Neuroethics & Law Blog

"The Right to Personality: Navigating the Brave New World of Personality-Altering Interventions" by Sundby

Christopher Sundby (Gelber Schachter & Greenberg, P.A., University of Miami School of Law) has published "The Right to Personality: Navigating the Brave New World of Personality-Altering Interventions" on SSRN. Here is the abstract: 

As neuroscience progresses, policy makers will have an increasing arsenal of behavior-modifying interventions at their disposal to deploy in the hopes of reducing recidivism and making the criminal justice system more rehabilitative. While these interventions are promising, they also can pose grave risks to individual liberty interests that are insufficiently acknowledged, much less protected, by current jurisprudence. Specifically, the current legal regimes and proposed alternatives either fail to identify the nature of the liberty at stake by overly focusing on physical side effects to the exclusion of thought- and personality-altering side effects, reject completely the potential for these interventions to improve the justice system, or inadvertently invite the medicalization of crime. This Article proposes a balancing test centered around the Fifth and Fourteenth Amendment liberty interest in “personality integrity.” This liberty interest has roots in the “intellectual prong” of the liberty interest referenced in the Supreme Court’s forced medication jurisprudence. This approach allows for the adoption of some beneficial interventions as technology progresses, avoids subjective assessments of “good” or “bad” personality traits, and properly protects against the coercive alteration of the core identity of the individual.

"Suffering Before Execution" by Kovarsky

Lee Kovarsky (University of Texas School of Law) has published "Suffering Before Execution" on SSRN. Here is the abstract: 

When condemned people suffer before their executions, does that suffering represent punishment? I argue that it does not—at least not the suffering on American-style death rows. American institutions instead administer pre-execution confinement as something closer to non-punitive detention, and I make several normative claims about what should follow from that status. Among other things, a non-punitive paradigm entails thicker constitutional constraints on solitary confinement and unsafe living conditions. It also represents a novel solution to a challenging doctrinal puzzle involving confinement, execution, and the Eighth Amendment.

To understand why pre-execution confinement is nonpunitive, readers need a basic understanding of the experience itself. Most death-sentenced people will lead lives marked by some substantial combination of inadequate nutrition, deficient health care, substandard sanitation and ventilation, restricted movement, and excessive isolation. On average, those whom the state kills will have spent about twenty years in such conditions—up from two years in 1960. The distribution of this suffering across the death-sentenced prisoner cohort bears little relationship to criminal blameworthiness. Almost without exception, however, scholarship and decisional law continue to treat confinement before execution as punishment.

That assumption is unjustified as a matter of penal theory, for two reasons. First, confinement before execution does not meet consensus criteria for punishment. It is instead suffering that is collateral to an incapacitation interest. Second, if pre-execution confinement were to be taken seriously as a punitive practice, then it would be normatively unjustified. More specifically, punitive confinement would represent punishment beyond the legally specified maximum (an execution), and it would distribute that punishment across the death-sentenced prisoner cohort arbitrarily.

There is a reasonably well-developed body of constitutional law capable of absorbing a shift in the status of pre-execution confinement. On that constitutional law, when the state detains people primarily to incapacitate them, that detention is preventative, not punitive. Due process, rather than the Eighth Amendment, constrains such preventative detention. A nonpunitive approach would reduce suffering because the constitutional rules contain different, more stringent constraints on pre-execution confinement. Such an approach would also give the Supreme Court satisfactory answers to difficult Eighth Amendment questions that have eluded it for quite some time.

"AI in Criminal Law: An Overview of AI Applications in Substantive and Procedural Criminal Law" by Custers

Bart Custers (Leiden University - Center for Law and Digital Technologies) has published "AI in Criminal Law: An Overview of AI Applications in Substantive and Procedural Criminal Law" on SSRN. Here is the abstract: 

Both criminals and law enforcement are increasingly making use of the opportunities that AI may offer, opening a whole new chapter in the cat-and-mouse game of committing versus addressing crime. This chapter maps the major developments of AI use in both substantive criminal law and procedural criminal law. In substantive criminal law, A/B optimisation, deepfake technologies, and algorithmic profiling are examined, particularly the way in which these technologies contribute to existing and new types of crime. Also the role of AI in assessing the effectiveness of sanctions and other justice-related programs and practices is examined, particularly risk taxation instruments and evidence-based sanctioning. In procedural criminal law, AI can be used as a law enforcement technology, for instance, for predictive policing or as a cyber agent technology. Also the role of AI in evidence (data analytics after search and seizure, Bayesian statistics, developing scenarios) is examined. Finally, focus areas for further legal research are proposed.

