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!
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).
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!
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.
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
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.
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:
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
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.
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:
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
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.
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):
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.