Minds, Brains, and the Law

Autonomy and Emerging Neurotherapies

"Autonomy and the Unintended Legal Consequences of Emerging Neurotherapies"

Jennifer A. Chandler 
University of Ottawa - Faculty of Law - Common Law Section

Abstract:      
One of the ethical issues that has been raised recently regarding emerging neurotherapies, is that people will be coerced explicitly or implicitly in the workplace or in schools to take cognitive enhancing drugs.

This article builds on this discussion by showing how the law may pressure people to adopt emerging neurotherapies. It focuses on a range of private law doctrines that, unlike the criminal law, do not come up very often in neuroethical discussions. Three doctrines - the doctrine of mitigation, the standard of care in negligence, and child custody determinations in family law – are addressed to show how the law may pressure people to consent to treatment by offering a choice between accepting medical treatment and suffering a legal disadvantage. The doctrines considered in this article apply indirect pressure to submit to treatment, unlike court-ordered medical treatment, which applies direct pressure and is not addressed here.

The outcome of this discussion is to show that there is a greater range of social pressures that may encourage the uptake of novel neurotherapies than one might initially think. Once treatments that were developed and offered with therapeutic benefits in mind become available, their existence gives rise to unintended legal consequences. This certainly does not mean we should cease developing new therapies that may be of tremendous benefit to patients, but it does raise some questions for physicians and for legal policy-makers. How should physicians, who are required by medical ethical principles to obtain valid consent to treatment, react to a patient’s reluctant consent that is driven by legal pressure? From the legal policy perspective, are our legal doctrines satisfactory or should they be changed because, for example, they unduly promote the collective interest over individual freedom to reject medical treatment or because they channel us toward economically efficient treatments to the detriment of more costly but potentially superior approaches of dealing with behavioural problems?

Neuroimaging and Truth Verification

 

"A Call for a Moratorium on the Use of Information Derived from Neuroimaging as a Truth-Verifier in U.S. Courts."

Jennifer Bard 
Texas Tech University - School of Law

Abstract:      
Any law student who has taken Evidence has read about, or better experienced, an experiment in which a man bursts into a crowded classroom, runs through shouting and then leaves. When questioned directly after the event there is strong disagreement among the witnesses as to what the man was saying, what he was wearing and whether or not he had a gun. Based on the work of psychologist Elizabeth Loftus, now on the faculty of the University of California at Irvine Law School, this experience, more than any dry article about cognitive science, demonstrates the inherent unreliability of human memory and the conviction of eye-witnesses about what they have seen. Lawyers involved in the Innocence Project which is seeking to challenge wrongful convictions based on eye-witness testimony by examining conflicting DNA evidence have further brought these findings to public attention. As they explain, 'Research shows that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound.' Yet despite what has become common knowledge about the malleability of human memory, the idea that it’s possible to access the brain directly to find out whether a witness is telling the truth is being put forward by companies which seek to profit from research that suggests that new imaging technology can detect when a human is telling a lie. These companies are advertising this technology as a tool for law enforcement and promoting its use in U.S. trials as a way of helping juries to assess the credibility of witnesses. 

This article explores these claims that neuroimaging scans can be used to detect lies, which far exceed those made by responsible scientists, and also puts them in the context of a series of U.S. Supreme Court cases which have dramatically changed how scientific (forensic) evidence can be presented to the jury in criminal trials. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L. Ed. 2d 469 (1993) (establishing new criteria for admission of scientific evidence); Crawford v. Washington, 541 U.S. 36 (2006) (requiring that defendants directly face accusors). It also addresses the significant criticisms being brought against what has often been incautious adoption of unreliable techniques. 'Strengthening Forensic Science in the United States: A Path Forward' (National Research Council 2009). 

In this article I argue that promises of lie detection are not only based on false premises, but they are harmful to the integrity of the legal system because they seek to substitute a technology, which is not just undeveloped and inadequately tested but inherently flawed, for the judgment of the fact-finder, judge or jury, in a criminal trial. I conclude that even if there was neuroimaging technology which could provide direct access to human thought, the result would share the inaccuracies and subjectivity that we already know is an inherent feature of human memory. Moreover, because this technology promises to do something that jurors know they cannot - determine when a person is lying - there is a substantial risk that it will prejudice defendants because jurors will substitute the results of the technology for their own collective judgment.

 

Neuroethics and National Security

"A Neuroskeptic's Guide to Neuroethics and National Security"

Jonathan H. Marks 
Edmond J. Safra Center for Ethics, Harvard University; Pennsylvania State University

Abstract:      
This article – informed by science studies scholarship and consonant with the emerging enterprise of “critical neuroscience” – critiques recent neuroscience research, and its current and potential applications in the national security context. The author expresses concern about the subtle interplay between the national security and neuroscience communities, and the hazards of the mutual enchantment that may ensue. The Bush administration’s “war on terror” has provided numerous examples of the abuse of medicine, behavioral psychology, polygraphy and satellite imagery. The defense and national security communities have an ongoing interest in neuroscience too – in particular, neuroimaging and psychoactive drugs (including oxytocin) as aids to interrogation. Given the seductive allure of neuroscientific explanations and colorful brain images, neuroscience in a national security context is particularly vulnerable to abuse. The author calls for an urgent re-evaluation of national security neuroscience as part of a broader public discussion about neuroscience’s non-therapeutic goals.