"Bad Habits" by Brown

Teneille R. Brown (University of Utah - S.J. Quinney College of Law) has published "Bad Habits" on SSRN. Here is the abstract: 

Addiction is a puzzle. Depending on whom you ask, you might be told it is a physical brain disease, a response to trauma, a disability, a behavioral compulsion, a mental illness, the result of bad personal choices, or some combination of these. Addiction has defied easy classification because it straddles many binaries. It is physical and mental, behavioral and psychological, genetic and environmental, external and internal. There are aspects that involve personal choices and aspects that do not. Historically, addiction has been viewed largely as a moral failing. Only in the last few decades have advances in genetics, neuroscience, and the social determinants of health greatly complicated the story we tell about the causes of addiction--revealing many of the above binaries to be false. The more we learn, the more we realize that developing severe addiction has much less to do with moral fortitude, and much more to do with factors outside of our control.

But this paper is only peripherally about the causes of addiction. Rather, it uses addiction to expose the cracks and inconsistencies in our evidence rules. Parties in civil and criminal trials in the United States frequently seek to introduce evidence that a party has an addiction. Given how stigmatized addiction is, whether this evidence is admitted can have a huge impact on the outcome of the trial. Unfortunately, the party's success in getting this admitted depends primarily on whether the judge views addiction as 1) a character trait, 2) a psychiatric diagnosis, 3) a physical trait, or 4) a habit. And which is the correct framing, exactly? It turns out, addiction is all of these things. While it was traditionally considered quintessential character evidence, courts are warming to the idea of it being a habit, a psychiatric diagnosis, and maybe one day even ordinary physical evidence. In this article I explore how the complex causes of addiction reveal false dichotomies in our evidentiary rules, and the overlap between types of evidence that are meant to be distinct. Additionally, I will argue that the blurring together of these categories of evidence is made possible by our untethering the rules from their moral roots, as well as advances in our understanding of the causes of human behavior.

Many of the common law rules developed hundreds of years ago, when the science of human behavior was simplistic. We held exaggerated views of individual agency and ignored the powerful effects of trauma and biology. This article is part of a larger project of advocating for revisions to our rules of evidence, so that they better reflect the modern understanding of human behavior, with all of its inevitable complexity.

"As One is, So One Sees" by Postema

Gerald J. Postema (University of North Carolina - Philosophy) has published "As One is, So One Sees" on SSRN. Here is the abstract: 

Sylvie Delacroix invites us to a new and deeper understanding of the role of such habituation in our daily lives. Her fine study offers keen insight into the operation of habit in our lives among others, its enabling and enhancing contributions to moral deliberation and judgment, and its potential for their distraction and distortion. My discussion here seeks not to fundamentally challenge her analysis, but to build upon it. I begin with a brief outline of her account, elaborating it a bit here and there. Then I put her account to work to deepen our understanding of the place of mercy in the criminal process, an institutional context of moral judgment in which habitual elements seem to play an important, if unacknowledged, role.

"Stay Out of My Head: Neurodata, Privacy, and the First Amendment" by Unger

Wayne Unger, JD (Gonzaga University School of Law, Gonzaga University School of Law) has published "Stay Out of My Head: Neurodata, Privacy, and the First Amendment" on SSRN. Here is the abstract: 

The once science-fictional idea of mind-reading is within reach as advancements in brain-computer interfaces produce neurodata—the collection of substantive thoughts as storable and processable data. But government access to individuals’ neurodata threatens personal autonomy and the right to privacy. While the Fourth Amendment is traditionally considered the source of privacy protections against government intrusion, the First Amendment provides more robust protections with respect to whether governments can access one’s substantive ideas, thoughts, and beliefs. However, many theorists assert that the concept of privacy conflicts with the First Amendment because privacy restricts the flow of information while, on the other hand, the First Amendment is meant to promote the free flow of information. As technology advances and new categories of data are created and stored—like neurodata—it becomes more evident that the First Amendment actually promotes privacy by precluding government intrusion upon the freedom of thought and the right to a free mind.

