The Law and Neuroscience Blog

MAOA and Criminal Responsibility

Matthew Baum has a new piece in Neuroethics entitled, "The MAOA Predisposition to Impulsive Violence: Is it Relevant to Criminal Trials?"  

Here is the abstract:

In Italy, a judge reduced the sentence of a defendant by 1 year in response to evidence for a genetic predisposition to violence. The best characterized of these genetic differences, those in the monoamine oxidase A (MAOA), were cited as especially relevant. Several months previously in the USA, MAOA data contributed to a jury reducing charges from 1st degree murder (a capital offence) to voluntary manslaughter. Is there a rational basis for this type of use of MAOA evidence in criminal court? This paper will review in context recent work on the MAOA gene–environment interaction in predisposing individuals to violence and address the relevance of such findings to murder trials. Interestingly, the MAOA genetic variants impact future violence and aggression only when combined with the adverse environmental stimuli of childhood maltreatment. Thus nature and nurture interact to determine the individual’s risk. Based on current evidence, I argue there is a weak case for mitigation. But should future experiments confirm the hypothesis that individual differences in impulse control and response to provocation found in MAOA-L men (without abuse) are significantly magnified when combined with childhood maltreatment, the case could turn into a stronger one.

 

Neuroscience and Criminal Responsibility

The DANA Foundation has a recent briefing paper about the relationship between neuroscience and our notions of criminal responsibility.  Here is an excerpt:

"Just before 10:00 a.m. on June 20, 2001, a uniformed police officer was dispatched to do what he thought was a routine welfare check at a home in Houston, Texas. When the officer met Andrea Yates at the door, she immediately told him, “I just killed my kids.” When Yates was later asked why she drowned her five children, she claimed she had to in order to save them from hell. The police would learn that Yates had been suffering from long-term post-partum depression and psychosis.

Nearly 10 years after Andrea Yates killed her five children, the case remains hotly debated because of the critical legal questions it and other cases involving criminal insanity raise. At her first trial, Yates was convicted of capital murder. After her successful appeal, however, a second jury found that Yates’ post-partum psychosis rendered her incapable of distinguishing between right and wrong when she murdered her children. She was then civilly committed to a high-security treatment facility—the usual consequence of a successful insanity-based acquittal.

What role did Yates’ severe post-partum psychosis play in the crime? Was she criminally responsible for the murders of her children given her mental illness? And, more broadly, how can we as a society successfully balance protecting our citizens from crimes while still protecting those with debilitating mental disorders? These are questions that go far beyond this one crime—and that many argue will be strongly influenced by future neuroscientific studies."

See the original for the rest!

Cognitive Enhancement and Ethical Implications

Taming the Beast: Cognitive Enhancement, Ethical Implications, and Regulating Today for Tomorrow’s Scientific and Technological Advancements in Neuroscience

Jeremy Whitbeck

Abstract:      
Scientific discovery and technological advances in neuroscience have created the newly formed field of cognitive enhancement. Cognitive enhancement is improving the psychological or intellectual functions of individuals who are not ill. While the opportunities may be endless, careful scrutiny must be paid to the looming ethical implications of improving the cognitive function of an individual with no specific illness or disorder. Because of the increasingly accelerated pace of research and development in the field of neuroscience, it is important that the government, along with key stakeholders and the community-at-large, address these ethical considerations and devise a comprehensive regulatory framework to provide the appropriate guidelines for this emerging science.

Part I of this Article will define cognitive enhancement and delineate the difference between treatment and enhancement. Part I identifies cognitive enhancers, including “smart drugs,” memory enhancement and dampening drugs, and dietary supplements, and considers the possibility of a time when humans will no longer be the innovative power behind cognitive enhancement. Part II addresses the ethical implications of cognitive enhancement, such as human dignity and the devaluation of normal, fairness and equality, coercion and pressure to use in a competitive culture, control versus treatment, safety and efficacy, and innovation and the notion of cognitive liberties. Part III outlines the regulatory framework necessary to meet these ethical concerns. In conclusion, Part IV reaffirms the need for a comprehensive regulatory framework to address the ethical implication of cognitive enhancement.

