Neuroethics & Law Blog

Yates, Clark, and the Uses of Neuroscience Evidence

Stephen Morse (Law/Psych., UPenn) and Morris Hoffman (State trial judge, Denver, CO ) have an op-ed in today's New York Times.  They comment on Clark v. Arizona (earlier post here) as well as the recent Yates retrial.  Their central claim is that judgments of criminal responsibility are essentially moral rather than scientific determinations, and they challenge those who attempt to use new neuroscience evidence to enlarge the scope of our doctrines of mitigation and excuse (e.g., like the insanity defense).  Here's an excerpt:

The rise of various materialistic and deterministic explanations of human behavior, including psychiatry, psychology, sociology and, more recently, neuroscience, has posed a particular challenge to the criminal law’s relatively simple central assumption that with few exceptions we act intentionally and can be held responsible. These schools of thought attribute people’s actions not to their own intentions, but rather to powerful and predictable forces over which they have no control. People aren’t responsible for their crimes: it’s their poverty, their addictions or, ultimately, their neurons.

Lawyers and policymakers brought these academic explanations into the courts and legislatures, many of which responded to the pressure by expanding the doctrines of mitigation and excuse. Predictably, however, the public tired of many of the broader uses of the defense, especially after John Hinckley Jr. was found not guilty for reason of insanity for the attempted murder of President Ronald Reagan and others. Congress responded by adopting a narrow insanity defense, and many states followed suit. Four states have abolished the insanity defense entirely.

Once we agree that there may be some small percentage of people whose moral cognition is seriously disordered, how can the law identify those people in a way that will not allow the materialism of science to expand the definitions of excusing conditions to include all criminals? That is, if paranoid schizophrenia can provide part of the basis to excuse some criminal acts, why not bipolar disorder, or being angry, or having a bad day, or just being a jerk? After all, a large number of factors over which we have no rational control cause each of us to be the way we are.

The short answer is that we should recognize that the criteria for responsibility — intentionality and moral capacity — are social and legal concepts, not scientific, medical or psychiatric ones. Neither behavioral science nor neuroscience has demonstrated that we are automatons who lack the capacity for rational moral evaluation, even though we sometimes don’t use it. Some people suffer from mental disorder and some do not; some people form intentions and some do not. Most people are responsible, but some are not.

"Mind-Reading" Competition

Christian at MindHacks has an interesting post about a brain-activity interpretation contest sponsored by the Univ. of Pittsburgh won by a team of three Italian researchers (they received $10,000 in prize money).  Here's a snippet with key links to more information:

Entrants were provided with the fMRI data and behavioural reports recorded when four people watched two movies. The competitors' task was to create an algorithm that could use the viewers ongoing brain activity to predict what they were thinking and feeling as the film unfolded. The crunch test came from a third film. This time the competing researchers were shown the viewers' brain activity only, and they had to predict the behavioural data - what the viewers had reported seeing and feeling during the film on a moment-by-moment basis. The full rules are here.

The Italians - Emanuele Olivetti, Diego Sona, and Sriharsha Veeramachaneni were the most accurate, achieving a correlation of .86 for basic features, such as whether an instant of the film contained music. The full results are here.

Criminal Personality?

For a UK perspective on the issue, follow this free link to an article in Prospect on the causes of antisocial behavior. (HT: MindHacks).

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Gilbert on Escalation

Daniel Gilbert has a great op-ed in today's NYT, suggesting a psychological basis for the escalation of small-scale and large-scale conflicts.  Here are some excerpts:

Every action has a cause and a consequence: something that led to it and something that followed from it. But research shows that while people think of their own actions as the consequences of what came before, they think of other people’s actions as the causes of what came later. . . .

[B]ecause our senses point outward, we can observe other people’s actions but not our own. Second, because mental life is a private affair, we can observe our own thoughts but not the thoughts of others. Together, these facts suggest that our reasons for punching will always be more salient to us than the punches themselves — but that the opposite will be true of other people’s reasons and other people’s punches.

Examples aren’t hard to come by. Shiites seek revenge on Sunnis for the revenge they sought on Shiites; Irish Catholics retaliate against the Protestants who retaliated against them; and since 1948, it’s hard to think of any partisan in the Middle East who has done anything but play defense. In each of these instances, people on one side claim that they are merely responding to provocation and dismiss the other side’s identical claim as disingenuous spin. But research suggests that these claims reflect genuinely different perceptions of the same bloody conversation.

