#neurolaw

[neurosciencenews]

A Need for Neurolaw? Human Rights Laws May Need Revision in Neurotech Future

The authors of the study suggest four new human rights laws could emerge in the near future to protect against exploitation and loss of privacy. The four laws are: the right to cognitive liberty, the right to mental privacy, the right to mental integrity and the right to psychological continuity.

The research is in Life Sciences, Society and Policy. (full open access)

[bluewatsons]

Society for Neuroscience, Neuroscience and the Law: Strange Bedfellows (2015)

Neuroscience is a hot topic with lawyers and judges, as recent advances in our understanding of the brain have raised important and unexpected implications for the development and application of legal principles. These implications, however, can sometimes be overstated, which presents a potential for abuse and warrants caution. Senior U. S. District Judge Jed S. Rakoff, a founding member of the MacArthur Foundation Project on Law and Neuroscience, explores the legal and ethical questions raised as neuroscience enters the courtroom and affects the judicial system.

[bhb-equanimitimmarcescible]

#sociologie #sciencestudies #sciencetechnologysociety #sts #sociology #zilsel #carnetzilsel revue semestrielle de janvier 2018 #editionsducroquant #datacenter #neurolaw #sociogenese #neoliberalism #fakenews #philipmirowski #anthropocene

[bluewatsons]

Jennifer A. Chandler, The Impact of Biological Psychiatry on the Law: Evidence, Blame and Social Solidarity, Alberta L Rev [forthcoming 2016]

Abstract

This article explores the impact of biological psychiatry as the present dominant frame for understanding mental disorder on legal rules and practices. It begins with a brief overview of biological psychiatry, showing that biological understandings of mental disorder have ancient origins in Western thought, but have ebbed and flowed in popularity over time, coexisting sometimes acrimoniously with other models of mental disorder. This section presents and explains the dominance today of neuroscientific approaches within a historical context. I then present ways in which I suggest that the neurobiological model of mental disorder will affect the law in five areas: evidence of mental states, the definition of disability in human rights law, criminal responsibility, the regulation of brain interventions, and the regulation of reproductive technologies. Some of these are admittedly speculative, but are advanced as suggestions for further attention as neuroscientific research proceeds and is incorporated within social institutions and practices, such as the law.

Introduction

The relationship between the mind and body remains one of the most fascinating and long-enduring puzzles facing philosophy, medicine, and many other disciplines. The nature of consciousness and subjective mental experiences, and their relationship to neurological structures and functions remain mysterious. The law, however, is not particularly concerned with the relationship between mental experiences and the physical brain even though legal institutions are involved every day in practical problems related to human behaviour and mental states. For example, in assigning blame and responsibility, the law is more interested in the functional effects of mental disorder, than on whether it is understood as a psychological disturbance of the mind or a physiological disturbance of the brain and body. In other words, the law is more interested in the effect on capacity of a mental disorder than on the causes – biological, psychological and/or social – of the mental disorder. In this article, however, I suggest that the dominant frame of reference adopted to understand mental disorder has a range of subtle effects on legal rules and practices, and that the increasingly sophisticated use of neuroscience in biological psychiatry is likely to enhance these socio-legal effects.

The article starts with a brief overview of biological psychiatry, showing that biological understandings of mental disorder have ancient origins in Western thought, but have ebbed and flowed in popularity over time, coexisting sometimes acrimoniously with other models of mental disorder. This section presents and explains the dominance today of neuroscientific approaches within a historical context. I then present ways in which I suggest that the neurobiological model of mental disorder will affect the law in five areas: evidence of mental states, the definition of disability in human rights law, criminal responsibility, the regulation of brain interventions, and the regulation of reproductive technologies. Some of these are admittedly speculative, but are advanced as suggestions for further attention as neuroscientific research proceeds and is incorporated within social institutions and practices, such as the law.

Biological Psychiatry

Over the years, the nature and causes of mental illnesses have been framed in supernatural, psychosocial and biological terms. The dominant paradigm is now that of biological psychiatry, an approach that understands mental experiences primarily in terms of the biological functioning of the nervous system.1 It may seem now that the biological approach is a modern idea, but nothing could be further from the truth. The 4th century BC Hippocratic text entitled “On the Sacred Disease” articulated a naturalistic biological explanation of mental states. Rather than resulting from divine punishment, the symptoms of mental disorder were the result of imbalances in bodily humours.2

“Men ought to know that from nothing else but the brain come joys, delights, laughter and sports, and sorrows, griefs, despondency, and lamentations…And by the same organ we become mad and delirious, and fears and terrors assail us, some by night, and some by day, and dreams and untimely wanderings, and cares that are not suitable, and ignorance of present circumstances, desuetude, and unskilfulness. All these things we endure from the brain, when it is not healthy, but is more hot, more cold, more moist, or more dry than natural, or when it suffers any other preternatural and unusual affection. And we become mad from its humidity.”3

While supernatural explanations of mental illness are now uncommon, the tension between biological and psychological theories has existed since the very beginning of psychiatry as a medical discipline in the late 19th century.

“Psychiatry has always been torn between two visions of mental illness. One vision stresses the neurosciences, with their interest in brain chemistry, brain anatomy, and medication, seeing the origin of psychic distress in the biology of the cerebral cortex. The other vision stresses the psychosocial side of patients’ lives, attributing their symptoms to social problems or past personal stresses to which people may adjust imperfectly.”4

In his History of Psychiatry, Shorter charts this tension between biological and psychological theories, identifying two main periods during which biological approaches were in the ascendancy, separated by the early to mid-20th century era of Freudian psychoanalysis.5 The second wave, emerging in the 1970s was fueled by psychiatric genetics research involving large twin and adoptee studies and the discovery of effective psychiatric drugs such as the anti-psychotic drug chlorpromazine.6 Walter suggests that we are in the midst of a third wave of biological psychiatry beginning in the 1980s and driven by progress in molecular neuroscience, and the development of cognitive neuroscience, neuroimaging and other techniques that enable the study of the interactions between genetics, experience and the environment.7 In Walter’s view, these developments are together leading to a much more complex and sophisticated picture of brain organization and the neurobiological changes associated with psychiatric disorders.

“The underlying model is that of systems medicine, understood as an interdisciplinary field of study that looks at the dynamic systems of the human body as part of an integrated whole, incorporating biochemical, physiological, and environmental interactions…”8

In Walter’s account, this third wave of biological psychiatry is an inclusive one that can incorporate multiple levels of information (e.g. genetic, molecular, cellular, circuit, physiological, behavioural and patients’ self-reported experience), can allow for multiple and complex causation of mental disorder (e.g. biological, psychosocial and cultural mechanisms), and does not entail that narrowly biological approaches (e.g. psychopharmacology) are necessarily the best therapies. 9

This being said, some may be sceptical about the apparent inclusiveness and neutrality regarding therapeutic modalities of this latest approach to biological psychiatry. There is evidence that clinicians are more likely to favour pharmacotherapy when patients’ conditions are framed in biological as opposed to psychosocial terms.10 Furthermore, some may harbour concerns that the apparently inclusive new biological psychiatry constitutes “lip service” to the mental or subjective experiences of patients or that it encourages inefficient allocation of resources to neurobiological approaches at the expense of addressing known psychosocial contributions to the development or maintenance of psychiatric disorders.11

Another concern that may exist with biological approaches to psychiatry is the unintended psychological impact of biological causal explanations on the attitudes of both clinicians and patients. Biological explanations for mental illnesses seem to encourage the belief that symptoms are immutable, leading to prognostic pessimism and a reduced sense among patients of personal ability to regulate symptoms, raising the risk of self-fulfilling beliefs in the immutability of mental illness.12 There is evidence, however, that educational interventions emphasizing the malleability of biological factors involved in mental illnesses may help to counteract these reactions.13 It is not just patients who may be affected by biological causal explanations of mental disorders, and there is considerable evidence that links these biological causal accounts to increased public perceptions of dangerousness and the desire to limit social interactions with people with mental illnesses.14 Furthermore, it appears that clinicians’ level of empathy for their patients is reduced by biological explanations of mental disorders, which is troubling given the importance of clinician empathy for the therapeutic relationship.15 Perhaps, as with the beneficial effects of educational interventions with patients, public and clinical education might overcome these potentially harmful side effects of biological causal accounts of mental disorders more broadly.

Research on mental health stigma is actively exploring the ideological impact of biological psychiatry on social behaviour and attitudes and in the therapeutic context. The purpose of the present article is to broaden the field of view to explore these same ideological effects in another important field of social behaviour – the law and legal decision-making. As the following sections suggest, there is reason to think that there may be fascinating and subtle effects of biological explanations of mental states and behaviours throughout the law.

Brain Imaging and Objective Evidence of Mental States

Courts are frequently intensely interested in subjective mental states. Yet, mental states such as the experience of pain, memories, deception, or sexual interests are private, directly accessible only to the person experiencing them. Yet, their existence is relevant to legal questions such as the quantum of damages to be awarded in personal injury litigation, entitlement to disability insurance benefits, the value of testimony about past experiences and observations, as well as forensic risk assessment in the criminal context. A witness’s veracity is frequently questioned because of the existence of powerful incentives to claim a particular mental state in court. As a result there is an omnipresent risk of accepting false claims as well as rejecting true claims.

One of the intriguing developments in recent years has been the rise of functional magnetic resonance imaging (fMRI), which detects patterns of blood flow in the brain. Relying on the assumption that these patterns of blood flow reflect brain activity, researchers are actively examining whether there are neurological “correlates” for particular mental experiences that might allow one to infer, from a particular pattern of brain activation, whether a person was experiencing a particular mental state. At present, it is not clear if or when this research will furnish evidence of mental states like pain, deception or memory that will satisfy tests of evidentiary admissibility.

Nevertheless, attempts have been made to introduce fMRI evidence of mental states in court. One of the first attempts to reach the courts has been fMRI-based lie detection. Based on research suggesting that deliberate deception can be identified by patterns of brain activation, several litigants have now attempted to submit in court fMRI evidence about a witness’s veracity.16 These efforts have so far been unsuccessful, as courts have not considered the technique to meet the standards for the admissibility of novel scientific evidence. One problem is whether tests on laboratory subjects can reliably be generalized to the very different “real-world” situation of an accused person.17 Another is that the possibility that a person may be able to defeat the fMRI lie-detection test using deliberate countermeasures.18

Another active area of research concerns memory, and there are now multiple studies in which researchers are able to distinguish certain types of true and false memories using fMRI and electroencephalography (EEG) under laboratory conditions.19 Given the known frailties of eyewitness memory and the risk that memory errors may lead to wrongful convictions,20 a technology that would help to detect when eyewitness memory is wrong would be useful. The research so far cannot be safely generalized to the real-world contexts at issue in the courtroom, although some leading experts predict that future advances in the neuroimaging technology and analysis will eventually address the problems that currently preclude its use.21

Another potential area for the detection of mental states relates to sexual interests, which form part of the risk assessment often at issue in criminal sentencing decisions involving sex offenders. At present, phallometry (or penile measurement to detect sexual arousal in response to sexual stimuli) is used in Canada for treatment and forensic risk assessment.22 The SORAG (Sex Offender Risk Appraisal Guide) is an actuarial forensic risk assessment tool that is used to assess sex offenders, which includes a range of risk factors including phallometric results showing “deviant sexual interests.”23 Researchers are now reporting that it is possible to distinguish between men with pedophilic and non-pedophilic sexual interests using fMRI techniques that measure brain responses to images of naked men, women and children.24 Most recently, Ponseti and colleagues have reported that they can discriminate between men with sexual interests in children versus adults, by looking at the brain response to images of the faces alone, which is preferable given the ethical concerns and legal barriers to using naked images of children in such tests. They note that their subjects admitted their sexual preferences, and so it was not possible to determine whether counter-measures could defeat this technique.

