Recently published on SSRN (and Fordham Law Review, Vol. 85, No. 399-422, 2016):
DEBORAH W. DENNO, Fordham University School of Law
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. The symposium's articles 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 application of neuroscience in personal injury cases in the 1980–1990s. 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. Sheri Lynn Johnson, Amelia Courtney Hritz, Caisa Elizabeth Royer, and John H. Blume, 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 section 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. Lyn M. Gaudet, Jason P. Kermans, Nathanial E. Anderson, and Kent A. Kiehl contend 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.