Neuroethics & Law Blog

Morse on "Gene-Environment Interactions, Criminal Responsibility, and Sentencing"

Recently posted to SSRN:

"Gene-Environment Interactions, Criminal Responsibility, and Sentencing" 
GENE INTERACTIONS IN DEVELOPMENTAL PSYCHOLOGY, Kenneth A. Dodge, Michael Rutter, eds., Guilford Press, 2011
U of Penn Law School, Public Law Research Paper No. 11-26

STEPHEN J. MORSE, University of Pennsylvania Law School
This chapter in, Gene-Environment Interactions in Developmental Psychopathology (K. Dodge & M. Rutter, eds. 2011), considers the relevance of GxE to criminal responsibility and sentencing. It begins with a number of preliminary assumptions that will inform the analysis. It then turns to the law’s view of the person, including the law’s implicit psychology, and the criteria for criminal responsibility. A few false starts or distractions about responsibility are disposed of briefly. With this necessary background in place, the chapter then turns specifically to the relation between GxE and criminal responsibility. It suggests that GxE causes of criminal behavior have no relation to responsibility per se, but they may be relevant to culpability if valid research discloses an association between GxE and a genuine excusing or mitigating condition. The chapter then turns to sentencing and considers whether GxE is relevant to mitigation and aggravation, and proposes that the same considerations governing responsibility ascriptions apply to mitigation and that the prediction of future danger will be the most common application for aggravation. It concludes by considering briefly how knowledge of GxE might otherwise influence criminal justice policy and practice.

Denno on Neuroscience and Punishment

Recently posted to SSRN:

"Changing Law’s Mind: How Neuroscience Can Help Us Punish Criminals More Fairly and Effectively" 
CHANGING LAW'S MIND: HOW NEUROSCIENCE CAN HELP US PUNISH CRIMINALS MORE FAIRLY AND EFFECTIVELY, Oxford University Press, Forthcoming
Fordham Law Legal Studies Research Paper

DEBORAH W. DENNO, Fordham University School of Law
A criminal justice system should protect society from crime and also punish criminals at the level of their blameworthiness. Changing Law’s Mind contends that new insights about the brain can help us in the quest to construct a fairer and more effective criminal justice system. Recent neuroscientific discoveries suggest that some of our previous intuitions about human culpability fail to reflect the reality of how the brain functions. If we ignore these developments, we risk perpetuating a justice system that punishes some people far too much and others too little or not at all.

The intersection of law and neuroscience is a thriving topic, but this book is unique. Many books and chapters in edited books focus narrowly on issues such as the diagnosis and effect of brain abnormalities or the possibility that neuroscience will someday perfect lie detection. Changing Law’s Mind, instead, provides readers with a foundation in both the legal doctrine and neuroscience and then uses that bridge to question the criminal law’s underlying principles and practice, starting from the moment a case is processed in the system to the point at which a defendant is sentenced and punished. Based on this assessment, the book suggests ways in which the criminal law can change - either quickly by accommodating our new understanding of the human mind into current practice or more fundamentally by incorporating this understanding into long-term modifications of criminal law doctrine.

INS Annual Meeting--Law and Neuroscience Update

I've posted before about the upcoming annual meeting of the International Neuroethics Society.  Here's the link to the current schedule, and here's the link to register.

Via Hank Greely, here's the most up-to-date information on the law and neuroscience portion of the program:

This panel will focus on neuroscience in real cases. We've got three speakers, each of whom was involved as a professional in one of the iconic cases involving law and neuroscience.

Steve Greenberg is the lawyer who introduced fMRI evidence of psychopathy into a capital sentencing case (the Dugan case in Illinois).  There's a fascinating write-up of that case in Nature magazine - 464 Nature 340 (Mar. 18, 2010).

Houston Gordon is the lawyer who tried, unsuccessfully, to introduce for the defense some fMRI lie detection evidence (from Cephos, one of the two companies in this market) into a federal criminal trial. This led to a 2 day evidentiary hearing and an extensive written opinion (United States v. Semrau, in Westlaw or Lexis).

