Minds, Brains, and the Law

The Antisocial Person

The Annals of General Psychiatry has a nice review piece entitled, "The 'antisocial' person: an insight in to biology, classification and current evidence on treatment."

Abstract

Background: This review analyses and summarises the recent advances in understanding the neurobiology of violence and empathy, taxonomical issues on defining personality disorders characterised by disregard for social norms, evidence for efficacy of different treatment modalities and ethical implications in defining 'at-risk' individuals for preventive interventions.

Methods: PubMed was searched with the keywords 'antisocial personality disorder', 'dissocial personality disorder' and 'psychopathy'. The search was limited to articles published in English over the last 10 years (1999 to 2009)

Results: Both diagnostic manuals used in modern psychiatry, the Diagnostic and Statistical Manual published by the American Psychiatric Association and the International Classification of Diseases published by the World Health Organization, identify a personality disorder sharing similar traits. It is termed antisocial personality disorder in the diagnostic and statistical manual and dissocial personality disorder in the International Classification of Diseases. However, some authors query the ability of the existing manuals to identify a special category termed 'psychopathy', which in their opinion deserves special attention. On treatment-related issues, many psychological and behavioural therapies have shown success rates ranging from 25% to 62% in different cohorts. Multisystemic therapy and cognitive behaviour therapy have been proven efficacious in many trials. There is no substantial evidence for the efficacy of pharmacological therapy. Currently, the emphasis is on early identification and prevention of antisocial behaviour despite the ethical implications of defining at-risk children.Conclusions: Further research is needed in the areas of neuroendocrinological associations of violent behaviour, taxonomic existence of psychopathy and efficacy of treatment modalities.

Scientific Advances and the Death Penalty

The Wall Street Journal Law Blog has an interesting piece on science and the death penalty.  Here is a brief excerpt:

Will scientific advances ultimately spell doom for capital punishment?

That’s the question raised by this piece over at the Arizona Republic, which examined a recent conference at Arizona State that looked at advances in neuroscience and genetics — and how they might help explain criminal behavior.

The thought goes like this: A better understanding of criminal behavior might ultimately lead society to show more compassion for those who suffer from the genetic defects that lead them to kill, maim, or commit other criminal acts.

“There is a ton of new science coming forward in both genetics and neuroscience that describe the brain in a way that leads to a predisposition to violent behavior,” said Gary Marchant, the executive director of the Center for Law, Science & Innovations at Arizona State University’s Sandra Day O’Connor College of Law. In the not-to-distant future, predicts Marchant, science will kill the death penalty.

Happy reading!

MAOA and Criminal Responsibility

Matthew Baum has a new piece in Neuroethics entitled, "The MAOA Predisposition to Impulsive Violence: Is it Relevant to Criminal Trials?"  

Here is the abstract:

In Italy, a judge reduced the sentence of a defendant by 1 year in response to evidence for a genetic predisposition to violence. The best characterized of these genetic differences, those in the monoamine oxidase A (MAOA), were cited as especially relevant. Several months previously in the USA, MAOA data contributed to a jury reducing charges from 1st degree murder (a capital offence) to voluntary manslaughter. Is there a rational basis for this type of use of MAOA evidence in criminal court? This paper will review in context recent work on the MAOA gene–environment interaction in predisposing individuals to violence and address the relevance of such findings to murder trials. Interestingly, the MAOA genetic variants impact future violence and aggression only when combined with the adverse environmental stimuli of childhood maltreatment. Thus nature and nurture interact to determine the individual’s risk. Based on current evidence, I argue there is a weak case for mitigation. But should future experiments confirm the hypothesis that individual differences in impulse control and response to provocation found in MAOA-L men (without abuse) are significantly magnified when combined with childhood maltreatment, the case could turn into a stronger one.

 

Neuroscience and Criminal Responsibility

The DANA Foundation has a recent briefing paper about the relationship between neuroscience and our notions of criminal responsibility.  Here is an excerpt:

"Just before 10:00 a.m. on June 20, 2001, a uniformed police officer was dispatched to do what he thought was a routine welfare check at a home in Houston, Texas. When the officer met Andrea Yates at the door, she immediately told him, “I just killed my kids.” When Yates was later asked why she drowned her five children, she claimed she had to in order to save them from hell. The police would learn that Yates had been suffering from long-term post-partum depression and psychosis.

