Neuroscience and the Personalization of Criminal Law (original) (raw)
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The Place for Neuroscience in Criminal Law
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.
THE MYTH OF THE DOUBLE-EDGED SWORD: AN EMPIRICAL STUDY OF NEUROSCIENCE EVIDENCE IN CRIMINAL CASES
Boston College Law Review, 2015
This Article presents the results of my unique study of 800 criminal cases addressing neuroscience evidence over the past two decades (1992–2012). Many legal scholars have theorized about the impact of neuroscience evidence on the criminal law, but this is the first empirical study of its kind to systematically investigate how courts assess the mitigating and aggravating strength of such evidence. My analysis reveals that neuroscience evidence is usually offered to mitigate punishments in the way that traditional criminal law has always allowed, especially in the penalty phase of death penalty trials. This finding controverts the popular image of neuroscience evidence as a double-edged sword—one that will either get defendants off the hook altogether or unfairly brand them as posing a future danger to society. To the contrary, my study indicates that neuroscience evidence is typically introduced for a well-established legal purpose—to provide fact-finders with more complete, reliable, and precise information when determining a defendant’s fate. My study also shows that courts accept neuroscience evidence for this purpose, and in fact expect attorneys to raise this evidence when possible on behalf of their clients. This expectation is so entrenched that courts are willing to grant defendants their “ineffective assistance of counsel” claims when attorneys fail to pursue this mitigating evidence. Meanwhile, my study also reveals that the potential future danger posed by defendants is rarely a facet of cases involving neuroscience evidence—again contradicting the myth of the double-edged sword. The cases that do address future danger, however, offer fascinating insight into the complex legal issues raised by neuroscience evidence. As courts continue to embrace neuroscience tools and techniques, the empirical data collected in my study provide a foundation for discussions regarding the use of neuroscience evidence in criminal cases. The findings presented in this Article will ensure that those discussions are grounded in fact rather than hyperbole. Key words: neuroscience, criminal law, death penalty, ineffective assistance of counsel, double-edged sword, future dangerousness, Supreme Court, mitigating evidence, aggravating evidence, longitudinal research, empirical study, punishment, MRI, fMRI, PET scan, QEEG, mental retardation, brain injury, frontal lobe damage
Criminal Behavior and the Brain: When Law and Neuroscience Collide
This Foreword provides an overview of the symposium, Criminal Behavior and the Brain: When Law and Neuroscience Collide, and discusses the articles of the nearly thirty judges, academics, and practitioners who participated. These diverse subjects have an overarching theme in common: each pertains in some way to the criminal justice system's effort to punish or rehabilitate more fairly and effectively. Section I looks at the history and framework of neuroscience and law. Francis Shen's article examines overlooked moments in history, including the use of electroencephalography evidence, psychosurgery, and the developing use of neuroscience in personal injury cases in the 1980–90s. The historical overview continues with Elizabeth Bennett's article, which discusses more recent developments regarding how neuroscience is currently employed in the courtrooms to mitigate sentencing. In Section II on neuroscience and sentencing policy, Nancy Gertner reviews the history of sentencing in her articles, provides a critique of the Sentencing Reform Act of 1984, and explains how neuroscience can improve sentencing and rehabilitation techniques. Bernice B. Donald and Erica Bakies then look at how neuroscience has been incorporated during the sentencing process as well as the ways in which neuroscience can help judges overcome their implicit biases., continue the discussion on courtroom bias and argue that neuroscience can be used within the sentencing context by revealing how empathy helps explain how jurors' identity affects decision-making. The article by Ruben Gur, Oren Gur, Alon Gur, and Arona Gur, and the article by Joel Zivot, both approach neuroscience and sentencing from a medical perspective by discussing expert testimony, neuroimaging, and applying the death penalty to defendants with preexisting medical conditions. Deborah Denno's article concludes the sentencing discussion by providing a detailed description of how and when prosecutors and defense attorneys present neuroscience evidence and for what purpose. The final section begins with Jane Campbell Moriarty's article, which argues that advances in neuroscience can assist in a greater understanding of criminal mens rea and moral blameworthiness, which also would bolster the determination of lesser mens rea arguments. Like Moriarty, Elizabeth S. Scott, Richard J. Bonnie, and Laurence Steinberg discuss how neuroscience evidence, specifically juvenile culpability and developmental brain research, can prompt policy change. Their article concludes that there should be a transitional category for young adults that is distinct from juveniles and adults. argue that neuroscience can also be used to help decipher and predict violence and that this prediction may reduce recidivism rates by providing a remedy for high–risk behavior through appropriate treatment. Similarly, Arielle R. Baskin-Sommers and Karelle Fonteneau believe that neuroscience can improve the justice system's approach to treatment. However, in their article, they argue that neuroscience should be used to reform the correctional environment and inmate treatments, rather than in the courtroom. Lastly, Erin Murphy's article explores the future admissibility of novel neuroscience and predicts that neuroscience may one day be employed in new settings, such as bail hearings, competency determinations, noncapital sentencing, and civil proceedings.