Pain is another private experience not accessible to others, and one that is of great importance in civil liability as well as workers’ compensation and disability insurance claims. In the case of chronic pain conditions, in which pain persists long after physical injuries have healed, the lack of some sort of visible reason for the pain combined with the legal incentive to claim pain leads to suspicion of malingering. Even if a plaintiff’s claim of pain is believed, defendants and clinicians sometimes take the position that chronic pain conditions are psychogenic (i.e. emerging for psychological reasons). In these cases, the challenge facing claimants is one of causation, as defendants may argue that the plaintiff had a “crumbling skull” – meaning that the psychogenic condition was a response in a vulnerable person to any number of stressful life events and would have occurred regardless of the defendants’ actions.25 While fMRI techniques to detect pain would not answer this second problem for claimants, attempts are now being made to use neuroimaging to address the first problem – suspicion of malingering. Although neuroimaging techniques appear to be effective at detecting acute pain caused in the laboratory in healthy volunteers, it is a different matter to detect chronic pain.26 As a result, neuroimaging techniques do not appear to be sufficiently reliable to be used as objective evidence of pain in a courtroom. Despite this, companies are already offering fMRI testing to detect the neurological signatures of pain.27 As Sara Reardon recounts in a recent news feature for Nature, this evidence appears to be influencing out of court settlements in civil litigation.28

The use of fMRI to draw inferences about mental states of specific individuals is currently subject to a variety of limitations, which may limit its uptake for legal purposes.29 If it does eventually offer evidence that meets tests of admissibility, a range of concerns arise. One possible risk is that it people may feel pressured to undergo these tests. For example, the failure to supply this evidence might be taken to suggest that a mental state such as pain is being faked.30 Another concern specific to pain detection is the possibility that it might be required to access certain prescription medications or insurance coverage.31 Another important issue if this evidence proves admissible is distributive justice, given that the cost of the test would make it inaccessible to many.

A broader question posed by the use of neuroimaging to find “objective” evidence of mental states is that it sets up a possible contest between subjective mental experiences and objective brain states. It is possible that the two may diverge, leading to a situation in which a person’s mental experience is at odds with what the fMRI results say it should be. For example, a person may subjectively remember something, only to be told that the brain imaging indicates that it is a false memory. In these circumstances, a contest of epistemic authority arises. Should the subjective experience be taken as reality, or should the objective brain evidence be taken to have successfully revealed that a person is delusional or lying? Some people, presented with this situation may refuse to believe the objective brain evidence, but others may instead come to doubt their own experiences. There are costs to doubting oneself, one of which might be vulnerability to suggestion, misinformation and manipulation by others.32

Defining Disability: Social Solidarity and Human Rights

The prevailing beliefs about the causes of a person’s behavior or condition affect feelings of social solidarity and willingness to help and protect the person. In essence, we are more likely to accept and protect people with disfavoured attributes and behaviours if those characteristics are perceived to be outside their causal control. As explained below, biological explanations of a behavioral problem increase the perception that it falls outside a person’s control. In this way, biological psychiatry may affect fundamental concepts in the area of human rights, where perceptions of control over one’s condition and behavior may affect the willingness to recognize it as a disability for the purposes of disability benefits and anti-discrimination protection under human rights law.

Social psychologists have long been interested in the impact of judgments about the causes of a person’s behavior or condition on social responses to that person.33 In particular, attribution theory looks at three dimensions of causal attributions – the locus, controllability and stability of the cause.34 Locus refers to whether or not the cause is internal to an actor (e.g. genetics, character, personal decisions) or external to the actor (e.g. bad luck, societal discrimination).

Controllability refers to the degree of control a person has over a particular cause. This is where biological causes may diverge from other types of internal causes such as those related to character or values. Some types of biological causes are apt to be interpreted as falling outside a person’s control (e.g. genes), such that states or behaviours understood as biologically caused are less likely to attract blame.35 A further layer complicates the relationship between control and blame, however. Even if a person has lost the ability to control a biological condition and so is not blamed for its continuation (due to a lack of “offset controllability”), the person may still be blamed because of perceived control over the development of the condition (due to perceived “onset controllability”). Conversely, even if a person is not responsible for the onset of a condition, the person may be blamed for the failure to take steps within his or her control to address it.36

The third dimension – stability – considers whether a cause is immutable or instead is amenable to change over time. Some biological causes such as genetics are understood as immutable, while others are considered modifiable.

Another important dimension in understanding the impact of a given causal explanation of a particular behavior or condition is the strength of that causal contribution. For example, some causes are understood as powerful - invariably leading to a given outcome - while others are weaker predisposing factors that may be counterbalanced or supplemented by other causal influences.

The reframing of historically stigmatized human characteristics as matters of unchosen and immutable biology is correlated with reduced blame and increased social solidarity. The shift from environmental or personal choice accounts of sexual orientation to biological explanations in the 1990s was framed in the US media as likely to have socially progressive effects such as reducing blame, and increasing acceptance and support for human rights protection.37 Dissenters were concerned that the biological explanations would instead generate eugenic practices by expecting parents or increase pressure to medicalize and “cure” homosexuality.38 Garretson and Suhay’s recent study of a set of American public opinion surveys from the 1980s, 1990s and 2000s explored the relationship between the rise in the 1990s of biological explanations of sexual orientation, attitudes to whether sexual orientation is innate or chosen, and support for gay rights. They conclude that “in the wake of the American media’s focus in the early 1990s on biological causes of homosexuality and their progressive implications, public opinion in the U.S. changed in substantial ways…Americans who believed homosexuality to be innate shortly after the spike in “born gay” messages became more progressive on gay rights over time, suggesting that altered causal attributions contributed to progressive changes in societal attitudes toward lesbians and gays during the 1990s.”39 The explanation of the linkage between changed attitudes and biological causal explanations of homosexuality is complex, however. Some have suggested that moral judgments of homosexuality might instead explain the adoption of particular causal accounts.40

In any event, the deliberate adoption of biological causal accounts of other stigmatized groups or conditions has been explored as a means to reduce stigma and discrimination. The brain disease model of mental illnesses such as schizophrenia has been deliberately invoked in an attempt to reduce stigma, although unfortunately this type of message may reduce one component of stigma (i.e., blame) while increasing others (i.e., pessimism about recovery, stereotypes about unpredictability and dangerousness, and social rejection or “othering”).41 The brain disease model has also been deployed in the context of addiction with similarly mixed results in reducing stigma.42

In addition to effects on social stigma, biological causal accounts of socially disfavoured behaviours may also affect the law. Proponents of the brain disease model of addiction argue that the widespread adoption of this model enabled the passage in 2008 of mental health parity legislation in the US requiring that medical insurance cover the costs of addiction treatment.43 The model of addiction as a chronic brain disease is now being expanded to other forms of compulsive behaviours including pathological gambling. Pathological gambling was formerly classified in the DSM-IV as an “impulse control disorder”44 but was recently reclassified in the DSM-5 within the section on “substance-related and addictive disorders.”45 The notes on the section indicate that gambling disorder has been added because of “evidence that gambling behaviors activate reward systems similar to those activated by drugs of abuse and produce some behavioral symptoms that appear comparable to those produced by the substance use disorders.”46 Tovino suggests that this neurobiologically-driven reclassification of pathological gambling may have legal implications in states like Nevada, which exclude health insurance coverage for “impulse control disorders” but make an exception for substance-related conditions (drug and alcohol use disorders).47 She argues that the claim that pathological gambling should not be treated like an “impulse control disorder” but instead like a substance-related disorder has been strengthened by the recent reclassification of pathological gambling as a form of addictive behavior in the DSM 5.

In recent work, I have examined the hypothesis that neurobiological accounts of problematic behaviours would affect human rights law by altering the scope of the legal definition of disability, or by limiting the scope of the protection available where the condition is accepted as a disability.48 The definition of disability is important as it sets the scope of entitlement to disability benefits, and the extent of protection from discrimination in employment, among other spheres of social activity. Consistent with the attribution theory described above, the case law reveals a reluctance to accept as protected disabilities behavioural conditions that are perceived to be within the control of the claimant. The case law also reveals attempts in some contexts to frame problematic behavioural conditions as brain disorders.

For example, employees dismissed for stealing from their employers have attempted to raise claims of disability discrimination based on the proposed disability of pathological gambling disorder. In these cases, they have argued for less severe disciplinary measures or accommodation of their disability by, for example, reassigning the employee to a position where theft is impossible. These cases are difficult for claimants as adjudicators often doubt that the claimant’s loss of self-control was sufficient to remove responsibility.49 For example, in Manitoba v. Manitoba Government and General Employees’ Union (2005), the arbitration panel doubted that gambling addiction made the decision to steal involuntary, despite evidence that gambling addictions “hijack the brain.”50

The importance of a finding of lack of control in establishing a behavioural condition as a disability is also revealed in the cases dealing with nicotine addiction. Even though addiction to nicotine is medicalized, some courts have refused to recognize it as a disability entitled to protection from discrimination on the basis that it is “a temporary condition that many people voluntarily overcome, albeit with varying levels of difficulty related to the strength of their will to discontinue smoking.”51 Another found that nicotine addiction was a disability, citing evidence that nicotine was as addictive as cocaine or heroin, and that smoking was a more direct method of delivering a drug to the brain than injecting it into the arm.52

In the different context of a recent class action lawsuit against tobacco companies, the experts engaged in a battle over whether nicotine dependence should be viewed as a “brain disease.”53 This was an important point in establishing liability because, if the claimants retained some self-control, then they would be solely or partly responsible for the health consequences of smoking if they persisted despite knowing it was harmful. The judge ultimately concluded that that “nicotine affects the brain in a way that makes continued exposure to it strongly preferable to ceasing that exposure. In other words, although it can vary from individual to individual, nicotine creates dependence. That is the point” (Letourneau 2015 para 179). The invocation of neurobiological explanations in these cases seems to produce a more sympathetic response to smokers, although the level of sympathy may vary by legal context. Courts may be more willing to find for smokers against tobacco companies, which are profiting from the alleged addiction, than for smokers against employees, who are being asked to accommodate an alleged addiction.

Although it is difficult to draw firm conclusions about the impact of biological explanations of compulsive behaviours from the fairly small number of available cases, the patterns are interesting. Future research looking at legal responses to current attempts to frame behaviours within the brain disease model of addiction, including Internet, sex, and food addictions, will be useful to explore this pattern further.

Blame and Criminal Responsibility

The use of biological causal accounts of behavior to deflect moral blame by suggesting a lack of control may also affect our practices of criminal justice. The question of capacity is central to criminal responsibility. The standard for exculpation set out in s.16 of the Criminal Code is very high, excluding most cases in which mental disorder is a contribution to the commission of a crime. However, less severe degrees of impaired capacity are often considered at the stage of sentencing a convicted offender. The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Diminished capacity due to mental disorder is frequently taken to reduce the degree of moral blameworthiness and so serves as a mitigating factor in deciding on sentence.54 However, at the same time, where prospects for successful treatment and rehabilitation are considered poor and a person is judged to be dangerous, mental disorder may instead lead to a longer sentence because public safety via incapacitation is also an objective of sentencing.

In recent years, there has been a considerable amount of attention paid to biological explanations of mental disorders associated with criminal offending and whether this should affect our judgments of moral responsibility. For example, Glenn, Raine and Laufer argue that evidence that brain regions critical for emotional and moral capacity are impaired in psychopaths means that those severely affected should not be held criminally responsible for their antisocial actions.55 Evidence that an offender possessed a gene associated with impulsive aggression has also resulted in lowered sentences in a number of Italian cases.56 Some have argued that evidence of the neurobiological causes of behaviour call into question our practices of punishment based on moral blame, and that we should move to a system based solely on consequentialist objectives such as deterrence, rehabilitation and incapacitation.57

“Intuitively, we want to punish those people who truly deserve it, but whenever the causes of someone’s bad behaviour are made sufficiently vivid, we no longer see that person as truly deserving of punishment. This insight is expressed by the old French proverb: ‘to know all is to forgive all’. It is also expressed in the teachings of religious figures, such as Jesus and Buddha, who preach a message of universal compassion. Neuroscience can make this message more compelling by vividly illustrating the mechanical nature of human action.”58

This debate, which becomes rapidly embroiled within the ancient philosophical problems of whether we have free will, and whether the concept of moral responsibility necessarily relies upon the existence of free will, continues to roll onward. In some ways these recent genetic and neurobiological challenges to punishment based on moral blame are updated versions of suggestions such as that of Lady Barbara Wootton in the 1960s to abandon retributivism in favour of a purely preventive role for criminal justice – one that abandons useless or incoherent concepts of moral responsibility and focuses on rehabilitative treatment or, failing that, incapacitation.59

Despite this, systems of criminal justice continue to be based to a large degree on judgments of moral blameworthiness. Forensic psychiatric evidence related to mental disorder has long been a part of assessing mental capacity and responsibility, and an intriguing question posed by the emerging biologically-oriented accounts of criminal behavior is whether these biological accounts are more likely than the typical non-biological psychiatric evidence to reduce attributions of control and blame.

