Neuroethics & Law Blog

Fenton on "Intervening in the Brain"

Andrew Fenton has written a review of Merkel et al.'s Intervening in the Brain.  You can read his review for free in the third issue of Neuroethics here.

Morse on "Psychopathy and Criminal Responsibility"

From the third issue of Neuroethics:

Psychopathy and Criminal Responsibility

Stephen J. Morse¹ 

(1)	University of Pennsylvania Law School, Philadelphia, PA 19104-6204, USA

Abstract: This article considers whether psychopaths should be held criminally responsible. After describing the positive law of criminal responsibility in general and as it applies to psychopaths, it suggests that psychopaths lack moral rationality and that severe psychopaths should be excused from crimes that violate the moral rights of others. Alternative forms of social control for dangerous psychopaths, such as involuntary civil commitment, are considered, and the potential legal implications of future scientific understanding of psychopathy are addressed.

Responsibility, Dysfunction and Capacity

From the third issue of Neuroethics:

Responsibility, Dysfunction and Capacity

Nicole A Vincent¹ 

(1)	Philosophy, TBM, TU-Delft, P.O. Box 5015, 2600 GA Delft, Netherlands

Abstract: The way in which we characterize the structural and functional differences between psychopath and normal brains – either as biological disorders or as mere biological differences – can influence our judgments about psychopaths’ responsibility for criminal misconduct. However, Marga Reimer (Neuroethics 1(2):14, 2008) points out that whether our characterization of these differences should be allowed to affect our judgments in this manner “is a difficult and important question that really needs to be addressed before policies regarding responsibility... can be implemented with any confidence”. This paper is an attempt to address Reimer’s difficult and important question; I argue that irrespective of which of these two characterizations is chosen, our judgments about psychopaths’ responsibility should not be affected, because responsibility hinges not on whether a particular difference is (referred to as) a disorder or not, but on how that difference affects the mental capacities required for moral agency

Why's everybody always picking on me?

Marcia Angell, formerly Editor-in-Chief of the New England Journal of Medicine, has a detailed piece in the New York Review of Books entitled Drug Companies & Doctors: A Story of Corruption.  In the article, she reviews three books:

• Side Effects: A Prosecutor, a Whistleblower, and a Bestselling Antidepressant on Trial by Alison Bass
• Our Daily Meds: How the Pharmaceutical Companies Transformed Themselves into Slick Marketing Machines and Hooked the Nation on Prescription Drugs by Melody Petersen
• Shyness: How Normal Behavior Became a Sickness by Christopher Lane

What is notable is that two of the books focus on the intersection between Big Pharma and psychiatry (I have previously written about Christopher Lane's book Shyness here), and Marcia Angell does an admirable job of reviewing the recent travails of the field.  She does point out that we should not be too hasty to condemn one field at the expense of others:

"The problems I've discussed are not limited to psychiatry, although they reach their most florid form there. Similar conflicts of interest and biases exist in virtually every field of medicine, particularly those that rely heavily on drugs or devices."

It seems easy to agree with Angell's conclusions, especially when she notes that,

"To promote new or exaggerated conditions, companies give them serious-sounding names along with abbreviations. Thus, heartburn is now "gastro-esophageal reflux disease" or GERD; impotence is "erectile dysfunction" or ED; premenstrual tension is "premenstrual dysphoric disorder" or PMMD; and shyness is "social anxiety disorder" (no abbreviation yet).

The most important question that the Angell piece raises is whether the field of neurosciences (writ large) is at least partly cupable for this incursion into psychiatric disease by promulgating the notion that all diseases of the brain are due to disordered chemistry.  Don't get me wrong: I am a dyed-in-the-wool neurobiologist who is fully convinced that, on some level, all diseases of the brain are due to disordered chemistry.  But it is one thing to say that a disease is caused by altered chemistry and something else entirely to know what that altered chemistry is.  I can think of no disease of the brain for which we have developed a mature and robust understanding of the underlying pathophysiology (suggestions welcome).  Absent that, all that the pharmaceutical industry can offer are chemical band-aids.  The problem is that the general public wants - no, expects cure-alls.  And the marketing arms of the pharmaceutical industry are all too eager to depict their latest offerings as such.

