whether this is really enough for responsibility. But I want to set those debates aside here.

It’s more interesting to ask what we can learn from neuroscience about the nature of responsibility and about when we’re responsible. Even if neuroscience doesn’t tell us that no one is ever responsible, it might be able to tell us if particular people are responsible for particular actions.

A worthy case study

Consider a case like this: early one morning in 1987, a Canadian man named Ken Parks got up from the sofa where he had fallen asleep and drove to his parents’-in-law house.

Some argue that once we understand how the brain causes behaviour, there’s nothing left over for the person to do. Reigh LeBlanc/Flickr, CC BY-NC

There he stabbed them both before driving to the police station, where he told police he thought he had killed someone. He had: his mother-in-law died from her injuries.

Parks had no discernible motive for his crime and no history of violence. He claimed he was sleepwalking throughout the whole thing. Should we believe him?

We can’t go back in time and get direct evidence concerning whether he was sleepwalking. But there’s plenty of indirect evidence available.

The fact the action was out of character for Parks is one piece of evidence. He also had a childhood history of sleepwalking. Other pieces of evidence came from science: two separate polysomnograms (a test used for study and diagnosis in sleep medicine) indicated sleep abnormalities.

Assuming we believe him, why should sleepwalking excuse murder? A first attempt at an answer might be that sleepwalkers don’t know what they’re doing. Maybe that answer is right, but we need to take care in assessing it.

Sleepwalkers don’t act randomly or blindly, nor are their actions mere reflexes. Instead, they act intelligently.

Ken Parks drove 23 kilometres through suburban streets: that doesn’t happen by accident. Rather it indicates an impressive degree of control over his behaviour.

Parks responded to information in ways that made sense, turning the steering wheel to follow the road, braking and accelerating to avoid obstacles, and so on. So why not think he’s responsible for his actions?

Guilty or not?

Here neuroscience is relevant once again. There’s a great deal of evidence that consciousness, which is greatly diminished in sleepwalking, plays an important role in integrating information.

The brain actually doesn’t work like this. Dave King/Flickr, CC BY-NC-SA

When we are conscious of what we’re doing, the information is simultaneously available to a wide range of different brain regions involved in behaviour. When we’re less conscious, the information is only available to a small number of these regions.

When information is available to only a small number of brain regions, we can still respond to it in a habitual kind of way. That’s why Ken Parks was able to drive his car: he (like most of us) had acquired driving habits.

It’s because of these habits we’re able to drive while daydreaming or singing along with the radio, hardly aware of what we’re doing.

But the information concerning what he was doing was not broadly available to his mind. That’s important, because he wasn’t able to control his behaviour in the light of all his beliefs. He responded automatically, without being able to ask himself whether he valued what he was doing.

A whole range of information which would normally have stopped him (screams, the sight of blood, his mother-in-law’s terrified face) couldn’t interact with the mechanisms causing his actions.

The Canadian court found Parks not guilty on the charge of murder (an acquittal later upheld by the Supreme Court). I think they were right to do so.

Neuroscience provides evidence that in the absence of consciousness, we can’t control our behaviour in the light of our values. And that’s a good reason to excuse us.


This is the second article in our series Biology and Blame. Click on the links below to read other pieces:

Part one – Genes made me do it: genetics, responsibility and criminal law

Part three - Psychiatry’s fight for a place in defining criminal responsibility

Part four – Looking for psychopaths in all the wrong places: fMRI in court

Part five - Why shouldn’t addiction be a defence to low-level crime?

Part six – Natural born killers: brain shape, behaviour and the history of phrenology

Part seven - Put down the smart drugs – cognitive enhancement is ethically risky business

Join the conversation

47 Comments sorted by

  1. Vicki High

    company director

    This is a little bit off topic, but I hope one of these articles will also address how we respond to people's crimes - emotionally, logically or perhaps both - since we are, in general, judged by ordinary men and women.

    I find the case of 'moral luck' fascinating in this respect. Here I am referring to the way we tend to blame people depending on the outcomes of their actions rather than their motives. So, for example, a drunk driver who is pulled over by the police and blows 0.51 is treated as a basic case of DUI. However, should that same driver have hit and killed a pedestrian we throw the book at them...even if a sober driver may have had the same result.

