The Law and Neuroscience Blog

Are We Responsible for Who We Are?

Paul Robinson has a new piece entitled, "Are We Responsible for Who We Are? The Challenge in Criminal Law Theory in the Defenses of Coercive Indoctrination and Rotten Social Background."

Abstract:      
Should coercive indoctrination or “rotten social background” be a defense to crime? Traditional desert-based excuse theory roundly rejects these defenses because the offender lacks cognitive or control dysfunction at the time of the offense. The standard coercive crime-control strategies of optimizing general deterrence or incapacitation of the dangerous similarly reject such defenses. Recognition of such defenses would tend to undermine, perhaps quite seriously, deterrence and incapacitation goals. Finally, the normative crime-control principle of empirical desert might support such an excuse, but only if the community’s shared intuitions of justice support it. The law’s rejection of such defenses suggests that there might be little popular support for them.

This is not necessarily the end of the story, however. Coercive indoctrination has in some cases, such as that of POW Richard Tenneson, prompted considerable public sympathy, confirming that lay persons do tend to exculpate some such offenders. Such intuitive support for a coercive indoctrination defense suggests that there may be practical crime-control value in having the criminal law recognize it. If the criminal law can build its reputation as a reliable moral authority with the community it governs, it can harness the potentially powerful forces of social and normative influence.

There are good arguments for seeing “rotten social background” as a form of coercive indoctrination and, thus, for considering it too for a defense under such a newly-created doctrine. However, while the two defenses may be analogous, having a “rotten social background” by itself is not likely to meet the minimum prerequisites that logically would adhere to a coercive indoctrination defense, and certainly would have little intuitive support. On the other hand, specific cases of “rotten social background” might well qualify, if it is shown that that experience forced upon the person a set of beliefs and values compelling him toward the offence that he could not reasonably have been expected to resist.

Emotional Regulation and Judicial Behavior

Terry Maroney has a new piece entitled, "Emotional Regulation and Judicial Behavior."

Abstract:      
Judges are human and experience emotion when hearing cases, though the standard account of judging long has denied that fact. Though in the post-Realist era it is possible to acknowledge that judges have emotional reactions to their work, our legal culture continues to insist that a good judge firmly puts them aside. Thus, we expect judges to regulate their emotions, either by preventing emotion’s emergence or by walling off its influence. But judges are given precisely no direction as to how to engage in emotional regulation. This Article proposes a model for judicial emotion regulation that goes beyond a blanket admonition to "put emotion aside." While legal discourse on judicial emotion has been stunted, scientific study of the processes of emotion regulation has been robust. By bringing these literatures together for the first time, the Article reveals that law does nothing to promote intelligent judicial emotion regulation and much to discourage it. 

An engagement model for managing judicial emotion promises to reverse this maladaptive pattern. It provides concrete tools with which judges may prepare realistically for emotional situations they necessarily will encounter, respond thoughtfully to emotions they cannot help but feel, and integrate lessons from such emotions into their behavior. Importantly, medicine has begun to pursue just such a program to promote competent emotion regulation by doctors. The engagement model is far superior to all its alternatives. Other regulation strategies, such as avoidance, are fundamentally incompatible with judges’ professional responsibilities. Suppressing the expression and experience of emotion - encouraged by the status quo - is costly and normatively undesirable. Suppression is unrealistic, exacerbates cognitive load, impairs memory, and can paradoxically increase emotion’s influence while rendering that influence less transparent. The judicial engagement model, in contrast, leverages the best of what the psychology of emotion regulation has to offer. It puts a name to what extraordinary judges already are doing well and makes it available to all judges. By setting aside not judicial emotion but, rather, the crude manner in which we have asked judges to manage it, we stand materially to improve the quality of judging.

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.

Brain Imaging and Courtroom Deception

Rebecca Dresser has a new piece entitled, "Brain Imaging and Courtroom Deception."

Abstract:

Scientists have developed new approaches to lie detection that use a brain scanning technique called functional magnetic resonance imaging (fMRI) to evaluate whether someone is lying. Enthusiasts hope that courts will be more receptive to fMRI lie detection techniques than they have been to polygraph tests. But two recent court decisions - United States v. Semrau and Wilson v. Corestaff Services - suggest that these techniques are far from ready for courtroom use.