Minds, Brains, and the Law

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!

Neuroscientific Challenges to Retributivism

Michael Pardo and Dennis Patterson have a new piece entitled, "Neuroscientific Challenges to Retributivism" that is scheduled to appear in a forthcoming volume that I am editing for Oxford University Press entitled The Future of Punishment.

Abstract:      
We examine two recent challenges to retribution-based justifications for criminal punishment based on neuroscientific evidence. The first seeks to undermine retributivism because of the brain activity of subjects engaged in punishment decisions for retributive (as opposed to consequentialist) reasons. This challenge proceeds by linking retributivism with deontological moral theories and the brain activity correlated with deontological moral judgments. The second challenge seeks to undermine retributivism by exposing, through neuroscientific information, the purportedly implausible foundation on which retributivism depends: one based on free will and folk psychology. 

We conclude that neither challenge succeeds. The first challenge fails, in part, because the brain activity of punishers does not provide the appropriate criteria for whether judgments regarding criminal punishment are justified or correct. Moreover, retributivism does not necessarily depend on the success or failure of any particular moral theory. The second challenge fails because neuroscience does not undermine the conceptions of free will or folk psychology on which retributivism depends. Along the way, we point out a number of faulty inferences and problematic assumptions and presuppositions involved in these challenges to retributivism.

Neuroprediction, Violence, and the Law

I have a forthcoming paper with Stephanos Bibas, Scott Grafton, Kent Kiehl, Andrew Mansfield, Walter Sinnott-Armstrong, and Michael Gazzaniga entitled "Neuroprediction, Violence, and the Law: Setting the Stage," that is available as an "on-line first" draft on Neuroethics. 

Here is the abstract:

In this paper, our goal is to (a) survey some of the legal contexts within which violence risk assessment already plays a prominent role, (b) explore whether developments in neuroscience could potentially be used to improve our ability to predict violence, and (c) discuss whether neuropredictive models of violence create any unique legal or moral problems above and beyond the well worn problems already associated with prediction more generally. In “Violence Risk Assessment and the Law”, we briefly examine the role currently played by predictions of violence in three high stakes legal contexts: capital sentencing (“Violence Risk Assessment and Capital Sentencing”), civil commitment hearings (“Violence Risk Assessment and Civil Commitment”), and “sexual predator” statutes (“Violence Risk Assessment and Sexual Predator Statutes”). In “Clinical vs. Actuarial Violence Risk Assessment”, we briefly examine the distinction between traditional clinical methods of predicting violence and more recently developed actuarial methods, exemplified by the Classification of Violence Risk (COVR) software created by John Monahan and colleagues as part of the MacArthur Study of Mental Disorder and Violence [1]. In “The Neural Correlates of Psychopathy”, we explore what neuroscience currently tells us about the neural correlates of violence, using the recent neuroscientific research on psychopathy as our focus. We also discuss some recent advances in both data collection (“Cutting-Edge Data Collection: Genetically Informed Neuroimaging”) and data analysis (“Cutting-Edge Data Analysis: Pattern Classification”) that we believe will play an important role when it comes to future neuroscientific research on violence. In “The Potential Promise of Neuroprediction”, we discuss whether neuroscience could potentially be used to improve our ability to predict future violence. Finally, in “The Potential Perils of Neuroprediction”, we explore some potential evidentiary (“Evidentiary Issues”), constitutional (“Constitutional Issues”), and moral (“Moral Issues”) issues that may arise in the context of the neuroprediction of violence.

 

Software, Prediction, and Future Violence

ABC News recently posted a piece entitled "Software Predicts Criminal Behavior" which examines the software that has been developed by Richard Berk and colleagues for the purposes of violence risk assessment.  Legal decision makers in Washington D.C. are going to be using the software to make determinations concerning sentencing and bail. 

The Neurobiology of Evil

Big Think has posted a recent interview with Michael Stone entitled "The Neurobiology of Evil."  If you haven't checked out Big Think before, you should also watch some of their other fascinating interviews with folks like Kwame Appiah, Antonio Damasio, Joseph LeDoux, Alfred Mele, and others.

Youth, the Brain, Neuroimaging, and Responsibility

New Scientist has a recent piece entitled "Brain Scans May Fix Criminal Responsibility" which explores the research being done by Nico Dosenbach and others with pattern classification and neural imaging and its potential legal applications--especially when it comes to making determinations concerning brain maturity and moral/legal responsibility (or lack thereof).

Pardo and Patterson on Neurolaw

Michael Pardo and Dennis Patterson have a very interesting forthcoming piece in Neuroethics entitled "Minds, Brains, and Norms."  I was fortunate enough to be asked to provide some invited commentary along with Walter Glannon and Carl Craven.  Pardo and Patterson's lead article is now available for preview (see here) along with some of the invited commentary (see here and here).  Finally, their reply is also available here.  Thanks to Neil Levy and Walter Sinnott-Armstrong for inviting me to play along and for putting together this special issue!

