Neuroethics & Law Blog

"My Brain Made Me Do It: Will Neuroscience Change the Way We Punish Criminals?"

"My Brain Made Me Do It: Will Neuroscience Change the Way We Punish Criminals?"

Allan McCay and Jeanette Kennet discuss whether people with brain disorders should receive different punishment for crimes in an article recently published on The Conversation.

PEBS Neuroethics Roundup (JHU)

Last Edition's Most Popular Article(s): Neuroscience and the Law: Don’t Rush In, The New York Review of Books In The Popular Press: Machine Bias, ProPublica A Severed Head, Two Cops, and the Radical Future of Interrogation, WIRED Why IQ Matters More than Grit, Vox News Survival Needs and Growth Attenuation Therapy: Do They Signal a Need for a “Dependency Ethics”?, The Neuroethics Blog Review: In ‘Incognito,’ the Brain Is Dramatic and Mysterious, The New York Times Facebook Plans to Boost Its Translations Using Neural Networks This Year, MIT Technology Review The Hefty Price of ‘Study Drug’ Misuse On College Campuses, The Conversation IQ Can Predict Your Risk of Death, and 8 Other Smart Facts about Intelligence, Vox News How Our Brains Tell the Difference Between Real and Fake, The Guardian There’s No Such Thing as Free Will, The Atlantic The UK Firm That Wants to Give Big Spenders a Big Shock, BBC News Scientists Have Figured Out Exactly How Much Fun it is to Get Drunk, Washington Post New Research Shows Some Adults Who Never Had ADHD as Kids Are Developing it Now, Quartz Want to Lose Weight? Train the Brain, Not the Body, The Conversation Does Memory Reconsolidation Exist?, Discover Magazine Scientists Think You Can Rewire Your Brain Without Taking Drugs or Changing Your Lifestyle, Quartz Neuro Cuisine: Exploring the Science of Flavour – Video, The Guardian Why Do Only Some People Get ‘Skin Orgasms’ From Listening to Music?, The Conversation Algorithms That Learn with Less Data Could Expand AI’s Power, MIT Technology Review A Four-Armed Robot Can Now Improvise Music as Well as Human Bandmates, Quartz Tracking My Tears, Vox News In the Academic Literature: Multimodal Analysis of Cortical Chemoarchitecture and Macroscale Fmri Resting-State Functional Connectivity, Human Brain Mapping Listening to the Calls of the Wild: The Role of Experience in Linking Language and Cognition in Young Infants, Cognition Smile Without Euphoria Induced by Deep Brain Stimulation: A Case Report, Neurocase: The Neural Basis of Cognition Evaluation of Ambiguous Associations in the Amygdala by Learning the Structure of the Environment, Nature Neuroscience

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.

 

"Emotion and False Memory"

Recently Published on SSRN (and in Emotion Review, Vol.8, No.1, 2016):

 

"Emotion and False Memory"

ROBIN L. KAPLAN, Bureau of Labor Statistics
ILSE VAN DAMME, KU Leuven, Department of Psychology, Laboratory of Experimental Psychology
LINDA J. LEVINE, University of California, Irvine - Department of Psychology and Social Behavior
ELIZABETH F. LOFTUS, University of California, Irvine - Department of Psychology and Social Behavior, University of California, Irvine School of Law

Emotional memories are vivid and lasting but not necessarily accurate. Under some conditions, emotion even increases people’s susceptibility to false memories. This review addresses when and why emotion leaves people vulnerable to misremembering events. Recent research suggests that pregoal emotions — those experienced before goal attainment or failure (e.g., hope, fear) — narrow the scope of people’s attention to information that is central to their goals. This narrow focus can impair memory for peripheral details, leaving people vulnerable to misinformation concerning those details. In contrast, postgoal emotions — those experienced after goal attainment or failure (e.g., happiness, sadness) — broaden the scope of attention leaving people more resistant to misinformation. Implications for legal contexts, such as emotion-related errors in eyewitness testimony, are discussed.

"Implicit Bias, Responsibilty, and Moral Ecology"

Recently published on SSRN (and forthcoming in: D. Shoemaker, ed., Oxford Studies in Agency and Responsibility (2017)):

 

"Implicit Bias, Responsibility, and Moral Ecology"

 

MANUEL R. VARGAS, University of San Francisco - School of Law, University of San Francisco - College of Arts & Sciences, Department of Philosophy

Roughly, implicit bias is a partially unconscious and partially automatic (frequently negative) evaluative tendency directed at individuals, based on their apparent membership in a socially salient category or group. It is unclear what we should think about an agent’s blameworthiness for actions produced in part by implicit biases, and there are reasons that weigh both in favor and against holding that such agents are blameworthy. There is also a more radical possibility lurking: implicit bias may reveal the limitations of a widespread conception of agency. That is, perhaps implicit bias (maybe along with various other results from the cognitive and neurosciences) reveals that our received views about agency are mistaken or confused in some important way. If so, then perhaps implicit bias is not merely some further phenomenon to which we can apply our pre-existing theories of moral responsibility and agency, but instead, a kind of challenge to those theories and the presumption that responsibility can be understood and characterized without appeal to context.

