The Law and Neuroscience Blog

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."

Incriminating Thoughts

Nita Farahany has a new piece entitled, "Incriminating Thoughts."

Abstract:

The neuroscience revolution poses profound challenges to current self-incrimination doctrine and exposes a deep conceptual confusion at the heart of the doctrine. In Schmerber v. California, the Court held that under the Self-Incrimination Clause of the Fifth Amendment, no person shall be compelled to “prove a charge [from] his own mouth,” but a person may be compelled to provide real or physical evidence. This testimonial/physical dichotomy has failed to achieve its intended simplifying purpose. For nearly fifty years scholars and practitioners have lamented its impracticability and its inconsistency with the underlying purpose of the privilege. This article seeks to reframe the debate. It demonstrates through modern applications from neuroscience the need to redefine the taxonomy of evidence subject to the privilege against self-incrimination. Evidence can arise from the identifying characteristics inherent to individuals; it can arise automatically, without conscious processing, through memorialized photographs, papers and memories; or it can arise as uttered responses, both silently and aloud. This spectrum – identifying, automatic, memorialized, and uttered – is more nuanced and more precise than the traditional testimonial/physical dichotomy, and it better reflects the rationale underpinning the privilege against self-incrimination. Neurological evidence, like more traditional evidence, may be located on this spectrum, and thus doctrinal riddles of self-incrimination, both modern and ancient, may be solved.

Neuroscience and Ideology

June Carbone has a new piece entitled, "Neuroscience and Ideology: Why Science Can Never Supply a Complete Answer for Adolescent Immaturity."

Abstract:

This paper argues that to resolve the issues about the role of neuroscience, we need to question the framework in which it arises. The increasing complexity of scientific determinations raises issues of institutional capacity. Recognizing innovations in the science of adolescent development may change not so much our view of adolescence as the calculus underlying institutional functions. 

Consider the issue of the juvenile death penalty or a life sentence for a crime committed by a fifteen-year-old. The fact that adolescent reasoning has not yet matured may or may not make the sentence cruel. But the ability to determine whether a particular fifteen-year old is capable of reasoned deliberation may be a more difficult task than judging whether fifteen-year-olds as a group have such capacity. Abolishing the juvenile death penalty may be the right answer not so much because adolescent decision-making is necessarily flawed, but because deciding whether it is in individual cases is impossible. At the same time, such a decision should not be resolved, in any absolute sense, on the basis of neuroscience findings. Instead, they can be at best a strand in a complex decision that situates the idea of justice, rather than cognitive capacity, in an appropriate societal framework. 

To consider the appropriate construction of such frameworks, this paper describes the promise and limitations of neuroscientific advances, comparing legal decision-making capacity in individual cases versus broader matters of constitutional doctrine or public policy, analyzing recent US Supreme Court decisions on the juvenile death penalty, and assessing the role of neuroscience in the different possible outcomes of that case. The paper concludes that Justice Kennedy’s majority opinion gave the appropriate weight to the sense; it is an element supporting, but not dictating, a conclusion the court reached on broader grounds.

A Biological Theory of Law

Hendrik Gomer has a new piece entitled, "From the 'Is' to the 'Ought': A Biological Theory of Law."

Abstract:

In this article the naturalistic fallacy is challenged. It is a barrier that should be removed in order to make a necessary next step towards thinking about the biological foundations of law. 

Moore’s naturalistic fallacy and Hume’s is ought-problem imply a barrier between law and biology. However, we are constantly deriving the ought from the is. Biology can explain why people sometimes value killing another human being as ‘good’ (i.e. ‘ought’) and sometimes as ‘bad’ (i.e. ‘ought not’). Killing the enemy is good because it saves our children, killing my neighbour is bad because it destabilises society. Morals and rules have evolved from biological facts and are the result of interaction between genes and their surroundings. They are a product of our brain as all interpretations of facts are. As a result, ‘goodness’ can be regarded as a biological phenomenon. Inevitable as this conclusion may be, it looks like scientists hesitate to accept it.

Cognitive Neuroscience and Involuntary Confinement

Adam Lamparello has a new piece entitled, "Using Cognitive Neuroscience as a Method by Which to Involuntarily Confine Violent Offenders after Completion of Their Sentence."

Abstract:

This article argues that individuals with frontal lobe brain damage have the inability to control their actions, and are highly likely to engage in rage attacks, spontaneous acts of violence, and destructive behavior. It argues that such offenders should receive post-sentence treatment to focus upon addressing these issues.

The Impact of Modern Neuroscience on Treatment of Parolees

Richard Bonnie, Donna Chen, and Charles O'Brien have a new piece entitled, "The Impact of Modern Neuroscience on Treatment of Parolees."

Abstract:

As neuroscience advances our understanding of addiction, a drug called naltrexone offers the possibility of treating drug offenders, particularly those on probation or parole, and helping them avoid relapse. Richard J. Bonnie, Donna T. Chen and Charles P. O’Brien examine ethical and legal concerns related to various methods of administering naltrexone.

Responsibility for Addiction

Richard Bonnie has a new piece entitled, "Responsibility for Addiction."

Abstract:

Taking as its starting point the characterization of addiction as a "brain disease" by the nation’s leadership in public health and biomedical science, this paper explores the implications of recent developments in neuroscience for the concept of responsibility. The terrain is divided into three parts: responsibility for becoming addicted; responsibility for behavior symptomatic of addiction; and responsibility for amelioration of addiction. In general, the paper defends the thesis that recent scientific developments have sharpened but not erased traditional understandings in the first two areas, while recent legal developments have exposed new and intriguing theories of responsibility for managing.

Emotion, Neuroscience, and Law

John Mikhail has an interesting new piece entitled, "Emotion, Neuroscience, and Law: A Comment on Darwin and Greene." 

Abstract:

Darwin’s (1871) observation that evolution has produced in us certain emotions responding to right and wrong conduct that lack any obvious basis in individual utility is a useful springboard from which to clarify the role of emotion in moral judgment. The problem is whether a certain class of moral judgments is “constituted” or “driven by” emotion (Greene 2008, p. 108) or merely correlated with emotion while being generated by unconscious computations (e.g., Huebner et al. 2008). With one exception, all of the “personal” vignettes devised by Greene and colleagues (2001, 2004) and subsequently used by other researchers (e.g., Koenigs et al. 2007) in their fMRI and behavioral studies of emotional engagement in moral judgment involve violent crimes or torts. These studies thus do much more than highlight the role of emotion in moral judgment; they also support the classical rationalist thesis that moral rules are engraved in the mind.

*See here for an earlier discussion.