Juveniles and Punishment

Juveniles and Punishment

Oliver Goodenough

Abstract:      
This talk examines how adults think about punishment of juveniles in light the work of Baird (2009), which suggests that adolescents need some space in which to make mistakes, a need deriving not only from a lack of brain development, but also from a lack of experience necessary to push that development along, and the work of Cushman et al. which explores the evolutionary and neural explanations for punishment as a teaching tool. It will suggest that the traditional, if conflicted, allowance of some license to youth is a sensible strategy for dealing with juvenile transgressions, and will describe possible experiments to better delineate adult attitudes and juvenile responses.

 

Malintent Detection and the Spectre of Pre-Crime

Nature News has a recent piece on developing technologies for detecting "malintent."  Here is an excerpt:

"Planning a sojourn in the northeastern United States? You could soon be taking part in a novel security programme that can supposedly 'sense' whether you are planning to commit a crime.

Future Attribute Screening Technology (FAST), a US Department of Homeland Security (DHS) programme designed to spot people who are intending to commit a terrorist act, has in the past few months completed its first round of field tests at an undisclosed location in the northeast, Nature has learned.

Like a lie detector, FAST measures a variety of physiological indicators, ranging from heart rate to the steadiness of a person's gaze, to judge a subject's state of mind. But there are major differences from the polygraph. FAST relies on non-contact sensors, so it can measure indicators as someone walks through a corridor at an airport, and it does not depend on active questioning of the subject.

The tactic has drawn comparisons with the science-fiction concept of 'pre-crime', popularized by the film Minority Report, in which security services can detect someone's intention to commit a crime. Unlike the system in the film, FAST does not rely on a trio of human mutants who can see the future. But the programme has attracted copious criticism from researchers who question the science behind it."

Check out the original article for the rest of the story!

 

The Molecular Concept of Law

The Molecular Concept of Law

Hendrik Gommer

Abstract:      
In essence, the author's biological theory of law is based on fractal patterns. Macroscale patterns mirror microscale patterns. This way of thinking is related to evolutionary theories. However, the actual type of natural selection does not affect the idea that properties of molecules can be recognized in human behaviour. By focusing on the fractal pattern, we can evade detailed biological discussions on exactly how natural selection takes place. That discussion would either bog us down or divert us from the main issue, which is the link between the properties of genes and basic notions in law. By recognizing fractal structures in our empiric reality, we can link very different levels and disciplines and subsequently jump from genes to emotions to law in a systematic manner. 

In his famous work The Concept of Law Hart asked himself the question ‘what is law?’ Ever since the publication of this book in 1961, Hart’s answers have retained their appeal and persuasive force. But will it survive another 50 years of encroachment? Hart based his theory on sociological observations. Sociologists for a long time – especially in the 1960s – believed that society itself can prescribe norms and rules. Individuals make society. In what he calls the minimum content of natural law, Hart describes why members of a society cooperate. Without cooperation people cannot survive. Hart appears to adhere to dualism by making a ‘birth’ distinction between rules and morals: morals are rooted in biology, rules source back to society. Biology, however, is monistic in character. Organisms, traits of organisms, thoughts and constructs of organisms – and these include human-made rules – inevitably have their origins in genes, in molecules that act (and react) in accordance with chemical laws of nature. 

Dworkin has introduced political principles. However, he is trying to find these principles by searching in common law, which is, in turn, based on these principles. The author does not find this convincing. Where Dworkin rejects the idea of objective morals, modern biology could probably deliver a more fundamental theory on morals and principle. Posner’s pragmatic theory does not convince the author either. If pragmatic judges interpret a statute by what they think a legislator would have done, they are still weighing consequences, and this simply cannot be done in a rational way. Biology and psychology teach us that we unconsciously apply evolutionary principles of which many judges and legislators are not aware. To put it bluntly, biological facts, to a degree, determine our norms and rules. 

In this paper, the author reforms Hart’s concept of law into a molecular concept of law that fits a modern, monistic biological perspective. 

 

A Biological Theory of Law

 

"From the 'Is' to the 'Ought': A Biological Theory of Law"

Hendrik Gommer 
Tilburg Law School
 
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.

 

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.