A growing body of experimental research is examining whether effects of neurobiological explanations of criminal behavior differ from those of psychiatric explanations. The results are inconsistent so far, perhaps reflecting the different methodologies adopted.60 One survey of nearly 200 American state trial judges found that evidence supporting a neurobiological cause of an offender’s psychopathy reduced the sentence imposed as well as the extent to which the psychopathy was viewed as an aggravating factor.61 The judges considered a vignette in which a psychiatrist provided expert testimony that a man who committed a violent assault was a psychopath. Half of the participants also received the expert testimony of a neurobiologist who presented a neurobiological explanation of the psychopathy. The participants were able to provide explanatory comments on their responses. One judge wrote that “[t]he evidence that psychopaths do not have the necessary neural connections to feel empathy is significant. It makes possible an argument that psychopaths are, in a sense, morally ‘disabled’ just as other people are physically disabled.”62 The neurobiological explanation of psychopathy appears to have reduced perceived moral blame but at the same time may have increased the perception of increased dangerousness. Another judge wrote that “[p]sychopathy may make the defendant less morally culpable, but it increases his future dangerousness to society. In my mind, these factors balance out…”63 In a similar study with a group of German judges, Fuss and colleagues found that the neurobiological explanation slightly reduced the judgment of legal responsibility, but it did not significantly affect the prison sentence imposed. However, the presentation of the neurobiological evidence by the prosecution did greatly increase the decision to order involuntary commitment in a psychiatric hospital, which could lead to a longer detention time.

As research in behavioural genetics and neuroscience proceeds, evidence suggesting biological causal influences on criminal behaviour will be identified. This evidence fits fairly seamlessly into existing sentencing practices in which a broad range of biological, social and environmental causes of behaviour are proposed in an attempt to mitigate blame. Another possibility is that biological causal explanations of behaviour may be more likely than other explanations to imply an offender is dangerous, producing an aggravating effect on sentencing decisions. As the scientific research is taken up by courts, key questions will be whether a neurobiological work-up is likely to improve legal decision-making or not, when it is likely to be in an offender’s interest to pursue this type of evidence, and whether the right to make a full answer and defence might sometimes require the collection and presentation of this type of evidence.

The Regulation of Brain Interventions: Mind-Brain Dualism

Biological psychiatry, and particularly the accumulation of information at the biological levels about mental illnesses, will challenge laws that purport to distinguish between the mind or mental properties on one hand, and the brain and its physical properties on the other hand. Put another way, biological psychiatry is monist – (treating the mind and brain as aspects of the same thing) and also materialist (regarding mental states as reflections of states of physical matter).64 The law, on the other hand, is often dualistic – positing a distinction between mental and physical phenomena, or between psychiatric and neurological treatments. This dualism will be increasingly unstable as the neurobiological underpinnings of psychiatric disorders are discovered.

A good example is furnished by section 49 of Ontario’s Mental Health Act, which sets specific rules to govern “psychosurgery.”65 The special and restrictive rules are explained by the backlash against the prefrontal lobotomy that garnered its inventor the 1949 Nobel prize, but went on to be applied in widespread and highly questionable way in the mid-20th century.66 Section 49 states that psychosurgery cannot be administered to people who are incapable to consent for themselves, as well as to people detained involuntarily in a psychiatric facility under mental health legislation or the Criminal Code.67 The purpose of this restriction is to protect people who are vulnerable by reason of incapacity or because they are being detained in a psychiatric facility.

However, it is the definition of “psychosurgery” that reveals the legal impact of biological psychiatry. The Act defines psychosurgery as follows:

49(2) Psychosurgery is any procedure that, by direct or indirect access to the brain, removes, destroys or interrupts the continuity of histologically normal brain tissue, or that inserts indwelling electrodes for pulsed electrical stimulation for the purpose of altering behaviour or treating psychiatric illness, but does not include neurological procedures used to diagnose or treat organic brain conditions, intractable physical pain or epilepsy, if these conditions are clearly demonstrable.

This definition is a problem on many levels. It is not clear that those whose symptoms are due to demonstrable organic brain conditions are any less vulnerable than those whose symptoms are ascribed to a psychiatric condition. The definition thus fails to accord with the apparent objective of the legislation.

Second, how should we classify interventions that target the behavioural consequences of what is clearly an organic brain disorder? Should this be understood as an intervention to address an organic brain condition or an intervention to alter behaviour? For example, a surgical intervention to address intractable aggression after a traumatic brain injury will not remedy the brain injury but may address the behavioural consequence of that injury.68

Third, intractable physical pain is sometimes ascribed to psychiatric somatoform disorders,69 and so it is necessary to decide whether neurosurgical treatment of such cases should be excluded from the regulation as a “neurological procedure used to…treat…intractable physical pain,” or included as a treatment for “psychiatric illness.”

Finally, Ontario’s dualistic definition of psychosurgery, which distinguishes psychiatric “mental” conditions and organic “brain” conditions is inherently unstable. In psychiatry, the “organic brain disorders” are understood to include “a range of mental disorders grouped together on the basis of their having in common a demonstrable etiology in cerebral disease, brain injury, or other insult leading to cerebral dysfunction…”70 Psychiatric conditions, on the other hand, are those mental and behavioural disorders that lack this demonstrable physical etiology. History is filled with examples of mental conditions that are now regarded as organic brain disorders, such as epilepsy, neurosyphilis, and certain vitamin deficiencies. As Insel and Quirion have noted, “in the past, mental disorders were defined by the absence of a so-called organic lesion. Mental disorders became neurological disorders at the moment a lesion was found.”71

It is an explicit objective of today’s biological psychiatry to uncover the biological nature of psychiatric conditions, and to find biomarkers that help to move away from nosologies based on symptoms to those based on underlying biology. If and when biomarkers are identified for other psychiatric conditions that are currently poorly understood, the category of “organic brain disorders” will grow and the scope of the regulation of “psychosurgery” will shrink.

Regulation of Reproductive Technologies: The “New Eugenics?”

Biological psychiatry is interested in understanding psychiatric disorders at multiple levels of biological focus spanning genes, molecules, cells, circuits and structures in the brain. Some conditions such as aneuploidies like Down Syndrome have a clear and determining genetic causal explanation. For other conditions, such as schizophrenia or bipolar disorder, heritability studies suggest a genetic contribution although causation is complex and multifactorial.72 If and when biological psychiatry uncovers these genetic contributions, and particularly if they are found to substantially raise the risk of developing mental illness, we may need to contend with what has come to be known as the “new eugenics” or the screening out of affected embryos or foetuses prior to birth.

There is no necessary association between a biological psychiatry and eugenic impulses. What matters is the social response to the mental condition in question. A society that devalues these conditions will respond differently from one that accommodates or celebrates the diversity in terms of mental and behavioural types. The neurodiversity movement, which originated with the autistic community and has now broadened to include a range of other conditions or “neurotypes” shows that a eugenic response is not a necessary result of biological psychiatry.73 However, one cannot ignore the connection between biological theories of mental disorders and the 20th century state-sanctioned eugenic policies in multiple countries including Canada.

As is well-known, eugenic ideologies led to programs of the most profound human rights violations in the 20th century in Nazi Germany as well as in North America. These ideologies originated in mid to late 19th century in the confluence of the social disruption brought about by industrialization, the publication of Darwin’s On the Origin of Species by Means of Natural Selection, and the rediscovery of Mendel’s experiments on heredity.74 The idea of eugenics was to improve humanity through selective reproduction, much as was done with livestock. By 1934, the Nazis passed the “Law for the Prevention of Hereditarily Diseased Progeny” which forced sterilization of people diagnosed with a range of mental illnesses and cognitive disabilities.75 Similar laws were passed in Canada and the United States. Among the subsequent outrages committed by the Nazi government were the programs of “special treatment” (i.e., murder) of children with mental disabilities and adults with mental illness and mental disabilities.76

Eugenic ideologies also drove law and policy in North America, where the objective of improving the fitness of the population led first to the ideas of isolating or segregating those with mental illness and cognitive disabilities to prevent reproduction and then to the idea of contraceptive sterilization as a cheaper alternative.77 The constitutionality of the American state compulsory sterilization laws was upheld in Buck v. Bell78 and they remained in some places until the 1970s.79 Canada too adopted legislation authorizing the forced contraceptive sterilization of people with mental illnesses.80 In fact, Alberta’s 1928 Sexual Sterilization Act was the first of its kind in the British Commonwealth, allowing a Eugenics Board to authorize sterilization of those about to be discharged from mental institutions in order to eliminate the “danger of procreation with its attendant risk of multiplication of the evil by transmission of the disability to progeny.”81

Although these statutes have been repealed, and Alberta has apologized and paid compensation to some of those forcibly sterilized under its legislation,82 some have suggested that we are now in a era of “laissez-faire,” “liberal,” or “new” eugenics in which parents take up the tools of prenatal diagnosis and pre-implantation genetic diagnosis to avoid the birth of children at risk of particular condition.83 Prenatal screening for Down syndrome has been available since the early 1970s and is now commonplace, and the vast majority of cases diagnosed prenatally result in abortion.84

While the genetic contributions to most major mental health conditions are extremely complex, and are unlikely to be the complete etiological story, the identification of psychiatric genetic risk factors is likely to enter a new world in which mental health stigma, social structures, and economic constraints will put pressure on parents to avoid conditions perceived as disabling and costly.

A good example of the possible impact of these developments as psychiatric genetics develops is furnished by the recent application to the UK’s Human Fertility and Embryology Authority (HFEA) to approve pre-implantation genetic screening for autism spectrum disorder (ASD). Pre-implantation genetic diagnosis (PGD) involves the testing of embryos created through in vitro fertilization to detect genes associated with various conditions. Under UK law, PGD may only be performed to detect conditions licensed by the HFEA.85 While this testing was developed for fully penetrant, monogenic, severe pediatric conditions, use has now expanded to a range of other heritable conditions.86

In 2014, the HFEA considered whether to approve an application to license screening out male embryos to avoid the inheritance of ASD.87 The applicants argued that this should be available for families with at least two severely affected male children on the basis that ASD was a “gender-related serious medical condition.” The Committee rejected the application because there was no “specific conclusive test for autism,” and stated that applications could not be approved “unless and until there is more scientific certainty on the genetic cause(s) of Autism Spectrum Disorder.”88 Despite the uncertain genetics of ASD, other jurisdictions such as the Australian States of Western Australia and Victoria have authorized the screening out of male embryos in families with a prior history of the condition.89

Research into the attitudes of families affected by mental health conditions to hypothetical genetic tests shows some receptiveness to use them to avoid or terminate affected pregnancies. This is noteworthy given that these families are likely to be better informed about the reality of living with these conditions than the general public. A recent study of the attitudes of parents of children with ASD toward prenatal genetic testing and pregnancy termination found that 57% of the 42 participating parents would use a hypothetical prenatal test for autism, and 20% of the group that was willing to take the test of unsure about taking the test said they would have terminated affected pregnancies.90 Research into the attitudes of extended families affected by multiple cases of bipolar disorder to a hypothetical genetic test for the condition showed 54% endorsed prenatal testing, and 27% endorsed termination if the test indicated that bipolar disorder would definitely develop.91 Among those diagnosed with a psychiatric condition, 25% endorsed termination and among unaffected family members 29% endorsed termination.

This research supports the suggestion of Lakhan and colleagues that “[i]t is only a matter of time before psychiatric biomarkers are added to the list of conditions routinely screened for prenatally.”92 Whether or not these screening tests are likely to lead to abortion probably depends upon the predictive value of the test, as well as on whether the condition itself varies in severity (as is the case with ASD). Nevertheless, it is important to note that the move toward embryo screening prior to implantation, and even to gene editing of affected embryos, avoids the likely more difficult decision of whether to terminate an established pregnancy.

Biological psychiatry intersects here with the law by raising the challenging issue of whether regulatory regimes should attempt to limit the use of prenatal or pre-implantation genetic diagnosis, as is done in the UK, or leave decision-making to parents and clinicians. This contentious issue pits concerns about the devaluation and disappearance of certain classes of people through a form of new eugenics against the reproductive liberty of parents. The debate is likely to become only more difficult with the increasing understanding of psychiatric genetics.