He also suggests that "escalation [is] the natural byproduct of a neurological quirk that causes the pain we receive to seem more painful than the pain we produce, so we usually give more pain than we have received."  If Gilbert is right (and surely this op-ed is not nearly enough to prove it), then the research would have very significant implications for everything from child rearing to international diplomacy to the law of self-defense and more.

Broken Hearts and Stigma (Blumenthal)

Last year, psychologists published a review paper (in Psychological Bulletin, one of the two leading review journals in psychology) discussing the evidence that, at the neuroanatomical level, “social” pain—i.e., social exclusion, rejection, etc.—is experienced in much the same way as “physical” pain.  That is, quoting from their abstract, “social exclusion is experienced as painful because reactions to rejection are mediated by aspects of the physical pain system.”  Reviewing data (primarily from nonhumans), they showed that the neurological pathways involved in social and physical pain overlap—a “broken heart” really does hurt.  Geoff MacDonald & Mark R. Leary, Why Does Exclusion Hurt?  The Relationship Between Social and Physical Pain, 131 Psychol. Bull. 202 (2005).

There’s a connection to a forthcoming paper by Thomas Healy (Seton Hall School of Law) on “stigmatic harm” and whether such harm warrants standing for those stigmatized to sue.  For over 20 years, the Court has said no—that is, government action that stigmatizes a particular group is nevertheless not sufficiently concrete, imminent, or “actual” so as to be a harm warranting suit.  Such suits can be dismissed for lack of standing.  See Allen v. Wright, 468 U.S. 737 (1984).

Healy does a good job reviewing a number of grounds for questioning this doctrine, and points in part to empirical social science research on stigma.  But perhaps such neurological evidence brings even more support for the idea that “stigmatic harm” is just as concrete, just as actual, as physical.  Perhaps.

Update on Katrina-Related Euthanization

The NYT has much more on the story here, stating, for example, that "[m]any have suspected that one of the storm’s darkest chapters was written in the towering hospital, now empty, on Napoleon Avenue in the Broadmoor district."  Also, contrary to this CNN report from yesterday, it appears that the doctor and two nurses implicated in four deaths have been arrested, but not yet formally charged (though it's probably just a matter of time).  From the NYT:

“This is not euthanasia; this is plain and simple homicide,” Mr. Foti said several times at a news conference here, although he declined to ascribe a motive to the killings.

He also said that the investigation was not over and that additional charges and arrests could be imminent.

A spokeswoman for Eddie Jordan, the New Orleans district attorney, said the charges would be presented to the grand jury.

. . .

“If it’s homicide, the usual motives are greed, revenge, profit, jealousy, those type of things,” Mr. Simmons said. “None of that existed. The reason they can’t give any motive is because there’s no homicide.”

Only scattered hints were offered by the affidavit, which suggests that the hospital was desperately trying to evacuate its patients and that officials there were determined that no one alive should be left there. It describes a hospital drama on Thursday, Sept. 1, the last day before large-scale help arrived in the city.

The affidavit offers a peek into discussions among hospital staff members, undertaken in intensely difficult conditions.

The victims were actually patients of Lifecare Hospital, an intensive-care unit that leased space from Memorial and had a separate staff. With chaotic evacuations taking place, many by boat, Dr. Pou and a Memorial official who has not been charged by Mr. Foti told witnesses that the Lifecare patients “were probably not going to survive,” according to the affidavit.

Social Cognitive Neuroscience (and the Law) (Blumenthal)

As one potential example of relevant empirical work, I’ll point to the emerging discipline of “social cognitive neuroscience” – an interdisciplinary approach emphasized the last few years by, among others, two psychologists, Matt Lieberman and Kevin Ochsner (full disclosure – I was at grad school with them – both very very smart guys, though not very good poker players).  Briefly, SCN

focuses on how the human brain carries out social information processing.  Practically speaking, this means that we use functional neuroimaging (fMRI) and neuropsychology to test new hypotheses regarding social cognition or old questions whose answers continue to elude us.