    Just as we need to consider the possible guilt or innocence of the people being tried, we need to consider the brains of the people doing the judging.

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    1. Bron Larner

      Retired Humantities

      In reply to Vicki High

      Vicki, I don't have the reference with me today, but some research has been done on sibling placement and judgemental attitudes, particularly in the States. For example, I think studies showed that jurors who were eldest children were more likely to convict.

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    2. Vicki High

      company director

      In reply to Bron Larner

      Nice to know some research into jurors has been done... but for me it raises the question: "how many judges are also the eldest child?"

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    3. Neil Levy

      Head of Neuroethics at The Florey Institute of Neuroscience and Mental Health

      In reply to Vicki High

      Vicki, there's quite a lot of research on how people make moral and legal judgments. One nice study (by Gigerenzer, IIRC) found that they could predict bail decisions by judges just by looking at whether the police opposed bail or not. It was interesting, because judges claimed they took a whole range of things into account in making the decision, but the things they claimed to think about didn't predict the decisions anywhere near as the simple rule. That's some reason to think that even judges don't have good insight into how they make their decisions.

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    4. Lora Bowman

      logged in via Facebook

      In reply to Vicki High

      The judging was done by the same people who say They "were under the influence of alcohol" when crime was committed, therefore, NOT OF SOUND MIND. As Oscar P. from Africa. The alcohol evaporated his conscience mind. This is a well known defense (by lawyers) and they are paid very well to avoid blaming ACOHOL for the actions of rapist and killers of women and children. In 99.9 cases it is drunken men who won't take no for an answer. The influence of ethyl on the brain never seems to be the subject of Nerosceince (Hmmmmmm) wonder why? Is it possible to bring a lawsuit against government for not disclosing that ethyl is in the alcohol we buy and they tax. (for 5 Billion a year?)Is it TOO BIG TO FAIL"?

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    5. Bron Larner

      Retired Humantities

      In reply to Bron Larner

      Oh dear, I can't help being off topic. There was an ABC Classic Radio program this morning (8/6) featuring snippets from the opera based on the idea that, if everything is fore-ordained in the stars, you are therefore guilt-free. RATHER good!

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  2. Stephen Ralph

    carer at n/a

    Personally, I would have found him guilty of manslaughter and sentenced him to a term in gaol.

    Who knows if he didn't secretly harbour ill-feeling towards his in laws, and wished them harm.

    Sooner or later, the buck stops somewhere.

    I wonder if his wife and children considered him NOT guilty.

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    1. Paul Prociv

      ex medical academic; botanical engineer at University of Queensland

      In reply to Stephen Ralph

      I agree, Stephen. If Parks killed some people while sleepwalking, what's to stop him doing it again? Isn't a major function of the judicial system to protect society? If I knew this bloke, or was related to him, I think I'd move very far away from where he might be sleeping, perhaps to another continent (more than one sleep away).

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    2. Stephen Ralph

      carer at n/a

      In reply to Paul Prociv

      Good point Paul - are they protecting society from this man?
      I wonder what, if any, measures were taken to stop it from happening again.

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  3. Whit Blauvelt

    network engineer

    The sleepwalking example is consonant with the claim that to the degree we're conscious we're free. That claim seems, from common experience, at least a good first approximation. Some who don't believe in freedom due to their faith in a fundamentalist mechanical physicalism might try to leverage that argument to claim that we're not really conscious even when we claim to be, and so are never really free. Many people in academia find this sort of argument attractive. This is not necessarily to the…

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    1. Joe Gartner

      Eating Cake

      In reply to Whit Blauvelt

      it's neither insane nor incredible to seriously postulate a mechanistic universe, a mechanistic brain and the absence of free will. It's just unbelievable. Your comment:
      'Some who don't believe in freedom due to their faith in a fundamentalist mechanical physicalism might try to leverage that argument to claim that we're not really conscious even when we claim to be, and so are never really free' seems implausible to me.
      There is nothing in the mechanistic universe that denies the presence of conscious brains. You can have no free will and be conscious.

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    2. Joe Gartner

      Eating Cake

      In reply to Neil Levy

      Yeah, i've read a few arguments about this - I remain unconvinced... it sounds too much like forcing the universe to fit our preconception. the argument from randomness (i,e, quantum randomness) is particularly unconvincing.