Conclusion

Biological theories of mental illness are not new, although they are increasing in sophistication. There are many reasons to celebrate this new knowledge, particularly as better understanding of all of the causal contributions to mental illnesses (psychosocial and biological) will help in designing preventive strategies and more effective ways to help. At the same time, biological psychiatry seems to encourage certain patterns of thought that have social, political and legal consequences. These consequences may be helpful or harmful, or perhaps both, as the example of how the brain disease model of mental illness both increases and decreases different components of stigma shows. The ultimate ideological consequences of biological psychiatry on the law and other social institutions are difficult to predict. Attention to these topics over the coming years is advisable in order to ensure the benefits of the accumulating knowledge are seized and the social, political and economic risks are avoided.

Footnotes

GE Berrios and IS Markova, “Conceptual Issues” in H D’Haenen, JA den Boer and P Willner Eds. Biological Psychiatry (Chichester: John Wiley & Sons Ltd.,2002) at p. 3; J Gach “Thoughts toward a critique of biological psychiatry” in ER Wallace and J Gach eds. History of Psychiatry and Medical Psychology (New York: Springer 2008) at p. 685; E Shorter A History of Psychiatry: From the Era of the Asylum to the Age of Prozac, (John Wiley & Sons, 1997) at p. 26.

R Porter, Madness: A Brief History (Oxford: Oxford University Press, 2002) at p. 41; B Simon, “Mind and madness in classical antiquity” in ER Wallace and J Gach eds. History of Psychiatry and Medical Psychology (New York: Springer, 2008 at p. 181; T Millon Masters of the Mind: Exploring the story of mental illness from ancient times to the new millennium (Hoboken: John Wiley & Sons, 2004), at p. 16.

Hippocrates, On the Sacred Disease Trans. Francis Adams (MIT Internet Classics Archive, 400 BCE) <http://classics.mit.edu/Hippocrates/sacred.html>.

4 Supra note 1, Shorter at p. 26.

Ibid.

Ibid.

H Walter “The third wave of biological psychiatry” (2013) 4(582) Frontiers in Psychology 1 at 2.

Ibid.

Ibid.

MS Lebowitz and W Ahn “Effects of biological explanations for mental disorder on clinicians’ empathy” (2014) 111(50) PNAS 17786.

Supra note 7 at p.5; Gach, supra note 1 at p. 688.

MS Lebowitz and W Ahn. “Emphasizing malleability in the biology of depression: Durable effects on perceived agency and prognostic pessimism” (2015) 71 Behaviour Research and Therapy 125; NR Farrel, AA Lee, BJ Deacon “Biological or psychological? Effects of eating disorder psychoeducation on self-blame and recovery expectations among symptomatic individuals” (2015) 74 Behavior Research and Therapy 32. 

Farrel et al., ibid.

Supra note 10.

Ibid.

Wilson v. Corestaff Services L.P. 900 N.Y.S. 2d 639 (N.Y. Sup. Ct. 2010); United States v. Semrau 693 F.3d 510 (6th Cir. 2012).

HJ Greely “Neuroscience, mindreading and the courts: The example of pain” (2015) 18 J Health Care L & Pol’y 171.

G Ganis et al. “Lying in the scanner: Covert countermeasures disrupt deception detection by funcational magnetic resonance imaging” (2011) 55 Neuroimage 312.

DL Schachter and E Loftus. “Memory and law: What can cognitive neuroscience contribute?” (2013) 16(2) Nature Neuroscience 119.

The Innocence Project investigated the causes of wrongful convictions revealed by DNA exonerations. Of the 325 DNA exonerations studied, 235 or 72% involved eyewitness misidentification. This was the most frequently cited contributing cause of the wrongful conviction. See Innocence Project, The Causes of Wrongful Convictions (visited June 13, 2016) <http://www.innocenceproject.org/causes-wrongful-conviction/>; JB Gould and RA Leo. “One hundred years later: Wrongful convictions after a century of research” (2010) 100(3) J. Crim Law and Criminology 825.

Supra note 19; NS Werner and HJ Markowitsch, “The neuroscience of face processing and identification in eyewitnesses and offenders” (2013) 7(189) Frontiers in Behav. Neurosci. 1 at p. 8.

MS Purcell, JA Chandler, JP Fedoroff “The use of phallometric evidence in Canadian criminal law” (2015) 43(2) J Am Acad Psych Law 141.

V Quinsey, “Sex Offender Risk Appraisal Guide” in BL Cutler ed. Encyclopedia of Psychology and Law (Thousand Oaks: SAGE Publications Inc., 2008); Purcell, ibid.

J Ponseti et al. “Assessing pedophilia based on the haemodynamic brain response to face images” (2016) 17(1) World Journal of Biological Psychiatry 39; C Wiebking and G Northoff, “Neuroimaging in pedophilia” (2013) 15 Curr Psychiatry Rep. 351.

See e.g. Hunt v. Ugre 2012 BCSC 1704; M Finch “Law and the problem of pain” (2005-2006) 74 U. Cin. L. Rev. 285; SA Pate “Litigating chronic pain syndrome in the Canadian court system” (1996) 5 Health L. Rev. 19.

A Pustilnik “Imaging brains, changing minds; How pain neuroimaging can inform the law” (2014) 66 Ala. L. Rev. 1099, citing T Wager et al., “An fMRI-Based Neurologic Signature of Physical Pain” (2013) 368 New Engl. J. Med. 1388.

S. Reardon “Neuroscience in court: the painful truth” 2 March 2015. Nature news. <http://www.nature.com/news/neuroscience-in-court-the-painful-truth-1.16985>; Pustilnik, ibid.

Reardon, ibid.

M Farah “Brain images, babies, and bathwater: Critiquing critiques of functional neuroimaging” (2014) 44 Hastings Center Report S19.

Reardon, supra note 27; N Salmanowit “The case for pain neuroimaging in the courtroom: lessons from deception detection” (2015) Journal of Law and the Biosciences doi:10.1093/jlb/lsv003; S. Cassin, “Eggshell minds and invisible injuries: Can neuroscience challenge longstanding treatment of tort injuries” (2013) 50 Houston L. Rev 929; Greely, supra note 17.

Reardon, supra note 27.

S Van Bergen et al. “Memory distrust and acceptance of misinformation” (2010) 24 Applied Cognitive Psychology 885.

J Garretson and E Suhay, “Scientific communication about biological influences on homosexuality and the politics of gay rights” (2016) 69(1) Political Res. Q. 17.

34 B Weiner “On sin versus sickness: A theory of perceived responsibility” (1993) 48(9) American Psychologist 957; B Weiner, D Osborne, U Rudolph “An attributional analysis of reactions to poverty: The political ideology of the giver and the perceived morality of the receiver” (2011) 15(2) Pers. and Soc. Psych. Rev. 199.

35 Garretson and Suhay, supra note 33.

36 PW Corrigan “Mental health stigma as social attribution: Implications for research methods and attitude change” (2000) 7(1) Clinical Psychology: Science and Practice 48.

Garretson and Suhay, supra note 33.

Ibid.

Ibid at p. 25.

GB Lewis, “Does believing homosexuality is innate increase support for gay rights?” (2009) 37(4) Policy Studies Journal 669.

PW Corrigan and AC Watson. “Stop the stigma: call mental illness a brain disease” (2004) 30(3) Schizophrenia Bulletin 477; AA Lee, et al. “Genetic attributions and mental illness diagnosis: Effects on perceptions of danger, social distance, and real helping decisions” (2014) 49 Soc. Psych. Psychiatr. Epidemiol. 781; EP Kvaale, WH Gottdiener and N Haslam “Biogenetic explanations and stigma: A meta- analytic review of associations among laypeople” (2013) 96 Soc. Sci. & Med. 95.

B Pescosolido et al. “A disease like any other”? A decade of change in public reactions to schizophrenia, depression and alcohol dependence (2010) 167(11) American J. Psychiatry 1321; ND Volkow and G Koob “The brain disease model of addiction: why is it so controversial?” (2015) 2(8) Lancet Psychiatry 677.

Volkow and Koob, ibid; K Roy and M Miller “Parity and the medicalization of addiction treatment” (2010) 42(2) Journal of Psychoactive drugs 115.

American Psychiatric Association, 2000. DSM-IV TR 4th ed. (Arlington:, APA, 2000), section 312.31.

American Psychiatric Association, 2013 DSM-5 5th ed. (Arlington: APA, 2013), “Substance-related and addictive disorders”

Ibid.

SA Tovino, “Will neuroscience redefine mental injury? Disability benefit law, mental health parity law, and disability discrimination law” (2015) 12(2) Indiana Health L Rev. 695.

JA Chandler “The impact of neuroscience in the law: How perceptions of control and responsibility affect the definition of disability” forthcoming in J Illes and S Hossain eds. Neuroethics: Defining the Issues in Theory, Practice and Policy, 2nd ed. (Oxford: Oxford University Press, forthcoming).

Canada Safeway Ltd. and RWDSU (MacNeill) Re [1999] S.L.A.A. No. 1 (Sask. Labour Arbitration).

Manitoba v. Manitoba Government and General Employees’ Union 2005 MGAD No. 14 at paras 48, 59, 85.

McNeill v. Ontario Ministry of the Solicitor General and Correctional Services [1998] O.J. No. 2288 (Ont. Ct. J. – Gen Div.). See also R. v. Ample Annie’s Itty Bitty Roadhouse [2001] O.J. No.5968 (Ont. C.J.); Yellowknife (City) v. Denny 2004 NWTTC 2.

Cominco Ltd. v. United Steelworkers of America, Local 9705, [2000] B.C.C.A.A.A. No. 62 at para 180.

Letourneau v. JTI-MacDonald Corp. 2015 QCCS 2382.

C Ruby, Sentencing 6th ed (Markham: LexisNexis, 2004) at para 5.246.

AL Glenn et al. “Is it wrong to criminalize and punish psychopaths?” (2011) 3 Emot. Rev. 302.

M Farisco and C Petrini, “The impact of neuroscience and genetics on the law: A recent Italian case” (2012) 5 Neuroethics 317.

J Greene and J Cohen J. “For the law, neuroscience changes nothing and everything” (2004) 359 Phil. Trans. R. Soc. Lond B. 1775.

Ibid at p. 1783

C Slobogin “The civilization of the criminal law” (2005) 58 Vanderbilt Law Review 121; S Morse “Gene- Environment Interactions, Criminal Responsibility, and Sentencing” in K Dodge & M Rutter Eds., Gene- Environment Interactions in Developmental Psychopathology (New York: Guilford Press, 2011) at pp. 207- 234; AR Cashmore “The Lucretian swerve: The biological basis of human behaviour and the criminal justice system” (2010) 107(10). Proc. Nat Acad. Sci. 4499.

LG Aspinwall, TR Brown and J Tabery, “The double-edged sword: Does biomechanism increase or decrease judges’ sentencing of psychopaths?” (2012) 337 Science 846; J Fuss J, H Dressing and P Briken “Neurogenetic evidence in the courtroom: a randomized controlled trial with German judges” (2015) 42 J Med. Genet 730; BY Cheung and SJ Heine, “The double-edged sword of genetic accounts of criminality: Causal attributions from genetic ascriptions affect legal decision making” (2015) 41(12) Personality and Social Psychology Bulletin 1723; PS Appelbaum and N Scurich, “The impact of behavioral genetic evidence on the adjudication of criminal behavior” (2014) 42 J. Am Acad Psych Law 91; N Scurich and P Appelbaum “The blunt-edged sword: genetic explanations of misbehavior neither mitigate nor aggravate punishment” (2016) 3(1) J. Law and Biosci. 140.

Aspinwall et al, ibid.

Ibid. at p. 847.

Ibid at p. 848.

Gach, supra note 1 at p. 685.

Mental Health Act, R.S.O. 1990 c.M.7, s. 49.

ES Valenstein Great and Desperate Cures: The rise and decline of psychosurgery and other radical treatments for mental illness (New York: Basic Books, 1986).

67 Supra note 65 at s. 49(1).

68 See M Lévêque, Psychosurgery: New techniques for brain disorders (Springer, 2014) “Disorders for which psychosurgery is relevant today” at p. 230 for a discussion of the use of psychosurgery in aggressive disorders.

Supra note 44 at p. 485.

World Health Organization, “F00-09 Organic, including symptomatic, mental disorders” in International Statistical Classification of Diseases and Related Health Problems, 10th revision (ICD-10) (2016) available at <http://apps.who.int/classifications/icd10/browse/2016/en#/F00-F09>.