In response to the foregoing thoughts, there are two main questions this essay attempts to answer. First, are people morally responsible for actions that derive from their implicit biases? Second, can we chart a middle way between the defense of common sense and the revolutionary import of phenomena like implicit bias that can sometimes suggest our received views of agency are mistaken? The view defended here is, respectively, sometimes yes, and yes. That is, there is an appealing way of thinking about the blameworthiness of actions caused by implicit bias that allows us to accommodate some of the radical aspects of the emerging scientific picture of agency, without entirely abandoning our commonsense picture of agency. The key is to recognize how a roughly “ecological” conception of moral agency can provide us with principled resources for distinguishing when agents are in circumstances that afford responsibility, and when they are now. On this approach, the status of social practices and norms is central for our being morally responsible.

"Sleep Deprivation and False Confessions"

Recently published on SSRN (and in PNAS, Vol. 113, No.8, 2016, pp.2047-2050):

 

"Sleep Deprivation and False Confessions"

 

STEVEN J. FRENDA, University of California, Irvine - Department of Psychology and Social Behavior
SHARI R. BERKOWITZ, University of California, Irvine
ELIZABETH F. LOFTUS, University of California, Irvine - Department of Psychology and Social Behavior, University of California, Irvine School of Law
KIMBERLY M. FENN, Michigan State University - Department of Psychology

False confession is a major contributor to the problem of wrongful convictions in the United States. Here, we provide direct evidence linking sleep deprivation and false confessions. In a procedure adapted from Kassin and Kiechel [(1996) Psychol Sci 7(3):125–128], participants completed computer tasks across multiple sessions and repeatedly received warnings that pressing the “Escape” key on their keyboard would cause the loss of study data. In their final session, participants either slept all night in laboratory bedrooms or remained awake all night. In the morning, all participants were asked to sign a statement, which summarized their activities in the laboratory and falsely alleged that they pressed the Escape key during an earlier session. After a single request, the odds of signing were 4.5 times higher for the sleep-deprived participants than for the rested participants. These findings have important implications and highlight the need for further research on factors affecting true and false confessions.

 

PEBS Neuroethics Roundup (JHU)

Last Edition's Most Popular Article(s): Medical Risks: Regulate Devices for Brain Stimulation, Nature Magazine In The Popular Press: How Your Gut Affects Your Mood, FiveThirtyEight The Empty Brain, Aeon Consciousness Isn’t a Mystery. It’s Matter., New York Times Scientists Say There’s Such a Thing as “Ethical Amnesia” and it’s Probably Happened to You, Quartz The Neural Basis of Seeing God?, Discover Magazine Crosspost: Bring Back the Dead, Practical Ethics Neuroscience and the Law: Don’t Rush In, The New York Review of Books LSD-Like Drugs Are Out of the Haze and Back in the Labs, New York Times Complain All You Want, but Your Busy Schedule May Help Your Brain, NPR A Major Law Firm Will Soon Be Using a Robotic Lawyer, Gizmodo The Smell of the Cinema: Human Chemical Signals?, Discover Magazine DARPA Demos Mind-Controlled Robotic Arm, Computer World Cognitive Enrichment on Cognitive Enhancement at the Michigan Undergraduate Philosophy Conference, The Neuroethics Blog Robots Learn How to Make Friends and Influence People, MIT Tech Blog Magic Mushrooms Lift Severe Depression in Clinical Trial, The Guardian Acetaminophen Probably Isn't an "Empathy Killer", The Neurocritic NIH-Funded Study Reveals How Differences in Male and Female Brains Emerge, NIH Our Dopamine-Driven Brains Are Turning Us into Internet Search Fiends, Quartz Mom’s Voice Gets Special Recognition in Many Brain Circuits, Stanford Study Finds, Scope - Stanford Medicine Science of Consciousness Conference Is Carnival of the Mind, New York Times In the Academic Literature: Neuroscience: Virtual Reality Explored, Nature Magazine Greater Hippocampal Volume is Associated with PTSD Treatment Response, Psychiatry Research: Neuroimaging An Initial fMRI Study on Neural Correlates of Prayer in Members of Alcoholics Anonymous, The American Journal of Drug and Alcohol Abuse: Encompassing All Addictive Disorders Head Transplants, Personal Identity and Neuroethics, Neuroethics Personal Identity, Direction of Change, and Neuroethics, Neuroethics Proceedings of the Third Annual Deep Brain Stimulation Think Tank: A Review of Emerging Issues and Technologies, Frontiers in Neuroscience

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.