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    3. Neil Levy

      Head of Neuroethics at The Florey Institute of Neuroscience and Mental Health

      In reply to Joe Gartner

      Nothing to do with quantum mechanics. The most common view is that our evolutionary history has resulted in us being animals who are sensitive to reasons (other animals are too, but not as much as we are). Being able to detect and respond to reasons is all that it takes for free will. What more could you want? If that's right, then free will is compatible with both mechanism and determinism (Daniel Dennett has a book on this worth reading).

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    4. Joe Gartner

      Eating Cake

      In reply to Neil Levy

      I was going to argue until I recalled that someone has already done a better job at this than me...

      http://www.samharris.org/blog/item/free-will-and-free-will

      That's not a fait accompli smashdown of Daniel dennett but I lean towards harris's view.

      Ultimately you could argue that it makes no difference, as we have to act as if we have free will and we have to act that others, including criminals, have free will. The argument in the last articles in the Conversation are, I believe, about degrees of free will or at least the degree of culpability of an action.

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    5. In reply to Joe Gartner

      Comment removed by moderator.

    6. Michael Shand

      Software Tester

      In reply to Neil Levy

      The type of free will that is compatabile with determinism is not what we mean we when talk about free will

      Dennet's view is that we have the illusion of free will not that free will actually exists

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    7. Neil Levy

      Head of Neuroethics at The Florey Institute of Neuroscience and Mental Health

      In reply to Michael Shand

      Just for the record, in case anyone thinks Michael Shand knows anything about what I believe, he is as wrong about what I think as he is about Dennett's view. How he can infer from the fact that I believe that neuroscience can explain how brains breakdown that I believe that it can't tell how it works is quite beyond. Generally speaking, you have to know how something works to explain why it breaks down.

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    8. Michael Shand

      Software Tester

      In reply to Neil Levy

      Because you told me in a comment on your previous article, I even quoted you - look it up

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    9. In reply to Neil Levy

      Comment removed by moderator.

    10. Michael Shand

      Software Tester

      In reply to Joe Gartner

      I think acting as if we all have free will leads to unjust criminal justice system

      We should view everyone as victims of society in one form or another

      the child that grew up in a single parent household with limited resources did not have the same options as you, he was not free to make the decisions that you were able to make due to being distracted by a low blood sugar level and not being able to pay attention in class and not getting the extra support he needed at home

      You are not free to choose a choice that you didn't know existed, not understanding reality is always worse than truely understanding reality and the only reason to treat people as if they have free will at this stage is to pander to the religious

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    11. Neil Levy

      logged in via Facebook

      In reply to Michael Shand

      No Michael, I didn't. I have no idea how you got that. I went and checked; I never said anything like this. And the data I mentioned *is* the science. I won't reply again. There's clearly no point, since you are either unwilling or unable to understand what I say.

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    12. In reply to Neil Levy

      Comment removed by moderator.

    13. Michael Shand

      Software Tester

      In reply to Neil Levy

      http://www.youtube.com/watch?v=wGPIzSe5cAU

      Daniel Dennett, Santa Fe Institute talking of "Practical Free Will"

      Above all, Dennet states that he is not talking about Free WIll as it is commonly understood but limited or practical free will

      Direct Quote from Daniel Dennet;

      "I don't establish the kind of absolute free will and moral responsibility that most people want to believe in and do believe in. That can't be done and I know it"

      "I'm talking about the construction of social reality...Free…

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    14. Whit Blauvelt

      network engineer

      In reply to Whit Blauvelt

      Thanks for the discussion. I'd like to put my challenge differently: If there is no freedom, and so there's an argument for not punishing criminals, then there's just as strong an argument for not rewarding scientific success. Great discoveries in neuroscience, for instance, deserve praise and reward to no greater degree than great crimes deserve condemnation and punishment.

      Yet neuroscientists and philosophers who argue against freedom strangely fail to behave as if they believe fame is as undeserved…

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    15. Allan Gardiner

      Dr

      In reply to Neil Levy

      Man will never know exactly how his evolving brain functions because he only has but a brain with which to scan. It matters not how many computers, inter alia, that he may wish to press into service to assist him in interpreting the human brain's workings, at the end of the day_dreaming, he, and he alone will have to try to make sense of it all. He may learn more [that's more, not just something(s) novel] about the brain than that which he already knows, and if he ever does, then this will but serve to prove how very little he knew/knows at any given time.