Psychopathy Without (the Language of) Disorder

From the third issue of Neuroethics:

Psychopathy Without (the Language of) Disorder

Marga Reimer¹ 

(1)	Philosophy, University of Arizona, Social Sciences Building, Tucson, AZ 85721, USA

Abstract: Psychopathy is often characterized in terms of what I call “the language of disorder.” I question whether such language is necessary for an accurate and precise characterization of psychopathy, and I consider the practical implications of how we characterize psychopathy—whether as a biological, or merely normative, disorder.

The Mad, the Bad, and the Psychopath

From the third issue of Neuroethics:

The Mad, the Bad, and the Psychopath

Heidi L. Maibom¹ 

(1)	Philosophy, Carleton University, 1125 Colonel By Drive, Ottawa, ON, K1S 5B6, Canada

Abstract: It is common for philosophers to argue that psychopaths are not morally responsible because they lack some of the essential capacities for morality. In legal terms, they are criminally insane. Typically, however, the insanity defense is not available to psychopaths. The primary reason is that they appear to have the knowledge and understanding required under the M’Naghten Rules. However, it has been argued that what is required for moral and legal responsibility is ‘deep’ moral understanding, something that psychopaths do not have either due to their lacking empathy or practical reason. In the first part of the paper, I argue that psychopaths do not lack the abilities required for deep moral understanding, although they have deficits in those areas. According the M’Naghten Rules, therefore, psychopaths are not insane. Under a less strict formulation of the insanity plea, like the Model Penal Code, however, there is a good case to be made for their lacking substantial capacity. I argue that because psychopathy is an essentially moral disorder, and because of the nature of psychopathic violence, psychopaths should not be excused under the insanity plea. It would be tantamount to excusing someone for committing a crime because they are bad. Arguably, this contravenes the entire system of law.

Psychopaths and Moral Reasoning

The following paper was recently posted to SSRN:

"Responsibility Status of the Psychopath: On Moral Reasoning and Rational Self-Governance" 

Rutgers Law Journal, Vol. 39, No. 349, 2008
University of Missouri School of Law Legal Studies Research Paper No. 2008-30

PAUL LITTON, University of Missouri School of Law
Responsibility theorists frequently discuss psychopathy because it challenges various accounts of the capacities required for appropriate ascriptions of moral and legal responsibility. As often described, the psychopath has the capacity to reason practically but lacks the capacity to grasp and control himself in light of moral considerations. As portrayed, then, the psychopath resides in the area of disagreement between two philosophical camps: (i) theorists who put forth the general capacity for practical reasoning or rational self-governance as sufficient for an agent to be appropriately held morally responsible for his conduct; and (ii) theorists who view that general capacity as necessary but not sufficient for moral responsibility, additionally requiring the capacity to grasp and respond to distinctly moral reasons. On the former view, we may appropriately hold psychopaths responsible for their wrongful actions, but not on the latter.

This article does not aim to describe the opposing views and argue for one over the other. Rather, I propose to deflate the debate as far as possible, attempting to reduce the area of disagreement. Meaningful disagreement exists only if there are, or could be, agents who have an undiminished capacity for practical reasoning or rational self-governance, yet truly are incapable of moral reasoning. However, I suggest that the capacity for rational self-governance entails the capacity to comprehend and act on moral considerations; thus, to the extent that an individual truly is incapable of grasping moral reasons, we should expect to find deeper, more general deficiencies in that individual's rational capacities. I appeal to the work of leading researchers who study individuals with psychopathy to determine whether psychopaths do represent rational self-governors without the capacity to grasp moral considerations. I argue that this work strongly suggests that the psychopath's incapacity for moral reasoning is, indeed, evidence of more general deficits in the rational capacities required for fully accountable agency. The Article closes with relevant considerations for thinking about any implications for criminal law.

Neural Correlates of Third-Party Punishment

A team of researchers at Vanderbilt, including law professor Owen Jones, has published the following paper in Neuron:

The Neural Correlates of Third-Party Punishment

Joshua W. Buckholtz^1, 2, Christopher L. Asplund^1, 2, Paul E. Dux¹, David H. Zald^1, 5, John C. Gore^{3, 5, 8, 9}, Owen D. Jones^{5, 6, 7, ,}   and René Marois^{1, 4, 5, ,}  

Legal decision-making in criminal contexts includes two essential functions performed by impartial “third parties:” assessing responsibility and determining an appropriate punishment. To explore the neural underpinnings of these processes, we scanned subjects with fMRI while they determined the appropriate punishment for crimes that varied in perpetrator responsibility and crime severity. Activity within regions linked to affective processing (amygdala, medial prefrontal and posterior cingulate cortex) predicted punishment magnitude for a range of criminal scenarios. By contrast, activity in right dorsolateral prefrontal cortex distinguished between scenarios on the basis of criminal responsibility, suggesting that it plays a key role in third-party punishment. The same prefrontal region has previously been shown to be involved in punishing unfair economic behavior in two-party interactions, raising the possibility that the cognitive processes supporting third-party legal decision-making and second-party economic norm enforcement may be supported by a common neural mechanism in human prefrontal cortex.

