The Law and Neuroscience Blog

Youth, the Brain, Neuroimaging, and Responsibility

New Scientist has a recent piece entitled "Brain Scans May Fix Criminal Responsibility" which explores the research being done by Nico Dosenbach and others with pattern classification and neural imaging and its potential legal applications--especially when it comes to making determinations concerning brain maturity and moral/legal responsibility (or lack thereof).

Pardo and Patterson on Neurolaw

Michael Pardo and Dennis Patterson have a very interesting forthcoming piece in Neuroethics entitled "Minds, Brains, and Norms."  I was fortunate enough to be asked to provide some invited commentary along with Walter Glannon and Carl Craven.  Pardo and Patterson's lead article is now available for preview (see here) along with some of the invited commentary (see here and here).  Finally, their reply is also available here.  Thanks to Neil Levy and Walter Sinnott-Armstrong for inviting me to play along and for putting together this special issue!

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.

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.  

Can Bad Science Be Good Evidence?

Frederick Schauer--one of the members of LANP's Governing Board--has recently posted an interesting article on SSRN entitled, "Can Bad Science Be Good Evidence: Lie Detection, Neuroscience, and the Mistaken Conflation of Legal and Scientific Norms" (see here). Given the recent interest in neuroimaging and lie detection, it is a very timely and important piece.  Here is the abstract:

                                         ***

As the capabilities of cognitive neuroscience, in particular functional magnetic resonance imaging (fMRI) 'brain scans,' have become more advanced, some have claimed that fMRI-based lie-detection can and should be used at trials and for other forensic purposes to determine whether witnesses and others are telling the truth. Although some neuroscientists have been at the forefront of promoting such claim, most neuroscientists aggressively resist them, and have argued that the existing research on neuroscience-based lie-detection is deeply flawed in numerous ways. And so these neuroscientists have resisted any attempt to use such methods in litigation, arguing, in effect, that they are the product, so far, of poor science. But although it is probably true that the existing studies have serious problems of validity when measured by the standards of science, and true as well that the reliability of such methods is significantly lower than their advocates claim, it is nevertheless an error to assume that the distinction between good and bad science, whether as a matter of validity or a matter of reliability, should be dispositive for law. Law is not only about putting criminals in jail, and once we understand that numerous uses of evidence in various contexts in the legal system require a degree of probative value far short of proof beyond a reasonable doubt, we can understand the larger point that legal and scientific norms and standards are different. Some examples of good science may still not be good enough for some legal purposes, and, conversely, some examples of bad science my, in some contexts, still be good enough for some legal purposes.

***

Adam Kolber already has a nice and concise commentary on Schauer's paper over at the Neuroethics and Law Blog.  So, you should check that out as well.

The Secret Politics of the Compatibilist Criminal Law

I recently stumbled upon a really provocative paper by Anders Kaye entitled, "The Secret Politics of the Compatibilist Criminal Law." Given that one of the key issues addressed in  the paper is whether compatibilist theories of free will--which focus very heavily on dispositional traits and conscious mental states--can accommodate situational forces that are criminogenic (e.g., poverty and early childhood abuse).  According to Kaye, compatibilist theories of free will and responsibility have been used by some criminal theorists to shield the criminal law from developments in behavioral science, criminology, etc. that might otherwise lead to a less punitive justice system as well as a more egalitarian society.  In short, Kaye suggests that compatibilism is not a "politically innocent" theory of free will.  Here is the abstract:

Many criminal theorists say that we have a 'compatibilist' criminal law, by which they mean that in our criminal law a person can deserve punishment for her acts even if she does not have 'genuinely' free will. This conception of the criminal law harbors and is driven by a secret politics, one that resists social change and idealizes the existing social order. In this Article, I map this secret politics. In so doing, I call into question the descriptive accuracy of the compatibilist account of the criminal law, and set the stage for a franker discussion of criminal punishment - one that recognizes that the perpetual struggle to say just who 'deserves' punishment is driven as much by brute politics and the competition to allocate power and resources in society as by any independent moral logic.

There is already a heated debate about Kaye's novel line of reasoning over at The Garden of Forking Paths.  However, it would be nice to see an active comment thread here at The Law and Neuroscience Blog as well.  So, please take a look at the paper and then give us your thoughts!

The New Neuromorality

A hat-tip to Tom Clark for bringing this exciting pod-cast to my attention.  It turns out the American Enterprise Institute hosted a conference back in 2005 entitled The New Neuromorality, which had an all-star cast of speakers including LANP fellows Martha Farrah, Josh Greene, Hank Greely, and Stephen Morse as well as other scholars such as Steven Pinker and Philip Tetlock.  Needless to say, the 5+ hours of talks by some of the leading researchers from psychology, philosophy, and the law are both interesting and illuminating.

Effort and Diminished Responsibility

Imagine that John and Jim are both basketball stars.  However, their similarities end there.  John is a physical specimen who was graced from birth with both speed and athleticism.  Given his innate physical skills, basketball was always easy for him.  Indeed, with a 40 inch vertical leap and amazing hand-eye coordination, he easily became one of the best basketball players in his state without ever having to practice particularly hard.  Jim, on the other hand, was not so blessed, physically speaking.  Despite the fact that (a) he was not particularly athletic, and that (b) basketball did not come naturally to him, he had a true passion for the game as a child.  As a result, he practiced night and day until his skills were so well honed that he, too, became one of the best basketball players in the state. 

 At the end of the day, I think many of us would give Jim more credit for his success at basketball than John. On my view, we both would and should admire Jim’s success more than John’s under these circumstances because acquiring the requisite skills required a lot more effort on Jim’s part.  So, while we might be impressed with John’s freakish athleticism, we have more admiration for Jim’s hard earned success.  For present purposes, I want to call this the “Effort Effect" (EE).  By my lights, EE often plays an important role in how we evaluate the actions of others.