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    16. Joe Gartner

      Eating Cake

      In reply to Michael Shand

      Again, Michael, that is not the point. You are arguing for mitigation not absence of free will. The concept of free will that I am referring to is that assumed by the justice system: somewhere in that black box on top of the shoulders is a neurological event that leads to an action. This neurological event could have been other than what it was therefore judgement will be made upon that action.

      Whether someone from a less optimal upbringing had more limited capability to make decisions is not germane. The point is they still can choose not to make that decision that resulted in a crime.

      Some people have decision making that is entirely diminished by mental illness, usually some form of psychosis (ie they are out of touch with reality - they make decisions congruent with that reality).

      Those who are psychopathic are a different kettle of fish and, i believe, are quite a different argument.

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    17. Michael Shand

      Software Tester

      In reply to Joe Gartner

      You are not free to make choices that do not occur to you

      That should be part of the justice system and it is to some extent, we recognise that the mentally disabled, the young, those afflicted by dependence or lacking education or training are less liable for their actions than others

      In argueing that we should treat everyone as if they have free will I believe you are reffering to "Practical Free WIll" such as Dennet is, which isn't actually free will at all but merely recognition of the social…

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    18. Michael Shand

      Software Tester

      In reply to Joe Gartner

      To your question - I am not talking of limited free will anymore than I would talk about limited infinity

      maybe a better way to put it is that Dennet is not interested in free will, he is not interested in whether we could of done differently in the exact same situation as that never happens, ever and so is of little use

      However, being able to do different given the exact same situation where all variables including brain states are the same is what people mean when they refer to free will, that…

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    19. Joe Gartner

      Eating Cake

      In reply to Michael Shand

      'You are not free to make choices that do not occur to you'

      No, but you are free to make decisions other than what you have made. What you have suggested is neither a defence in law or logic. There is no-one in our community who could reasonably state that, for example, in a murder trial that 'it did not occur to me not to kill or that killing a man is wrong'.

      Your statement seems to allude to the philosophical inability of free will to exist in a deterministic universe.

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    20. Michael Shand

      Software Tester

      In reply to Joe Gartner

      I don't understand that last sentence but I would point out that absence of Free Will does not negate punishment nor criminalisation

      For Instance, A Man is going around chopping people's heads off

      Whether he choose freely to do this does not impact whether we should take him off the streets nor does it impact whether such actions deserve punishment for his actions

      Understanding causation does not remove responsibility, you are ultimately responsible for your actions even if we can't hold you responsible…

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    21. Michael Shand

      Software Tester

      In reply to Joe Gartner

      "but you are free to make decisions other than what you have made"

      What does this ultimately mean? given the exact same situation and brain states....what makes you think that you are free to choose differently?

      What part of your brain is not dependent on the laws of physics that having the same brain state in the same situation could result in different actions?

      If you are talking about a different situation, like a next time, that is learning, it is not free will

      ie. when I was 7 I put a coin in a wall socket, when I was 8 I choose not to - that is learning not free will

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    22. Whit Blauvelt

      network engineer

      In reply to Joe Gartner

      "You can have no free will and be conscious." That's a strong claim. Because much of our conscious focus is on choices: creating, recognizing, evaluating, and striving to realize them. There's a lot of good research on the biological resources devoted to and often exhausted by these activities. If we are not free, why are we so biologically invested in conscious behavior, supported by significant expenditure of energy at the cellular level, which presumes that we are?

      If you give credence to evolution, physiology does not invest where there is no survival advantage. Yet we find a huge investment in neural activity which correlates with the conscious perception and pursuit of free choices and actions. If the argument for freedom fails, so does the argument for evolution.

      And contrary to what Neil Levy says, most philosophers do not think you can have free will in a mechanistic universe. That's a minority position.

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    23. Whit Blauvelt

      network engineer

      In reply to Joe Gartner

      "You can have no free will and be conscious." That's a strong claim. Because
      much of our conscious focus is on choices: creating, recognizing,
      evaluating, and striving to realize them. There's a lot of good research on
      the biological resources devoted to and often exhausted by these activities.
      If we are not free, why are we so biologically invested in conscious
      behavior, supported by significant expenditure of energy at the cellular
      level, which presumes that we are?