Gearing up for DSM-V

The New York Times has an article on the ongoing fifth revision of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V).  There is good reason to pay attention: the classifications that DSM-V puts forward will end up affecting us all, and as the article points out: 

“This is not cardiology or nephrology, where the basic diseases are well known,” said Edward Shorter, a leading historian of psychiatry whose latest book, “Before Prozac,” is critical of the manual. “In psychiatry no one knows the causes of anything, so classification can be driven by all sorts of factors” — political, social and financial.

Financial indeed.

Winick on the Death Penalty and Mental Illness

The following article was recently posted to SSRN:

"The Supreme Court's Emerging Death Penalty Jurisprudence: Severe Mental Illness as the Next Frontier" 

University of Miami Legal Studies Research Paper No. 2008-31

BRUCE J. WINICK, University of Miami School of Law
The Supreme Court's 2002 decision in Atkins v. Virginia and 2005 decision in Roper v. Simmons marked a significant new direction in Eighth Amendment jurisprudence. This Article explores the Court's emerging conception of proportionality under the Eighth Amendment, which also is reflected in its 2008 decision in Kennedy v. Louisiana. The Article analyzes the application of this emerging approach in the context of severe mental illness. It argues that the Court can extend Atkins and Roper to severe mental illness even in the absence of a legislative trend away from using the death penalty in this context. The strong parallels between severe mental illness at the time of the offense and mental retardation and juvenile status make such an extension of the Eighth Amendment appropriate.

Severe mental illness would not justify a categorical exemption from the death penalty; rather, a determination would need to be made on a case-by-case basis. The major mental disorders, like schizophrenia, major depression, and bipolar disorder, could qualify in appropriate cases, but not antisocial personality disorder, pedophilia, and voluntary intoxication. The Article discusses the functional standard that should be used in this context, and proposes that the determination be made by the trial judge on a pretrial motion rather than by the capital jury at the penalty phase. Future implications of the Court's emerging approach also are examined.

Challenging Reductionism in Psychiatry and Social Neuroscience

Information about an upcoming "Critical Neuroscience" conference at UCLA can be found here.  The theme is "Challenging Reductionism in Psychiatry and Social Neuroscience." (Hat tip: Caitlin Connors)

fMRI Visual Image Reconstruction

Here's the abstract from a recent article in Neuron:

Visual Image Reconstruction from Human Brain Activity using a Combination of Multiscale Local Image Decoders

Yoichi Miyawaki^{1, 2, 6}, Hajime Uchida^{2, 3, 6}, Okito Yamashita², Masa-aki Sato², Yusuke Morito^{4, 5}, Hiroki C. Tanabe^{4, 5}, Norihiro Sadato^{4, 5} and Yukiyasu Kamitani^{2, 3,} 

Perceptual experience consists of an enormous number of possible states. Previous fMRI studies have predicted a perceptual state by classifying brain activity into prespecified categories. Constraint-free visual image reconstruction is more challenging, as it is impractical to specify brain activity for all possible images. In this study, we reconstructed visual images by combining local image bases of multiple scales, whose contrasts were independently decoded from fMRI activity by automatically selecting relevant voxels and exploiting their correlated patterns. Binary-contrast, 10 × 10-patch images (2¹⁰⁰ possible states) were accurately reconstructed without any image prior on a single trial or volume basis by measuring brain activity only for several hundred random images. Reconstruction was also used to identify the presented image among millions of candidates. The results suggest that our approach provides an effective means to read out complex perceptual states from brain activity while discovering information representation in multivoxel patterns.