Russell Swerdlow is a neurologist who was the treating physician for a man who pleaded guilty to sexual molestation of his 12 year old step-daughter after a year or so of increasing interest in pornography.  Just before sentencing, the man was found to have a tumor the size of a chicken egg pressing on his left frontal lobe.  When the tumor was removed, the defendant reported that his urges disappeared.  He was released on probation; about 10 months later, his urges returned.  So had the tumor.  When the tumor was surgical removed again, so were the urges.  See the case report at 60 Arch. Neurol. 437 (2003).

Two Posts by Neuroskeptic

(1) A very interesting reflection on the difference between feeling confused/depressed and being in a state of confusion/depression: here.

(2) And an interesting discussion of genetic traits that are not inherited because they are mutations: here.

AI Class at Stanford

The New York Times recently ran a story about an artificial intelligence class starting soon at Stanford that is available to anyone with an internet connection.  The NYT didn't provide a link to sign up, but you can do so here.  So far, over 130,000 people have signed up. 

PEBS Neuroethics Roundup (JHU)

Last Edition's Most Popular Article: Erase Me: Why we need memory-altering drugs, io9 In The Popular Press: A Better Instance to Dampen Memories, Neuroethics & Law Blog Our Social Nature: The Surprising Science of Smiles, Wired Science Antidepressants increasingly prescribed for nonpsychiatric conditions, American Medical News  Do You Suffer From Decision Fatigue?, New York Times When algorithms control the world, BBC News How dead is dead?, The Economist  Zoologists Capture Elephant's 'Eureka!' Moment, Wired Science Brain region that predicts the future identified, New Scientist  A Truce in the War Over Smarts and Genes, The Wall Street Journal  Neuroscientist Identify Brain Activity That Predicts How Well You Will Remember Images, Science Daily Scene perception versus action in the brain, MIT News Think You're Smarter Than Animals? Maybe Not, New York Times Sunday Review "Pain as Fact and Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions of Law", Neuroethics & Law Blog In a Race to Out-Rave, 5-Star Web Reviews Go for $5, New York Times A response to the Baroness, "Mind Hacks" From the Academic Literature: Oxytocin and vasopressin in the human brain: social neuropeptides for translation medicine, Nature Reviews Neuroscience Psychiatric disorders: Down with(out) neurogenesis, Nature Reviews Neuroscience Cortical state and attention, Nature Reviews Neuroscience  Ageing: Rescuing age-related memory loss, Nature Reviews Neuroscience  Googled brains?, Nature Reviews Neuroscience  Remote Control: The Brain and Beyond, Cell When the brain is prepared to learn: Enhancing human learning using real-time fMRI, Neuroimage Default-Mode and Task-Positive Network Activity in Major Depressive Disorder: Implications for Adaptive and Maladaptive Rumination, Biological Psychiatry

Subscribe to our mailing list The Program in Ethics and Brain Sciences (PEBS) is a collaborative effort of the Johns Hopkins Berman Institute of Bioethics and the  Johns Hopkins Brain Sciences Institute . The 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 proceed with an informed understanding of the science

Moreno's "The Body Politic"

Bioethicist Jonathan Moreno's new book, The Body Politic: The Battle Over Science in America, is now available for pre-order on Amazon.  The book also has a Facebook page here.  Here's the product description:

In her foreword to Science Next, Elizabeth Edwards wrote of science as a tool for social progress: "Innovation is not simply the abstract victory of knowledge [or] the research that gave me years to live; the next science can advance human flourishing and serve the common good. That's the kind of world I want to leave for my children, and for yours." With these words, she joined a tradition that goes back to America's founders, who saw America itself as a "great experiment."

Yet while no one can deny that science undergirds the American Dream, it has long been fertile terrain for the "culture wars." Along with arguing the pros and cons of abortion and healthcare, policymakers must now grapple with advancements that raise questions about what it means to be human: we've decoded the genome, but should we modify it to enhance certain "desirable" traits? If we can, should we prolong life at any cost? Will we soon be counting robots, cyborgs, and chimeras among our friends and family?

