Minds, Brains, and the Law

A Judge's Guide to Neuroscience

The Law and Neuroscience Project (along with the SAGE Center at UCSB) recently published A Judge's Guide to Neuroscience:  A Concise Introduction.  The useful manual contains articles by Marcus Raichle, Michael Gazzaniga, Adina Roskies, Read Montague, Scott Grafton, and others.  As always, happy reading!

NPR Three-peat on Neuroscience and Responsibility

Barbara Hagerty recently ran three pieces for NPR on the relationship between recent advances in science--especially MAOA research and work on psychopathy--and responsibility:

1. "A Neuroscientist Uncovers a Dark Secret"
2. "Inside a Psychopath's Brain"
3. "Can Your Genes Make You Murder?"

As always, happy reading!

Kiehl, Morse, and Others on Psychopathy and the Law

Radio Health Journal has a series of interesting interviews with Kent Kiehl, Stephen Morse, and others concerning psychopathy, neuroscience, and the law.  Go here to listen to the recording (beginning at the 2 minute mark).

Flickers of Freedom

As some of you may already know,  The Garden of Forking Paths was recently shut down.  I, for one, enjoyed the blog throughout the years.  As such, I thought that the closing of the Garden left a cyber-void that needed to be filled.  So, with John Martin Fischer’s blessing, a few of us got together to develop  a new free will & action theory blog—Flickers of Freedom.  We just launched the blog this morning, so hopefully you will drop by to check it out.  Neil Levy will be posting the first substantive piece soon.  So, check back soon!

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.

Recent Neurolaw-related Papers

There have been several interesting neurolaw-related papers posted recently on SSRN.  So, I have decided to start a new series of posts that will contain links to the ones that I find to be particularly illuminating. For now, here is the first installment:

Dave Marcotte and Sara Markowitz, "A Cure for Crime? Psycho-Pharmaceuticals and Crime Trends."

Abstract:

In this paper we consider possible links between the advent and diffusion of a number of new psychiatric pharmaceutical therapies and crime rates. We describe recent trends in crime and review the evidence showing mental illness as a clear risk factor both for criminal behavior and victimization. We then briefly summarize the development of a number of new pharmaceutical therapies for the treatment of mental illness which diffused during the "great American crime decline." We examine limited international data, as well as more detailed American data to assess the relationship between crime rates and rates of prescriptions of the main categories of psychotropic drugs, while controlling for other factors which may explain trends in crime rates. We find that increases in prescriptions for psychiatric drugs in general are associated with decreases in violent crime, with the largest impacts associated with new generation antidepressants and stimulants used to treat ADHD. Our estimates imply that about 12 percent of the recent crime drop was due to expanded mental health treatment.

Michael Perlin, "And I Can See Through Your Brain: Access to Experts, Competency to Consent, and the Implact of Antipsychootic Medications in Neuroimaging Cases in the Criminal Trial Process."

Abstract:

This paper considers the implications of neuroimaging in three under discussed aspects of criminal procedure - the implications of Ake v. Oklahoma (an indigent defendant's access to expert testimony) in cases where neuroimaging tests might be critical, (2) the defendant's competency to consent to the imposition of a neuroimaging test or examination; and (3) the impact of medications - specifically, antipsychotic medications - on a defendant's brain at the time that such a test is performed. Given the warning signals that have been raised by commentators as to the potentiality of juror misuse and misinterpretation of neuroimaging testimony, it is critical that we take seriously the issues raised here. I conclude that there are hidden landmines inevitably present when we think about the use of neuroimaging in criminal trials - landmines that go can infect the fairness of the trial process itself.  If an indigent criminal defendant is refused access to an independent expert in an area where jurors may uncritically accept neuroimaging testimony (because of its visual appeal and its apparent lack of falsifiability), the fairness of the entire trial remains in question. If no attention is paid to the difficult and complex ethical issues that should surface if the question of the defendant's competency to consent to being tested is not raised, trial fairness is a concern. And finally, if we ignore the reality that the neuroimaging evidence shown to jurors may not be an accurate depiction of the defendant's brain at the time of the offense - but rather, a depiction of his brain at a later time when his brain biochemistry has been altered by the imposition of medication - we willfully blind ourselves to the possibility (perhaps "likelihood") that the database presented to the jury is potentially fatally flawed.

President's Council on Bioethics (2004)

I recently stumbled upon the on-line transcripts from the 2004 meeting on Neuroethics by the President's Council on Bioethics.  There are several interesting things to read.  Here are the ones I found to be the most useful/illuminating (the full list is here):

1. Neuroscience, Neuropsychiatry and Neuroethics: An Overview (Robert Michels)
2. Neuroscience and Neuroethics: Reward and Decision (Jonathan Cohen)
3. Emotional and Cognitive Development in Children (Jerome Kagan & Elizabeth Spelke)
4. Brain Imaging (Michael Gazzaniga and others)
5. Neuroscience and the Law (Stephen Morse)
6. Understanding Aggressive Behavior Through Neuroscience (Emil Coccaro)

As always, happy reading!

Erickson on Blaming the Brain

I just came across this recent article by Steve Erickson entitled "Blaming the Brain."  Erickson also discusses his views over at the Crime and Consequences blog.  Here is the abstract for his paper:

***

Criminal law scholarship has recently become absorbed with the ideas of neuroscience in the emerging field of neurolaw. This mixture of cognitive neuroscience and law suggests that long established conceptions of human agency and responsibility are fundamentally at odds with the findings of science. Using sophisticated technology, cognitive neuroscience claims to be upon the threshold of unraveling the mysteries of the mind by elucidating the mechanical nature of the brain. Despite the limitations of that technology, neurolaw supporters eagerly suggest that those revelations entail that an inevitable and radical overhaul of our criminal justice system is soon at hand. What that enthusiasm hides, however, is a deeper ambition among those who desire an end to distributive punishment based on desert in favor of a prediction model heavily influenced by the behavioral sciences. That model rests squarely on the presumption that science should craft crime policy at the expense of the authority of common intuitions of justice. But that exchange has profound implications for how the law views criminal conduct and responsibility - and how it should be sanctioned under the law. Neurolaw promises a more humane and just criminal justice system, yet there is ample reason to believe otherwise.

***

I am always a bit skeptical when the critics of neurolaw treat the nascent field as if it were a monolithic entity.  Take, for instance, the 40+ fellows and post-docs who make up the Law and Neuroscience Project (LANP).  Given the way critics often talk about "the" field of neurolaw, one would think the LANP would have attracted an ideologically homogeneous group of radicals and revolutionaries who are determined to transform the criminal law.  In fact, however, LANP is composed of people from a variety of disciplines who have wide ranging views concerning the transformative potential (or lack thereof) of neuroscience.  In practice, neurolaw is a field that includes both those who think neuroscience will radically alter the criminal law (e.g., Joshua Greene) and those who think neuroscience will have a much narrower effect on our notions of agency and responsibility (e.g., Stephen Morse).  Moving forward, I think the heterogeneous nature of the growing field of neurolaw needs to be kept in mind by both critics and advocates alike.