Neuroscientific evidence is increasingly being used in criminal trials as part of psychiatric testimony. Up to now, “neurolaw” literature remained focused on the use of neuroscience for assessments of criminal responsibility. However, in the field of forensic psychiatry, responsibility assessments are progressively being weakened, whereas dangerousness and risk assessment gain increasing importance. In this paper, we argue that the introduction of neuroscientific data by forensic experts in criminal trials will be mostly be used in the future as a means to evaluate or as an indication of an offender's dangerousness, rather than their responsibility. Judges confronted with the pressure to ensure public security may tend to interpret neuroscientific knowledge and data as an objective and reliableway of evaluating one's risk of reoffending. First,weaimto showhowthe current socio-legal context has reshaped the task of the forensic psychiatrist,with dangerousness assessments prevailing. In the second part,we examine froma critical point of viewthe promise of neuroscience to serve a better criminal justice systemby offering new tools for risk assessment. Thenwe aim to explainwhy neuroscientific evidence is likely to be used as evidence of dangerousness of the defendants. On a theoretical level, the current tendency in criminal policies to focus on prognostics of dangerousness seems to be “justified” by a utilitarian approach to punishment, supposedly revealed by new neuroscientific discoveries that challenge the notions of free will and responsibility. Although often promoted as progressive and humane, we believe that this approach could lead to an instrumentalization of neuroscience in the interest of public safety and give rise to interventions which could entail ethical caveats and run counter to the interests of the offenders. The last part of this paper deals with someof these issues—the danger of stigmatization for brain damaged offenders because of adopting a purely therapeutic approach to crime, and the impact on their sentencing, in particular.
Criminal Behavior and the Brain : When Law and Neuroscience Collide Foreword
2016
This Foreword provides an overview of Criminal Behavior and the Brain: When Law and Neuroscience Collide, a symposium hosted by the Fordham Law Review and cosponsored by the Fordham Law School Neuroscience and Law Center. While the field of neuroscience is vast—generally constituting “the branch of the life sciences that studies the brain and nervous system”1— this symposium focused on the cutting-edge ties between neuroscience evidence and the different facets of criminal law. Such an intersection invited commentary from an expert group on a wide span of topics, ranging from the historical underpinnings between law and neuroscience to the treatment of young adults to the different roles of neuroscience in the context of sentencing, expert testimony, defenses, prediction, punishment, and rehabilitation, as well as the civil and criminal divide. These diverse subjects have an overarching theme in common: each pertains in some way to the criminal justice system’s effort to punish or r...
Changing Law’s Mind: How Neuroscience Can Help Us Punish Criminals More Fairly and Effectively
A criminal justice system should protect society from crime and also punish criminals at the level of their blameworthiness. Changing Law’s Mind contends that new insights about the brain can help us in the quest to construct a fairer and more effective criminal justice system. Recent neuroscientific discoveries suggest that some of our previous intuitions about human culpability fail to reflect the reality of how the brain functions. If we ignore these developments, we risk perpetuating a justice system that punishes some people far too much and others too little or not at all. The intersection of law and neuroscience is a thriving topic, but this book is unique. Many books and chapters in edited books focus narrowly on issues such as the diagnosis and effect of brain abnormalities or the possibility that neuroscience will someday perfect lie detection. Changing Law’s Mind, instead, provides readers with a foundation in both the legal doctrine and neuroscience and then uses that br...
Annals of The New York Academy of Sciences, 2008
Can neurological evidence help courts assess criminal responsibility? To answer this question, we must first specify legal criteria for criminal responsibility and then ask how neurological findings can be used to determine whether particular defendants meet those criteria. Cognitive neuroscience may speak to at least two familiar conditions of criminal responsibility: intention and sanity. Functional neuroimaging studies in motor planning, awareness of actions, agency, social contract reasoning, and theory of mind, among others, have recently targeted a small assortment of brain networks thought to be instrumental in such determinations. Advances in each of these areas bring specificity to the problems underlying the application of neuroscience to criminal law.
Reconciling the opposing effects of neurobiological evidence on criminal sentencing judgments.
2019
Legal theorists have characterized physical evidence of brain dysfunction as a double-edged 34 sword, wherein the very quality that reduces the defendant's responsibility for his transgression 35 could simultaneously increase motivations to punish him by virtue of his apparently increased 36 dangerousness. However, empirical evidence of this pattern has been elusive, perhaps owing to a 37 heavy reliance on singular measures that fail to distinguish between plural, often competing 38 internal motivations for punishment. The present study employed a test of the theorized double-39 edge pattern using a novel approach designed to separate such motivations. We asked a large 40 sample of participants (N = 330) to render criminal sentencing judgments under varying 41 conditions of the defendant's mental health status (Healthy, Neurobiological Disorder, 42 Psychological Disorder) and the disorder's treatability (Treatable, Untreatable). As predicted, 43 neurobiological evidence simultaneously elicited shorter prison sentences (i.e., mitigating) and 44 longer terms of involuntary hospitalization (i.e., aggravating) than equivalent psychological 45 evidence. However, these effects were not well explained by motivations to restore treatable 46 defendants to health or to protect society from dangerous persons but instead by deontological 47 motivations pertaining to the defendant's level of deservingness and possible obligation to 48 provide medical care. This is the first study of its kind to quantitatively demonstrate the 49 paradoxical effect of neuroscientific trial evidence and raises implications for how such evidence 50 is presented and evaluated. 51 52 decision making 54 55 3 Background 56 Neuroscience is playing an increasing role in criminal trials. While it is unfeasible to 57 estimate the prevalence of neurobiological evidence in lower courts, their rates in murder trials 58 may exceed five percent, as indicated by the subset of cases documented at the appellate level 59 [1]. But brain evidence can be complicated, raising questions about how fact finders interpret the 60 quality of this evidence. 61 According to recent research, ordinary people have considerable preconceptions about 62 the explanatory power of neurobiological evidence. Weisberg, Taylor, and Hopkins [2], for 63 example, found that when lay people evaluate the quality of scientific explanations for behavior, 64 their ability to distinguish between good and bad quality explanations was hampered by the 65 presence of irrelevant neuroscience information. People judged explanations paired with the 66 irrelevant neuroscience information as stronger and more satisfying than explanations without it.