 

Do Memories Reconsolidate?

A failure to replicate a groundbreaking memory reconsolidation study is discussed by the Neuroskeptic here.

"Litigating from the Prison of the Mind: A Cognitive Right to Post-Conviction Counsel"

Recently published on SSRN (and in Cardozo Public Law, Policy & Ethics Journal, Vol. 14, No.2, p. 343, 2016):

"Litigating from the Prison of the Mind: A Cognitive Right to Post-Conviction Counsel"

 

KEN STRUTIN, Government of the State of New York - New York State Defenders Association (NYSDA)

This article attempts to draw a picture of the incarcerated without counsel, who are separated from justice by the inhumanity of their imprisonment, the poverty of their information resources and the detriments of their cognitive life. Part I sets the stage by describing the conditions of confinement, the confined, and the state of pro se personhood. Part II addresses the reality of petition or perish created by Bounds and Casey. Part III concentrates on the necessity of a right to counsel borne from the conditions of confinement and the technological, physical and psychological barriers that burden the incarcerated. Among the most significant barriers to be considered are: (1) legal illiteracy and inferior research media; (2) impaired learning and thinking due to stress of confinement; and (3) cognitive disadvantage engendered by the gap between print and electronic research.

"End-Of-Life Decisions in Chronic Disorders of Consciousness: Sacrality and Dignity as Factors"

"End-Of-Life Decisions in Chronic Disorders of Consciousness: Sacrality and Dignity as Factors" by Rocco Salvatore Calabro, Antonino Naro, Rosaria De Luca, Margherita Russo, Lory Caccamo, Alfredo Manuli, Bernardo Alagna, Angelo Aliquo, and Placido Bramanti has been published in the most recent issue of Neuroethics:

Abtract

The management of patients suffering from chronic disorders of consciousness (DOC) inevitably raises important ethical questions about the end of life decisions. Some ethical positions claim respect of human life sacredness and the use of good medical practices require allowing DOC patients to live as long as possible, since no one can arbitrarily end either his/her or others’ life. On the other hand, some currents of thought claim respect of human life dignity, patients’ wishes, and the right of free choice entail allowing the withdrawal of life sustaining therapy. This could happen when patients (or surrogates) believe their own life to be not worth living, or if therapy is not very beneficial, excessively burdensome, or even futile. Indeed, the decision to withdraw therapies in a DOC patient should be guided by reliable information about DOC diagnosis and prognosis and on how the patient would wish to be treated in such a condition. Taking into account such issues, it would be possible to make the decision that more adequately fits a DOC patient’s best interest. This review aims to overview the range of ethical issues referring to end-of-life decisions in DOC patients, with regard to the thorny debate on the sacredness and dignity of human life.

"Irrationality and Pathology of Beliefs"

"Irrationality and Pathology of Beliefs" by Eisuke Sakakibara has been published in the most recent issue of Neuroethics:

Abstract

Just as sadness is not always a symptom of mood disorder, irrational beliefs are not always symptoms of illness. Pathological irrational beliefs are distinguished from non-pathological ones by considering whether their existence is best explained by assuming some underlying dysfunctions. The features from which to infer the pathological nature of irrational beliefs are: un-understandability of their progression; uniqueness; coexistence with other psycho-physiological disturbances and/or concurrent decreased levels of functioning; bizarreness of content; preceding organic diseases known to be associated with irrational beliefs; treatment response to medical intervention, etc. Severe irrationality is sometimes caused by normal human motivation rather than by mental or physical dysfunction. Pure forms of self-deception may satisfy the diagnostic criteria of delusional disorder, but there may be no evidence that suggests that they are caused by illness. Although those with pathological delusions do not recognize their delusions as symptomatic of illness, differentiating pathological beliefs from normal irrational beliefs is vitally important: If a belief is pathological, psychiatrists must seriously consider treating the patient against her will. If it is not pathological, conversely, involuntary treatments are prohibited because they offend her basic autonomy.

Neuroethics and Motivated Reasoning Part II (Shniderman)

N&LB Readers,

In my final post I want to address the ethical issues that might arise from the research on motivated reasoning, particularly as the phenomenon relates to evaluation of scientific research/discovery.