Nearly 10 years after Andrea Yates killed her five children, the case remains hotly debated because of the critical legal questions it and other cases involving criminal insanity raise. At her first trial, Yates was convicted of capital murder. After her successful appeal, however, a second jury found that Yates’ post-partum psychosis rendered her incapable of distinguishing between right and wrong when she murdered her children. She was then civilly committed to a high-security treatment facility—the usual consequence of a successful insanity-based acquittal.

What role did Yates’ severe post-partum psychosis play in the crime? Was she criminally responsible for the murders of her children given her mental illness? And, more broadly, how can we as a society successfully balance protecting our citizens from crimes while still protecting those with debilitating mental disorders? These are questions that go far beyond this one crime—and that many argue will be strongly influenced by future neuroscientific studies."

See the original for the rest!

Cognitive Enhancement and Ethical Implications

Taming the Beast: Cognitive Enhancement, Ethical Implications, and Regulating Today for Tomorrow’s Scientific and Technological Advancements in Neuroscience

Jeremy Whitbeck

Abstract:      
Scientific discovery and technological advances in neuroscience have created the newly formed field of cognitive enhancement. Cognitive enhancement is improving the psychological or intellectual functions of individuals who are not ill. While the opportunities may be endless, careful scrutiny must be paid to the looming ethical implications of improving the cognitive function of an individual with no specific illness or disorder. Because of the increasingly accelerated pace of research and development in the field of neuroscience, it is important that the government, along with key stakeholders and the community-at-large, address these ethical considerations and devise a comprehensive regulatory framework to provide the appropriate guidelines for this emerging science.

Part I of this Article will define cognitive enhancement and delineate the difference between treatment and enhancement. Part I identifies cognitive enhancers, including “smart drugs,” memory enhancement and dampening drugs, and dietary supplements, and considers the possibility of a time when humans will no longer be the innovative power behind cognitive enhancement. Part II addresses the ethical implications of cognitive enhancement, such as human dignity and the devaluation of normal, fairness and equality, coercion and pressure to use in a competitive culture, control versus treatment, safety and efficacy, and innovation and the notion of cognitive liberties. Part III outlines the regulatory framework necessary to meet these ethical concerns. In conclusion, Part IV reaffirms the need for a comprehensive regulatory framework to address the ethical implication of cognitive enhancement.

Juveniles and Punishment

Juveniles and Punishment

Oliver Goodenough

Abstract:      
This talk examines how adults think about punishment of juveniles in light the work of Baird (2009), which suggests that adolescents need some space in which to make mistakes, a need deriving not only from a lack of brain development, but also from a lack of experience necessary to push that development along, and the work of Cushman et al. which explores the evolutionary and neural explanations for punishment as a teaching tool. It will suggest that the traditional, if conflicted, allowance of some license to youth is a sensible strategy for dealing with juvenile transgressions, and will describe possible experiments to better delineate adult attitudes and juvenile responses.

 

Malintent Detection and the Spectre of Pre-Crime

Nature News has a recent piece on developing technologies for detecting "malintent."  Here is an excerpt:

"Planning a sojourn in the northeastern United States? You could soon be taking part in a novel security programme that can supposedly 'sense' whether you are planning to commit a crime.

Future Attribute Screening Technology (FAST), a US Department of Homeland Security (DHS) programme designed to spot people who are intending to commit a terrorist act, has in the past few months completed its first round of field tests at an undisclosed location in the northeast, Nature has learned.

Like a lie detector, FAST measures a variety of physiological indicators, ranging from heart rate to the steadiness of a person's gaze, to judge a subject's state of mind. But there are major differences from the polygraph. FAST relies on non-contact sensors, so it can measure indicators as someone walks through a corridor at an airport, and it does not depend on active questioning of the subject.

The tactic has drawn comparisons with the science-fiction concept of 'pre-crime', popularized by the film Minority Report, in which security services can detect someone's intention to commit a crime. Unlike the system in the film, FAST does not rely on a trio of human mutants who can see the future. But the programme has attracted copious criticism from researchers who question the science behind it."

Check out the original article for the rest of the story!