This Article argues that the First Amendment serves as a more robust source of privacy protections than the Fourth Amendment, at least with respect to government intrusion into an individual’s neurodata, because such intrusion would violate the First Amendment’s right not to speak. As brain-computer interfaces become more prevalent, and produce more neurodata, the First Amendment’s well-established doctrines against compelled speech ought to extend to prevent government access to an individuals’ stored ideas, thoughts, and beliefs.

"Recognising State Blame at Sentencing: A Communicative and Relational Framework" by Manikis

Marie Manikis (McGill University - Faculty of Law) has published "Recognising State Blame at Sentencing: A Communicative and Relational Framework"  on SSRN. Here is the abstract: 

Censure, blame and harms are central concepts in sentencing that have evolved over the years to take into account social context and experiential knowledge. Flexibility, however, remains limited as the current analysis in sentencing focuses on the offender while failing to engage with the state's contribution in creating wrongs and harms. This risks giving rise to defective practices of responsibility since the state can also contribute to their production. The following article presents a complementary and additional framework within sentencing to account for state censure, blame and harms. The framework is rooted in communicative theories of punishment that integrate a responsive understanding of censure and a relational account of responsibility.

"Should Robots Have Standing? From Robot Rights to Robot Rites" by Gunkel

David J. Gunkel (Northern Illinois University) has published "Should Robots Have Standing? From Robot Rights to Robot Rites" on SSRN. Here is the abstract: 

“Robot” designates something that does not quite fit the standard way of organizing beings into the mutually exclusive categories of “person” or “thing.” The figure of the robot interrupts this fundamental organizing schema, resisting efforts at both reification and personification. Consequently, what is seen reflected in the face or faceplate of the robot is the fact that the existing moral and legal ontology—the way that we make sense of and organize our world—is already broken or at least straining against its own limitations. What is needed in response to this problem is a significantly reformulated moral and legal ontology that can scale to the unique challenges of the 21st century and beyond.

"Imprisonment" by Noorda

Hadassa Noorda (University of Amsterdam) has published "Imprisonment" on SSRN. Here is the abstract: 

Criminal law theorists have for the most part neglected the question of why imprisonment requires special legal safeguards for those targeted. The few scholars who have addressed this question have focused on how prison facilities restrict freedom of movement, control over one’s daily life, and access to particular human functioning, but they have ignored state measures that do not include confining individuals behind bars. I defend an alternative account: I argue that the use of prison facilities is part of a raft of state measures, which includes measures that have a relatively minor impact on individuals and others that are more severe. What matters, in deciding what legal safeguards individuals should have against what kinds of state imposition, is how severely a measure impacts on the normal life of those subjected to it. This impact-based approach enables us to decouple the concept of imprisonment from walls, locks, and political and social barriers, thereby highlighting atypical forms of imprisonment, such as open prisons, as well as potential forms of imprisonment to be employed outside of prison, including house arrest. For instance, a person confined to a prison facility can, to a certain extent, be free to take part in society, or a person subject to other state measures can reside at home but be constrained from carrying out a major part of her activities. The account I defend enables us to identify imprisoned individuals as well as those subjected to measures similar to imprisonment, which has potential consequences for their legal rights.

