Neurolaw: Mad or Bad?
Can your brain commit a crime?
….If it did, would you be responsible?
Are ‘free will’ and ‘human responsibility’ made up?
Are violence and recidivism predictable by psychological services?
These are the questions that Neurolaw raises. Neuroscientific methodology has the capacity to radically change our entire perception and operation of the legal system (Wolf, 2008, 21–22). Currently, Neurolaw is an emerging field, used to determine biological causes of crime and to even mitigate sentencing. Brain imaging and other neuroscientific evidence are rigorously tested before being used in legal settings. The podcast below by Neurolaw expert Professor Jeanette Kennett provides information on Neurolaw.
The chicken or the law?
Neurolaw enlivens the hotly contested chicken or egg debate about science and law. While some argue that law is a product of our brain and history, others argue that the goals and methods of the law are distinct from and beyond genetic influences and selective pressure (Wolf, 2008, 22). Wolf suggests that the place of Neuroscience is to compliment legal processes in acheiving the goals of law. She argues that the ‘business of law,’ i.e. assigning blame, resolving disagreement, and restraining state power is inescapable. She further suggests that the values underpinning the law- including substantive and procedural justice, accountability, and limits on state power- are too important to ignore (Wolf, 2008, 22). As Jones (2013, 4) states
Because law is, at base, about changing behavior, and because behavior, at base, comes from brains, it follows that deeper understandings of the relationships between brains and behaviors (and, relatedly, about perception, judgment, decision-making, and the like) may aid efforts to increase the effectiveness, efficiency, and justness of law
Hodgeson (2000) examines criminal responsibility in the age of neuroscience, championing notions of personal responsibility and commonsense and their place in the criminal justice system. He considers Hume’s suggestions of determinism, and the way that neuroscience has increasingly complimented this approach. The below video examines determinism vs free will.
However, Hodgeson (2000, 11) rejects this free/not free dichotomy by examining the compatibility of these seemingly starkly opposed philosophical doctrines. He cites Herbert Hart’s famous essays such as ‘Punishment and responsibility,’ which discussed mens rea and responsibility. Hart suggests that the Punishment must be justified by its beneficial effects, including its deterrent effect. He suggests that only voluntary actions which are susceptible to deterrence by threat of punishment, and therefore, it only makes sense to threaten and to apply coercion only in respect of voluntary actions. As in 6:56 of the below video, the amount of control over one’s actions should thereby determine the amount of responsibility one should have before the law. Neurosciences application in a legal context is thereby to provide insight into the amount of ‘control’ one has over their actions.
Sinners not broken cars
It should be noted that there is incredible complexity in ascertaining truths about the brain through neuroscience. For example, whether ‘defects’ of the brain leading to criminal behaviour are an intrinsic part of the human. Schleim questions how researchers can know that the determinants they discovered are unconscious. He notes that indeed all brain processes are unconscious, as we ascribe ‘conscious’ to psychological processes people are aware of, and if we had a definition of consciousness in neural terms, the prefrontal cortex as well as the precuneus would play an important role (Schliem, 2012, 6).
Pickerskill (1794) notes that even where neuroscience eliminates notions of blame, intervention frameworks continue to have utility. Society requires protection from violence and antisocial behaviour. This interacts with underlying ideologies attached to the law about personhood and presumptions of responsibility. In this view, to not hold people accountable for their actions is to treat them as less than human (Sapolski, 2004, 11).
Following from this, the place then, of neuroscience is to assist in determining the levels of control an individual has over their, actions (Pickerskill, 2011, 1794). Pickerskill suggests that neuroscience can assist with the creation of a ‘tree diagram’ of variables that assist in prediction of actions and criminality. Firstly, one might query whether the prefrontal cortex is normal or damaged. Then, one might ask if ‘damaged’, was it damaged in childhood or later, and so on.
Morse addresses what he describes as ‘irrational neural exhuberrance’, or ‘brain overclaim syndrome’ (Morse, 2011, 858):
In the future… as the philosophies of mind and action and neuroscience mutually mature and inform each other, neuroscience will help us understand criminal behavior. a radical transformation of criminal justice is likely to occur, neuroscience can inform criminal justice as long as it is relevant to law and translated into the law’s folk-psychological framework and criteria.
