The Law and Neuroscience Blog

Punishing Without Free Will

Punishing Without Free Will

Luis Chiesa

Pace University School of Law

Abstract:      
Most observers agree that free will is central to our practices of blaming and punishment. Yet the conventional conception of free will is under sustained attack by the so-called determinists. Determinists claim that all of the events that take place in the universe – including human acts – are the product of causally determined forces over which we have no control. If human conduct is really determined by factors that we cannot control, how can our acts be the product of our own unfettered free will and what would that mean for the criminal law? The overwhelming majority of legal scholars and philosophers reply that, even if it turns out that human conduct is fully determined by forces over which they lack control, we ought to nevertheless believe in free will and thus continue to blame actors for engaging in wrongful conduct. They argue that we ought to rationalize free will in this manner because dispensing with free will is potentially catastrophic to human relationships, calling into question our judgments about blame and praise and, thus, about criminal responsibility and punishment. This Article contends that this rationalization is wrong and unnecessary. The fact of free will is not essential to maintaining a healthy society and a well functioning system of criminal justice. Although retribution could not be invoked as a reason for imposing punishment if humans are not capable of free choice, punishment could still be justified on consequentialist grounds. In a world without free will, the purpose of punishment would shift from giving to the offender what he deserved to protecting society from dangerous individuals who are nevertheless not to blame for their transgressions. Interestingly, this would likely lead to a more economically efficient and humane system of criminal justice that relies less on incarceration and more on less intrusive but equally effective methods of social control.

 

 

The Antisocial Person

The Annals of General Psychiatry has a nice review piece entitled, "The 'antisocial' person: an insight in to biology, classification and current evidence on treatment."

Abstract

Background: This review analyses and summarises the recent advances in understanding the neurobiology of violence and empathy, taxonomical issues on defining personality disorders characterised by disregard for social norms, evidence for efficacy of different treatment modalities and ethical implications in defining 'at-risk' individuals for preventive interventions.

Methods: PubMed was searched with the keywords 'antisocial personality disorder', 'dissocial personality disorder' and 'psychopathy'. The search was limited to articles published in English over the last 10 years (1999 to 2009)

Results: Both diagnostic manuals used in modern psychiatry, the Diagnostic and Statistical Manual published by the American Psychiatric Association and the International Classification of Diseases published by the World Health Organization, identify a personality disorder sharing similar traits. It is termed antisocial personality disorder in the diagnostic and statistical manual and dissocial personality disorder in the International Classification of Diseases. However, some authors query the ability of the existing manuals to identify a special category termed 'psychopathy', which in their opinion deserves special attention. On treatment-related issues, many psychological and behavioural therapies have shown success rates ranging from 25% to 62% in different cohorts. Multisystemic therapy and cognitive behaviour therapy have been proven efficacious in many trials. There is no substantial evidence for the efficacy of pharmacological therapy. Currently, the emphasis is on early identification and prevention of antisocial behaviour despite the ethical implications of defining at-risk children.Conclusions: Further research is needed in the areas of neuroendocrinological associations of violent behaviour, taxonomic existence of psychopathy and efficacy of treatment modalities.

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.

 

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.

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.