"Honor Among Thieves: Enforcing Criminal Contracts" by Pi

Daniel Pi (University of Maine - School of Law) has published "Honor Among Thieves: Enforcing Criminal Contracts" on SSRN. Here is the abstract: 

Contracts involving promises to commit criminal acts are ordinarily unenforceable. Yet nonenforcement does not fully deter incentives to form criminal agreements. This Article demonstrates that partial enforcement can generate greater deterrence incentives by disrupting the trust relationship between parties to a criminal agreement, effecting superior deterrence. Specifically, by allowing promisors and denying promisees the right to sue, the law can effect a no-lose proposition for the former, and a no-win proposition for the latter. Since mutual assent requires mutuality, and fewer promisees will assent under asymmetric enforcement, partial enforcement achieves better deterrence than total nonenforcement.

"Epistemic Ambivalence in Law" by Amaya

Amalia Amaya (Edinburgh Law School, UNAM Philosophical Research Institute) has published "Epistemic Ambivalence in Law" on SSRN. Here is the abstract: 

In this paper, I aim to initiate an exploration of the phenomenon of ambivalence in legal decision-making. I will restrict my inquiry to epistemic ambivalence, rather than other types of ambivalence which legal decision-makers are also likely to experience. In addition, I will only examine the epistemic consequences of ambivalence about belief, which also has important moral and affective dimensions. Finally, I will only discuss epistemic strategies that may be used to reason through ambivalence about belief, rather than attempting to provide a whole account of the resources that legal decision-makers have at their disposal to properly deal with it. In short, I will study ambivalence in law from an epistemic angle – albeit in the recognition that other perspectives would be needed to provide a full account of this phenomenon. The plan is as follows. Section 2 will explain the concept of ambivalence, its sources, and consequences and it will lay out an account of the main kinds of epistemic ambivalence confronting legal decision-makers. Drawing on the psychology of ambivalence, section 3 will examine different ways in which epistemic ambivalence is addressed in processes of decision-making, some of which are epistemically objectionable. Section 4 argues that virtue-based remedies may help legal decision-makers tackle ambivalence in ways that are epistemically productive. I conclude in section 5 with some suggestions for further research.

What is neurotechnology and why are lawyers getting involved? by McCay and Sharpe

Allan McCay (Deputy Director of The Sydney Institute of Criminology and an Academic Fellow at the University of Sydney's Law School) and Michelle Sharpe (Solicitor and Tenured Lecturer at the University of Melbourne) have published What is neurotechnology and why are lawyers getting involved? on SSRN. Here is the abstract: 

A series of developments in the field of neurotechnology holds wonderful potential, but also brings challenges for lawyers and might even threaten our capacity to choose freely.

So, what has been happening? In November of last year, Elon Musk’s Neuralink,  a neurotechnology company which had earlier demonstrated that a monkey with one of its brain-implants could play a computer game by thought alone (rather than using its body), announced that it hopes to begin human trials on their device in 2023. Shortly before Christmas, Jeff Bezos and Bill Gates invested in one of Musk’s rivals, Synchron, a company that already has devices implanted in the brains of some humans with neurological conditions, enabling them to interact with a computer and even to tweet to Musk’s own social media platform by thought alone. Arguably Synchron has now increased its lead over Musk’s company given that it has this year published the results of long-term safety studies for its brain-implants. On the legal front, in August the Law Society of England and Wales released a report on the implications of neurotechnology for lawyers. Shortly after this, the UN’s Human Rights Council resolved that it needed to find out about the implications of this technology. Meanwhile, the Chilean Neuroprotection Bill continues to make its way through the legislative process, and earlier this year UNESCO released its neurotech human rights report. At the time of writing, the UK’s Information Commissioner’s Office is just about to release its report on issues that concern it. There’s clearly a ramping up of neurotech-related activity which shows no sign of abating.

 

 

 

 

 

"The Inherent Problem with Mass Incarceration" by Donelson

Raff Donelson (Chicago-Kent College of Law - Illinois Institute of Technology) has published "The Inherent Problem with Mass Incarceration" on SSRN. Here is the abstract: 

For more than a decade, activists, scholars, journalists, and politicians of various stripes have been discussing and decrying mass incarceration. This collection of voices has mostly focused on contingent features of the phenomenon. Critics mention racial disparities, poor prison conditions, and spiraling costs. Some critics have alleged broader problems: they have called for an end to all incarceration, even all punishment. Lost in this conversation is a focus on what is inherently wrong with mass incarceration specifically. This essay fills that void and supplies an answer, drawing on the early modern English philosopher Thomas Hobbes. On the Hobbesian account developed here, mass incarceration is always wrong because it is always inconsistent with having a free society.