The first book to unpack our love/hate relationship with science from our country's origins to today, The Body Politic is essential reading for science buffs and concerned citizens alike.

Among his many other books, blog readers may recall, Mind Wars: Brain Research and National Defense, from several years ago.

"Pain as Fact and Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions of Law"

Amanda Pustilnik (Law, U. of Maryland) has posted a draft of "Pain as Fact and Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions of Law" to SSRN.  The paper will appear in the Cornell Law Review, Volume 97, no.4 (2012).

Abstract:     
Legal statuses, prohibitions, and protections often turn on the presence and degree of physical pain. In legal domains ranging from tort to torture, pain and its degree do important definitional work by delimiting boundaries of lawfulness and of entitlements. The omnipresence of pain in law suggests that the law embodies an intuition about the ontological primacy of pain. Yet, for all the work done by pain as a term in legal texts and practice, it has had a confounding lack of external verifiability. As with other subjective states, we have been able to impute pain’s presence but have not been able to observe it directly.

Now, pain is about to become visible. Neuroimaging is rendering pain, and potentially myriad other subjective states, at least partly ascertainable and quantifiable. How will – and how should – pain neuroimaging influence areas of legal doctrine that turn on presence and degree of physical pain?

This emerging ability to ascertain and quantify subjective states is prompting a “hedonic” or a “subjectivist” turn in legal scholarship, which has sparked a vigorous debate among scholars as to whether, and why, the quantification of subjective states might affect legal theory and practice. Subjectivists argue that neuroimaging will lead to broad changes in legal theory: They contend that much values-talk in law has merely been a necessary but poor substitute for quantitative determinations of subjective states – determinations that will be possible in the law’s “experiential future.”

This Article argues the converse: that pain discourse in law frequently is a heuristic for values. Drawing on the author’s interviews and laboratory visits with pain neuroimaging researchers, this Article first shows the current and in-principle limitations of pain quantification through neuroimaging. It then presents close readings of statutes, case law, and treatises in two sets of case studies to show the heuristic role of pain discourse. The first set of case studies compares definitions of torture in criminal torture-murder and in state torture, while the second explores the role of pain rhetoric in recent Eighth Amendment challenges to execution by lethal injection and legislative restrictions on abortion based on putative fetal pain.

Attempting to solve normatively-freighted legal problems through simple quantification would be profoundly misguided. Instead, the Article proposes a novel theory, the theory of “embodied morality,” to explain why statements about physical pain in law often serve a heuristic function. In describing the relationship between pain and empathy, the Article shows how moral conceptions of rights and duties are necessarily informed by human physicality and constrained by the limits of empathic identification. Pain measurement thus serves as the archetypal example of why it is necessary to understand embodied morality within the law to properly understand if, when, and how to adapt the findings of brain imaging to bodies of legal doctrine. Attempting to resolve values-laden issues with hedonic measurement techniques would be to buy into a measurement fallacy; this in turn would produce policy prescriptions as morally unconvincing as they would be practically infeasible.

A Better Instance to Dampen Memories

In a thoughtful post on my recent comment in Nature, Neuroskeptic questions a claim I made.  In responding to the view of some ethicists that we should find redeeming value in bad memories rather than dampening them, I wrote, "Some memories, such as those of rescue workers who clean up scenes of mass destruction, may have no redeeming value." 

Neuroskeptic is (appropriately enough) skeptical.  He writes: "A rescue worker, at least a professional one, has chosen to do that kind of work. The experiences that are part of that job are ones they decided to have - or at least that they knew were a realistic possibility - and that may be an expression of their identity."

Due to the incredibly tight word limits I had on the piece, the sentence Neuroskeptic addresses is much more compressed than I'd like it to be.  So, I agree with Neuroskeptic that I didn't give the best example.  But my reasoning is a bit different.  Here's why:

First, as a preliminary matter, I didn't mean to imply that the memories of rescue workers never have redeeming value.  I just meant that they may have no redeeming value.  In response to a question from Annalee Newitz at io9, here's what I said:

I didn't mean that that the memories of rescue workers never have redeeming value. I meant that they may have no redeeming value. Suppose, for example, that a rescue worker is haunted by traumatic memories. He has already provided experts and family members with as much information as possible and now he would like to be rid of those memories. I don't think people should suffer for the sake of suffering.