TR Insel and R Quirion, “Psychiatry as a clinical neuroscience discipline” (2005) 294(17) JAMA 2221.

KR Merikangas and A Cravchik, “Contribution of genetic epidemiology to our understanding of psychiatric disorders” in JI Nurnberger and W Berrettini eds Principles of Psychiatric Genetics (Cambridge: Cambridge Univ. Press, 2012) at p.1.

S Baron-Cohen, “Neuroethics of neurodiversity” in J Clausen and N Levy Handbook of Neuroethics (Dordrecht: Springer, 2015) at p.1757. A Fenton and T Krahn, “Autism, neurodiversity and equality beyond the “normal”” (2009) 2(2) J Ethics Mental Health 1.

BA Fischer “Maltreatment of people with serious mental illness in the early 20th century: A focus on Nazi Germany and Eugenics in America” (2012) 200(12) J. Nervous and Mental Disease 1096; NA Nind “Solving an “appalling” problem: Social reformers and the campaign for the Alberta Sexual Sterilization Act” (2000) 38 Alta. L. Rev. 536.

Fischer, ibid.

Ibid.

Ibid.

Buck v. Bell 274 U.S. 200 (1927).

Fischer, supra note 74; Nind, supra note 74.Sexual Sterilization Act, SA 1928, c 37; Sexual Sterilization Act, SBC 1933, c 59; see also Muir v Alberta (1996), 36 Alta LR (3d) 305 (Alta Q.B.)

Nind, supra note 74.

CBC News “Alberta apologizes for forced sterilization” CBCNews.com 9 November 1999, <http://www.cbc.ca/news/canada/alberta-apologizes-for-forced-sterilization-1.169579>.

N Agar “Liberal eugenics” (1998) 12(2) Public Affairs Quarterly 137; T Caulfield and G Robertson “Eugenic policies in Alberta: From the systematic to the systemic?” (1996) 35 Alta L. Rev. 59.

AL Caplan “Chloe’s Law; A powerful legislative movement challenging a core ethical norm of genetic testing” (2015)13(8) PLoS Biol. e1002219.

UK Human Fertility and Embryology Authority. “PGD conditions licensed by the HFEA” <http://guide.hfea.gov.uk/pgd/> (visited 10 June 2016).

KJ Abbate et al. “Views of preimplantation genetic diagnosis (PGD) among psychiatrists and neurologists” (2014) 59 J. Reprod. Med. 385.

UK Human Fertility and Embryology Authority “Statutory Approvals Committee Minutes. Centre 0044 (The Centre for Reproductive and Genetic Health (CRGH)) PGD application for Autism Spectrum Disorder OMIM #209850” (30 January 2014) available at <http://guide.hfea.gov.uk/guide/ShowPDF.aspx?ID=5518>.

Ibid at para 18.

A Ne’eman “Screening sperm donors for autism? As an autistic person, I know that’s the road to eugenics” The Guardian 30 December 2015, available at <http://www.theguardian.com/commentisfree/2015/dec/30/screening-sperm-donors-autism-autistic-eugenics>

LS Chen et al. “Autism spectrum disorders: A qualitative study of attitudes toward prenatal genetic testing and termination decisions of affected pregnancies” (2015) 88 Clinical Genetics 122.

B Meiser et al. “Attitudes to genetic testing in families with multiple cases of bipolar disorder” (2008) 12(2) Genetic Testing 233.

SE Lakhan, K Vieria and E Hamlat “Biomarkers in psychiatry: drawback and potential for misuse” (2010) 3(1) International Archives of Medicine at p. 5.

[bluewatsons]

Deborah W. Denno, The Place for Neuroscience in Criminal Law, in Philosophical Foundations of Law and Neuroscience. New York: Oxford University Press 69-83 (Dennis Patterson & Michael S. Pardo, eds., 2016)

Abstract

The last thirty years have seen an explosion of neuroscience research on how the mind functions. This research paints a revised image of what constitutes human nature and behavior and how the criminal law can handle those extremes of it that endanger individuals and their society. The revision is important to the criminal law because key criminal law concepts of culpability depend on the internal workings of individuals’ minds. Research into intentionality, consciousness, and brain plasticity are just some examples of areas where new discoveries could help enhance validity and reliability within the criminal justice system. Not surprisingly, lawyers have increasingly introduced neuroscience evidence into the courtroom, a trend suggesting that the complexity of the legal issues raised will only expand as the science progresses. On a more fundamental level, neuroscience is also an excellent resource to revitalize the Model Penal Code’s original focus on subjective determinations of an individual defendant’s blameworthiness, based on that particular defendant’s mental state. Over the last sixty years, the American criminal justice system has become far more punitive, and the subjective inquiry has been overshadowed by a more objective standard that downplays the need to assess individual culpability. The incorporation of modern neuroscience research into the criminal law would bring back a system of justice that more accurately reflects a given defendant’s mental state as well more effectively protects the rest of society. But to benefit from neuroscience in this way, we must first penetrate the mystique that often surrounds the meaning and applicability of the science. We must move on from misconceptions, fears, and misguided debates. And we must realize that although neuroscience brings unique insight to the law, there is nothing about neuroscience that merits unique treatment by the law.

On 18 October 1992, police officers in Brevard County, Florida went to the home of eighty-year-old Dorothy Berger, who neighbours had reported missing. Searchers discovered Berger’s body soon thereafter, and the evidence showed she had been raped, horribly beaten, and strangled to death. Berger’s neighbour, Johnny Hoskins, was arrested and eventually convicted of first-degree murder, rape, and related offences. Not surprisingly, the prosecutor asked the jury to vote for the death penalty and they did.1

Hoskins appealed his convictions and sentences but the Florida Supreme Court affirmed all of them, with one exception, Hoskins’ death sentence.2 The court held it was an abuse of discretion by the trial judge to have denied Hoskins’ motion to have an expert administer a Positron Emission Tomography Scan (‘PET scan’), and remanded for the purpose of having the PET scan conducted.3 While the trial judge had reasoned that the scan would be ‘highly suggestive at best’ to the jury,4 the Florida Supreme Court considered the scan important: Hoskins’ mental condition was a ‘major element’ in a penalty phase proceeding due to its potentially mitigating effect.5 This seemingly straightforward conclusion, however, would ultimately start a round of complex  litigation concerning Hoskins’ mental state and the different ways the prosecution and the defence would view it. It would also highlight a number of the intricacies and questions that arise when the legal system evaluates when or whether there should be a place for neuroscience in criminal law.

A PET scan produces a three-dimensional image or picture of the brain that can be used for many purposes, including the mapping of brain function and brain changes. Hoskins’ expert, a neuropsychologist, told the court that he needed the PET scan in order to fully evaluate Hoskins’ mental condition and that the information revealed by the scan could affect his conclusions about the nature and extent of Hoskins’ frontal lobe impairment,6 especially ‘inhibition, impulse control, and so forth.’7

Indeed, following the administration of the PET scan and subsequent hearing by the trial judge, it was determined that ‘the PET scan did show an abnormality and that … [the expert’s] testimony changed as a result’ of it.8 Consequently, the Supreme Court of Florida vacated Hoskins’ death sentence, and remanded for a new penalty phase proceeding.9

Regardless, after the second jury trial, where Hoskins was once again sentenced to death by a vote of 11–1,10 Hoskins appealed. A new sentencing proceeding again recommended death for Hoskins, which he appealed.11 The second remand trial now addressed the issues of the evidentiary acceptability of the PET scan,12 but overruled the State’s objection to the scan’s admissibility.13 That said, the court also put limits on what Hoskins could argue. While Hoskins raised a range of issues on appeal, some of which  pertained to the effects of his brain damage in the context of mitigating and aggravating factors, the Court ultimately rejected all of them.14

Hoskins’ final appeal involved a claim of ineffective assistance of counsel, in which he contended that defence counsel failed to present potentially mitigating evidence that Hoskins suffered from intermittent explosive disorder (IED).15 IED is a mental illness defined and listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM); it is characterized by ‘disproportionately aggressive reaction to precipitating stressors.’16 While the evidence revealed by the PET scan provided support for the kind of brain damage associated with IED, for a range of reasons the court denied the ineffective assistance of counsel motion. Hoskins moved for post-conviction relief on largely ineffective assistance of counsel grounds, and the Court denied this motion.17 To this day, Hoskins remains on death row.

For nearly two decades, then, as the Hoskins case travelled through the legal system, this PET scan evidence would remain a key issue on appeal, either directly in terms of its relevance or indirectly, with respect to the kind of brain damage the scan revealed that could support mitigation.18 Resistance to the scan by the State or by Florida Supreme Court dissents remained even though, ironically, the results of the PET scan seemed to have little or no bearing on whether Hoskins would get a death sentence. In a case that involved many other kinds of issues, it seems an oddity that in Hoskins the brain scan evidence would be such a consistent focus. As the following parts of this chapter show, such a focus illustrates just one aspect of the confusion and controversy that surround the place of neuroscience in criminal law.

I. Neuroscience Evidence in Criminal Cases

I begin this chapter by discussing Hoskins because my research indicates that the issues Hoskins involves exemplify the complexities that can arise when neuroscience evidence is raised in a criminal case.19 Furthermore, Hoskins is a capital case in which the brain scan at issue is being offered as mitigating evidence in the penalty phase of the trial rather than in the guilt and innocence phase. My research indicates that when neuroscience factors are used in an effort to assess a defendant’s mental state, they are applied mostly as mitigating evidence in death penalty cases.20 This finding is important for two reasons. First, much of the media coverage as well as the academic discussion of neuroscience in the context of criminal cases suggests that the controversy concerns a defendant’s guilt or innocence and level of culpability. This is simply not the reality. Second, the standard for mitigating evidence is far more flexible than the standard for evidence offered in the guilt phase.21 This is a point to which I will return shortly. 22

Taken together, these factors suggest that when it comes to the use of neuroscience in law, misconceptions about past applications and unfounded fears for future abuses  lead to unnecessary constraints on how the legal system treats this evidence today. My research reveals the marked degree to which neuroscience evidence has been integrated into the criminal justice system, which is willing to accept and comprehend both the strengths and limitations of such evidence.23 There is little indication that this evidence is being used during the guilt phase of trial to suggest that brain abnormalities render defendants blameless for their actions, and only rarely is neuroscience evidence introduced by prosecutors as aggravating evidence or as proof that a defendant would pose a future danger to others.24 To the contrary, neuroscience evidence is typically introduced for well-established legal purposes—to provide fact-finders with more complete, reliable, and precise information when determining a defendant’s fate. Rather than furthering misguided debates, my research suggests that the substance of such debates should change. Indeed, the key question we should be asking is not whether neuroscience evidence should be used in the criminal justice system, but rather how and why.25

It should come as no surprise, though, that misconceptions and fears drive our perceptions of the application of neuroscience to law. Until recently, there has been no systematic and published account of how neuroscience is actually used to assess a defendant’s mental state in criminal cases. The bulk of the academic writing on this topic has been confined to anecdotes or a handful of unusual cases, or theoretical and hypothetical discussions of problematic situations involving neuroscience that have yet to occur and may never take place. This focus on the outliers and the unlikely fuels people’s concerns about the impact of neuroscience on the law, thereby distracting from the reality of what is actually going on in litigation today.

When we do turn to real-world applications, such an approach raises an unavoidable question: Why wouldn’t neuroscience evidence be treated like any other type of scientific evidence? This inquiry is not to suggest that neuroscience evidence should always be admitted into the courtroom, but rather to ask why the decision-making process would be any different when neuroscience is involved? My perception is that misconceptions and unfounded fears are dominating the dialogue. This pattern needs to change. We should consider neuroscience evidence to be like any other type of evidence, and let the chips fall where they may. We must take neuroscience evidence off of its pedestal (or out of its pillory, depending on one’s point of view) so that we can move on from misguided debates regarding the admissibility of this evidence and instead turn our attention to the myriad other ways in which neuroscience can inform the legal system.

The first step in this process is to acknowledge that some of the basic legal issues raised by neuroscience cases are too often obscured by the mystique surrounding the science of the human brain. In a sense, this mystique is my focus in this chapter, because it is based in large part on the debate, misconceptions, and fears that surround the use of neuroscience in law and its growing acceptance. In this chapter, I will explain that debate and mention some key reasons for the development of misconceptions and fears. I will discuss specific ways in which those misconceptions and fears have affected the legal system, and I will conclude with some suggestions for moving forward.