Further, he states
At present, neuroscience has little to contribute to more just and accurate criminal law decision-making concerning policy, doctrine, and individual case adjudication
So neuroscience and law have distinct domains, purposes and tasks of science and law. Jones suggests that while science can and has been assisting the resolution of legal questions, this is distinct from the notion that neuroscience would answer a legal question (Jones, 2013, 11). He suggests that neuroscience can aid, and is relevant to the law in at least 7 key ways:
- Buttressing- where neuroscience points in the same direction as other evidence thereby strengthening an argument
- Challenging- neuroscientific developments strongly challenge important assumptions on which a given feature of law relies. It may help the legal system avoid error, and might prompt useful reform of approaches based on faulty assumptions. E.g. the testing of the legally operative assumption that people can’t lie quickly when excited. Further applications may include insight into the assumption that agents intend the natural and probable consequences of their actions.
- Detecting- of legally relevant facts that may not have been detectable otherwise to answer big and perennial questions.
- Sorting- in order to treat people differently according to their brain functions. For example, alive or dead. Further applications extend to ascertaining the most appropriate forms of criminal redress for different types of offenders.
- Intervening- For certain types of offenders to reduce recidivism, for example, deep brain stimulation for those with Parkinsons.
- Explaining- for example, MRIs used to understand brain activity underlying decisions whether or not to punish and, if so, how much
- Predicting- ascertaining likelihood of reoffending, for example bail decisions.
Wolf similarly suggests that neuroscience compliments law, and provides a variety of discrete functions neuroscience can play⁴:
- memory detection,
- real property rules,
- intellectual property doctrine,
- tort law evaluation of physical and emotional pain (see http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=11109&context=ilj for extended discussion)
- health law protection of privacy and confidentiality,
- employment and disability law,
- criminal responsibility of juveniles,
- establishment of criminal mens rea, and insanity claims.
- freedom of speech,
- restraints on search and seizure,
- privilege against self-incrimination
In addition to complimenting the law, neuroscience raises its own set of legal problems, for example, the regulation of performance enhancing drugs such as modafinil⁵. (For more information on Modafinil, see https://www.bulletproofexec.com/why-you-are-suffering-from-a-modafinil-deficiency/) As with any field, the more we know about it, the more we learn to affect change in it, the more the law will seek to regulate it.
Similarly, as neuroscience supplies better methods of inferring people’s thoughts, individuals will have less thought privacy, and laws will need to be developed around the protection of thought privacy.
Laws regulating the permissibility of this evidence will also have to be responsive the the complex environment of justice. Kolber (2014, 836) suggests that the answer to these questions will be dependent on context, for example, higher bars on neuroscientific evidence should be in place for prosecutors than defendents.
Outside the box:
David Eagleman explains how most behaviors are driven by brain networks that we do not consciously control, and why the legal system will eventually be forced to shift its emphasis from individual blameworthiness to analysis of likely future behaviour.
Further, in the future, perhaps neuroscience will operate to identify future behaviour and prevent people from committing criminal acts.
Neuroscience may not only provide targetted treatment for pathological brain conditions like Alzheimer’s and Parkinson’s disease, it may also be used beyond the clinical setting. For example treatments for brain-based causes of (mental disorders correlated with) criminal and disfavoured behaviour. (Vincent, 2014). Gazzaniga discusses the philosphical discussion surrounding this.
Neuroscience may also have a place in reducing recidivism. It is well known that incarceration does not effectively reduce recidivism, and that its costs are huge.
Hodgson, D., 2000. Guilty mind or guilty brain? Criminal responsibility in the age of neuroscience.
Jones, O.D., 2013. Seven ways neuroscience aids law. Neurosciences and the Human Person: New Perspectives on Human Activities (A. Battro, S. Dehaene & W. Singer, eds.) Scripta Varia, 121, pp.13–28.
Kolber, A.J., 2014. Will there be a neurolaw revolution. Ind. LJ, 89, p.807.
Morse, S., 2011. Avoiding irrational neurolaw exuberance: a plea for neuromodesty. Law, Innovation and Technology, 3(2), pp.209–228.
Pickersgill, M., 2011. Connecting neuroscience and law: Anticipatory discourse and the role of sociotechnical imaginaries. New Genetics and Society, 30(1), pp.27–40.
Sapolsky, R.M., 2004. The frontal cortex and the criminal justice system.Philos Trans R Soc Lond B Biol Sci, 359(1451), pp.1787–1796.
Schleim, S., 2012. Brains in context in the neurolaw debate: The examples of free will and “dangerous” brains. International journal of law and psychiatry,35(2), pp.104–111.
Vincent, N.A., 2014. Neurolaw and direct brain interventions. Criminal Law and Philosophy, 8(1), pp.43–50.
Wolf, S.M., 2008. Neurolaw: the big question. The American Journal of Bioethics, 8(1), pp.21–22, 21.