Second, and more specific to the Neuroskeptic, I didn't necessarily have in mind professional rescue workers.  In his testimony before the President's Council on Bioethics, memory expert Jim McGaugh gave a good example.  After a 1978 plane crash in San Diego, baggage handlers and other airport employees were given the task of cleaning up the wreckage of the crash, even though they had no special expertise in doing so.  Many experienced severe psychological problems for doing rescue work for which they weren't trained.  I think there are lots of examples of rescue scenes where non-professionals get involved.

Third, even when the sentence is applied to professional rescue workers, though, I disagree with the Neuroskeptic that one's choice to be a rescue worker should make memory-dampening drugs inappropriate.  After all, just as one can choose to be a rescue worker and make it part of one's identity, can't one change his mind?  Can't someone decide that even though he thought he was cut out for this line of work, in fact, he failed to anticipate its psychological toll in some instance?  Of course, a rescue worker who needs to be regularly medicated to perform his job may simply not be well-suited for the job.  Whatever drugs are ultimately developed, they are not going to be perfect and will likely have various side effects.  But the grounds for restricting such medications seem rooted in practical concerns (e.g., others are better suited to the work) rather than any deep problem about the identity of one's chosen profession.  Police officers, for example, can anticipate coming across some grizzly scenes in the course of their careers, but I don't think the choice to become a police officer should reduce their opportunities for treating their mental and emotional problems when they arise.

Finally, I do think my example is far from the best one.  If one needs to write a long blog post to explain it, it could have been better.  So here's a better example.  This recent L.A. Times article describes a NEJM study examining people who "wake up" from general anesthesia during surgery and subsequently have memories of the surgery.  "As many as 70% of the 20,000 to 40,000 people in the U.S. who have unintended intraoperative awareness go on to develop post-traumatic stress syndrome, the team noted in their paper.  Considering the personal accounts appended to the study, it's not hard to see why."  The people who have horrific memories of their own surgeries clearly provide a cleaner case for memory-dampening drugs.  It's hard to see why they should be required to "redeem" their memories of being operated on.

My thanks to the Neuroskeptic and to Annalee Newitz for prompting closer attention to this sentence from the paper.  Hat tips to Sasha Davenport for the pointer to the Neuroskeptic and to Art Caplan for the pointer to the L.A. Times and NEJM studies.

PEBS Neuroethics Roundup (JHU)

Last Edition's Most Popular Article: The Brain on Trial, The Atlantic In The Popular Press: Erase Me: Why we need memory-altering drugs, io9 Virtual and Artificial, but 58,000 Want Course, New York Times Apes in Africa: The cultured chimpanzees, Nature News The Myth of Joyful Parenthood, Scientific American Sending the Police Before There's a Crime, New York Times US debates an end to medical research chimps, New Scientist  Bottlenecks in the brain limit our ability to multitask, Ars Technica Why the New Definition of Addiction, as "Brain Disease," Falls Short, TIME Healthland The Smartest Cities Will Use People as Their Sensors [Video], Scientific American Creepy robot head reads music and sings, New Scientist One Per Cent Depression in adulthood twice as likely from those abused as children, Guardian Is The Era of Neuroprosthetic Augmentation Really Just 20 Years Away?, Discover Magazine Bites: The man who could not walk backwards, Wellcome Trust False confessions: Silence is Golden, The Economist  The Secret Language Code, Scientific American  Did Reason Evolve For Arguing?, Point of Inquiry Children of Depressed Mothers Have a Different Brain: MRI Scans Show Their Children Have an Enlarged Amygdala, Science Daily New Definition of Addiction: Addiction Is a Chronic Brain Disease, Not Just Bad Behavior or Bad Choices, Science Daily Senators Question Use of Psych Drugs in Nursing Homes, Medpage Today IMB produces first 'brain chips', BBC News From the Academic Literature: Neuroethics: Give memory-altering drugs a chance, Nature Collaboration encourages equal sharing in children but not in chimpanzees, Nature Evolution: Altruistic Wasps?, Science "The Neuroscience of Responsibility"--Workshop Report, Neuroethics Wellbeing, Schizophrenia and Experience Machines, Bioethics Referring Patients for Deep Brain Stimulation, Archives of Neurology  Social Acceptance and Rejection, Current Directions in Psychological Science Genome-wide association studies establish that human intelligence is highly heritable and polygenic, Molecular Psychiatry  Right-shirt for non-speech motor processing in adults who stutter, Cortex Electrophysiological correlates of behavioural changes in vigilance in vegetative state and minimally conscious state, Brain

