The Intersections Between Neuroscience and Law

Jyotpal Singh — Mon, 12 May 2008 09:04:45 -0700

Around the middle of the twentieth century, B.F. Skinner defined the human "self" as an organized system of behavior and defined "behavior" as everything that an organism does including thinking, feeling, and acting. Law, as a human institution, is a system for governing human behavior-we must do or refrain from doing certain things or suffer socially-ordained and governmentally-administered consequences. The brain is the organ that governs individual behavior-all thinking, feeling and acting is derived from activity in the brain and nervous system. Thus, at their very core, law and neuroscience are intimately interwoven because they are concerned with human behavior.

Culpability

Of all the intersections between neuroscience and law, the issue of culpability, or the level of "intentionality" in criminal law (known as "mens rea") or in civil law (often called "scienter," especially in securities law) is one of the more difficult areas and relates to deep and fundamental questions of human behavior. In essence, the debate extends to the very beginning of human thought: Do we have free will (and, if so, to what extent?) or is our volition and intentionality an illusion (or, perhaps, is there some other alternative that we have not fully thought through yet)?

What do we know? A minor alteration in a chemical in the brain can drastically alter personality, behavior and subjective experience. A small tumor or minor damage to a brain area can have the same effect. This means that when the brain is physically altered, the person is mentally altered. Thus, the physical and the mental appear to be the same. Further, the brain is incredibly complex-it contains billions of neurons and trillions of interconnections between them and most of the brain's activity occurs below the level of conscious awareness. In other words, you are not aware of most of what is going on in your own head. Thus, your mind and your brain are the same thing, and you do not entirely consciously control or consciously know what you are doing or why.

If this is true, then to what extent is someone who "chooses" to commit a crime or "chooses" to enter into a fraudulent transaction culpable? The law assumes that people are conscious, intentional and rational actors and are practical reasoners-we can choose how we act. Yet, neuroscience can definitively show how pathologies-especially damage or underdevelopment-can drastically reduce the ability of a person to make decisions and control their impulses. What does this mean for our notions of culpability? We already adjust our assumptions about culpability dependent on mental and physical illness, age, or intoxication. In what ways does the neuroscience evidence indicate that we need to make further adjustments to our notions and assumptions about culpability? This is the first major area in which neuroscience and law intersect.

Competence

A very important concept in law, especially in civil law such as torts and contracts, is the notion of competence. Individuals must be competent to enter into agreements-they have the mental capacity to understand what they are doing. Just as with culpability, the law already recognizes that not everyone is competent. For example, minors, the mentally-handicapped, and people who are intoxicated, are recognized as lacking the competence to enter into many types of agreements; however, in many cases, competency is a core issue such as when an elderly person is duped into a secondary mortgage. Can neuroscience help make these competency evaluations? Further, can neuroscience evidence help inform the legal policies regarding competency in a more general way?

Prediction of Criminal Behavior

Currently, we use various methods for determining whether a criminal is likely to recidivate when they are being initially sentenced or being considered for parole. These methods range from advanced actuarial tests based upon psychological and behavioral assessments to the "gut feelings" of the men and women who make these decisions. The problem is that neither one seems to work very well. Thus, we are currently trying to predict criminal behavior with crude, ineffective tools. If we are going to try to predict criminal behavior, shouldn't we try to use the most advanced and accurate tools we have at our disposal in the interests of justice and fairness? Neuroscience may be able to serve as an addition to the tools we already use to help us refine our assessments of the probability of criminal recidivism.

Rehabilitation of Criminals

Many normal people experience impulses and urges: to binge drink and drive, to commit a violent act, to act out sexually in inappropriate ways, etc. Yet, most people who get these impulses do not act upon them. Criminals do. Why? Neuroscience evidence tends to indicate that some brains may be better than other brains at controlling impulses from the more emotional and reactive parts of the brain. Could neuroscience possibly develop techniques and tools that could actually assist people develop these neurological mechanisms for impulse control? If so, could these techniques and tools then be used to help criminals with such issues-for example, violent sex offenders-learn to control their impulses as normal people do?

Juror's Brains and Decision-Making

The American jury system is an established and venerable institution; however, it is also a highly structured group decision-making task involving individuals who, according to psychologists, may be hard-wired for retributivist tendencies, subject to conformity pressures, and may be making very grave and important decisions based upon emotion, bias, or outright prejudice. Can a scientific understanding of the juror decision-making process inform policy and help us understand this powerful legal institution?

Other areas

In the past, neuroscience and law intersected and dealt with many problematic issues including, among others, the definition of brain death and the admissibility of fMRI images in criminal trials. The fields continue to intersect in a variety of other developing areas as well--from the application of neuroscience technology to the problem of lie detection to the new "brain-enhancing" or "smart drugs" that will increasingly become misused and possibly illegally marketed.

Come back again because these are some of the fascinating areas that we will be exploring in future posts.

Welcome to Neurisprudence!

Jyotpal Singh — Mon, 12 May 2008 08:59:23 -0700

Welcome to the new Psychology Today blog "Neurisprudence"! Neurisprudence is a term we came up with to describe our present area of inquiry-the intersection of neuroscience and law, or ‘jurisprudence.' At the Baylor College of Medicine in Houston, Texas, the Initiative on Neuroscience and Law has begun to move forward with research and experiments into this fascinating area, and Psychology Today invited us to share some of our thoughts on this topic. We, the authors of Neurisprudence, are Dr. David Eagleman, neuroscientist and director of the Initiative, and Jyotpal Singh, law student and research fellow with the Initiative. We sincerely thank Psychology Today for this opportunity and thank you, our readers, for giving us your attention. We hope to educate and inform you, but, more importantly, we hope to share the excitement we feel for this intellectual exploration of which we are all now a part.

Our Initiative hopes to address the question of how new discoveries in neuroscience should inform the way we make laws, punish criminals, develop rehabilitation, and conduct civil and criminal trials. Our main objective is to develop experiments and produce data that inform these legal policies; however, here, in this blog, we will do more general questioning and exploring of ideas. There are a multitude of emerging questions in this area including: Is it a legitimate defense to claim that a brain tumor ‘made you do it'? Do the brains of minors have the same decision-making and impulse control as adult brains - and how should that change punishment? Can novel technologies such as brain imaging be leveraged for rehabilitation? How should juries assess responsibility, given that most behaviors are driven by systems of the brain that we cannot control?

In future posts, we will address specific points of intersection between neuroscience and law. We will discuss legal doctrine, scientific evidence, philosophical perspectives, and new developments. We may make announcements about upcoming events and publications, and we will generally try to keep our readers informed about this fascinating area. In our next post, we will give a broad overview of some of the main points where neuroscience and law intersect!

Psychology Today Blogs - Neurisprudence

The Intersections Between Neuroscience and Law

Welcome to Neurisprudence!