II. Heat and Debate

The term neuroscience was first used in 1963, and is defined quite broadly as ‘the branch of the life sciences that studies the brain and nervous system.’26 However, this area is developing so rapidly that much of my attention is on the even newer discipline of cognitive neuroscience. Cognitive neuroscience combines cognitive science, psychology, and neuroscience to examine the mechanisms of the mind, such as motor function, language, higher cognitive functions, emotions, and consciousness.27 Recent advances in brain imaging technology have given us new insight into how these brain mechanisms operate. The use of brain imaging technology has exploded in both clinical and commercial settings, and it has propelled an interest in the human brain and its relationship to disciplines outside of neuroscience, such as law. But this use in law has fueled fervent debates about the pros and cons of allowing neuroimaging and other kinds of neuroscience evidence to enter the criminal justice system.

This controversy evolves from five problematic sources. First, some commentators associate modern neuroscience with some of the worst abuses the world has ever seen, such as medical testing during the Nazi Holocaust and experimentation on prisoners. While this devastating history is a continual reminder of how governments can inflict the unthinkable on their citizens, it bears no resemblance to how brain scans are being used in court cases in the United States today.28

Second, some media accounts can provide highly simplistic descriptions of the interaction between neuroscience and law. They pinpoint, for example, a number of extreme cases in which neuroscience has been used with a ‘my brain made me do it defence’ that is wholly inaccurate.29

A third problematic source of the debate over the use of neuroscience is the lack of scientific knowledge on the part of many practising lawyers. The modern criminal justice system is open to employing a vast array of neuroscience evidence. Moreover, the criminal justice system comfortably incorporates even very recent technology for assessing defendants’ mental capabilities.30 As a result, attorneys currently prosecuting and defending criminal cases must become educated about medical and neurological conditions and tests that a past generation of lawyers confronted rarely, if at all. Courts not only expect attorneys to investigate and use available neuroscience evidence in their cases when it is appropriate, but they penalize attorneys who neglect this obligation by finding them ineffective.31

The United States Supreme Court has made clear that trial counsel should be especially vigilant about uncovering evidence of a client’s cognitive disabilities or brain damage, particularly in death penalty cases, because of their mitigating potential.32 According to the Court, an attorney’s failure to conduct such an investigation hinders the attorney’s ability to make reasonable strategic decisions about how and when to present evidence that may benefit the attorney’s client. Furthermore, such attorneys open themselves up to defendants’ appeals claiming prejudicially deficient counsel in violation of the Sixth Amendment, known as an ‘ineffective assistance of counsel.’33 Indeed, in a series of recent Supreme Court cases, counsel have been rendered ineffective for failing to investigate such evidence.34 My research reveals, in fact, that successful ineffective assistance of counsel claims raised in cases involving neuroscience evidence are often based on an attorney’s failure to appropriately investigate, gather, or understand that evidence. Typically, counsel’s sole defence is that they were following a course of conduct during trial that they thought would succeed and, when it did not succeed, they were unprepared for the sentencing phase.35

A fourth controversial source of the debate over allowing neuroscience evidence into the criminal justice system concerns arguments that such evidence can be a double-edged sword. It can exculpate defendants but also implicate them, or so the argument goes—especially if the evidence can be used to suggest that the defendant poses a future danger to society. The concept of future dangerousness has garnered substantial attention in recent years, and the majority of death penalty states regard a defendant’s potential for future dangerousness to be an aggravating factor worthy of consideration during the penalty phase of a capital trial. A major concern is that prosecutors will seek the death penalty based on neuroscience evidence indicating that a defendant is likely to commit future crimes. Some defence attorneys intentionally fail to raise potentially mitigating evidence because they think it may bolster the perception of a client’s future dangerousness.36

The double-edged sword analogy is misleading, however, and courts have found the argument unpersuasive when counsel contend that neuroscience evidence can do more harm than good to clients. The defence should raise neuroscience evidence if it is available to show that abnormalities in the defendant’s brain might partly explain past behaviour, so that these abnormalities can be considered when deciding whether the defendant deserves the death penalty. The prosecution, meanwhile, would have to show that the abnormalities would lead the defendant to engage in future dangerous behaviour—an entirely different analysis which no expert has yet to introduce into court based on empirical evidence. My research indicates that there is little likelihood that neuroscience evidence introduced by the defence will be leveraged by the prosecution in an effort to prove the defendant’s future dangerousness. Only a small percentage of cases involving neuroscience evidence feature any discussion of future dangerousness related to the defendant.37 Most of this discussion does not involve neuroscience evidence, but instead relies upon other kinds of evidence or testimony, such as a warden’s personal assessment of the defendant’s behaviour as an inmate. In those rare instances when prosecutors do utilize neuroscience evidence to suggest a defendant’s propensity to commit crimes, they typically do so only by building upon the evidence first introduced by a defence expert.38

In some cases, the State does introduce a rebuttal witness for the purpose of denouncing the defence expert’s testimony rather than to suggest that the evidence itself indicates something different. According to some death penalty litigators, prosecutors have at times implied some rationale concerning a defendant’s future dangerousness—for example, their closing arguments to a jury might include an explanation of why a defendant’s brain damage renders the defendant’s brain irreparable. But such pronouncements are not coming from the State’s experts. Contrary to the myth of the doubleedged sword, neuroscience evidence is most commonly introduced for an important yet relatively conventional purpose—as part of an effort to mitigate a defendant’s sentence.39

Yet a fifth controversial source of the debate over neuroscience in the courtroom centres on the belief that jurors will be overly swayed by neuroscience evidence and unduly influenced by the perceived scientific value and visual interest of brain scans. Researchers who have investigated this issue, however, show that this so-called ‘Christmas tree’ effect is not occurring. In fact, jurors are more sophisticated in their evaluation of brain scans than was initially assumed.40 Furthermore, it seems rather inconsistent for commentators to focus on the visual appeal of brain scans when visually repellent evidence, such as graphic crime scene photographs and bloody clothing, is often so readily admitted into court and seemingly far more powerful.

These five sources of debate reflect just some of the concerns that commonly arise in discussions about the application of neuroscience to law. Given the debate’s breadth and contentious nature, it comes as no surprise that many neuroscientists, lawyers, and legal academics are highly sceptical of efforts to merge the two fields. Oversimplification and hyperbole override the potential value of much of this evidence. But before turning to discussion of how neuroscience could be used by the criminal justice system, it is helpful to consider how it really is used.

III. A Study of Criminal Law Cases Involving Neuroscience

I have conducted an unprecedented study (‘Neuroscience Study’) of all criminal cases (totaling 800 cases) addressing neuroscience evidence over two decades (1992–2012).41 I began this project because I was frustrated by my inability to verify much of what is said and written about the use of neuroscience evidence in criminal cases. It seems that the bulk of the discussion is based on theory, assumption, anecdotal single-case studies, or a handful of the same cases, some of them decades old.

In my study I searched for cases using the legal databases Westlaw and Lexis. I then derived information from these cases to code and analyse over hundred key factors  relevant to the criminal justice system, a number of which are listed in this chapter’s Appendix.42 Of course, confining the search to these sources excludes cases that have never been published or have not made it into the databases for some other reason. I felt it important, though, to have a verifiable way to gather the cases so that my search could be replicated by others. This selection strategy also provides relative consistency and accountability across the twenty years this Study examines. I used the same approach in a study I recently published examining the use of behavioural genetics evidence over the last twenty years,43 and I found searching these legal databases to be the strongest methodology.44

The Neuroscience Study’s 800 cases fall into three categories: 247 cases (30.88%) concern neuroscience evidence as it pertains to the victim, primarily to prove the extent of a victim’s brain injury; 514 cases (64.25%) concern neuroscience evidence as it pertains to the defendant; and thirty-nine cases (4.88%) concern neuroscience evidence as it pertains to both the defendant and the victim because the cases concerned the brains of one or more individuals in both the ‘victim’ and ‘defendant’ categories. In this chapter, I will refer to the latter two categories—‘defendant’ and ‘both victim and defendant’—generically as ‘defendant cases.’ The defendant cases comprise 553 cases or 69.13 per cent of the total data set of 800 cases.45 Additional information regarding the variables collected in this study is presented in this chapter’s Appendix.46 My analysis indicates that neuroscience evidence is typically used in cases where defendants face the death penalty, a life sentence, or a substantial prison sentence. The vast majority of the Neuroscience Study’s defendant cases involve defendants convicted of murder. Two-thirds of the defendant cases (366 cases or 66.18%) began as capital cases in which the defendant was eligible for the death penalty even if that sentence was later reduced.47

In a capital case, neuroscience evidence can be used in one of two ways: during the guilt-or-innocence phase, in which the State must prove beyond a reasonable doubt that the defendant committed an alleged crime, and/or in the penalty phase, assuming the jury has found the defendant guilty of the capital crime. In the penalty phase the jury hears evidence of aggravation from the State and evidence of mitigation from the defence, and then has to decide whether the defendant should be sentenced to death. There is a critical distinction in the way evidence is used in the guilt-or-innocence phase as opposed to the punishment phase. The guilt-or-innocence phase involves a factual determination of whether the defendant committed the crime. In contrast, the penalty phase concerns ‘the moral and normative choice’ of whether the defendant ‘deserve[s] to die’. According to the Supreme Court, defendants can also present mitigating evidence relevant to ‘any aspect of [the] defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.’48

This is a highly open-ended standard that allows the defendant to introduce a wide range of factors. Mitigating factors can be far-reaching and subjective; they can prompt jurors to feel empathy and connect with a defendant who they have just convicted. The evidence can also profile and detail the defendant’s damaged brain so that jurors can comprehend how distorted the defendant’s thought processes may have been throughout life and in the seconds preceding the crime. In addition, this evidence can include factors such as whether the defendant experiences the love of family, lives near family, has a job, is religious, and so on—in other words, factors that may not be relevant during the guilt-or-innocence stage of trial.49

The great majority of death penalty states require that the jury consider both evidence of aggravation from the State and evidence of mitigation from the defence. In most jurisdictions, aggravating factors must outweigh mitigating factors for a defendant to be sentenced to death. In the Neuroscience Study, the concept of mitigation is not exclusive to death penalty cases but they do predominate. Indeed, my analysis reveals that neuroscience evidence is usually offered to mitigate punishments in the way that traditional criminal law has always allowed. The push for mitigation is commonly accompanied by a complex range of defence strategies, with a full menu of legal doctrines explicated by neuroscience.50

Returning to the Hoskins case as an example, it is striking that the prosecution and the trial court even targeted the PET scan introduced by the defence, given that the scan was only offered as mitigation evidence. It is particularly noteworthy that the prosecution objected to the scan’s admissibility. While the Hoskins case is one of the 800 in my Neuroscience Study, it is the exception, not the rule. Most of the cases in my Study generally reveal a criminal justice system that is willing to embrace innovative methods of assessing defendants’ mental capabilities, and expects its attorneys to do the same. Yet the Hoskins case suggests that at least some prosecutors view neuroscience evidence as being different from other types of mitigation evidence. The prosecution’s focus on the PET scan is all the more surprising in light of the fact that the jury did not weigh the scan heavily, and there was a broad range of other aggravating and mitigating evidence in Hoskins that the prosecution did not challenge.51

IV. Constraints on Neuroscience Evidence

Some of the misconceptions and fears that plague neuroscience add to the complexity of using such evidence in legal settings. A main source of this complexity is the exaggerated focus that some legal commentators have on the neuroscience evidence that may be involved in a particular case even when that case includes a wide range of other types of evidence. This focus on the so-called ‘deficiencies’ of neuroscience diverts away attention from the flaws in other types of evidence as well as diminishes consideration of how neuroscience could improve the criminal law.

A classic illustration of the first effect can be found in Roper v.  Simmons,52 the United States Supreme Court’s 2005 opinion holding that the Eighth and Fourteenth Amendments prohibit the execution of persons younger than eighteen years old at the time their crimes were committed. Much attention has been given to the majority’s reliance on studies related to adolescent brain development. Indeed, the Roper opinion is considered by advocates and critics alike to have ushered in a new era of legal reliance on modern science, particularly neuroscience.53

Yet, as I wrote soon after Roper was decided,54 this emphasis on neuroscience makes it easy to overlook the fact that the Court depended heavily on other scientific evidence as well—much of it outdated and divisive. For example, the Roper Court cites Erik Erikson’s 1968 book, Identity: Youth and Crisis, to support the view that, relative to adults, juveniles have undeveloped and unstable identities. While Erikson’s influence as a psychologist is indisputable, his work was controversial at the time it was published and it reflects an outmoded psychoanalytic perspective. Yet conversations about the role of scientific evidence in Roper frequently fixate on neuroscience to the exclusion of these other concerns. Furthermore, the Roper Court’s reliance on outdated science is just the tip of the iceberg. The entire modern criminal justice system is based on an outmoded psychology of mental states.