The West Wing’s Toby Ziegler once told pollster Al Kiefer that science is science to everyone. As discussed in my previous post, research has shown that this is not the case. The perceived credibility and validity of scientific research can depend significantly on the individual’s prior beliefs and the extent to which an individual agrees with the outcome of the scientific research. This finding poses some interesting and important ethical issues for any number of areas. Scientific knowledge is constantly evolving and a variety of legal and non-legal decisions could and should be influenced by new scientific research.

For example, this research has significant implications for the practice of medicine. To the extent that providers should practice evidence-based medicine, their willingness or ability to adapt to new scientific information may be impeded by their loyalty to a particular school of thought.

Policy decisions that could (or should) be rooted in science are likely to be influenced by policymakers’ biases and prior beliefs. For example, the underlying science guiding lawmakers' decisions on abortion regulations may be subject to motivated reasoning. Utah lawmakers are wrestling with the issue of when fetuses can feel pain, which will influence how the procedure is performed (whether the use of anesthesia is required) and could at some point influence lawmakers' (in Utah and other states) decisions about the point in a pregnancy at which abortions are no longer legal to perform. As noted in my previous post, my work with Nick Scurich tested this very issue. We found that prior attitudes about abortion were a significant factor in how individuals evaluated scientific research about whether fetuses feel pain at a particular point in a pregnancy.

Particularly relevant for this blog’s audience, policy with respect to potential issues associated with both the criminal justice system and civil legal system may be influenced by how lawmakers evaluate new scientific research.

From the perspective of the criminal justice system, insights from neuroscience have been offered as a means of reshaping our notions of culpability. While noted scholars have contended that what neuroscience currently does not offer any insights that radically challenge our concept of criminal responsibility (see e.g., Morse 2003; Morse 2005; Morse 2011) and offers nothing new, it may at some point offer enough information that could or should change the way society views the culpable criminal. Additionally, scientific and social scientific research can be useful in determining how to address the most effective means to deal with those deemed criminally responsible.

This general issue has taken a role in the 2016 elections as the United States combats an opioid abuse crisis. Research on whether addiction should be considered a neurological disease and how best to handle those whose crimes are a result of addiction will be interpreted through the individual preconceptions and experiences. While this is true of many things in life (we all bring our unique experiences to the table), it is important to act on the best scientific information available on such important issues. Motivated reasoning may contribute to a “law lag” or inefficient policy with respect to important issues, costing the taxpayers money and leading to negative outcomes for those processed through the criminal justice system.

Another area in which recent neuroscientific discovery might be particularly important is the assessment of pain, particularly chronic pain. Tort litigation/reform has its proponents and opponents and the beliefs and visceral reactions that come with those two camps. Based on prior research, these prior beliefs will likely impact how new research on chronic pain are perceived and incorporated into policy and practice, which could lead to the law inadequately or incorrectly addressing claims of injury or chronic pain.

The research on motivated reasoning begs more questions than it provides answers for. How do we deal with this phenomenon to assure that the best science is adopted and implemented at the appropriate time? Given the introspection illusion I mentioned in a previous comment, how do we determine whether someone is disregarding information because they genuinely believe it does not represent the best scientific information or whether it is simply biased assimilation of new information?

CITATIONS:

Morse, S. J. (2003, December). New neuroscience, old problems: legal implications of brain science. In Cerebrum: the Dana forum on brain science(Vol. 6, No. 4, pp. 81-90).

Morse, S. J. (2005). Brain overclaim syndrome and criminal responsibility: A diagnostic note. Ohio St. J. Crim. L., 3, 397.

Morse, S. (2011). Avoiding irrational neurolaw exuberance: a plea for neuromodesty. Law, Innovation and Technology, 3(2), 209-228.

PEBS Neuroethics Roundup (JHU)