Subscribe to our mailing list The Program in Ethics and Brain Sciences (PEBS) is a collaborative effort of the Johns Hopkins Berman Institute of Bioethics and the  Johns Hopkins Brain Sciences Institute . The 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 proceed with an informed understanding of the science.

BBC Radio on Memory Dampening

Art Caplan and I discussed the ethics of memory dampening on BBC World Service's World Today program.   With thanks to the BBC, I've been given permission to post the 7 minute piece here:

Mem_Damp_BBC_Caplan_Kolber_2011_08_18

 

Nature Piece on Memory-Dampening Drugs

A comment I wrote for Nature entitled, "Give Memory-Altering Drugs a Chance," was published today.  I fought hard to have the paper available free on the Internet, but in the end, I lost the battle.  You can find my other papers on the topic here, here, and here.

Birth Control Pills May Affect Memory

According to this new study, oral contraceptives may affect the way women recall emotional stories.  Apparently, women on the pill recall more "gist" items from emotional stories than neutral stories, compared to women not on the pill who better recall the details of emotional stories than neutral stories. If the research is confirmed, it likely makes birth control pills the most commonly prescribed memory-manipulating pharmaceutical (though, of course, they're not prescribed for that purpose). 

(It's interesting because a monthly regimen of birth control pills typically also contains the most commonly prescribed placebo: many birth control regimens include reminder pills that have no "specific effects."  I have argued that these pills are technically placebos under the American Medical Association's definition, see pages 121-22.)

Hubbub About Cognitive Enhancement

In all the hubbub about cognitive enhancement, here's a factoid from a survey of 26,000 moms conducted by Today.com and Parenting.com (so take it for what it's worth):"44 percent of moms would rather be 15 pounds thinner than add 15 points to their child’s IQ."  There you have it, researchers.  It's pretty neck and neck between weight loss drugs and cognitive enhancers.

Morse on "Mental Disorder and Criminal Law"

Recently posted to SSRN:

"Mental Disorder and Criminal Law" 
Journal of Criminal Law and Criminology, Vol. 101, p. 885, 2011
University of Pennsylvania Public Law & Legal Theory, Research Paper No. 11-23

STEPHEN J. MORSE, University of Pennsylvania Law School
Mental disorder among criminal defendants affects every stage of the criminal justice process, from investigational issues to competence to be executed. As in all other areas of mental health law, at least some people with mental disorders, are treated specially. The underlying thesis of this Article is that people with mental disorder should, as far as is practicable and consistent with justice, be treated just like everyone else. In some areas, the law is relatively sensible and just. In others, too often the opposite is true and the laws sweep too broadly. I believe, however, that special rules to deal with at least some people with mental disorder are justified because they substantially lack rational capacity. Treating people with mental disorder specially is a two-edged sword. Failing to do so when it is appropriate is unjust, but the opposite is demeaning, stigmatizing, and paternalistic. The central normative question is when special treatment is justified.

This Article will focus mainly on United States Supreme Court cases to review the current state of the law, with special attention to the contexts in which preventive detention is an issue. It makes no pretense to covering every issue, to providing a complete analysis of these cases, or to comprehensive coverage of all the arguments concerning the issues raised. The Court’s cases are simply a vehicle for organizing the overview. The goal is to explore what I consider the most just approach in each area. In some cases, my preferences are foreclosed by constitutional constraints; in others, the preferred approach could be achieved by statute or by state supreme court decisions.