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Forget about Blame?

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Nita Farahany, who's been following the growing field of Neurolaw for years now, helps uncover what seems to be a growing trend -- defendants using brain science to argue that they aren't entirely at fault. Neuroscientist David Eagleman thinks this is completely wrongheaded, and argues for tossing out blame as an old-fashioned, unfair way of thinking about the law. According to David and Amy Phenix, a clinical and forensic psychologist who relies on statistics, it makes more sense to focus on the risk of committing more crimes. But Jad and Robert can't help wondering whether that's really a world they want to live in. 

Guests:

David Eagleman

Comments [24]

Kevin from Houston, TX

I think one of the things many commenters and the show are not keeping in mind is that our existing legal system was developed as the best way at the time of discovering truths. Certain things, such as eyewitness testimony, seemed to be the most reliable method for determining truth when the legal system was developing, but we are now learning through science that our instincts are *wrong*, and that these methods are not effective at reaching the desired result.

This is especially true with our retributive justice models. It's a biological urge, built into our brains, and it is *somewhat* effective at modifying behavior. For many people, anger responses from those they care about make them stop taking that action. And that's the environment our brains evolved in; small tribal culture interactions, where you know the person you're dealing with and care what they feel. However, when you start dealing with the outliers of society, especially a modern society composed largely of people who are strangers or at best acquaintances, those instincts seem to stop working as well. We start to become violent and insular, and our anger responses only provoke more anger, because we don't *care* about each other.

I think this is part of how a person can defuse their sense towards retribution. Take the person who has hurt you, and try to see their whole narrative, starting from when they were just a baby. Can you blame the baby for what happened afterwards? They're shaped by their genetics and environment into most of their personality before we would consider them culpable in the slightest. If you can't blame the child, you can't blame the adult.

I think the root question of this episode is flawed, because I don't think we should blame *anyone*. Culpability should not be the point of a correctional system. Rehabilitation and a happier society should be, even if doing so means that the obvious victims don't get the vindication of punishing the criminal. Obviously we should still have laws, and we should still make sure they have deterrent effects, but these should be based in reason and science, not instinctual responses.

Oct. 13 2014 05:37 PM
Karen from New Haven, CT

I loved the show, but did feel a bit disappointed when Radiolab came up against the idea of sentencing people based on their likelihood of commuting future crimes and didn't have any real response other than, "eh, it doesn't feel right." For a show that tries to use science and logic to work out problems, that was a pretty empty answer.

I think the reason the show hit a wall at that point was because it was assuming that the criminal justice system as it is now is more or less fair, so that introducing the topic of the biological bases of criminality also brought with it the question of unfairness. But, the issue of unfairness was already in the criminal justice system, so you ended up supporting a system that seemed unfair and capricious instead of embracing a forward thinking rational program.

Now that right there should have made you go "Hmm..."

Fortunately, science can come to the rescue... in particular, Sociology (and the related field of Law and Society)! Sociology has somehow become sort of the ugly stepchild of the social science family because of the argument that we are often "not scientific enough." But the reason we get that knock is that we look at science a little differently than other social scientists. We acknowledge the limits of science to find answers, and instead of pretending to know everything or throwing our hands up in defeat, we struggle to find the answers in the grey places the other social scientists leave behind.

And we have something to say about using data to predict the future likelihood of a person committing a crime. We have data to show that the data the predictors want to use is going to throw open the doors to a thoroughly biased way to sentence people. Because one of the major predictors of crime is poverty. So, if we go down that road, we are literally deciding that we are nation where simply being poor is a crime that deserves punishment.

And the moral of the story is that when you come up against the limits of science and logic, often it is because you haven't looked deeply enough, so you need to keep going. Also, sometimes science takes sides.

Aug. 29 2014 06:15 PM
Steven M Yu

If anyone is interested in seeing this vision of computer systems monitoring and then branding individuals capable of crime before they are committed (or issuing instructions to the police to execute an individual on the spot that it determines is beyond saving in terms of their mental stability) then you should go and watch an anime called "Pscyho Pass".

Be aware that this series has never been rated by the MPAA and the series IMO would've been rated an M for content, due to the violence and gore depicted in various scenes. But it's a truly fascinating science-fiction of exactly what the neuro-scientist discussed.