In prior work I have argued that Freudian psychoanalytic theory inspired our current ideas about criminal culpability.55 The criminal law’s most influential codification, the Model Penal Code, was developed in the 1950s and 1960s. The Code’s drafters wanted to create a modern scientific theory of mental states, and to do so they turned to what was then the new science of the mind: Freudian psychoanalysis. Courts incorporated those same theories and psychoanalytic experts to interpret the new statutes. This dependence on psychoanalytic theory in the criminal law does illustrate that using science to advance the criminal law is not a new concept. But unfortunately, in this case the science in question has been seriously undermined over the last half century. Freudian theories clash with most current psychological and scientific teachings, and they offer little guidance to judges and jurors who are trying to determine a defendant’s mental state. As a result, fact-finders include other sources in their effort to make such determinations. For example, the role of psychiatric expert witnesses has been influential and, all-too-commonly, in a negative way.

Consider, for example, the testimony of Park Dietz, M.D., in the case of Andrea Yates, the Texas woman convicted in 2002 of drowning her five children despite evidence of suffering from post-partum psychosis. Dr. Dietz is a well-known forensic psychiatrist who served as the prosecution’s star expert witness. In an article I wrote about the Yates case I found many troubling instances in which Dietz’s assertions sounded authoritative but had no empirical support.56 For example, Dr.  Dietz attributed to Yates’ behaviour a degree of intentionality and manipulation that seemed to be based primarily on Dr. Dietz’s own strained interpretations of her testimony. On other occasions, his comments were based on an outdated psychology and incomplete research. By all accounts, Dr. Dietz’s testimony was highly influential on the jury; only because of procedural and other errors was Yates’ conviction overturned.

Even more damaging is the entirely unfounded testimony of so-called experts like James Grigson, M.D. Dr. Grigson, a forensic psychiatrist in Texas, served as an expert witness for the state in over 140 capital trials. He repeatedly testified as ‘a matter of medical certainty’ that defendant after defendant was a sociopath beyond redemption—a person who would undoubtedly kill again if released. Not surprisingly, almost all of these defendants were sentenced to death—hence Dr. Grigson’s nickname, ‘Dr.  Death.’ A  1989 study revealed that Dr.  Grigson’s predictions were highly unreliable, and he was expelled from the American Psychiatric Association for ethical violations. But even then, Dr. Grigson continued to offer his services as an expert witness.57

Of course, expert witnesses are routinely used in litigation. Dr. Dietz is simply one of the more prominent examples, while Dr. Grigson is one of the more deplorable. My point is that there is little control for abuses of authority when these experts are permitted to engage in what is basically unregulated storytelling. This is a particular concern given the likely significance of such ‘stories’ to fact-finders who are attempting to determine a defendant’s mental state with little useful guidance from the law itself. Yet, ironically, defendants’ efforts to ground or help validate psychiatric expert witnesses with hard data such as brain scans meets resistance, as if experts’ interpretations of brain scans are somehow less reliable than their experts’ unsubstantiated testimony.

The second effect of commentators’ focus on the ‘deficiencies’ of neuroscience is that less attention is devoted to efforts to use neuroscience to improve the criminal law. I will address the question of how the criminal law could benefit from neuroscience more broadly at the end of this chapter. However, I also have a specific recommendation for how we could use neuroscience research to better assess defendants’ mental states, particularly in capital cases: we should improve model criminal jury instructions regarding mens rea.

Jury instructions are often jurors’ first and only introduction to the law that they will be asked to apply. Deficient instructions may violate defendants’ constitutional rights to a fair trial. Beginning in the twentieth century, efforts to improve jury instructions centred on the development of ‘model’ instructions devised by task forces and committees to make the instructions more consistent, clear, accurate, and useful. Yet inconsistency and ambiguity still surround the creation and application of these instructions when it comes to explaining to juries how to interpret mental states. I have examined this issue in detail by conducting a unique statewide survey of criminal jury instructions on criminal culpability, a project I started in 2005 and published then, and which I have since updated.58

My Study indicates that a substantial number of state criminal jury instructions avoid the problem of mens rea altogether by issuing no instructions regarding criminal intent, or focusing almost exclusively on defendants’ acts. As a result, jurors often evaluate mens rea simply by assuming that a defendant intended the natural and probable results of her actions. Yet each juror’s assessment of ‘natural and probable’ is influenced by that juror’s own biases, subjective experiences, and understanding of the law. Neuroscience research can help inform jurors about biases in these interpretations in much the same way that research on eyewitness testimony has helped inform jurors about eyewitnesses’ biases in perceiving and identifying defendants. Furthermore, neuroscience provides a model of the human brain that gives a different kind of insight into what is happening in the brain relative to a defendant’s behaviour and circumstantial evidence.

In sum, new discoveries in neuroscience suggest that efforts to downplay the significance of mens rea in the criminal law are not warranted and dangerously veer towards a philosophy of act-based reductionism. Yet a focus on the perceived flaws of neuroscience leads many commentators to suggest that it is neuroscience that poses the greatest risk of reductionism. The reality is that we could use neuroscience to enhance jury instructions with progressive discoveries that would be better aligned with group dynamics and evidentiary standards. These changes would make criminal jury instructions, and the criminal law generally, more reflective of how humans actually think and behave.

V. A Scientific Theory of Mental States

How would neuroscience enlighten the criminal law? My response to this question is that it is time for a scientific theory of mental states. Just as the drafters of the original Model Penal Code turned to the science of their time, we must now turn to the science of our time.

Imagine revising the Model Penal Code’s mens rea provisions today, but this time with neuroscientists on the advisory board instead of psychoanalysts. Imagine if the Code’s drafters were developing statutes based on our current understanding of the human brain, rather than archaic psychoanalytic concepts. Think about how different the terms would be that they used in their discussions, and in their writing of the statutes. Then picture courts relying on modern science, and the testimony of neuroscience experts, to interpret those statutes. Imagine this process leading to lawyers and neuroscientists alike becoming more versed in each other’s fields. This may sound like a lot of imagining, but the reality is that this is the process that began when the Model Penal Code was originally written in the 1950s. History suggests that neuroscience would naturally infiltrate the daily practices and underlying principles of the criminal law in much the same way that psychoanalysis has over the past sixty years. 

I will conclude by mentioning a few brief examples of how this process might occur, beginning with the sentencing and punishment aspects of the daily practices of the criminal law. One of the most important recent discoveries in the field of neuroscience is the concept of neuroplasticity, which means that the brain is constantly generating new neurons and therefore is constantly changing. When neuroscientists try to analyse the link between brain activity and specific thoughts or behaviours, they now have to consider how thoughts, actions, and environment alter the structure and function of the brain. The discovery of neuroplasticity has enormous implications for how we treat criminal offenders after they have been convicted. We now know that actual physical changes occur in prisoners’ brains as a result of their confinement. Research indicates that the prison environment, for example, can enormously influence whether prisoners’ brains are altered in positive or negative ways.

On a more fundamental level, neuroscience is an excellent resource to revitalize the Model Penal Code’s original focus on subjective determinations of an individual defendant’s blameworthiness, based on that particular defendant’s mental state. Over the last sixty years, the American criminal justice system has become far more punitive, and the subjective inquiry has been overshadowed by a more objective standard that downplays the need to assess individual culpability. The incorporation of modern neuroscience research into the criminal law would bring back a system of justice that more accurately gives to each defendant his or her ‘just deserts,’ and more effectively protects the rest of society.

Conclusion

The recent surge of neuroscientific evidence in the criminal justice system has been accompanied by criticisms and concerns over its potential dangers and effectiveness. Yet my research shows that, while we should always be careful about the kind of evidence attorneys introduce into the courtroom, there is little basis for the unease surrounding neuroscience in particular. Indeed, neuroscience discoveries can help us reconceptualise how the criminal justice system defines and assesses defendants’ mental states, for example, or assist in clarifying state jury instructions on the meaning of mens rea. To benefit from neuroscience in these ways, however, we must first penetrate the mystique. We must move on from misconceptions, fears, and misguided debates. We must also realize that although neuroscience brings unique insight to the law, there is nothing about neuroscience that merits unique treatment by the law. 

Footnotes

Hoskins v. State, 702 So.2d 202, 203–04 (Fla. 1997) (Hoskins I) (per curiam).

Id. at 203.

Id.

Id. at 209.

Id. at 209–10. The Hoskins appellate court stressed precedent showing that a mental health expert’s failure ‘to adequately investigate a defendant’s mental history and to order, if warranted, additional testing regarding the defendant’s condition deprives the defendant of due process’, specifically, the psychiatric information needed to rebut aggravating factors or to build mitigating factors. Id. at 209 (quoting Ake v. Oklahoma, 470 U.S. 68, 84 (1985) (noting the U.S. Supreme Court’s holding that a defendant must have available appropriate mental health experts and testing when that defendant has made a mental condition an issue in his or her case, particularly in death penalty assessments in which an error could have grave repercussions)). Indeed the court found that Hoskins’ mental condition would be relevant to three or more statutory mitigating circumstances pertaining to whether Hoskins was acting under ‘extreme mental or emotional disturbance’ or ‘extreme duress’, or whether he could ‘appreciate the criminality of his conduct or to conform his conduct to the requirements of law.’ Id. (citations omitted). Therefore, without knowing the results of the PET scan and the information it could provide, the appellate court found to be erroneous the trial judge’s conclusion that that scan could not help the expert’s assessment of Hoskins’ condition. Id.

Id. at 208–09. According to the expert, the PET ‘was necessary for him to render a more precise opinion regarding Hoskins’ mental condition.’ Id.

Id. at 209. The particulars of this rationale became more clear during direct questioning by defence counsel, as stated: DEFENSE COUNSEL: How critical would the penalty input and the PET Scan in — [ ] this case [be] in the organisity in Mr. Hoskins? [EXPERT]: What — one of the issues based on my findings is the possibility that there is a neurological problem which — particularly with my findings which showed impairment in the frontal lobe, which is the area which is responsible for inhibition, impulse control and so forth. When there is a violent crime such as in this particular situation, one of the things we would want to know is there a neurological basis for causing a person's poor impulse control. …. DEFENSE COUNSEL: What would be the significance of the information or data you would gather from [the PET Scan] as it relates to a penalty phase proceeding? [EXPERT]: Well, it would certainly in my opinion give me an opportunity to render an opinion with regard to the neurological status of this — of Mr. Hoskins to a more definitive level than I was able to previously or that I can with the current data that I have available. DEFENSE COUNSEL: So you believe that you could make a more definitive and more precise — [ ] determination and an opinion with respect to Mr. Hoskins if you had the data from this test? [EXPERT]: Yes, sir, I could. Id. at 208.

Hoskins v. State, 735 So. 2d 1281, 1281 (Fla. 1999) (Hoskins II) (per curiam). After the remand, the Supreme Court of Florida conducted a hearing to determine if the PET scan did change the expert’s testimony. The trial court held that the scan did show an abnormality in Hoskins’ brain and thus the expert’s testimony had changed. Id. The State conceded that the expert’s testimony would change if the PET scan showed an abnormality. Id. There is no mention here or in later appeals of how exactly the expert’s testimony did change.

Id.

See Hoskins v. State, 965 So. 2d 1, 6 (Fla. 2007) (Hoskins III) (per curiam).

Id. at 1.

 Id. at 6.

Id.

Id. at 22.

Hoskins v. State, 75 So. 3d 250, 253 (Fla. 2011) (Hoskins IV) (per curiam).

Id. at 255.

Id. at 254–56.

Id. at 254–58.

For an empirical analysis of the complexities in criminal cases see Deborah W. Denno, The Myth of the Double-Edged Sword: An Empirical Study of Neuroscience Evidence in Criminal Cases, 56 B.C. L. Rev. 493 (2015).

Id. at 501–04.