And here is some very helpful commentary from John Timmer. (Hat tip: Carter Snead)

PEBS News Roundup from the Johns Hopkins Berman Institute of Bioethics: Program in Ethics and Brain Sciences

The Program in Ethics and Brain Sciences (PEBS) is a collaborative neuroethics effort of the Johns Hopkins Berman Institute of Bioethics and the Johns Hopkins Brain Sciences Institute. The primary goal of PEBS is to ensure that research in brain science proceeds with an informed understanding of ethical issues, and that philosophical and empirical analyses of the advances in brain research proceeds with an informed understanding of the science. The PEBS News Roundup is a bi-weekly collection of links to new neuroethics stories and papers.

In the Academic Literature:  Towards responsible use of cognitive-enhancing drugs by the healthy Nature, December 7 2008 The Neural Correlates of Third-Party Punishment Neuron, 2008:60(5):930-940 How Well Are We Moving Toward a Most Productive Science of Consciousness? Journal of Consciousness Studies, 2008:15(12):75-98 Human Volition: towards a neuroscience of will Nature Reviews Neuroscience, 2008:9:12 Brain implant allows mute man to speak Nature, November 21 2008 A Brain Circuit for Bungee Jumping? Science, November 24 2008  Brain Quirk Makes Eyewitnesses Less Reliable New Scientist, December 5 2008 Neurosurgical treatment of mood disorders: traditional psychosurgery and the advent of deep brain stimulation.  Current Opinion in Psychiatry 2009:22:1 Neuroscience: Along memory lane Nature, 2008:456:590-591 Stimulating Minds: The Philosophy, Psychology, and Neuroscience of Mindreading (Book Review) Mind, 2008:117(468): 1076 Freedom and Neurobiology: Reflections on Free Will, Language, and Political Power Mind 2008:117(468):1127 Public opinion and the ethics of primate brain research Nature, 2008:456:443  In the Popular Press:  Standing in Someone Else’s Shoes, Almost for Real The New York Times, December 1 2008 In a Host of Ailments, Seeing a Brain Out of Rhythm The New York Times, December 1 2008 Feeling lonely? Genes might be at fault CNN, December 10 2008 How The Brain Thinks About Crime And Punishment Science Daily, December 11 2008 For any PEBS related questions: Contact Program Coordinator, Alan Regenberg | [email protected] Johns Hopkins Berman Institute of Bioethics | 201North Charles, 17th Floor | Baltimore, MD 21201

Cognitive Enhancement in Toronto Star

The Toronto Star recently did a story about cognitive enhancement that referenced the recent First Annual Neuroethics Society meeting.  Our very own Peter Reiner is quoted in the following excerpt from the article:

DR. PETER REINER, professor at the National Core for Neuroethics at the University of British Columbia, believes the very fact that AAMI ["age-associated memory impairment" -AK] is so widespread is what makes drugs to treat it controversial.

"If it's a serious disease that you are developing a drug against, society does and should tolerate some degree of side effects for that treatment," he explains. "On the other hand, this is not a serious disease, this is not even by definition a disease; it is a change in cognitive status that occurs with aging.

"Because these drugs are very likely going to be pursued widely by the public, they really need to be safer than most drugs usually are when they get approved."

Having watched dozens of prospective AAMI drugs fail clinical trials, Crook believes American approval standards are rigorous enough to account for this. Reiner, a Canadian, isn't so sure. "The regulatory authorities have so much to do already that they really don't have resources to go and think about this in advance.

"That's the mandate of people in the field of neuroethics. That's the way it works until we get to the point when drugs actually are being put in front of the regulatory authorities." 

Placebo Deception in USA Today

Rita Rubin has written the cover story in today's USA Today "Life" section.  The article discusses physician use of placebos to treat patients.  I've blogged about the topic before, so I'll just tell you that it's a very interesting article.  And here's an excerpt from the article that describes some of what I argued in A Limited Defense of Clinical Placebo Deception:

"A placebo is a substance provided to a patient that the physician believes has no specific pharmacological effect upon the condition being treated," according to the AMA's 2-year-old policy. "In the clinical setting, the use of a placebo without the patient's knowledge may undermine trust, compromise the patient-physician relationship and result in medical harm to the patient."

Law professor Kolber says the AMA went too far. No cases of medical malpractice suits filed by patients who learned their doctors had deceived them by prescribing a placebo have been published, he says. But the AMA's ethics policy could change that: "The AMA may have just created liability for its doctors by creating this industry norm."

The article also talks about some bug bites I once received, but for that you'll have to go to the USA Today article yourself!