May. 31 2014 02:20 PM
Doug L

This is an important topic because understanding blame and justice and restorative justice may be the key to evolving past all human dysfunction, from overcoming violence to living sustainably. The study of brain science, or the science of mind leads to our seeing the modern human mind as having very particular attributes that close relatives, like Neanderthal, gorillas and chimps, do not have. Humans have a special knack for abstract comparing which is the core of mutually benefiting commerce, story telling, complex language and social structures that revolve around those behaviors. Prior to the neolithic revolution these attributes were largely helpful but in a society the ego, which helps us strategize by seeing ourselves more as a gambit in a play for resources, becomes more central to our lives. Neanderthal do not have genes for schizophrenia and even autism. Dysfunction of insanity is the hallmark of being human because our abstraction skill in the context of civilization gave rise to the duality of good and evil. Torch mobs or a jury pointing the finger at 'evil' is part of the same dysfunction as the seemingly saintly walking in purity. Without this sense of intolerance for what appears to be evil, violent revenge/payback/retributive justice would become a dialogue that would effectively express to listening and sympathetic ears a need for understanding and respecting boundaries. This can happen, things like 9/11 and the endless cycle of pay-back violence can stop because what drives it is only illusion. Whenever you advocate restorative justice as an alternative to retributive justice, people describe an awful scenario for you to consider, as if there were always a need for this hate and intolerance: "what if it were your daughter raped over and over then killed." they would say and of course I would have cruel visions of pay back but after a while, I believe I would calm down and respond to what is needed for my healing and others healing. I would see my desire to hurt back is only a need to communicate a boundary and to scare people into respecting it. My want to hurt back, would be seen as a need for relief through a kind of recompense that is still only communicating boundary to heal, in a false hope to quell my blind rage. There is hope for healing and justice if we can just see that responsible people are the result of being responsive to people and situation around you instead of retreating into a dark world of isolated mind abstraction where suffering seems just sometimes. A criminal in a responsive dialogue with the community and victims is something that could not exist prior to the crime and can bring about genuine healing and justice that extends past the particular crime and into the whole of the community as a prevention of crime and even a prevention and healing of clinical insanity.

May. 27 2014 07:54 PM
Richard Pickett from right around the corner

I generally David's overall direction, throwing out blame and focusing on future probability of repeat offence.

I posit that using a future probability aspect is a sub-component of a larger direction, one of correction.

And this is ultimately what appears to be wrong with our entire _penal system_ (penal/penalty).

Interesting that we call prison facilities "correctional institutions" where their focus doesn't seem to be anywhere near helping it's constituents correct their lives.

Using future probability within the scope of helping correct the person, we would design solutions for correction in regards to reducing that future probability.

May. 20 2014 05:45 PM
Tim from Los Angeles

The show is well-done on this compelling subject, which is not confined to blame but touches on crime and punishment more broadly. Eagleman's assertions about the inseparability of the conscious self and the biological brain with all its specific history are not without some compelling argument but ultimately lead to a reductionist view that is based on science but fails to recognize the massive areas of ignorance within scientific inquiry and explanation. What's worse, he proposes the absurd notion that judging someone for what they've done is pointless; instead, we should only consider the likelihood of repeat offense in the future. Even the logic of this is ridiculous, since courts wrestle with the admissibility of what has already been done previously, which is not speculative but often relevant to patterns of wrongdoing. Considering what might be likely future behavior is much more speculative, however tied to statistics it might be. And it broadcasts the message that a single offense of whatever severity has no meaning in itself, which is destructive to any society's system of justice.

The bigger point is that society needs some sense of accountability and a kind of punishment as part of its less than perfect notion of justice. Without this, the idea of norms and consequences maintaining social stability or even civility would be impossible, as your social scientist suggests. The unkind term for certain punishment would be "retribution," but our penal system is horribly awry already with its failure to follow blame with some attempt to rehabilitate whenever possible. Future recidivism is always increased when the system simply warehouses the offenders and ends up making them both hardened and almost certain to become career criminals.

As for the first segment, I agree that powerful biological conditions can be an influence on behavior and need to be taken into account, weighed as mitigating circumstances that will be different with each case. But there are few conditions that would seem to relieve the offender from responsibility entirely, so it seems like a rare case when the offender should be absolved of any blame. It's proper to have understanding and mercy be part of the justice system, but it's equally important to have consequences that fit the crime in question and are meted out with some more objective or "fair" application of law. That may not happen often enough to convince us that we have a perfectly impartial and consistent system of justice, but it's something to strive for.