"Punishment as Communication" by Duff

R. A. Duff (University of Stirling - Department of Philosophy) has published "Punishment as Communication" on SSRN. Here is the abstract: 

This chapter defends a communicative theory of punishment, as making plausible sense of the retributivist idea that wrongdoers should not enjoy impunity. In the context of criminal law, the wrongs that matter are public wrongs that concern the whole polity: the criminal law defines those wrongs, and provides for those who commit them to be called to formal public account, for them through the criminal process. That calling to account is a communicative process: it culminates in a conviction that censures the offender, and seeks an apologetic response from him. The punishment that typically ensues furthers this communicative exercise: the offender is required to undertake, or undergo, a penal burden that constitutes an apologetic reparation for his crime, and so communicates to him the need for such reparation. Central to this communicative conception is that punishment is a two-way process, which seeks an appropriate response from the offender, who has an active role in the process. The role of prudential deterrence in such an account is discussed: it is a necessary condition of a justifiable system that it has some dissuasive efficacy, and deterrence might be a dimension of that dissuasion—inextricably interwoven with the moral message that is the core of the communication. A purely communicative account that allows no room for deterrence might be implausible as an account of what human punishment ought to be; but one that portrays a two-way moral communication as the primary, distinctive aim of criminal punishment can be defended.

"Cognitive Content Moderation: Freedom of Thought and the First Amendment Right to Receive Subconscious Information" by Marks

Mason Marks (Florida State University - College of Law, Harvard Law School, Yale Law School, Leiden Law School, Center for Law and Digital Technologies) has published "Cognitive Content Moderation: Freedom of Thought and the First Amendment Right to Receive Subconscious Information" on SSRN. Here is the abstract: 

In the sci-fi television series Severance, employees of Lumon Industries receive brain implants that segment their memories of work and home life. When they arrive each morning, implants suppress employees’ access to memories of the outside world, including those regarding friends, family, and society. They can retrieve only work-related memories formed within the building. When employees leave work for the day, their implants restore access to memories of the outside world while restricting work-related content.

This article presents a novel information-based theory of mind and describes Lumon’s actions as "cognitive content moderation." This practice regulates the internal flow of mental information and influences thought and behavior. Lumon is a fictional corporation, but emerging neuro-technologies like brain-computer interfaces will make cognitive content moderation a reality. Governments already regulate mental processes. For instance, the federal Controlled Substances Act prohibits consuming psychedelic substances that alter the flow of subconscious information and reveal useful insights (after consuming these substances, people often report receiving helpful messages from ancestors, God, nature, or entities from other dimensions). By limiting the use of psychedelics such as psilocybin and dimethyltryptamine, the government engages in cognitive content moderation. Other emerging neuro-technologies, like Neuralink and Synchron's brain implants, will expand the public and private sector's ability to influence internal communications and regulate memory, thought, emotion, and behavior.

Most of the brain’s activity occurs subconsciously, and cognitive content moderation primarily affects the flow of subconscious information exchanged between brain modules and sub-regions. Accordingly, the article defines a First Amendment right to receive subconscious information, which limits the government’s ability to regulate cognitive processes by altering or interrupting that flow. This right is supported by existing theory and doctrine that define related rights, including the right to receive information and ideas, to freely operate one’s mind, and to create knowledge.

By framing thought and other mental processes in terms of internal information flow, the article attempts to bridge the divide between existing First Amendment theory and doctrine regarding thought, which are relatively underdeveloped and underutilized, and current free speech theory and doctrine, which are robust and expansive. It claims that in addition to influencing the flow of subconscious information, nascent neuro-technologies can render cognitive processes expressive, bringing them further within the First Amendment’s scope. The article concludes by defining the scope and limits of the right to receive subconscious information, addressing likely criticisms, and exploring potential applications.