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.

Current Directions in Violence Risk Assessment

Jennifer Skeem and John Monahan have a new piece entitled, "Current Directions in Violence Risk Assessment."

Abstract:      
A variety of instruments have been published over recent years that improve clinicians’ ability to forecast the likelihood that an individual will behave violently. Increasingly, these instruments are being applied in response to laws that require specialized risk assessments. In this article, we present a framework that goes beyond the "clinical" and "actuarial" dichotomy to describe a continuum of structured approaches to risk assessment. Despite differences among them, there is little evidence that one validated instrument predicts violence better than another. We believe that these group-based instruments are useful for assessing an individual’s risk, and that an instrument should be chosen based on an evaluation’s purpose (i.e., risk assessment vs. risk reduction). The time is ripe to shift attention from predicting violence to understanding its causes and preventing its (re)occurrence.

Are We Responsible for Who We Are?

Paul Robinson has a new piece entitled, "Are We Responsible for Who We Are? The Challenge in Criminal Law Theory in the Defenses of Coercive Indoctrination and Rotten Social Background."

Abstract:      
Should coercive indoctrination or “rotten social background” be a defense to crime? Traditional desert-based excuse theory roundly rejects these defenses because the offender lacks cognitive or control dysfunction at the time of the offense. The standard coercive crime-control strategies of optimizing general deterrence or incapacitation of the dangerous similarly reject such defenses. Recognition of such defenses would tend to undermine, perhaps quite seriously, deterrence and incapacitation goals. Finally, the normative crime-control principle of empirical desert might support such an excuse, but only if the community’s shared intuitions of justice support it. The law’s rejection of such defenses suggests that there might be little popular support for them.

This is not necessarily the end of the story, however. Coercive indoctrination has in some cases, such as that of POW Richard Tenneson, prompted considerable public sympathy, confirming that lay persons do tend to exculpate some such offenders. Such intuitive support for a coercive indoctrination defense suggests that there may be practical crime-control value in having the criminal law recognize it. If the criminal law can build its reputation as a reliable moral authority with the community it governs, it can harness the potentially powerful forces of social and normative influence.

There are good arguments for seeing “rotten social background” as a form of coercive indoctrination and, thus, for considering it too for a defense under such a newly-created doctrine. However, while the two defenses may be analogous, having a “rotten social background” by itself is not likely to meet the minimum prerequisites that logically would adhere to a coercive indoctrination defense, and certainly would have little intuitive support. On the other hand, specific cases of “rotten social background” might well qualify, if it is shown that that experience forced upon the person a set of beliefs and values compelling him toward the offence that he could not reasonably have been expected to resist.

Emotional Regulation and Judicial Behavior

Terry Maroney has a new piece entitled, "Emotional Regulation and Judicial Behavior."

Abstract:      
Judges are human and experience emotion when hearing cases, though the standard account of judging long has denied that fact. Though in the post-Realist era it is possible to acknowledge that judges have emotional reactions to their work, our legal culture continues to insist that a good judge firmly puts them aside. Thus, we expect judges to regulate their emotions, either by preventing emotion’s emergence or by walling off its influence. But judges are given precisely no direction as to how to engage in emotional regulation. This Article proposes a model for judicial emotion regulation that goes beyond a blanket admonition to "put emotion aside." While legal discourse on judicial emotion has been stunted, scientific study of the processes of emotion regulation has been robust. By bringing these literatures together for the first time, the Article reveals that law does nothing to promote intelligent judicial emotion regulation and much to discourage it. 

An engagement model for managing judicial emotion promises to reverse this maladaptive pattern. It provides concrete tools with which judges may prepare realistically for emotional situations they necessarily will encounter, respond thoughtfully to emotions they cannot help but feel, and integrate lessons from such emotions into their behavior. Importantly, medicine has begun to pursue just such a program to promote competent emotion regulation by doctors. The engagement model is far superior to all its alternatives. Other regulation strategies, such as avoidance, are fundamentally incompatible with judges’ professional responsibilities. Suppressing the expression and experience of emotion - encouraged by the status quo - is costly and normatively undesirable. Suppression is unrealistic, exacerbates cognitive load, impairs memory, and can paradoxically increase emotion’s influence while rendering that influence less transparent. The judicial engagement model, in contrast, leverages the best of what the psychology of emotion regulation has to offer. It puts a name to what extraordinary judges already are doing well and makes it available to all judges. By setting aside not judicial emotion but, rather, the crude manner in which we have asked judges to manage it, we stand materially to improve the quality of judging.

Brain Science and the Law

The DANA Foundation recently posted a new piece entitled "Brain Science and the Law."

The Deciding Brain

Charlie Rose recently hosted a series of discussions about recent advances in the sciences of the mind. One of these shows featured LANP's own Joshua Greene.  The episide is entitled, "The Deciding Brain." 

Inside the Mind of a Psychopath

Kent Kiehl and Joshua Buckholtz have a new piece in Scientific American entitled, "Inside the Mind of a Psychopath."