Last Edition's Most Popular Article(s): Why Trump and Clinton Voters Won’t Switch: It’s in Their Brains, Scientific American In The Popular Press: The Myth of the Brain, Discover Magazine Why We Don’t Crash Our Cars While Daydreaming and Driving, Gizmodo Why You Can’t Lose Weight on a Diet, New York Times Is Addiction a Brain Disease?, The Conversation Virtual Reality's New Frontier: Peacekeeping, Iraq War Therapy, and Digital Paradises, Vox News This Woman, a Self-Described Cyborg, Can Sense Every Earthquake in Real Time, Quartz Feel Me - What the New Dcience of Touch Says About Ourselves, The New Yorker Ketamine and Depression: A Breakthrough?, Discover Magazine There's More to How We Taste Sweetness than We Thought, Gizmodo Are Our Smartphones Afflicting Us All With Symptoms of ADHD?, The Conversation Tech Companies Really Want to Put Computers in Your Eyeballs, Quartz Like Mother, Like Daughter, Scientific American Notes from the Field: Critical Juncture at Emory, The Neuroethics Blog Dreaming Brain Rhythms Lock in Memories, BBC News In the Academic Literature: Medical Risks: Regulate Devices for Brain Stimulation, Nature Magazine From Painkiller to Empathy Killer: Acetaminophen (Paracetamol) Reduces Empathy for Pain, Social Cognitive & Affective Neuroscience Cholinergic Signaling Controls Conditioned Fear Behaviors and Enhances Plasticity of Cortical-Amygdala Circuits, Neuron Neuronal Remapping and Circuit Persistence in Economic Decisions, Nature Neuroscience Dissecting Driver Behaviors Under Cognitive, Emotional, Sensorimotor, and Mixed Stressors, Scientific Reports

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.

 

"Is Deontology a Moral Confabulation?"

"Is Deontology a Moral Confabulation?" by Emilian Mihailov has been published in the most recent issue of Neuroethics:

Abstract

Joshua Greene has put forward the bold empirical hypothesis that deontology is a confabulation of moral emotions. Deontological philosophy does not steam from "true" moral reasoning, but from emotional reactions, backed up by post hoc rationalizations which play no role in generating the initial moral beliefs. In this paper, I will argue against the confabulation hypothesis. First, I will highlight several points in Greene’s discussion of confabulation, and identify two possible models. Then, I will argue that the evidence does not illustrate the relevant model of deontological confabulation. In fact, I will make the case that deontology is unlikely to be a confabulation because alarm-like emotions, which allegedly drive deontological theorizing, are resistant to be subject to confabulation. I will end by clarifying what kind of claims can the confabulation data support. The upshot of the final section is that confabulation data cannot be used to undermine deontological theory in itself, and ironically, if one commits to the claim that a deontological justification is a confabulation in a particular case, then the data suggests that in general deontology has a prima facie validity.

"Biocertification and Neurodiversity: the Role and Implications of Self-Diagnosis in Autistic Communities"

"Biocertification and Neurodiversity: the Role and Implications of Self-Diagnosis in Autistic Communities" by Jennifer C. Sarrett has been published in the most recent issue of Neuroethics:

Abstract

Neurodiversity, the advocacy position that autism and related conditions are natural variants of human neurological outcomes that should be neither cured nor normalized, is based on the assertion that autistic people have unique neurological differences. Membership in this community as an autistic person largely results from clinical identification, or biocertification. However, there are many autistic individuals who diagnose themselves. This practice is contentious among autistic communities. Using data gathered from Wrong Planet, an online autism community forum, this article describes the debate about self-diagnosis amongst autistic self-advocates and argues for the acceptance of the practice in light of the difficulties in verifying autism as a ‘natural kind.’ This practice can counteract discriminatory practices towards and within the autistic community and also work to verfiy autistic self-knowledge and self-expertise. This discussion also has important implications for other neurocommunities, neuroethical issues such as identity and privacy, and the emerging field of critical autism studies.

"Head Transplants, Personal Identity and Neuroethics"

"Head Transplants, Personal Identity and Neuroethics" by Assya Pascalev, Mario Pascalev, and James Giordano has been published in the most recent issue of Neuroethics:

Abstract

The possibility of a human head transplant poses unprecedented philosophical and neuroethical questions. Principal among them are the personal identity of the resultant individual, her metaphysical and social status: Who will she be and how should the “new” person be treated - morally, legally and socially - given that she incorporates characteristics of two distinct, previously unrelated individuals, and possess both old and new physical, psychological, and social experiences that would not have been available without the transplant? We contend that this situation challenges linguistic conventions and conceptual binaries (“part-whole”), and calls into question the major philosophical approaches to personal identity: animalism and reductionism. We examine these views critically vis-a-vis head transplantation and conclude that they fail to provide an adequate account of the identity of the resultant individual because both neglect the key role of embodiment for personal identity. We maintain that embodiment is central to personal identity and a radical alteration of the body will also radically alter that person, making her a different person. Consequently, a human head transplant will result in an individual partly continuous with the head/brain (in terms of connected memories and mental events), and partly continuous with the body donor (in terms of the inputs and regulatory patterns afforded by the structure and functions of the nervous system, and the self-image of this new embodiment). We conclude that the resultant person would be different from both the individual whose head was transplanted and the one to whose body the “new” head is attached.