Recently published on SSRN (and Fordham Law Legal Studies Research Paper No. 2806641):
DEBORAH W. DENNO, Fordham Law School
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.