May. 06 2014 04:31 AM
li from real world

Robert is ridiculous. I would point out that it is strange that someone as unphotogenic as him feels it is "fair" (he didn't say that, rather that including good looks in the sentencing is "ok"). I'd also point out that judges hand down more punative sentences afternoon than in the morning. This idea that most of human decision making can't be done BETTER by algorithm is provably WRONG. It is a dramatic difference between the 50% guess of experts compared to the 70% determination by much more unbiased algorithm (but as pointed out, all information is biased, it is filtering of the complete data (which is never compete, of course)). I wish they would have followed up with the question: Comparing the two systems, what proportion of recidivists did the algorithm flag, and what proportion of those who have had no further run-ins did it flag? (Type I and II errors)? It sounds like a step in the right direction, but more data is required. (and of course any system can/will be abused, so what it the potential for abuse?)Finally, it must be the NPR crowd that thinks the "purpose" of prison is "rehabilitation". This is simply delusional. Rehab is a good thing, and I'm all for it. I'm also for personal responsibility and punishment when the person is guilty of a crime. (OTOH, our criminal justice system has way too many laws, especially egregious are the "thought" laws...its hard enough to decide intent, I reject the notion that "hate" can be established to be causal, but then again, I don't pretend to read minds. For the Left, prison 1) Removes offenders from society (protection) 2) Punishes the guilty and 3) Rehabilitates. All three are necessary, imho, where possible. I point out that they are completely independent, we can have any one of them by themselves, if we choose. (Unfortunately, we seem to have chosen the silly idea that the only fitting punishment is segregation (and occassional rapes, murders, and beatings, but lets ignore that...its not like we care about prisoners, is it? Its not like there should be LESS crime in prison, after all.) Take away Human Responsibility and Human Rights become meaningless.

Mar. 22 2014 02:43 AM
Tim B. from Oceanside, CA

It's not about what we can see: it's about what neurologists and neuroscientists have determined that impairs self control.

Mar. 09 2014 06:11 PM
Tim B. from Oceanside, CA

With respect to the discussion that, in effect everything is the biology of the brain so if we know everything we will excuse everything:
Our legal system rests upon the implicit assertion that we as individuals have control over our actions and so are responsible when we violate the law. This obtains unless some circumstance, such as a dramatic brain injury, impairs or eliminates that capacity.
Tumors (as one example of brain injury) are visible, in significant part, because they are large. The relevance of a tumor causing a deficit in our ability to control our actions isn't significant because it is a tumor: it is significant because it has a large effect. The point is, even if we can eventually see much smaller flaws or injuries in our brains that does not mean that we will forever expand the realm of brain injury that relieves us of our responsibility to follow the law. Only those injuries that significantly impair our self control are legally relevant, and we have every reason to expect that the smaller the injury the correspondingly smaller the effect such injuries can have on our executive capacities of self control.
Again, this rests upon the implicit assumption that we, as individuals, have control over our actions. As neuroscience progresses, our knowledge and understanding of such control--and thus our legal judgment of our individual responsibility--will evolve over time. As to what this ultimately entails for the future of our view of ourselves and our the choices we will make in our legal system (if we indeed have the capacity to make such choices) is yet to be determined.

Mar. 09 2014 06:02 PM
rowe from kansas

is it me or did anyone wanted to hear the full tagent conversation that happened

Mar. 07 2014 09:41 PM
Anne from sydney, australia


There is a rather interesting case happening in australia at the moment about brain vs court

http://www.smh.com.au/national/health/blame-the-brain-20140203-31xr6.html

Feb. 03 2014 07:28 PM
Anne from sydney, australia


There is a rather interesting case happening in australia at the moment about brain vs court

http://www.smh.com.au/national/health/blame-the-brain-20140203-31xr6.html

Feb. 03 2014 07:27 PM
Justin Delafontaine from Rochester, NY

There is actually an anime show called 'Psycho pass' that deals with the issue of jailing people based on chance of future misdeeds. In the show, brain technology has advanced to the point where people can be given grades on how likely they are to commit a crime. Their 'psycho pass' is the grade they get and when it is below a certain level they are fine. But if their psycho pass number gets too high they are placed on probation and at the extreme, imprisoned in special prisons for those deemed dangerous. There is a huge discussion throughout the story based on this idea and anyone who is interested in the subject might want to give it a try.