See generally Deborah W. Denno, Courts’ Increasing Consideration of Behavioral Genetics Evidence in Criminal Cases: Results of a Longitudinal Study, Mich. St. L. Rev. 967 (2011) (discussing and illustrating the differences between standards).

See infra Part III.

See Denno, supra note 19, at 498–99; Deborah W. Denno, Changing Law’s Mind:  How Neuroscience Can Help Us Punish Criminals More Fairly and Effectively (Oxford University Press forthcoming).

See Denno, supra note 19, at 543–49. 25 Id. at 499.

Neuroscience and the Law:  Brain, Mind, and the Scales of Justice 206 (Brent Garland ed., 2004).

Jamie Ward, The Student’s Guide to Cognitive Neuroscience 4 (2d ed. 2010).

See Denno, supra note 19, at 496–98; Denno, supra note 21, at 970–73.

Denno, supra note 19, at 497; Denno, supra note 21, at 970–71.

Denno, supra note 19, at 505, 548–49.

Id. at 505–25.

See id. at 505–07.

Id. at 506.

See Porter v. McCollum, 130 S. Ct. 447, 452 (2009); Rompilla v. Beard, 545 U.S. 374, 392 (2005); Sears v. Upton, 130 S. Ct. 3259, 3261 (2010); Wiggins v. Smith, 539 U.S. 510, 521 (2003).

Denno, supra note 19, at 510–14

Id. at 526–43.

Id. at 527.

Id. at 526–43.

Id. at 499–505.

For an excellent study on this issue see N.J. Schweitzer & Michael J. Saks, Neuroimage Evidence and the Insanity Defense, 29 Behav. Sci. & L. 592, 592–607 (2011).

Denno, supra note 19, at 498. Other results of my study are described in detail in the following forthcoming publications: Denno, supra note 23; Deborah W. Denno, Concocting Criminal Intent, 105 Geo.L.J. _ (2017); Deborah W. Denno, How Prosecutors and Defense Attorneys Use Neuroscience Differently, 84 Fordham L. Rev. _ (2016).

See infra App.

Denno, supra note 21, at 967.

Denno, supra note 19, at 500–02; Denno, supra note 21, at 91–93.

Denno, supra note 19, at 501. 46 See infra App.

Id. at 502.

Kansas v. Marsh, 548 U.S. 163, 174 (2006) (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)).

Denno, supra note 21, at 975–91.

Denno, supra note 19, at 504.

See Hoskins v. State, 75 So. 3d 250 (Fla. 2011) (Hoskins IV) (per curiam).

543 U.S. 551, 578–88 (2005).

See Lizzie Buchen, Science in Court: Arrested Development, 484 Nature 304, 304–06 (2012).

Deborah W. Denno, The Scientific Shortcomings of Roper v. Simmons, 3 Ohio St. J. Crim. L. 379, 379–96 (2006).

See Deborah W. Denno, Crime and Consciousness: Science and Involuntary Acts, 87 Minn. L. Rev. 269, 269–399 (2002).

See Deborah W. Denno, Who is Andrea Yates? A Short Story about Insanity, 10 Duke J. Gender L. & Pol’y 1, 1–139 (2003).

See generally Thomas Regnier, Barefoot in Quicksand:  The Future of ‘Future Dangerousness’ Predictions in Death Penalty Sentencing in the World of Daubert and Kumho, 37 Akron L. Rev. 469 (2004) (detailing Dr. Grigson’s background and testimony)

Deborah W. Denno, Criminal Law in a Post-Freudian World, 2005 Ill. L. Rev. 601, 601–774

Appendix

This Appendix presents several categories of variables that were collected for the Neuroscience Study. For each case in the study, general identifying information was coded along with, when relevant, information related to sentencing, funding, future dangerousness, ineffective assistance of counsel, brain scans, and the purpose of the neuroscience evidence. This is not a comprehensive list of all variables included in the study; a complete list of variables is on file with the author.*

General Case Information

This category includes: the case name; citation; date of decision; state in which case was decided (if case was decided by a federal Court of Appeals or the U.S. Supreme Court, this variable refers to the state in which the case originated); fact summary; procedural history; whether the neuroscience evidence pertained to a victim, defendant, or both (these variables are mutually exclusive); whether the holding was affirmed on appeal, remanded on appeal for reasons unrelated to the neuroscience evidence, or remanded on appeal for reasons specifically related to the neuroscience evidence (these variables are mutually exclusive); whether the court was reviewing a capital case; and the most serious crime for which the defendant was convicted.

Sentencing (categories are mutually exclusive)

This category indicates whether the highest sentence a defendant received was: death, life without the possibility of parole, life with the possibility of parole, 31–50 years, 11–30 years, 10 years or less, commitment to a mental institution for any length of time, or a monetary fine. This category also indicates whether the defendant was convicted of at least one count but had yet to be sentenced at the date of the case opinion, and whether a sentence was kept confidential (which typically occurs when defendant was a juvenile at the time of the crime).

Funding (categories are not mutually exclusive)

This category indicates whether the case opinion discussed the funding of the neuroscience evidence, particularly as related to ineffective assistance of counsel claims or claims raised under Ake v. Oklahoma, 470 U.S. 68 (1985). This category also lists relevant law under which the funding of the neuroscience evidence was discussed and what the defendant sought to establish or accomplish with the neuroscience evidence that required funding.

Future Dangerousness

This category indicates whether the opinion discussed the aggravating factor of future dangerousness, particularly in conjunction with Simmons v.  South Carolina, 512 U.S. 154 (1994) or Strickland v.  Washington, 466 U.S. 668 (1984), or in the context of a concern that mitigating evidence could actually harm the defendant by bolstering predictions of future dangerousness.

Ineffective Assistance of Counsel

This category indicates whether a defendant’s ineffective assistance of counsel claim was accepted or rejected. This category also notes whether at least one such claim was based on: the mishandling of neuroscience evidence; counsel’s failure to pursue mitigating evidence (neuroscience-related or some other type); counsel’s failure to communicate with the defendant regarding neuroscience evidence; the existence of a potential conflict of interest between defendant and defendant’s counsel; counsel’s procedural error; or lack of competent representation.

Brain Scans

This category indicates whether a brain scan was discussed in the case, and codes the following types of scans: BEAM study, PET scan, CT or CAT scan, MRI, QEEG, EEG, and SPECT scan. This category also notes whether and why the scan was accepted into or rejected as evidence by the court, which party sought to introduce the brain scan into evidence (prosecution or defence), whether the brain scan was of the victim or the defendant, and whether and why a brain scan was mentioned but not conducted or the results were not disclosed. All of the cases involving brain scans were coded to indicate what the brain scan revealed: brain abnormality, no brain abnormality, or brain damage, along with details regarding the diagnosis, a description of the resultant behaviours, and an assessment of whether the diagnosis corroborates the prosecution’s charges or the defendant’s defence.

Purpose of the Neuroscience Evidence (categories are not mutually exclusive)

This category indicates the purpose behind the use (or attempted use) of the neuroscience evidence, including the following: mitigation; downgrade a crime category; support an insanity defence; overturn a conviction; prove a victim’s injuries; show a lack of mens rea or actus reus; or determine competency to stand trial, waive Miranda rights, confess, plead guilty, waive an attorney or procedural rights, or be executed.

* Examples of variables that were coded for the Study but not described in the Appendix include the following: the discussion of malingering in conjunction with neuroscience evidence; the stage of trial (e.g. pretrial, guilt, penalty, appeal) at which a brain scan was raised (as well as the type of scan); medical expert witness testimony, based on neuroscience evidence, that a victim or defendant suffered from a brain abnormality, mental disorder, low IQ, or another related condition or injury.

[brainprivacy]

Human Enhancement and the Law: Regulating for the Future

7-8 January 2016, St Anne's College, University of Oxford

Keynote Speakers

Dr Jan-Christoph Bublitz

Jan-Christoph Bublitz is a researcher and lecturer in criminal law and legal philosophy at the University of Hamburg who specialises in cognitive enhancement.

Professor Bert-Jaap Koops

Bert-Jaap Koops is researcher at Tilburg University with a particular interest in the intersection of technology and regulation. His main areas of interest include cybercrime, cyber-investigation, privacy, and data protection.

Professor Anton Vedder

Anton Vedder is an Associate Professor at the University of Tilburg whose research focuses on the regulation of emerging technology and bioethics. His particular areas of interest include the acceptance and adoption of new technology, legitimacy, privacy, security, and transformations in health care.

Professor Ruud ter Meulen

Ruud ter Meulen is Emeritus Professor at Bristol University and Director of the Centre for Ethics in Medicine, specialising in justice in health care, the ethics of research, the care of the elderly and in evidence-based medicine.

Professor Karen Yeung

Karen Yeung is Professor of law at King's College London, specialising in regulatory government and emerging technology.

Dr Hannah Maslen

Hannah Maslen is Lecturer in law and philoshophy at New College, Oxford. She works at the Oxford Martin Programme on 'Mind and Machine', focusing on the legal, ethical and social implications of brain intervention technologies.

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Mind-Movies: Original Authorship as Applied to Works from "Mind-Reading" Neurotechnology

U.S. courts frequently analyze new technology under copyright law. Over the years, the courts have applied copyright law to photographic cameras, computer programs, digital video recorders, and much more. However, a recent breakthrough in the neuroscience community may force judges to apply copyright standards in an unorthodox fashion.

A group of researchers at UC Berkeley devised a process that recon- structs video sequences from the human brain, essentially creating a movie from the person’s mind. As this neurotechnology develops, it is uncertain how judges will apply copyright law to content taken directly from the brain. Nevertheless, this Article argues that such content meets the origi- nality standard under U.S. copyright law. Specifically, videos taken from the brain are original to the author based on the author’s unique visual experiences and unique mental processes.

Excerpts

II. MIND-MOVIES : THE NEUROTECHNOLOGY

C. Dr. Gallant’s Current Mind-Movie Neurotechnology

Mind-reading has become a reality. 79 Scientists all over the world are devis- ing various methods to decode the human brain. 80 However, one of the more impressive methods came from Professor Jack Gallant and his colleagues at UC Berkeley who developed a process to discover mind-movies. 81 Dr. Gallant is striving towards a general mind-reading device that reconstructs a movie of a person’s visual experience at any moment in time, and accesses the visual content of purely mental phenomena such as dreams and imagery. 82 Dr. Gallant already broke unprecedented grounds in neuroscience by reconstructing a person’s brain activity to create a rough “movie” of the person’s visual experiences. 83 Dr. Gallant said, “You walk around the world,. . . [and] in some sense, you’re really just watching a movie of the world going by.” 84

III. ORIGINAL AUTHORSHIP IN MIND-MOVIES

It is uncertain how courts will rule on cases involving mind-movies. Assuming mind-movies progress into clear depictions of visual experiences, 108 federal judges may find difficulty in applying the doctrine of original authorship to works taken directly from the brain. Nevertheless, this Article argues that under case law precedent, mind-movies are original works of authorship in at least two ways: unique visual experiences and unique mental processes.

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BRUTON T.A. (2015). Mind-movies: Original authorship as applied to works from "mind-reading" neurotechnology. Journal of Intellectual Property. 14, 263-286.

[brainprivacy]

Can Brain Scans Prove Criminals Unaccountable?

Leonard Berlin (2014) reports that neuroscientific data have been presented in court by lawyers wishing to argue that their clients have reduced or absent moral responsibility for their behaviour because their brain function is impaired. Berlin cites evidence showing that such neuroscientific data can influence judges to pass more lenient sentences, and he anticipates that advances in “the neurology of criminal behavior” may lead courts to view certain criminals as having reduced accountability for their actions. Similarly, an advisor to President Obama recently predicted a surge in the number of U.S. defendants appealing to neuroscientific data in criminal court cases in an attempt to reduce sentences and strike out confessions, and commented that this strategy has already been successful in some cases (Sample2013). Berlin, and those whose comments he quotes, note that the neuroscience behind criminal behavior is in its infancy. Many of the neuroimaging techniques he considers are experimental or otherwise unproven, and their results are subject to interpretation. I wish to raise the additional point that the ability to prove criminals unaccountable on the basis of neuroimaging does not depend merely on our understanding of the brain and the availability of reliable imaging techniques, but also—crucially—on answers to philosophical questions about the relationship between brain activity and free will.

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ROACHE, R. (2014). Can Brain Scans Prove Criminals Unaccountable?   AJOB Neuroscience. 5, 35-37.