Drastically over-simplifying, this approach gains insight into social psychological processes – perceptions of causality, perceptions of intention, stereotyping others, emotional experience, etc. – by examining the neurological processes underlying them.

But the SCN approach is, as Matt has put it, more than just a new form of “lite-brite.”  Briefly, it is at least helpful to identify when phenomenological experiences that feel different actually have different underlying processes; when such experiences that feel different actually have the same underlying processes; and, perhaps more idealistically (or frighteningly?), to identify what is actually going on in a person’s brain/mind despite that person’s unwillingness or inability to express it.

So what does SCN have to do with law and policy?  Well, not much so far (though I acknowledge related work on neuroeconomics, e.g., here), and I think it’s a good opportunity for collaboration between social scientists and legal scholars.  Contact Matt and/or Kevin.  But as one example, these authors have sought to tie the SCN approach to political thinking: attitudes and political sophistication.

For instance, neuro-imaging might be used to help identify the processes underlying the expression of different political attitudes; one question might be whether, for example, thinking about (or expressing) attitudes about affirmative action uses the more reflexive (automatic) neural pathways because fear is being triggered, or uses more reflective (conscious) pathways, because fairness notions are being triggered.

A second research question might examine the different neural activation of political experts and novices; another might look at the learning processes involved in developing political attitudes, to see how deeply they might be learned, how malleable they might be, and what might change learned attitudes.

Though both these topics may seem somewhat abstract and divorced from law, in fact they could both connect closely to Dan Kahan’s and colleagues’ work on cultural cognition, examining how attitudes may develop and what might influence how and how strongly they are held.

Much of the SCN work emphasizes interdisciplinary communication and collaboration, both from multiple perspectives within psychology and, increasingly, across scientific disciplines as well.  A potentially fruitful area of research connecting to law and policy!

Two Neuroethics-Related Pieces in Today's NYT

I encourage you to read:

(1) This interview with transgender Stanford neuroscientist Ben Barres on sexism, science, and the Summers Controversy; and

(2) This article on genuine progress being made in artificial intelligence.  Interestingly, the article appears in today's business section rather than today's science section.  That's probably an encouraging sign for the field.  Here's an excerpt:

Robot cars drive themselves across the desert, electronic eyes perform lifeguard duty in swimming pools and virtual enemies with humanlike behavior battle video game players.

These are some fruits of the research field known as artificial intelligence, where reality is finally catching up to the science-fiction hype. A half-century after the term was coined, both scientists and engineers say they are making rapid progress in simulating the human brain, and their work is finding its way into a new wave of real-world products.

. . .

More striking advances are likely to come from new biological models of the brain. Researchers at the École Polytechnique Fédérale de Lausanne in Lausanne, Switzerland, are building large-scale computer models to study how the brain works; they have used an I.B.M. parallel supercomputer to create the most detailed three-dimensional model to date of a column of 10,000 neurons in the neocortex.

"The goal of my lab in the past 10 to 12 years has been to go inside these little columns and try to figure out how they are built with exquisite detail,” said Henry Markram, a research scientist who is head of the Blue Brain project. “You can really now zoom in on single cells and watch the electrical activity emerging.”

Alleged Katrina-Related Euthanization

UPDATE AND CORRECTION: See here. 

Last year, I posted here and here about allegations that patients were euthanized by healthcare professionals during Hurricane Katrina and/or its associated flooding.  Now, a doctor and two nurses have been charged with second-degree murder for deaths at New Orleans Memorial Medical Center in the period surrounding the hurricane.  Not much is known yet, so it's too early to say if there will be some kind of interesting choice-of-evils defense. 

For more, see this CNN report.  Here's an excerpt:

Dr. Bryant King, a contract physician for Memorial who was working before and after the hurricane, said another doctor came to him and recounted a conversation the doctor claimed she had earlier with a hospital administrator.

According to King, the doctor said that the administrator suggested patients be put "out of their misery."

King said when he objected this physician acknowledged his concerns but said that "this other (third) doctor said she'd be willing to do it." King told CNN that he later that day saw one doctor holding a handful of syringes. He left, King said, because he believed the doctors would follow through with their suggestion of euthanasia. However, King never saw any wrongdoing occur.