Oct. 22 2013 07:10 PM

I just listened to the Blame episode which, I am compelled to admit, brought me to tears at several points in the show. In spite of, or perhaps because of, the graphic nature of the stories, I found myself moved more than usual listening to these stories. I kept getting hung up on David Eagleman's statement that we 'are' our biology, and the implication that our biology makes us who we are. Something about this didn't sit right to me - and Robert had this same misgiving, I think. After much pondering, I think I know what I couldn't put my finger on. David mentioned that we are the result of everything from "the invisible strands of DNA to the sum of experiences we have in our lives". This is true, and up to the point of the decision being made, that is what drives our biology to make a choice. But to make decisions based on only 'that' set of experiences disallows the possibility that we will have future experiences that will affect the neural biology that drives future choices. What Robert calls 'mercy', science might simply call 'rehabilitation', and I call the hope that we, through human and environmental interaction, can influence the life of another individual to create an outcome of good. I think this is the core of what we humans do in life, and indeed our biology drives us to change the world around us for our benefit. It is to our biological advantage to change our surroundings such that they are friendlier to us. And sometimes that just means making people better.

Oct. 02 2013 10:18 AM
nerdpocalypse from www.nerdpocalypse.net

Nope. Free will.
1) let's jump to the next section--poop. We are able to control even our autonomic responses while asleep at a very young age. It is learned. It is culturally influenced and learned.
2) jumping to the other end. Robert Krulwich is Fat. All of his wiring is over here, keeping his calorie intake regulated like that in All Other Mammals. And over in the other side is the entire force of all consumer culture trying to have him make bad choices.
We see which won. Wiring/predestination/neurology Epic Fail. we know free will due to bad choices.
3) It is not only overdetermined, it is meta-overdetermined. You have multiple competing levels of control operating on ones actions at multiple levels of hierarchy. You couldn't possible say what the neurologic right choice would be anyway, so it is ludicrous to say you know that the brain is determining anything
4) we make our chemicals. While there is an increasing body of scientific literature (differentiation of brains of twins as a recent example) demonstrating that we build up circuitry in the brain like we can build up any other muscle (har har), there is a simple demonstration. First, make a picture that by staring at it you can create an afterimage. Then, picture the image in your mind steadily and make a mental afterimage. We know the one is due to chemicals being overused to the piont of running out of stock; why not suppose the second is the same effect ?

Sep. 26 2013 01:36 AM
Ben from Flagstaff, AZ

Radiolab, thank you for an absolutely incredible program. You are a massive influence on my own storytelling and audio work, and I want to say how much I appreciate your art.

I was deeply affected by the discussion between Mr. Eagleman, Robert, and Jad about the nature of blaming people affected by neurological conditions. I found that I agreed more or less with both "sides" in the discussion, but more pressing was the question raised for me by Mr. Eagleman's argument.

About three years ago, I was diagnosed with severe bipolar disorder. I found that when I experienced something called rapid cycling, a state in which I experience episodes of extreme depressive and manic thoughts and behavior, I made choices which did not feel like "me." I empathize with "Kevin's" story from the first segment of the show--although my behaviors are very different from his, I understand the sense of my actions not being truly mine.

The disorder has forced me to question so much about myself. When I know that I may be experiencing severe symptoms, I have to scrutinize every feeling and thought to determine whether I can trust it, or if it is something I have to question and correct. What I can say with certainty, though, is that the cycles I experience result in my thinking, feeling, and sometimes doing things which I would never do if I were not experiencing episodes.

Mr. Eagleman's argument leads me to this, then: if my disorder is just as much a part of my brain and by extension, me, as my history and choices are, I am a very different person than I was before I began experiencing symptoms. That troubles me. If everything that happened to form me, if every choice I ever made to shape myself, if the life I call my own can be overridden by a flood of brain chemicals, then what happened to the me I was before I started having symptoms? Who am I now? I am not questioning Mr. Eagleman's assertion; in fact, I am following it because I trust it. That's the problem.