Video on The Science Network

I just stumbled upon a great collection of videos on The Science Network.  Here are just a few of the ones that caught my eye:

1. Multi-level Brain Modeling (Part 1).
2. Multi-level Brain Modeling (Part 2).
3. Ramachandran on Neurons and Consciousness.
4. Patricia and Paul Churchland on Neurophilosophy.
5. Panel:  This Is Your Brain on the Law.
6. Panel:  Neurolaw and Neuropolitics.

As always, happy viewing!

Neuro-criticisms by Raymond Tallis

Raymond Tallis has made it abundantly clear that he doesn't like the recent trend towards research at the cross-roads of neuroscience and the humanities.  In a series of sensational editorials, he has derided what he uncharitably refers to as "neuro-trash" and "neuro-mythology."  I, for one, think that his arguments tend to shed far more heat than light.  Minimally, Tallis' frequently commits what I have called the fallacy of composition when it comes to the field of neurolaw. As such, I plan to post a few responses in the weeks ahead.  In the meantime, I thought I would provide readers with links to some of the things he has written about the relationship between neuroscience and the humanities in the past few years.

"Neurotrash"

Excerpt:

In summary, such are the limitations of our understanding of the brain, attempting to apply the findings of neuroscience to social policy would be premature, even if this were not wrong in principle. But it is wrong in principle. The fabric of the human world, of the public space that is the arena of our lives, is woven out of explicit shared attention that has been infinitely elaborated in a way that has little to do with what goes on in the darkness of the individual skull, though you require a brain in working order in order to be part of it. If you come across a new discipline with the prefix “neuro” and it is not to do with the nervous system itself, switch on your bullshit detector. If it has society in its sights, reach for your gun. Bring on the neurosceptics.

"Why Blame Me?  It Was All My Brain's Fault."

Excerpt:

Meanwhile, the neuromitigation of blame has to be treated with suspicion except in those instances where there is unambiguous evidence of grossly abnormal brain function or abnormal mental function due to clearcut illness that may have its origin in brain disease. Our knowledge of the relationship between brain and consciousness, brain and self, and brain and agency is so weak and so conceptually confused that the appeal to neuroscience in the law courts, the police station or anywhere else is premature and usually inappropriate. And, I would suggest, it will remain both premature and inappropriate. Neurolaw is just another branch of neuromythology.

"You Won't Find Consciousness in the Brain." (*)

Excerpt:

Our failure to explain consciousness in terms of neural activity inside the brain inside the skull is not due to technical limitations which can be overcome. It is due to the self-contradictory nature of the task, of which the failure to explain "aboutness", the unity and multiplicity of our awareness, the explicit presence of the past, the initiation of actions, the construction of self are just symptoms. We cannot explain "appearings" using an objective approach that has set aside appearings as unreal and which seeks a reality in mass/energy that neither appears in itself nor has the means to make other items appear. The brain, seen as a physical object, no more has a world of things appearing to it than does any other physical object.

(*) This piece is not specifically about neurolaw, but it is based on assumptions that inform Tallis' so-called neuro-skepticism.

It appears both Tallis' strategy and his rhetoric are catching on, as evidenced by this recent piece by Denyse O'Leary over at Mertcator.net:

"Brain Scans and Neurotrash"

Excerpt:

I'd like to propose a radical idea. Why don't the neuroscientists and progressive humanists stop hyperventilating and chill out for a while. Let them reflect on the fact that a hundred years ago phrenology, the "science" of analysing behaviour by putting a tape measure around a skull, was all the rage. Until they can account for the difference between the mind and the brain, their research might not be worth a hill of beans. In fact, it might just be, in the words of Raymond Tallis, neo-phrenology.

Neurolaw in the News

Neuroscience has taken center stage in two recent criminal court cases--one in Italy, the other in Chicago, IL.  In the former case, a convicted murderer got a reduced sentence based on evidence concerning his low activity MAOA (see here for a brief discussion about MAOA).  The case was discussed recently in Nature News.  Here is an excerpt:

An Italian court has cut the sentence given to a convicted murderer by a year because he has genes linked to violent behaviour — the first time that behavioural genetics has affected a sentence passed by a European court. But researchers contacted by Nature have questioned whether the decision was based on sound science.

Abdelmalek Bayout, an Algerian citizen who has lived in Italy since 1993, admitted in 2007 to stabbing and killing Walter Felipe Novoa Perez on 10 March. Perez, a Colombian living in Italy, had, according to Bayout's testimony, insulted him over the kohl eye make-up the Algerian was wearing. Bayout, a Muslim, claims he wore the make-up for religious reasons.

During the trial, Bayout's lawyer, Tania Cattarossi, asked the court to take into account that her client may have been mentally ill at the time of the murder. After considering three psychiatric reports, the judge, Paolo Alessio Vernì, partially agreed that Bayout's psychiatric illness was a mitigating factor and sentenced him to 9 years and 2 months in prison — around three years less than Bayout would have received had he been deemed to be of sound mind.

But at an appeal hearing in May this year, Pier Valerio Reinotti, a judge of the Court of Appeal in Trieste, asked forensic scientists for a new independent psychiatric report to decide whether he should commute the sentence further.