 

The Molecular Concept of Law

The Molecular Concept of Law

Hendrik Gommer

Abstract:      
In essence, the author's biological theory of law is based on fractal patterns. Macroscale patterns mirror microscale patterns. This way of thinking is related to evolutionary theories. However, the actual type of natural selection does not affect the idea that properties of molecules can be recognized in human behaviour. By focusing on the fractal pattern, we can evade detailed biological discussions on exactly how natural selection takes place. That discussion would either bog us down or divert us from the main issue, which is the link between the properties of genes and basic notions in law. By recognizing fractal structures in our empiric reality, we can link very different levels and disciplines and subsequently jump from genes to emotions to law in a systematic manner. 

In his famous work The Concept of Law Hart asked himself the question ‘what is law?’ Ever since the publication of this book in 1961, Hart’s answers have retained their appeal and persuasive force. But will it survive another 50 years of encroachment? Hart based his theory on sociological observations. Sociologists for a long time – especially in the 1960s – believed that society itself can prescribe norms and rules. Individuals make society. In what he calls the minimum content of natural law, Hart describes why members of a society cooperate. Without cooperation people cannot survive. Hart appears to adhere to dualism by making a ‘birth’ distinction between rules and morals: morals are rooted in biology, rules source back to society. Biology, however, is monistic in character. Organisms, traits of organisms, thoughts and constructs of organisms – and these include human-made rules – inevitably have their origins in genes, in molecules that act (and react) in accordance with chemical laws of nature. 

Dworkin has introduced political principles. However, he is trying to find these principles by searching in common law, which is, in turn, based on these principles. The author does not find this convincing. Where Dworkin rejects the idea of objective morals, modern biology could probably deliver a more fundamental theory on morals and principle. Posner’s pragmatic theory does not convince the author either. If pragmatic judges interpret a statute by what they think a legislator would have done, they are still weighing consequences, and this simply cannot be done in a rational way. Biology and psychology teach us that we unconsciously apply evolutionary principles of which many judges and legislators are not aware. To put it bluntly, biological facts, to a degree, determine our norms and rules. 

In this paper, the author reforms Hart’s concept of law into a molecular concept of law that fits a modern, monistic biological perspective. 

 

A Biological Theory of Law

 

"From the 'Is' to the 'Ought': A Biological Theory of Law"

Hendrik Gommer 
Tilburg Law School
 
Abstract:      
In this article the naturalistic fallacy is challenged. It is a barrier that should be removed in order to make a necessary next step towards thinking about the biological foundations of law. 

Moore’s naturalistic fallacy and Hume’s is ought-problem imply a barrier between law and biology. However, we are constantly deriving the ought from the is. Biology can explain why people sometimes value killing another human being as ‘good’ (i.e. ‘ought’) and sometimes as ‘bad’ (i.e. ‘ought not’). Killing the enemy is good because it saves our children, killing my neighbour is bad because it destabilises society. Morals and rules have evolved from biological facts and are the result of interaction between genes and their surroundings. They are a product of our brain as all interpretations of facts are. As a result, ‘goodness’ can be regarded as a biological phenomenon. Inevitable as this conclusion may be, it looks like scientists hesitate to accept it.

 

Punishing Without Free Will

Punishing Without Free Will

Luis Chiesa

Pace University School of Law

Abstract:      
Most observers agree that free will is central to our practices of blaming and punishment. Yet the conventional conception of free will is under sustained attack by the so-called determinists. Determinists claim that all of the events that take place in the universe – including human acts – are the product of causally determined forces over which we have no control. If human conduct is really determined by factors that we cannot control, how can our acts be the product of our own unfettered free will and what would that mean for the criminal law? The overwhelming majority of legal scholars and philosophers reply that, even if it turns out that human conduct is fully determined by forces over which they lack control, we ought to nevertheless believe in free will and thus continue to blame actors for engaging in wrongful conduct. They argue that we ought to rationalize free will in this manner because dispensing with free will is potentially catastrophic to human relationships, calling into question our judgments about blame and praise and, thus, about criminal responsibility and punishment. This Article contends that this rationalization is wrong and unnecessary. The fact of free will is not essential to maintaining a healthy society and a well functioning system of criminal justice. Although retribution could not be invoked as a reason for imposing punishment if humans are not capable of free choice, punishment could still be justified on consequentialist grounds. In a world without free will, the purpose of punishment would shift from giving to the offender what he deserved to protecting society from dangerous individuals who are nevertheless not to blame for their transgressions. Interestingly, this would likely lead to a more economically efficient and humane system of criminal justice that relies less on incarceration and more on less intrusive but equally effective methods of social control.