I have weathered these storms believing that bipolar disorder is an intruder in my mind and that I am still me. But now I have to ask whether the disorder *is* my mind. Now I have to ask where I went.

Sep. 20 2013 02:35 PM
Daniel poe Hart from New york

David Eaglemans theorems are constructed from the point/origin of truth[Empathic modality of thought process]Based on scientific analyisis and very thoughtfull/skilled analogies of logical outcomes.For those in which do not have this abilty,Davids ideas would not seem possible or relevant..His perception of reality,is in Fact the key to understanding, realizations of neurological fact based law reform.
Save the Empaths and Heal the World!

Sep. 20 2013 11:19 AM
Basho from London

Robert has a dangerous notion of what the purpose of the legal system actually is. As the scientist was trying to explain, it is impossible to distinguish the self from the brain. There is no choice made by a "self" there is only the brain. The idea of a separate self is an illusion brought up from the emergent behavior of the brain. When the reporter chooses one thing over another he has an illusion of control brought about by the passage of time. Many scientists honestly think he chooses both things and that quantum mechanics diverges reality into two streams that may (or may not) continue. We end up in one of these streams and think we have chosen consciously, but that is always a rationalization looking backwards.

So, if we are going to let people off their actions due to "broken" parts of the brain, we need to understand that this determination is amateur and "low rez". As our technology increases we will develop a hi fidelity ability to see where your past decisions and influences of Epi-genetic factors occur. This will mean it will become almost impossible to "blame" anyone as all people on trail will be able to point to some factor making it not "their" fault - as if "their" is actually a thing separate. It is not.

The scientist points something out, "is not the purpose of prison -rehabilitation?" Should we not devise a method of determining that this rehabilitation has worked? Epi Genetics proves that Genes respond to environment. With this idea of a hi fidelity future tech we will literally able to determine the "brain has changed" in response to this environment. We will be able to scientifically determine that someone is safe to let go and I think that should be the only factor that matters. Perform a crime - blame, prison (or some type of segregation), then - respond to rehabilitation (measured as a scientific probability score based on "brain tech"), freedom, don't respond then you are still and continue to be a real danger. Back in you go.

Moreover, justice is for the victim, not the families, father's, friends or society. I am moved, but find it irrelevant that a father forgives a rapist killer. Justice is on behalf of the victim - would they forgive? If they have been brutally murdered then society must take the notion of their behalf that no, they do not.

I find it equally ridiculous to bring in the 10 commandments from Judaism and Christianity. 5 of those commandments are biased religious imperatives to do with God and nothing to do with morality whatsoever. The other 5 are directives that have nothing to do with forgiveness or mercy. The Christian God is not merciful. His "son" is claimed to be, but not he. This child pornographer would have been stoned to death in ancient times. This murderer would have been crucified by the Romans. Its black and white. That is the world I reject and do not want to live in. Scientific measuring is granular compared to that.

Regards,

Basho

Sep. 20 2013 04:25 AM
Hartmann

bascially what Eagleman's thesis would result in is scientists arguing over logical positivist ideas in court. With this ideal in hand a lawyer can argue against any scientific finding (and will do for her client!). Eagleman's idea is a practical nightmare.

Sep. 18 2013 05:05 PM
Kaarel

@Molly G

To provoke further thinking regarding "science and morality" see
Sam Harris: Science can answer moral questions (http://www.youtube.com/watch?v=Hj9oB4zpHww)
or browse through the first result page when you search youtube for "science morality".

Sep. 18 2013 04:13 PM
Daniel Kane from Lansing, MI

Thanks again for an interesting show, Radiolab! Great stories, as usual, but I take issue with Eagleman's argument and think you missed addressing a major flaw with it. While it's an interesting idea, using statistical models to predict behavior is dangerous territory. Models are only as good as their input data, and the better part of the data we can collect on people is often superficial and includes social constructions that seem meaningful but may not be. Recidivism rates can be predicted by things like ethnicity or socioeconomic status, but such predictions may reveal more about the criminal justice system and its inequities than they do about behavior. Tying sentences to such predictions would be, in my opinion, an egregious violation of the notion of equality under the law. True, our justice system already routinely violates this ideal, but in a system of predictive justice, it would be even harder to correct.