      If you give credence to evolution, physiology does not invest where there is
      no survival advantage. Yet we find a huge investment in neural activity
      which correlates with the conscious perception and pursuit of free choices
      and actions. If the argument for freedom fails, so does the argument for
      evolution.

      And contrary to what Neil Levy says, most philosophers do not think you can
      have free will in a mechanistic universe. That's a minority position.

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    24. Whit Blauvelt

      network engineer

      In reply to Whit Blauvelt

      Thanks for the discussion. I'd like to put my challenge differently: If
      there is no freedom, and so there's an argument for not punishing criminals,
      then there's just as strong an argument for not rewarding scientific
      success. Great discoveries in neuroscience, for instance, deserve praise and
      reward to no greater degree than great crimes deserve condemnation and
      punishment.

      Yet neuroscientists and philosophers who argue against freedom strangely
      fail to behave as if they believe fame is as undeserved…

      Read more
    25. Joe Gartner

      Eating Cake

      In reply to Whit Blauvelt

      It's hardly a strong claim, there are people in our world who have no free will and are conscious of it. An example is in neurology: there are people who have brain lesions that result in a limb (usually an arm) that acts independently of the will - that is the arm is controlled by the motor area on one side of the brain. These people can be seen fighting the actions of their own arm with their other arm. They are conscious of the lack of free will exhibited by their body (even if they still possess…

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    26. Vicki High

      company director

      In reply to Joe Gartner

      Joe, could you clarify the following statement a bit please?

      "Another example from psychiatry is schizophrenia, where (it is postulated) the compulsive nature of the demand hallucinations is a disassociation of free will - yet the person is conscious of it."

      I have 'given in' to command hallucinations but it was more like going "stuff it" and giving up fighting them off - the closest example I can give is if someone is nagging you incessantly until you 'snap' and respond (whether positively or negatively).

      However I have also responded to command hallucinations without realising what I was doing - the only example that I can give that may make any sense is responding to a voice that isn't there or turning the radio off when it wasn't on in the first place...my action wasn't governed by reality but by what my brain was creating out of nothing...

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  4. Chris Allen

    Resource Geologist

    This series is of great interest to me. The research on what has been called copycat or imitative crime clearly parallels with imitative patterns in suicide and parasuicide behaviours. One way crimes occur is people hear stories and integrate them in possibilities for their own actions and life choices.

    Microeconomic research on criminals shows they make choices on benefit-cost perception and communicated stories ('scripts') the same as a business person may learn about a way to minimise tax…

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  5. Comment removed by moderator.

  6. Pythinia Preston

    writer

    I have heard of other cases whereby the murderer was 'sleepwalking' and was exonerated, however even if there was no intent and he was sleepwalking - why so murderous? what made him kill his 'in-laws' he could just as easily knock on the door and asked for a cup of tea. You could buy this scenario but... why so lethal?

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    1. Vicki High

      company director

      In reply to Pythinia Preston

      a similar question might be - why have nightmares rather than pleasant dreams...?

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    2. Pythinia Preston

      writer

      In reply to Vicki High

      A nightmare is something one is scared and turns up in 'your dreams' in this case the 'sleepwalker' liked his in law parents from what has been written. So we are still left with a niggling doubt about his lack of consciousness. Or was it the primeval scream from eons (I spell it that way) ago surfacing?

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  7. Chris Richardson

    Doctor

    "When we are conscious of what we’re doing, the information is simultaneously available to a wide range of different brain regions involved in behaviour. When we’re less conscious, the information is only available to a small number of these regions."

    What if we swapped things around a bit. What if we said..."when the information is simultaneously available to a wide range of different brain regions involved in behaviour" then we become "conscious of what we’re doing". Given there seems a growing…

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    1. william S McCann

      Retired

      In reply to Chris Richardson

      Chris, as a mere mortal lacking the gifts given to many who can discourse for hours and more, on the pros and cons of the human brain. pontificate upon justice for those, whose lawyers claim 'lack of responsibility,' when do we note that this whole world of ours is under threat. Threat of overpopulation only recognised by the Chinese government, as requiring the curtailment of breeding, limiting families to one child. All this, whilst we argue against the death penalty for rapists, murderers and…

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