Statistical modeling often gives a false sense of objectivity. Even though we may be externalizing the process of prediction, we are still projecting a good deal of bias onto the input data. There's a phrase among those interested in modeling: garbage in, garbage out. Ensuring that the input data is not garbage is a more difficult task than I think some of the proponents you interviewed are willing to admit.

Sep. 18 2013 03:27 PM
Roger from Australia

Eagleman is annoying because he is so cocky and self-assured, and yet so clearly wrong. He displays the folly of simplistic and impoverished neuro-reductionism. Yes, clearly, we are products of brain processes and depend on the brain for almost everything we do and say. But we are NOT our brain - that is simply a category error. One doesn't have to be a substance dualist to argue that there is a "self" that emerges from the workings of the brain and that it is that emergent self that we identify as persons.

I would ask Eagleman, "Are you married? If so, did you marry a brain?". The University metaphor is very apt here - the story where a prospective student is shown around a university campus, "Here is the Main Hall, here is the Refec, here is the library, here is the science building, etc". At the completion of the tour, the student says,"Thanks for showing me all these buildings but - WHERE IS THE UNIVERSITY?!!". This is a good metaphor for Eagleman's category error.

These are not brains on trial. These are persons on trial - emergent selves located on a level above simple brains. Eagleman's reductionism is fallacious. Neuroscience has already shown that complex systems - such as emergent minds/selves - can exert "top down" influence on the brain's biology. So Eagleman's "the only way is up" argument is clearly inadequate.

And if Eagleman tried to argue that the self is illusory, that would be a great time to turn your back and ignore everything else said by this "non-self" talking at you.

Sep. 17 2013 06:58 PM
Molly G. from Maplewood, NJ

(One correction, or clarification: the "lab-coated priesthood" bit is a paraphrase of de Waal. What Dawkins said—when intereviewed by Robert!—that seemed like-minded when he talked about "agreeing with the theory of Darwinism but not wanting to live in a society dictated by Social Darwinism" [DEFINITELY paraphrased; he said it much better].)

Sep. 14 2013 05:13 AM
Molly G. from Maplewood, New Jersey

Dear Robert & Jad,

Thank you as ever for a wonderful show!

This segment reminds me of the first chapter of Frans de Waal's amazing book "The Bonobo and the Atheist", exploring possible evolutionary/biological origins of human morality. His thesis is: rather than, as is generally assumed, morality having been "handed down from on high" (whether a deity or evolved reason/intellect imposing itself on our primitive nature), it may have been "handed up from below" (morality being an inherent characteristic/drive in social primates that has helped to guide our evolution into the civilization we now credit for ethics). I'm paraphrasing—I recommend reading the chapter directly!

The bit that seems most relevant to "Blame": he discusses the antagonism between "Religion" and "Science". (Why I put those in quotations... hopefully makes sense by the end of this paragraph?) Unlike Richard Dawkins, but very much like Neil deGrasse Tyson, de Waal expresses total disinterest in bashing religion. He finds it more notable and interesting that every human society has had religion. He also expresses a warning, that Dawkins has also expressed, against "replacing a frocked priesthood with a lab-coated one" [paraphrase!]. Morality is <i>not</i> part of the domain of science; scientific findings cannot and should not be swayed by emotions or politics; and historically, bad things happen when people confuse science with morality, or try to have one dictate the other (e.g. phrenology, eugenics). (So placing "Science" and "Religion" as direct competitors doesn't actually make sense for either of their actual functions? Getting dogmatic about science, treating it as a replacement for religion or a religion in itself, is counter to its nature? That's not de Waal, now, that's me—as an atheist who's regularly yelled at by other atheists for defending [non-extremist] religion—trying to process it!)

So! How this filters the Radiolab episode for me: "Justice" is a moral/ethical construct. We want to be scientifically literate, and have that inform our philosophies, but that doesn't mean science can <i>be</i> philosophy or ethics; they're different fields. So, long-windedly, I completely understand why Jad can agree with Robert and still balk at having a particular religious interpretation/affiliation attached to it. If we accept de Waal's thesis, which I find compelling, religion [I want to say "at its best" though that's so subjective—"at its core" perhaps?] is the main exploration and application that we have of our moral nature. And each can inform and advance the other?

Sorry this is so long! I hope it makes any sense. I thought you might be interested, and maybe want to read de Waal's book!

Your fan,
Molly G.

Sep. 14 2013 04:48 AM

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